[Federal Register Volume 80, Number 35 (Monday, February 23, 2015)]
[Rules and Regulations]
[Pages 9359-9380]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-03479]
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Rules and Regulations
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Federal Register / Vol. 80, No. 35 / Monday, February 23, 2015 /
Rules and Regulations
[[Page 9359]]
DEPARTMENT OF ENERGY
10 CFR Part 810
RIN 1994-AA02
Assistance to Foreign Atomic Energy Activities
AGENCY: National Nuclear Security Administration (NNSA), Department of
Energy (DOE).
ACTION: Final rule.
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SUMMARY: DOE is issuing the first comprehensive updating of regulations
concerning Assistance to Foreign Atomic Energy Activities since 1986,
reflecting a need to make the regulations consistent with current
global civil nuclear trade practices and nonproliferation norms, and to
update the activities and technologies subject to the Secretary of
Energy's specific authorization and DOE reporting requirements. This
rule also identifies destinations with respect to which most assistance
would be generally authorized and destinations that would require a
specific authorization by the Secretary of Energy.
DATES: This rule is effective March 25, 2015.
FOR FURTHER INFORMATION CONTACT: Mr. Richard Goorevich, Senior Policy
Advisor, or Ms. Katie Strangis, Senior Policy Advisor, Office of
Nonproliferation and Arms Control (NPAC), National Nuclear Security
Administration, Department of Energy, 1000 Independence Avenue SW.,
Washington, DC 20585, telephone 202-586-0589 (Mr. Goorevich) or 202-
586-8623 (Ms. Strangis); Mr. Elliot Oxman, Office of the General
Counsel, GC-53, Department of Energy, 1000 Independence Avenue SW.,
Washington, DC 20585, telephone 202-586-1755; or Mr. Zachary Stern,
Office of the General Counsel, National Nuclear Security
Administration, Department of Energy, 1000 Independence Avenue SW.,
Washington, DC 20585, telephone 202-586-8627.
SUPPLEMENTARY INFORMATION:
I. Background
II. Description of Changes in the Final Rule
III. Transition Process to Final Rule
A. Current Specific Authorization Requests
B. Current Generally Authorized Activities
C. Previously Unreported Deemed Exports and Deemed Re-Exports
IV. Discussion of Public Comments and the Final Rule
A. Process Issues
1. Compliance With Administrative Procedure Act Rulemaking
Requirements
2. Part 810 Process Improvements
B. Classification of Foreign Destinations
1. Mexico
2. Ukraine
3. Croatia and Vietnam
4. Continued Specific Authorization Destinations (Russia, India
and China)
5. Thailand and Norway
C. Activities Requiring Part 810 Authorization
1. Special Nuclear Material Nexus Requirement
2. Activities Supporting Commercial Power Reactors
3. Deemed Exports and Deemed Re-Exports Employee Issues
4. Operational Safety Activities
5. Other
D. Technical Corrections
1. Sec. 810.1
2. Sec. 810.3 Technical Services
3. Sec. 810.3 Technical Assistance vs. Assistance
4. Sec. 810.6(f)
5. Sec. Sec. 810.6(c)(2) and 810.11(b)
6. Sec. 810.16 Savings Clause
V. Regulatory Review
A. Executive Order 12866
B. Administrative Procedure Act
C. National Environmental Policy Act
D. Regulatory Flexibility Act
E. Paperwork Reduction Act
F. Unfunded Mandates Reform Act of 1995
G. Treasury and General Government Appropriations Act, 1999
H. Executive Order 13132
I. Executive Order 12988
J. Treasury and General Government Appropriations Act, 2001
K. Executive Order 13211
L. Executive Order 13609
M. Congressional Notification
VI. Approval by the Office of the Secretary
PART 810--ASSISTANCE TO FOREIGN ATOMIC ENERGY ACTIVITIES
I. Background
The Department of Energy's part 810 regulation (10 CFR part 810)
implements section 57b.(2) of the Atomic Energy Act of 1954 (AEA), as
amended by section 302 of the Nuclear Nonproliferation Act of 1978
(NNPA). Part 810 controls the export of unclassified nuclear technology
and assistance. It enables peaceful nuclear trade by helping to assure
that nuclear technologies exported from the United States will not be
used for non-peaceful purposes. Part 810 controls the export of nuclear
technology and assistance by identifying activities that can be
``generally authorized'' by the Secretary, thereby requiring no further
authorization under part 810. It also controls those activities that
require ``specific authorization'' by the Secretary. Part 810 also
delineates the process for applying for specific authorization from the
Secretary and identifies the reporting requirements for activities
subject to part 810.
While some revisions to part 810 were made in 1993 and 2000, part
810 has not been comprehensively updated since 1986. Since then, the
global civil nuclear market has expanded, particularly in China, the
Middle East, and Eastern Europe, with vendors from France, Japan, the
Republic of Korea, Russia, and Canada emerging to serve customers in
these markets. DOE believes the regulation should be updated to ensure
that the part 810 nuclear export controls remain effective and
efficient as the commercial nuclear market continues to expand. This
means carefully determining which destinations and activities can be
generally authorized and which will require a specific authorization,
and assuring that the determinations are consistent with U.S. national
security, diplomatic, and trade policy.
On September 7, 2011, DOE issued the NOPR to propose the updating
of part 810 (76 FR 55278). The NOPR listed destinations for which most
assistance to foreign atomic energy activities would be generally
authorized, and activities that would require a specific authorization
by the Secretary of Energy. Additionally, the NOPR identified types of
technology transfers subject to the regulation. DOE received numerous
comments on the NOPR. After careful consideration of all comments
received on the NOPR, on August 2, 2013 DOE issued a supplemental
notice of proposed rulemaking (SNOPR) and public meetings to respond to
those comments, propose new or revised rule changes,
[[Page 9360]]
and afford interested parties a second opportunity to comment (78 FR
46829). DOE held its first public meeting on August 5, 2013. On October
29, 2013 DOE issued a notice of a second public meeting and extension
of the comment period and on March 25, 2014 re-opened the comment
period until April 2, 2014. Today, DOE is issuing this final rule.
As described below and in response to comments received from the
public on the SNOPR, in the final rule announced today, DOE makes only
a few changes to the existing rule, what will be referred to
hereinafter as ``the 1986 version of the rule,'' that are different
than those proposed in the SNOPR. Details of today's changes to the
1986 version of part 810 are summarized in Section II. Responses to
public comments received on the SNOPR are discussed in Section IV.
II. Description of Changes in the Final Rule
In response to the SNOPR, DOE received written comments from 26
entities as well as oral comments made at public meetings. All of the
comments and meeting transcripts are available for review on line at:
http://www.regulations.gov/#!docketDetail;D=DOE-HQ-2011-0035, Docket
ID: DOE-HQ-2011-0035. This final rule responds to the comments received
in response to the SNOPR and makes changes to the 1986 version of the
rule. Final changes to the current rule, organized by section, are
summarized below:
1. The change to Sec. 810.1 ``Purpose'' states the statutory basis
and purpose of the part 810 regulation, eliminating the need for the
1986 version of Sec. 810.6. ``U.S. persons'' has been replaced with
``persons.''
2. The change to paragraph (a) in Sec. 810.2 ``Scope'' states
DOE's jurisdiction under Sec. 57b.(2) of the Atomic Energy Act.
Paragraph (b) in Sec. 810.2 identifies activities governed by the
regulation when those activities, whether conducted in the United
States or abroad, constitute engaging or participating, directly or
indirectly, in the development or production of special nuclear
material outside the United States. Paragraph (c) of Sec. 810.2
identifies exempt activities, some retained from the 1986 version of
the rule. A person directly or indirectly engaging or participating in
the development or production of special nuclear material outside the
United States may be, for example, a U.S. citizen, a foreign national
or a subsidiary of a U.S. company located abroad. The activity may take
place in the United States, in a country listed in the Appendix or in a
country not listed in the Appendix. Part 810 does not apply to
transfers of nuclear technology or assistance within the United States
between or among U.S. citizens, citizens or nationals of foreign
countries who are U.S. lawful permanent residents, or protected
individuals under the Immigration and Naturalization Act (8 U.S.C.
1324b(a)(3)), because such transfers would not constitute engaging or
participating, directly or indirectly, in the development or production
of special nuclear material outside the United States.
3. The following exempt activities are added:
Exports authorized by the Department of State (DOS) or
Department of Commerce (DOC), or the Nuclear Regulatory Commission
(NRC);
Transfer of ``publicly available information,'' ``publicly
available technology,'' and the results of ``fundamental research'';
Assistance for certain mining and milling activities, and
certain fusion reactors because these activities do not involve the
production or use of special nuclear material;
Production or extraction of radiopharmaceutical isotopes
when the process does not involve special nuclear material; and
Transfers to lawful permanent residents of the United
States or protected individuals under the Immigration and
Naturalization Act (8 U.S.C. 1324b(a)(3)).
4. In Sec. 810.3 ``Definitions'' of this final rule, a number of
definitions are added and revisions are made to existing definitions to
reflect terminological changes and technological developments since the
part 810 regulation was last updated, and to provide additional clarity
to certain terms defined and used in the 1986 version of the rule.
The 1986 version of the rule has 23 defined terms. This final rule
substantially revises 5 terms, adds 23 terms, deletes 5 terms, and
leaves 13 terms essentially unchanged, for a total of 36 defined terms
in the regulation.
The following terms have been added to the final rule to update the
terms used in part 810 to make them consistent with terms used in other
U.S. export control programs and Nuclear Suppliers Group (NSG)
guidelines (IAEA Information Circular [INFCIRC] 254/Part 1):
Assistance, cooperative enrichment enterprise, development, enrichment,
fissile material, fundamental research, production, technical data,
technology, and use. The following terms are added or revised in line
with changes in the approach of the final rule to authorized
destinations and authorized activities: Foreign national, general
authorization, operational safety, production accelerator, production
accelerator-driven subcritical assembly system, production subcritical
assembly, publicly available information, publicly available
technology, and specific authorization. The term ``country'' has been
added to clarify that Taiwan is covered under this final rule,
consistent with section 4 of the Taiwan Relations Act (22 U.S.C. 3303).
The terms ``Secretary'' and ``DOE'' were added to define administrative
terms. The following terms are retained with no change except technical
edits or format changes: ``Agreement for cooperation'', ``Atomic Energy
Act'', ``classified information'', ``IAEA'', ``NNPA'', ``NPT'',
``nuclear reactor'', ``person'', ``production reactor'', ``Restricted
Data'', ``sensitive nuclear technology'', ``source material'',
``special nuclear material'', and ``United States''. The following
terms have been deleted as unused: ``accelerator-driven subassembly'',
``non-nuclear-weapon state'', ``open meeting'', ``public information'',
and ``subcritical assembly''.
Several changes from the definitions proposed in the SNOPR are made
in the final rule including: ``technical assistance'' is changed to
``assistance,'' the term ``technical assistance'' is replaced with
``assistance'' in the definition of ``technology'', and the term
``technical services'' is replaced with ``assistance'' in the
definition of ``sensitive nuclear technology''. These changes are
explained in section IV.D. in response to public comments on the SNOPR.
5. Sections 810.4 ``Communications'' and Sec. 810.5
``Interpretations'' update points of contact information to reflect the
current DOE organizational structure and office designations for
applications, questions, or requests. Section 810.4(c) has been added
to allow communication, fast-track requests, and Ukraine notifications
to be emailed. The final rule adds paragraph (c) to Sec. 810.5 that
states DOE may periodically publish abstracts of general or specific
authorizations, excluding applicants' proprietary data and other
information protected by law from public disclosure, that may be of
general interest.
6. The 1986 version of Sec. 810.6 ``Authorization requirement,''
which quotes Sec. 57 b. of the Atomic Energy Act, is deleted and
replaced by Sec. 810.1 ``Purpose.''
7. The 1986 version of Sec. 810.7 ``Generally authorized
activities'' is re-numbered as Sec. 810.6. It identifies
[[Page 9361]]
activities the Secretary has found to be not inimical to the interest
of the United States if conducted in a destination listed in the
Appendix to the final rule. The introductory text eliminates the
specific reference to Sec. 57 b.(2) of the Atomic Energy Act.
(i) Paragraph (a) generally authorizes assistance or transfers of
technology to destinations listed in the Appendix to the final rule.
The 1986 version of Sec. 810.8(a) uses the opposite classification
approach. It lists destinations for which a specific authorization is
required.
(ii) The 1986 version of Sec. 810.7(a) ``furnishing public
information'' is deleted from the list of generally authorized
activities because under the final rule ``public information'' is no
longer a defined term. Specifically, in Sec. 810.2(c)(2) of the final
rule, ``publicly available information,'' ``publicly available
technology,'' and the results of ``fundamental research'' (all as
defined in Sec. 810.3 of this final rule) are exempt from the scope of
part 810.
(iii) In a new approach to deemed exports, Sec. 810.6(b) of this
final rule generally authorizes 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 United States, 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. Deemed export reporting
requirements with respect to these individuals are set forth in Sec.
810.12(g).
(iv) The existing ``fast track'' general authorization in the 1986
version of Sec. 810.7(b) for emergency activities at any safeguarded
facility and operational safety assistance to existing foreign
safeguarded reactors has been retained in Sec. Sec. 810.6 (c)(1) and
(c)(2) of the final rule, respectively, but with a revised definition
of ``operational safety.'' Paragraph (c)(1) includes the phrase ``in
DOE's assessment,'' modifying the emergency clause to make DOE
responsible for deciding potential ``other means.'' Furnishing
operational safety information or assistance to existing safeguarded
civilian nuclear reactors outside the United States in countries with
safeguards agreements with the IAEA or an equivalent voluntary offer,
for example, performance of probabilistic risk assessments, is
authorized in Sec. 810.6(c)(2). In Sec. 810.6(c)(2) the SNOPR
proposed to include an option to provide information cited in Sec.
810.11(b). This proposal has not been adopted in the final rule.
(v) Furnishing operational safety information or assistance to
existing, proposed, or new-build nuclear power plants in the United
States is authorized in Sec. 810.6(c)(3), for example, participation
in safety assessments by organizations such as the Institute of Nuclear
Power Operations (INPO).
(vi) Section 810.6(d) generally authorizes exchange programs
approved by the DOS with DOE consultation. Sections 810.6(e) and (f)
authorize certain cooperative activities with the IAEA, namely,
activities carried out in the course of implementation of the
``Agreement between the United States of America and the [IAEA] for the
Application of Safeguards in the United States''; and those carried out
by full-time employees of the IAEA, or by individuals whose employment
or work is sponsored or approved by the DOS or DOE. The final rule
replaces the word ``and'' with the disjunctive ``or'' at the end of
subparagraph (f) to clarify that any of the listed activities are
generally authorized.
(vii) Section 810.6(g) is a new provision that authorizes transfers
of technology and assistance for the extraction of Molybdenum-99 from
irradiated nuclear material in certain circumstances.
8. Section 810.7--renumbered from the 1986 version of Sec. 810.8--
``Activities requiring specific authorization'' continues to list
activities that require a specific authorization for all foreign
destinations. The initial phrase ``Unless generally authorized by Sec.
810.6'' proposed in the SNOPR has been removed as unnecessary.
9. Section 810.8 ``Restrictions on general and specific
authorization'' remains unchanged from Sec. 810.9 in the 1986 version
of the rule, except for the following editorial revisions: Replacing
``these regulations'' with ``this part'' in the introductory phrase;
replacing ``Restricted Data and other classified information'' with
``classified information'' in paragraph (a), and replacing ``Government
agencies'' with ``U.S. Government agencies'' in paragraph (b).
10. Section 810.9 ``Grant of specific authorization'' of the final
rule, Sec. 810.10 of the 1986 version, identifies the factors
consistent with U.S. international nonproliferation commitments that
will be considered by the Secretary in granting a specific
authorization. Paragraph (b) adds as factors to be considered: Whether
the government of the country concerned is in good standing with
respect to its nonproliferation commitments (subparagraph (b)(3)); and
whether, under subparagraph (b)(8), the transfer is part of an existing
``cooperative enrichment enterprise'' (as defined in Sec. 810.3 of
this final rule) or the supply chain of such an enterprise. Section
810.9(c) addresses the export of ``sensitive nuclear technology'' as
the quoted term is defined in Sec. 810.3 of this final rule. This
section is expanded to describe additional factors, which include
compliance with the United States' NSG commitments, the Secretary will
take into account when considering a specific authorization request for
transfers of sensitive nuclear technology. The United States adheres to
the NSG Guidelines for Nuclear Transfers, and NSG Guidelines for
Transfers of Nuclear-related Dual-Use Equipment, Materials, Software
and Related Technology (IAEA INFCIRC/254/Part 2). The current versions
of both sets of Guidelines can be found at
www.nuclearsuppliersgroup.org. In the final rule a new paragraph (d) is
added to Sec. 810.9 concerning requests to engage in authorized
foreign atomic energy assistance activities related to the enrichment
of source material and special nuclear material. Approval of such
requests will be conditioned upon the receipt of written
nonproliferation assurances from the government of the destination
country concerned. This process is designed to facilitate U.S.
conformity to the NSG Guidelines.
11. Section 810.10 ``Revocation, suspension, or modification of
authorization,'' as renumbered from the 1986 version of Sec. 810.11,
makes an editorial revision, changing ``authorized assistance'' in
paragraph (c) to ``authorization governed by this part.''
12. The 1986 version of Sec. 810.12, renumbered in the final rule
as Sec. 810.11 ``Information required in an application for specific
authorization,'' is expanded to add more detail about the information
required for DOE to process a specific authorization request, including
applications for ``deemed export'' and ``deemed re-export''
authorizations. Section 810.11(a) of the final rule requires the
submission of the same information required by the 1986 version of the
rule (Sec. 810.12(a)).
The 1986 version of Sec. 810.12(a) required that an application
for specific authorization include information regarding ``the degree
of any control or ownership by any foreign person or entity''. Since
the term ``foreign person'' is used only once in the 1986 version of
the regulation (in Sec. 810.12(a)), DOE proposed in the SNOPR to
revise proposed Sec. 810.11(a) without reference to ``foreign
person''. To avoid any possible confusion between usages of
[[Page 9362]]
``person'' and ``foreign national'', the final rule adopts this change
and Sec. 810.11(a)(1) requests information concerning an applicant's
foreign ownership or control by asking about ``the degree of any
control or ownership by any foreign individual, corporation,
partnership, firm, association, trust, estate, public or private
institution or government agency''.
The SNOPR proposed in paragraph (b) to solicit any information the
applicant wishes to provide concerning the factors listed in proposed
Sec. Sec. 810.9(b) and (c). However, this proposal has not been
adopted. Instead, specific required applicant information has been
added to Sec. 810.11(a)(3) of the final rule. Therefore, proposed
Sec. 810.11(c) of the SNOPR is renumbered Sec. 810.11(b) in this
final rule. Likewise, proposed Sec. 810.11(d) of the SNOPR is numbered
Sec. 810.11(c) in this final rule.
Section 810.11(b) addresses the required content for applications
filed by U.S. companies seeking to employ in the United States citizens
or nationals of specific authorization countries that could result in
the transfer of technology subject to Sec. Sec. 810.2 or 810.7 (deemed
exports). Submission of the same information is also required with
respect to any such citizen or national whom the part 810 applicant
seeks to directly employ abroad in either a general or specific
authorization country (a deemed re-export) that could result in the
export of assistance or transfer of technology requiring a specific
authorization. As proposed in the SNOPR, and adopted in the final rule,
no part 810 authorization is required for an individual who is lawfully
admitted for permanent residence in the United States or is a protected
individual under the Immigration and Naturalization Act (8 U.S.C.
1324b(a)(3)).
As proposed in the SNOPR and adopted in the final rule, Sec.
810.11(b) makes explicit DOE's current practice of requiring an
applicant for a specific authorization to provide detailed information
concerning the citizenship, visa status, educational background, and
employment history of each foreign national to whom the applicant seeks
to grant access to technology subject to the part 810 regulation. The
applicant is also required to provide a description of the subject
technology, a copy of any confidentiality agreement between the U.S.
employer and the employee concerning the protection of the employer's
proprietary business data from unauthorized disclosure, and written
nonproliferation assurances by the individual. Section 810.11(b)(3) has
been revised to eliminate the reference to Sec. 810.6(b)(2), and
reduce cross-referencing in the document.
Finally, Sec. 810.11(c) identifies the information required to be
submitted by an applicant seeking a specific authorization to engage in
foreign atomic energy assistance activities related to the enrichment
of fissile material.
13. The 1986 version of Sec. 810.13 is renumbered as Sec. 810.12
in the final rule and changes reporting obligations. An addition in
Sec. 810.12(d) of the final rule requires companies to submit reports
to DOE concerning activities requiring specific authorization, to
include information required by U.S. law concerning specific civil
nuclear activities in or exports to destinations for which a specific
authorization is required. Under Sec. 810.12(e)(4) of the final rule
the reference to reporting on materials and equipment transferred under
a general authorization is retained to ensure, among other things, that
any technical data that is transferred as part of dual-use equipment is
reported. In this final rule, paragraph (g) describes the reporting
requirements of U.S. employers with respect to their deemed export and
deemed re-export employees.
14. The 1986 version of Sec. 810.14 is renumbered in the final
rule as Sec. 810.13, ``Additional information.'' The section is
otherwise unchanged.
15. In the final rule, a new Sec. 810.14 has been added to
describe specific reporting requirements with respect to Ukraine. While
the SNOPR contained a proposal to move Ukraine to the general
authorization list, that proposal was made prior to the current
geopolitical situation in that country. In light of those
circumstances, DOE is finalizing its SNOPR proposal with the inclusion
of advance notification requirements prior to beginning any generally
authorized activity in Ukraine. A written report within 10 days
following the original transfer of material, equipment or technology is
also required for all activities in Ukraine subject to part 810. A more
detailed explanation of the reason for this addition is in Section
IV.B.2.
16. Section 810.15 ``Violations'' retains the same section number
in the final rule as it has in the 1986 version of the rule, although
it was proposed to be renumbered in both the NOPR and the SNOPR.
Section 810.15 in the final rule contains a number of revisions that
bring the wording into alignment with the applicable statutory
language.
17. Section 810.16, ``Effective date and savings clause'', which
was proposed to be renumbered in the NOPR and the SNOPR, retains the
same section number in the final rule as it has in the 1986 version of
the rule. The only change to the language, as proposed in the SNOPR, is
an extension of the date persons must come into compliance with the
rule from 90 to 180 days.
18. In this final rule, Croatia is added to the Appendix list of
generally authorized destinations because on July 1, 2013, it joined
the European Atomic Energy Community (Euratom) and therefore the
provisions of the peaceful nuclear cooperation agreement entered into
pursuant to AEA Sec. 123 (``123 Agreement'') between the United States
and Euratom apply to supply to Croatia of U.S. nuclear material and
equipment. Vietnam is also added to the Appendix list of generally
authorized destinations because on October 3, 2014, a 123 Agreement
between Vietnam and the United States entered into force. Thailand has
been deleted from the list of generally authorized destinations because
its 123 Agreement with the United States has expired and there has not
been a decision to renew the Agreement. In this final rule, a reference
has been added to the Appendix list regarding Ukraine, in order to
ensure applicants are aware of the added requirements in Sec. 810.14
of the final rule, as discussed in Section IV.B.2.
19. DOE/NNSA recently changed the name of the Office of
Nonproliferation and International Security (NA-24) to the Office of
Nonproliferation and Arms Control (NPAC). The final rule in Sec. Sec.
810.4, 810.5, 810.9, and 810.12 reflect this change.
III. Transition Process to Final Rule
DOE recognizes that, as a result of the rule announced today, some
persons will have foreign atomic energy assistance activities in
process concerning destinations whose general authorization or specific
authorization status has changed. This section describes actions to
provide a seamless transition to the final rule.
A. Current Specific Authorization Requests
Any pending specific authorization request for a destination that
is now generally authorized in the final rule, namely, Croatia,
Kazakhstan, Ukraine, United Arab Emirates, and Vietnam, should be
withdrawn starting on the effective date of the rule. Contact DOE to
formally withdraw the request. Pending requests for specific
authorization to Ukraine are subject to the 10-day notification
requirement set forth in Sec. 810.14(a) of the final rule.
[[Page 9363]]
B. Current Generally Authorized Activities
As stated in Sec. 810.16, generally authorized activities for
which the contracts, purchase orders, or licensing arrangements were
already in effect before March 25, 2015, but that require specific
authorization under the final rule, must be the subject of a specific
authorization request by August 24, 2015 but may continue until DOE
acts on the request.
C. Previously Unreported Deemed Exports and Deemed Re-Exports
DOE recognizes that many companies with employees who are citizens
or nationals of countries now subject to specific authorization
requirements under the final rule announced today may not have
previously reported the transfer of part 810 covered technology to such
individuals to DOE under the 1986 version of the rule, as required, and
further, that in many cases technology transfers already have occurred.
A record of part 810-controlled generally authorized technology
transfers to these employees is necessary for DOE to adequately monitor
these transfers. Companies that have made unreported generally
authorized transfers should provide the information required by Sec.
810.11 of the final rule for each transfer to any foreign national who
continues to have access to part 810-controlled technology by August
24, 2015.
IV. Discussion of Public Comments and the Final Rule
On August 2, 2013 DOE published the SNOPR, inviting public comments
on regulatory proposals DOE formulated in consideration of comments
received on the NOPR. Thereafter, DOE held two formal public meetings
to give the public an opportunity to make oral comments and ask
questions about the proposed regulatory changes in the SNOPR. In
addition, DOE extended the time period for the public to submit written
comments on the SNOPR. DOE received comments from 26 industry members
and organizations. The majority of commenters expressly supported some
of the SNOPR changes to the NOPR, such as proposals:
1. Limiting the scope of technology covered by part 810
2. Generally authorizing deemed exports to certain U.S. nuclear
industry employees
3. Facilitating nuclear safety and other exchange activities
4. Generally authorizing nuclear technology exports to Mexico,
Chile, Kazakhstan, Ukraine, and the United Arab Emirates
5. Continuing the general authorization for emergency activities
and operational safety assistance
6. Proposing that
a. Routine storage, processing, and transportation of spent nuclear
fuel would be outside the scope of part 810,
b. Activities licensed by the DOS and DOC would be outside the
scope of part 810, and
c. The transfer of publicly available information would be outside
the scope of part 810.
Commenters also supported DOE's initiation of a process improvement
program (PIP) to reduce specific authorization processing time, and
DOE's plan to create a guide to part 810 and an electronic application
and tracking (e-810) system. Several organizations and companies
offered to participate in developing the PIP and drafting a guide.
The Nuclear Energy Institute (NEI), the primary industry trade
association, provided a comprehensive set of comments in response to
the SNOPR. The Ad-hoc Utility Group (AHUG), Exelon, and the Chamber of
Commerce of the United States (USCC) fully endorsed NEI's comments.
AREVA and the US India Business Council (USIBC) supported NEI's
comments. Black and Veatch endorsed NEI's comments. Westinghouse stated
that it ``largely concurred'' with NEI comments. In this discussion of
the public comments, unless these commenters provided different
perspectives on the same matter, NEI will be referenced when discussing
the comments.
Many commenters, including the American Nuclear Society (ANS),
AREVA, Babcock and Wilcox (B&W), the Center for Strategic and
International Studies (CSIS), EnergySolutions, Exelon, Fluor, G.C.
Rudy/Integrated Systems Technology (IST), NEI, the Nuclear
Infrastructure Council (NIC), and Westinghouse, also made requests for
guidance or clarification on part 810 that would not require a change
from the regulatory text proposed in the SNOPR. Depending on the
specific nature of these requests, DOE may address each request as part
of a formal guide, more informally as part of a Frequently Asked
Questions (FAQ) page on the proposed Web site, or in response to
individual requests made pursuant to Sec. 810.5--Interpretations.
This final rule implements the important goals of part 810:
Effective nuclear proliferation threat reduction,
Effective civil nuclear trade support, and
Efficient regulation.
DOE has reviewed the public comments received in response to the
SNOPR. The final rule adopts most of the regulatory revisions proposed
in the SNOPR, and incorporates some further changes based on careful
consideration of public comments. The public comments were analyzed and
placed into three categories:
Process Issues
Classification of Foreign Destinations
Activities Requiring Part 810 Authorization
A. Process Issues
1. Compliance With Administrative Procedure Act Rulemaking Requirements
NEI in part claimed the SNOPR violated the Administrative Procedure
Act (APA) by providing inadequate explanation of the proposed changes,
particularly the proposed general vs. specific authorization
destination classifications. NEI included China, Russia, and India in
this discussion, although these three countries have been, and remain,
destinations requiring specific authorization. NEI, in 80 pages of
comments on the destination classification issue, called for DOE to
``withdraw and re-publish the rule with enough information regarding
its factual, legal and policy rationales to allow stakeholders to
comment meaningfully.'' AREVA stated ``DOE has not put forth a
sufficient rationale for the change in designation of these
countries.'' AUECO ``join[ed] the U.S. Chamber of Commerce in calling
upon DOE to withdraw the rule.'' In response to these concerns and
comments, and the desire to hear from as many commenters as possible,
DOE re-opened the comment period to allow for more public comments.
The SNOPR preamble adequately and reasonably explained the reasons
for DOE's proposed reclassification of foreign destinations, as well as
other proposed changes to the part 810 regulation. It also explained
the reasons why DOE proposed the Secretary could not generally
authorize nuclear technology transfers to China, Russia, and India.
Adequate notice was provided for meaningful comments from the public on
the SNOPR as evidenced by 26 separate letters of comments submitted to
DOE, including lengthy and detailed comments from NEI and AREVA. DOE's
new approach in the final rule to classifying general and specific
authorization destinations is a reasonable policy decision, made in
compliance with the requirements of the APA and as authorized by the
AEA.
[[Page 9364]]
2. Part 810 Process Improvements
As noted in the SNOPR, many NOPR commenters were concerned that the
part 810 specific authorization process is unduly protracted, and that
processing delays put U.S. suppliers at a competitive disadvantage with
companies in other countries. It appeared that many concerns with the
NOPR and SNOPR proposals indicated less dissatisfaction with the merits
of the proposed regulatory changes than the commenters' belief that the
proposed rule revisions would continue or worsen delays in receiving
specific authorizations.
AHUG, ANS, AREVA, B&W, CSIS, EnergySolutions, Exelon, Fluor, GC
Rudy/IST, NEI, NIC, and Westinghouse all made suggestions and comments
related to improving the processing of specific authorization requests.
In many cases these comments reiterated those received during the NOPR
comment period. As these comments are not directed to the content of
the proposed rule, they will not be addressed here but rather in the
PIP that is ongoing currently.
Similarly, commenters' concerns about process ``burdens'' appeared
to drive their comments about the substance of the proposed regulatory
changes. As noted, DOE proposed and has underway a PIP separate from
the rulemaking to make the part 810 authorization process more
transparent, orderly, and efficient in order to address specific
authorization time in process.
The part 810 PIP is part of a larger NNSA plan to be ISO 9001
compliant. The PIP team will focus on improving performance as measured
by these critical to quality characteristics:
Effective nuclear proliferation threat reduction in a
changing world,
Openness, predictability, and clarity of regulation, and
Efficiency: Performing the mission of preventing
proliferation without wasting time, money, or placing unnecessary
burdens on U.S. companies competing in global markets.
The PIP team also will:
Measure process performance by listening to applicant
``customers'' and process implementers. Receiving these inputs will be
key to realistic problem definition and development of effective
process improvements.
Analyze causes of delays in DOE processing time for an
application.
Recommend actions to sustain improved performance in
processing part 810 applications for specific authorization.
Anticipated improvements in the processing time of part 810
applications that may come from the PIP include these recommended
actions from commenters:
Digitize the 810 authorization process (e810)--
Digitization of the authorization process will make the applications
easier to complete; streamline the review process, increase
transparency by enabling applicant tracking; provide a searchable
archive of past decisions; and facilitate audits required for ISO
compliance. In this rule, DOE has added explicit email communication
options, including applications, fast-track requests, and Ukraine
notifications in Sec. 810.4(c).
Reduce application processing time--This effort will begin
by DOE analyzing the authorization case database to determine causes of
processing time variation and undue delay. The PIP team will conduct
benchmark studies to identify best practices and methods to improve
efficiency. The team will work with the DOS to find ways to request and
secure foreign governments' nonproliferation assurances more promptly,
and make internal DOE and inter-agency reviews of part 810 specific
authorization applications more efficient by reducing unnecessary
reviews and approvals.
Develop a guidance document--Many SNOPR commenters sought
guidance or clarification on specific issues and recommended DOE
prepare a guidance document or Web site to improve transparency. As
noted above, DOE intends to develop a document or Web site that may
include responses to requests made under Sec. 810.5 (with proprietary
information redacted), FAQs, and process maps of various part 810
activities. DOE will continue to adhere to current inter-agency
procedures for processing, reviewing and approving specific
authorizations as set forth in the ``Amendment to Procedures
Established Pursuant to the Nuclear Nonproliferation Act of 1978.'' 49
FR 20780 (May 16, 1984).
B. Classification of Foreign Destinations
The general authorization versus specific authorization proposed
country classifications provoked considerable comments in response to
the NOPR. The SNOPR explained the rationale for the proposed changes
and proposed to change some classifications. Many of the NOPR comments
were repeated in SNOPR comments. AHUG, AREVA, AUECO, B&W, CSIS,
EnergySolutions, Electric Power Research Institute (EPRI), Exelon,
Fluor, National Association of Manufacturers (NAM), NEI, NIC, USIBC,
U.S. Russia Business Council, and Westinghouse all expressed concerns
with the reclassification of countries that was proposed in the SNOPR.
AHUG cited Chile, Jamaica, Jordan, Namibia, New Zealand, Nigeria,
and the Philippines as countries that deserved generally authorized
status ``due to their participation in key international nuclear
nonproliferation regimes, including the Treaty on the Non-Proliferation
of Nuclear Weapons (NPT), the comprehensive safeguards agreement (CSA)
with the IAEA and an Additional Protocol (AP) thereto, and the NSG''.
Further, they noted that New Zealand and the Philippines have been
granted a general license pursuant to 10 CFR 110.26 under NRC's
regulations as destinations authorized to receive ``minor'' reactor
components.
B&W named Saudi Arabia, Jordan, the Philippines, and Malaysia, and
Fluor named the Philippines and Singapore as countries that deserved
generally authorized status, but provided no specific arguments
regarding their suitability for the non-inimicality determination
mandated by AEA Sec. 57b.(2).
EnergySolutions commented ``The Department has failed to account
for the burden imposed by the proposed rule and the message it sends to
foreign nations.'' The company repeated the claim it made in response
to the NOPR that reversing the approach to country designations was
unwarranted. In its comments on the SNOPR, EnergySolutions further
commented ``the SNOPR sends a message to countries that have not been
considered a proliferation risk for over 70 years and have maintained
safe nuclear operations, that the United States now views them as a
potential liability. While the Department may view this new Rulemaking
as a way to provide additional oversight to trade countries,
EnergySolutions fears that it has the potential to adversely affect
foreign relations with our trading partners.''
DOE has considered commenters' recommendations for countries to be
reconsidered for classification as generally authorized destinations.
Under section 57b.(2) of the AEA, the Secretary may authorize the
transfer of nuclear technology for the development or production of
special nuclear material by persons subject to U.S. jurisdiction upon a
determination that the activity will not be ``inimical'' to the
interest of the United States. Classification of activities and foreign
destinations as ``generally authorized'' or, conversely, the
determination that other activities and destinations necessitate a
specific authorization is a matter committed to agency discretion. The
Secretary's decision that a specific
[[Page 9365]]
authorization is or is not required for a proposed transaction is based
on U.S. nuclear and national security policies. Consonant with those
policies, the Secretary may determine that transactions with a country
or entity are either generally authorized or require a specific
authorization. Under the AEA, DOE is to promote widespread
participation in the development and utilization of atomic energy for
peaceful purposes. The AEA, however, makes national security the
paramount concern. Consequently, assistance to, participation in, or
technology transfer for the development or production of special
nuclear material outside the United States may be authorized only upon
a determination by the Secretary that such activities will not be
``inimical to the interest of the United States''. A destination is
included on the proposed generally authorized list based on the
Secretary's ``not inimical'' determination required by section 57b.(2)
of the AEA. Examples of types of considerations taken into account
include the existence of a 123 Agreement with the United States, a full
scope safeguards agreement with the IAEA, satisfactory experience as a
civil nuclear trading partner, and being a party to nonproliferation
treaties and membership in international nonproliferation regimes. That
determination can be made only with the concurrence of the DOS and
after consultation with the NRC, the Department of Defense (DOD), and
the DOC.
DOE appreciates commenters' recommendations for countries to be
reconsidered for classification to generally authorized status.
However, classification of activities by destination as ``generally
authorized'' is an administrative tool to avoid unnecessary reviews of
foreign atomic energy assistance activities in countries that present
little or no proliferation risk, and are known nuclear trading
partners. General authorizations reflect the assessment that the
Secretary has made a non-inimicality finding regarding the provision of
assistance and technology to particular countries on an advance
programmatic basis, without performing a transaction-specific analysis
or obtaining specific nonproliferation assurances from the government
of the intended foreign recipient.
The world has changed since the original part 810 rule was issued.
The creation of new countries and the threat of proliferative
activities in countries with limited ability to manage or deter such
threats must be considered in the Secretary's determination of non-
inimicality. The Secretary has considered that being a party to
nonproliferation treaties (including but not limited to other regional
treaties such as the Treaty for the Prohibition of Nuclear Weapons in
Latin America (Treaty of Tlatelolco), African Nuclear Weapon Free Zone
Treaty (Treaty of Pelindaba), South Pacific Nuclear Free Zone Treaty
(Treaty of Roratonga)), while an important part of such a determination
is not alone sufficient to make a finding of non-inimicality. The NRC's
regulation at 10 CFR 110.26 is limited to reactor components only for
reactors generating less than 5MW, which is not an adequate indication
of a country's ability to manage nuclear technology and prevent its use
in ways ``inimical to the interest of the United States.''
No comments were received regarding the SNOPR proposal to remove
Bangladesh and Peru from the generally authorized destination list;
therefore the proposed deletion is retained in the final rule.
The final rule retains the destination classifications proposed in
the SNOPR unchanged, except for clarification concerning the
availability of general authorizations for Ukraine (Sec. 810.14) and
the addition of Croatia and Vietnam as generally authorized
destinations and the removal of Thailand. DOE will provide notice of
future changes to the Appendix in the Federal Register.
1. Mexico
EPRI noted that additional IAEA agreements beyond INFCIRC/203 and
INFCIRC/825 with Mexico may be developed, and suggested clarifying
language to allow countries concluding such agreements to be included
in the general authorization destinations Appendix list to the final
rule. DOE has decided not to incorporate such changes in the final
rule. While DOE is prepared at present to include Mexico on the
Appendix list, on the basis of its agreement with the IAEA, DOE has
determined to approach other such agreements on a case-by-case basis.
2. Ukraine
The Secretary's decision that a specific authorization is or is not
required for a particular proposed export is based on U.S. nuclear and
national security policies. When the existing regulations were
promulgated in 1986, Ukraine was not a party to any international
nuclear cooperation agreements. Ukraine has since entered into a 123
Agreement with the United States, has engaged in civil nuclear trade
with the United States under the 123 Agreement, and has developed a
track record as a responsible nuclear nonproliferation partner.
Moreover, Ukraine is heavily dependent on nuclear reactors for
generation of electricity. Currently, there are 15 operating reactors
in Ukraine that generate about 50% of the electricity used there. While
Ukraine is now a civil nuclear trading partner of the United States,
these reactors rely almost entirely on services and nuclear fuel from
the Russian Federation to operate. Recent geopolitical developments in
Ukraine involving the Russian Federation underlie the U.S. Government's
determination to help ensure that Ukraine is able to maintain a stable
civil nuclear energy program independent of and without support from
the Russian Federation.
However, transfers of nuclear technology and assistance to areas
that are not under control of the Government of Ukraine could present a
proliferation risk, and a case-by-case non-inimicality determination is
needed for transfers to those areas. For this reason, Sec. 810.14 in
the final rule identifies an additional requirement, for persons about
to begin any generally authorized activity involving Ukraine, to notify
DOE at least ten days prior to beginning such activity. Following
notification of a proposed transfer to Ukraine pursuant to Sec.
810.14, the Secretary may invoke the authority in Sec. 810.10 (c) if
he determines that transfer is inimical to the interest of the United
States at that time. Thus, that transfer would not be considered
generally authorized and the applicant would need to file a request for
specific authorization in accordance with Sec. Sec. 810.7 and 11.
3. Croatia and Vietnam
NEI noted that ``Croatia, now a member-state of the European Union,
should be added to the Appendix.'' In addition, as noted in section II,
Vietnam, as of May 26, 2014 signed a 123 Agreement with the United
States, and that agreement entered into force on October 3, 2014. DOE
has added both Croatia and Vietnam to the list of generally authorized
destinations in the Appendix to this final rule.
4. Continued Specific Authorization Destinations (Russia, India and
China)
B&W, EnergySolutions, Fluor, Lightbridge, and NEI all repeated
comments on the NOPR regarding DOE's proposal to retain Russia, India,
and China as destinations requiring specific authorization. Some
disagreed with the SNOPR's explanatory rationale in section IV.B.2, but
failed to provide sufficient justification to warrant any change in the
current specific
[[Page 9366]]
authorization status of these three countries.
After duly considering the comments and consulting with the DOS,
DOC, DOD, and NRC, the Secretary remains of the view that it is not
appropriate to change the part 810 specific authorization status of
these three countries at this time for the same reasons as articulated
in the SNOPR in section IV.B.2.
5. Thailand and Norway
The Appendix to the final rule has been changed from the SNOPR to
omit Thailand, whose 123 Agreement with the United States has expired.
As there has not been a decision regarding renewal of the Agreement at
this time, under this final rule Thailand will therefore be a
specifically authorized destination.
The Appendix to the final rule includes Norway, whose 123 Agreement
with the United States has expired. However, the United States and
Norway are negotiating a renewal of the 123 Agreement. Thus, the
Department has determined that Norway will remain a generally
authorized destination under this final rule.
C. Activities Requiring Part 810 Authorization
1. Special Nuclear Material Nexus Requirement
As explained in SNOPR section IV.C.1, the Secretary has broad
discretion to determine which activities indirectly constitute
sufficient engagement or participation in the production of special
nuclear material to bring them within the scope of part 810. The
decision is based on the nature of the technology or assistance to be
provided. As such, whether an activity is generally authorized is a
matter of policy. A number of commenters (including; NEI, B&W,
Westinghouse, Fluor, ANS, NIC, AREVA, EPRI and ERIN Engineering and
Research Inc. (ERIN)) stated that the SNOPR resolved some of their
concerns with the sufficiency of the nexus between some covered
activities or technologies and the production of special nuclear
material to be subject to part 810 but maintained that the scope
remained too broad or unclear in some cases. NEI also supported the
proposed exclusion from part 810 of technologies and assistance under
the jurisdiction of the DOS and DOC and requested the same treatment
for NRC-approved activities, which was already explicit in Sec.
810.2(c)(1) as proposed in the SNOPR and adopted in the final rule.
NEI commented that DOE should limit the scope of part 810 to
technologies that are ``especially designed for the production or
processing of special nuclear material,'' such as enrichment,
reprocessing, and production reactors. Adoption of this proposal would
move light water reactor (LWR) technology outside the scope of part
810, even though it has been within the scope since the inception of
part 810. Although LWRs are designed primarily for power production,
they do directly produce plutonium, which is within the scope of part
810. Therefore, the final rule retains LWRs in the scope of part 810.
NEI and NIC further commented that there should be explicit
exemptions or authorization for the transfer of sales, marketing or
sourcing information, to provide U.S. business with more flexibility to
operate in the very competitive international civil nuclear market
because U.S. businesses are at a disadvantage to foreign competitors
that are not subject to technology controls similar to part 810
requirements. DOE is not prepared to exempt the transfer of part 810-
controlled technology based on the intent of the transfer but will
consider the content of the transfer when making a determination of
part 810's applicability. That means that if part 810-controlled
technical data is transferred in a bid, proposal, solicitation, trade
show, or plant tour, the activity is subject to part 810 controls and
requirements but if no such technical data is transferred, the activity
is not within the scope of part 810 and therefore not subject to those
controls.
NEI and B&W commented that the SNOPR lacked clear and justified
thresholds for how much recipient control, modification or U.S. content
in jointly developed technology would be enough to trigger part 810
coverage of an activity. NEI recommended that DOE adopt specific
percentage values as de minimis thresholds based on the total value of
technology to be transferred. NEI also proposed that only
``enhancements'' to foreign technology should be subject to part 810,
but other changes, such as conforming foreign technology to U.S. codes
and standards (commonly known as Americanization), should not generally
make the transfer of technology subject to part 810. In a related
comment, TerraPower asserted that DOE should set a de minimis threshold
of 5% ownership before that ownership must be disclosed in an
application for specific authorization. The comments above are largely
restatements of views expressed in response to the NOPR and were
addressed in the SNOPR preamble (Section IV.C.13.). The SNOPR explained
that a mechanistic approach is not appropriate for part 810 coverage
determinations for authorization of activities such as cooperative
enrichment enterprises and other technology transfers by collaborative
enterprises. DOE will continue to make coverage determinations based on
the specific facts of the proposed activity including but not limited
to technology to be transferred, the significance of the technology to
the production of special nuclear material, end user destination, and
end use duration of the activity such as single transfer or an ongoing
activity, rather than by mechanistic rule because the facts of each
case are unique and not readily addressed by a de minimis threshold or
characterization.
NEI reiterated its recommendation to add the term ``control-in-
fact'' to the definition in Sec. 810.3 and to apply the concept to the
application of the scope of Sec. 810.2(a)(1) as well as revisions and
clarifications to that provision to include the term ``control-in-
fact.'' NEI recommended that DOE explicitly include in Sec.
810.2(a)(2) the clarification that foreign ``licensees, contractors, or
subsidiaries under [the] direction, supervision, responsibility or
control'' of persons described by the proposed rule in Sec.
810.2(a)(1) are within the scope of part 810 only if the technology
transferred is of U.S. origin. Further, NEI recommended that control be
determined by reference to corporate governance arrangements, instead
of the specific terms and circumstances of the proposed activity. DOE
has considered this comment again and has determined to adopt Sec.
810.2(a) and (b) as proposed without further revision. DOE will review
the specific fact pattern of the activity that includes the transfer of
part 810-controlled technologies, which in some cases may not match the
stated governance or ``control'' of the company but which is specific
to the technology transfer in question.
B&W, TerraPower, NEI, and AHUG also commented that the definition
of ``technology'' should be revised to use the conjunctive ``and'' in
place of ``or'' before ``use'' in proposed Sec. 810.3, thereby
limiting the scope of part 810 to activities and technologies directly
associated with the production of special nuclear material, creating a
minimum threshold for technology and assistance provided, and mirroring
the wording currently guiding the NSG. The proposed use of the
disjunctive ``or'' in the definition of ``technology'' in proposed
Sec. 810.3 was intentional. Any of the listed forms of assistance is
sufficient to trigger part 810 coverage. It is not necessary to specify
all of the
[[Page 9367]]
technology forms; therefore the change has not been made to the
definition.
AUECO commented that under the SNOPR, DOE would subject academic
and scientific communications and research to new and burdensome deemed
export requirements without sufficient statutory basis, and that burden
would be further exacerbated by the general/specific authorization
proposed reclassification of 77 countries. The SNOPR proposal, they
argued, would jeopardize the free flow of academic collaboration that
is explicitly protected by the AEA, without DOE identifying a clear or
direct connection to the production of special nuclear material.
Part 810's statutory basis is the AEA, which states its purpose is
to ``support the conducting, assisting and fostering of research in
order to encourage maximum scientific progress'' through the
establishment of policies that benefit not only the development of
technology but also, and paramount, the common defense and security of
the United States. While part 810 requirements concerning deemed
exports may apply in an academic setting, DOE understands that most
work performed by academic institutions qualifies as fundamental
research, which is exempt from part 810 coverage under Sec.
810.2(c)(2) of the final rule. Issuance of the final rule does not
constitute a new burden for academic institutions and comports with AEA
purposes. It is those activities that go beyond fundamental research
and are applied research and development that have always been within
the scope of part 810 controls. No change has been made in this final
rule in response to this comment.
AUECO and NEI welcomed the definition of ``fundamental research''
proposed in the SNOPR but commented that it fell short of protecting
applied research and development at universities, which they argued is
the intent of the AEA. The definition announced today achieves the
intent of the AEA both to encourage fundamental research and to protect
information whose dissemination is restricted for national security
reasons. NEI also recommended revising the definition of ``fundamental
research'' to exclude proprietary ``industrial development'' and
``product utilization'' from the definition. DOE wishes to clarify that
proprietary development or utilization information is not exempted from
controls in the final rule because development and use technology is
beyond basic scientific exploration that is intended to remain outside
the scope of part 810. Applied research crosses the boundary from
theoretical scientific inquiry to potential reactor specific
applications of new technologies. This type of research will not be
generally authorized because it can be applied to a facility that could
be involved in the production of special nuclear material. The
definition of ``fundamental research'' in the final rule remains
unchanged from that proposed in the SNOPR.
AUECO also commented that the SNOPR's proposed definition of
``publicly available information'' did not address information that has
been cleared for release by the appropriate entity but has not yet been
officially released, and that lack of clarity on this point adversely
affects academic institutions with respect to transferring nuclear
technology to foreign national researchers. AUECO recommended that
information that will be or is eligible for unlimited release should be
considered ``publicly available information'' and therefore not subject
to part 810 controls in academic settings. DOE considers information
published in academic journals or otherwise available to the general
public to be ``publicly available technology'' for the purposes of
deemed exports prior to actual publication as long as the information
has been appropriately authorized for release and there is a clear
intent to publish all results, and directs commenters to examine the
definition of ``publicly available technology'' for clarification. This
subject will be dealt with in more detail in the PIP.
NEI also commented that the definition of ``publicly available
information'' should conform to the text of and guidance concerning the
ITAR (International Traffic in Arms Regulations) administered by DOS
and DOC's EAR (Export Administration Regulations). DOE has considered
NEI's request but has determined to retain the definition as proposed
in the SNOPR because the definition as formulated in the final rule
adequately and completely incorporates the characteristics of
information that DOE considers to be publicly available.
2. Activities Supporting Commercial Power Reactors
NEI and B&W commented that controlling LWR technology is
unnecessary, because it is ubiquitous and available more freely from
many foreign vendors. Further, requiring a specific authorization for
such technology to any country does little, in the commenters' view, to
stem proliferation and would hurt the competitive position of U.S.
vendors. AHUG, Fluor, and NEI stated that requiring a specific
authorization for U.S. vendors offering nuclear technologies that are
identical or similar to those that have been previously approved for
export burdens U.S. vendors, giving their competitors an advantage
without a nonproliferation benefit. Both DOE and the commenters
recognize that the harm to U.S. vendors is exacerbated by lengthy part
810 application processing time required to secure a specific
authorization. DOE believes the way to resolve the time-in-process
problem is through the PIP, not by relaxing the standards for the
Secretary's non-inimicality determination. It should be noted that the
1986 version of Sec. 810.10(b)(7) expressly states that in making the
non-inimicality determination, the Secretary will take into account
``[t]he availability of comparable assistance from other sources''. The
final rule retains this provision.
NEI and AUECO commented that the description and definition of the
portions of the ``nuclear reactor'' that would be covered by part 810,
as proposed in Sec. Sec. 810.2 and 810.3 of the SNOPR, were an
improvement from the NOPR and provided clarity, but did not align with
the NRC's part 110 Appendix A definition of a nuclear reactor. The
proposed definition of ``nuclear reactor'' in Sec. 810.3 in the SNOPR
is almost identical to the NRC definition in 10 CFR 110.2. Also, the
proposed scope of part 810 controls concerning nuclear reactors has
been aligned with the language used in NRC's part 110 Appendix A.
Specifically, the wording ``components within or attached directly to
the reactor vessel, the equipment that controls the level of power in
the core, and the equipment or components that normally contain or come
in direct contact with or control the primary coolant of the reactor
core'' in Sec. 810.2(b)(5) of the SNOPR has been adopted in today's
rule to align directly with language used in Appendix A of NRC's part
110 regulation.
NEI further commented that the description of the scope of covered
technologies concerning nuclear reactors proposed in Sec. 810.2 of the
SNOPR did not address the limits of application of the regulation to
analogous components or systems in boiling water reactors and
pressurized water reactors. As a general principle, DOE considers the
technology related to the primary coolant in the reactor core as within
the scope of part 810 controls. However, NRC's part 110 regulation
specifically excludes the steam turbine generator portion of a nuclear
power plant from its definition of a utilization facility. Since the
definition and scope statement in the SNOPR's proposed rule
[[Page 9368]]
were meant to align with part 110, DOE has determined that the steam
turbine generator portion of a nuclear plant is licensed by the DOC and
is not subject to part 810 requirements.
B&W commented that DOE should develop a list of Widely Available
Technologies. B&W further recommended that DOE solicit national
laboratory and industry input to publish and update the list through a
Federal Register Notice. Per B&W's comment, the technology list would
include an exhaustive list of technologies or assistance associated
with those technologies and be generally authorized to non-embargoed
countries. DOE has not added a widely available technology list to part
810 at this time because the Secretary has not made a non-inimicality
finding about the transfer of technologies directly or indirectly
related to the production of special nuclear material but rather the
destination of those technologies. Instead, DOE will address
technologies and approving the transfers of them in the PIP. As a part
of the PIP process, DOE will seek stakeholder input during planned
outreach programs.
NEI, B&W, Fluor, AHUG, and NIC provided similar comments to the
effect that if technology related to nuclear reactors continues to be
defined as proposed in Sec. 810.2 of the SNOPR, some formulation of a
``fast track'' or hybrid authorization process should be included in
the regulation text or a general authorization provided for transfers
of identified technologies. This process would not apply to technology
transfers to embargoed or non-NSG member countries but all other
specifically authorized destinations. Expediting the approval of
nuclear reactor technology transfers to destinations requiring specific
authorizations will be addressed in the PIP that is being conducted
independently from this rulemaking. Therefore DOE will not incorporate
a change or add a general authorization for nuclear reactor
technologies at this time.
3. Deemed Exports and Deemed Re-Exports Employee Issues
AUECO, NEI, B&W, and Westinghouse repeated in response to the SNOPR
their recommendation in comments on the NOPR concerning the transfer of
part 810-covered technology to individuals who are citizens (including
those with dual citizenship) of specific authorization countries but
have lawful permanent residence in a generally authorized country. The
commenters advanced the view that, in determining whether a specific
authorization is required, DOE should follow the DOC policy of using
the individual's most recent country of citizenship or permanent
residency to determine citizenship. Current DOE practice is to consider
all countries of an individual's allegiance (citizenship or permanent
residency) in making the requisite non-inimicality determination.
Authorization decisions in these situations are fact-specific, and DOE
will continue to deal with them on a case-by-case basis. Therefore DOE
is not incorporating this suggestion in the final rule.
ANS, AREVA, AUECO, NEI, and AHUG welcomed the general authorization
proposed in the SNOPR at Sec. 810.6(b) for foreign nationals working
at NRC-licensed facilities who are granted unescorted access in
accordance with NRC regulations. The commenters also suggested
expanding the general authorization to include foreign nationals
working in the United States at non-NRC licensed facilities, based on
NRC regulations governing access to safeguards information (SGI) or a
U.S. security clearance for access to classified information. DOE
determined that NRC's regulations and reviews governing unescorted
access to NRC licensed facilities are much more detailed than SGI
protection requirements, which mandate only a search by the Federal
Bureau of Investigation to identify any criminal records of the
individual for whom the applicant is requesting access. Alternatively,
for unescorted access to controlled technology in an NRC-licensed
facility, an individual must undergo a stringent review in addition to
complying with the SGI's requirement, including, but not limited to, a
psychological interview, drug testing, and employment history check.
After consulting with the NRC, DOE and NRC concurred that, for the
reasons described above, SGI review criteria are not sufficient to
justify providing a general authorization under part 810 for foreign
nationals to have access to part 810-controlled technologies. In
addition, DOE was unable to identify a cohort of foreign nationals who
would have security clearances and are nationals of countries not on
the part 810 Appendix list that would justify adoption of the
suggestion in the final rule. No other regulatory regimes or persuasive
factors were identified by the other commenters as a basis for DOE to
make the requested change. Therefore, DOE has decided to adopt Sec.
810.6(b) as proposed in the SNOPR.
NEI further requested that DOE should clarify in guidance that the
general authorization for deemed exports would continue to apply to
NRC-cleared individuals working in the United States for a U.S. company
who are no longer working at the NRC-licensed facility, but who require
access to part 810-controlled information. Under this suggestion, the
authorization would extend to foreign nationals working in the United
States at any U.S. company, even if unescorted access status has
expired. DOE is not adopting this proposal in today's final rule
because the termination of NRC unescorted access could occur for a
variety of reasons which must be considered. DOE invites applicants
with respect to the requirements of Sec. 810.11(b)(2) to document any
NRC clearances granted to subject foreign nationals that may be used to
inform DOE's determination of non-inimicality for the deemed export.
AREVA commented that positions requiring critical skill sets may go
unfilled due to the increased number of foreign nationals working for
AREVA in the United States and overseas that will no longer be eligible
for a general authorization because under the SNOPR proposal, more
countries would be specific authorization destinations, therefore
restricting a larger number of possible hires from accessing part 810-
controlled technology. In addition, AREVA stated that the provision
would only address current employees but not address future hires and
thus complicate hiring decisions. DOE has weighed this comment and
understands that companies are concerned about burdens to comply with
deemed export controls under the final rule, given the increase in the
number of specifically authorized destinations. DOE will continue to
require companies to seek authorization to provide access to part 810-
controlled technologies to individuals who are citizens of specifically
authorized countries because the transfer of technology to a citizen of
a specific authorization destination is considered an export to that
country and therefore deemed an export, which requires a Secretarial
non-inimicality finding before the export can be authorized. But under
the PIP, DOE will endeavor to institute efficiencies to decrease the
review and approval times for deemed export authorizations.
Exelon stated that the cost of review of I-9 forms (required by
U.S. Citizenship and Immigration Services) to determine the number of
foreign nationals working at U.S. nuclear facilities who are citizens
of specifically authorized countries will be overly burdensome and
impede hiring and internal reassignments. In this regard,
[[Page 9369]]
the final rule makes all employees granted unescorted access to an NRC-
licensed facility generally authorized, obviating any need to research
the citizenship status of employees who have been granted unescorted
access to an NRC-licensed facility. In addition, the required I-9 forms
provide readily available data on new foreign national employees that
should help companies determine whether a foreign national needing
access to part 810-controlled information will require a specific
authorization.
NEI and B&W both commented that the time frames in the supplemental
proposed rule at Sec. 810.15 were inadequate, DOE acknowledges that 90
days is too short a time for many entities to review internal
compliance programs, review employment records, file reports with DOE
on current foreign employees receiving part 810-controlled technology,
and submit necessary requests for specific authorization, and in
today's final rule DOE has therefore extended the transition period to
180 days.
Fluor commented that it is not reasonable for a U.S. company to
treat its non-U.S. citizen employees working in offices/subsidiaries
located in foreign countries differently (e.g., an employee who is a
citizen of specific authorization country working in a country on the
general authorization Appendix list would require a specific
authorization to access part 810-controlled technology); and requested
that foreign nationals employed at U.S. subsidiaries in countries not
listed in the Appendix be eligible for a general authorization as long
as the company can assure DOE that the part 810-covered technology
transferred to the foreign national is protected from unauthorized
disclosure. The final rule retains the approach, as implemented under
the 1986 version of the rule and as proposed in the NOPR and SNOPR, to
deemed re-exports. That is, whether a specific authorization is
required for a foreign national (as defined in Sec. 810.3) employed in
a foreign country depends on the general or specific authorization
designation of the foreign national's country of citizenship. Under the
final rule, companies working with entities outside the U.S., whether
or not they are wholly owned subsidiaries, are authorized either
generally or through a specific authorization to transfer specific
technology. DOE will continue to require compliance with the transfer
of part 810-controlled technology no matter where the export takes
place.
B&W and Fluor made a similar proposal: That DOE view part 810-
controlled technology transfers to companies in some subset of
countries (B&W proposed NSG member states) as eligible for general
authorization with respect to deemed re-exports, meaning the recipient
entity would be generally authorized, as well as all its employees,
regardless of citizenship, so long as the foreign nationals are
employed legally (and in the case of Fluor's comment, so long as a
confidentiality agreement is in place). As noted above, DOE has
determined to retain in the final rule adopted today the regulatory
approach to deemed re-exports under the 1986 version of part 810 and in
the NOPR and SNOPR.
B&W and NEI suggested that the language contained in Sec.
810.11(c) as proposed in the SNOPR (Sec. 810.11(b) in the final rule)
indicates that mere ``employment'' of a foreign national who is a
citizen of a country not listed in the Appendix, by a U.S. company or
its foreign subsidiary, would require a specific authorization. This is
incorrect. Under the SNOPR and under today's final rule, a specific
authorization is required for the transfer of part 810-controlled
technology or information to a foreign national, not merely employment
of that individual by a U.S. company or its foreign subsidiary.
B&W and NEI also recommended that DOE streamline the proposed part
810 rule to clarify that U.S. companies are only required to comply
with the proposed deemed export requirements to the extent that
compliance does not violate applicable employment laws in those
countries where a company's foreign national employees are employed.
The intent of Sec. 810.11(b) as proposed and made final is to control
technology transfers, not employment. It enables DOE to implement its
authority to authorize re-exports of transferred technology. Companies
may hire whomever they choose. However, the AEA is the foundation upon
which the regulation at part 810 and makes clear that U.S. companies
are not free to transfer part 810-controlled technology to employees
who are citizens of countries that are not listed in the Appendix
without a specific authorization or who meet the requirements of Sec.
810.6(b) of the final rule.
NEI commented that as proposed in the SNOPR, a foreign national is
required to interact with DOE to secure a specific authorization. That
assertion is incorrect. DOE consent is requested by and granted to the
U.S. company-applicant under the rule, and not directly to the foreign
national. It is the responsibility of the person subject to part 810 to
ensure that transfers and retransfers of U.S. technology and assistance
are under its control and take place in compliance with part 810.
AUECO commented that the rule ``should also explicitly authorize
deemed exports to foreign nationals of Appendix A [sic] countries who
meet the requirements of Sec. 810.6(b)(1, 2 and 4) . . .)'' This
recommendation indicates a misreading of Sec. 810.6. Proposed Sec.
810.6(a) of the SNOPR explicitly authorizes specified activities with
entities in countries listed in the Appendix. Section 810.6 proposed in
the SNOPR and adopted in today's final rule includes all nationals or
citizens of countries listed in the Appendix for all activities except
those described in Sec. 810.7.
In conclusion, DOE carefully weighed the comments received
concerning deemed exports and deemed re-exports. In the discussion
above, DOE has provided clarity for issues raised by commenters, but
has determined that it is unnecessary to make changes to the
requirements for deemed export and deemed re-export authorizations as
proposed in the SNOPR. DOE will address potential improvements for
efficiencies for such applications in the PIP and continue to work
directly with part 810 applicants that have fact-specific compliance
questions.
4. Operational Safety Activities
AREVA, AHUG, and EPRI strongly supported the inclusion of the
proposed definition of ``operational safety'' and the proposed general
authorization provisions contained in the SNOPR for proposed Sec.
810.6(c) (adopted as Sec. 810.6(b) in the final rule). AHUG and EPRI
provided comments and a red line text of the general authorization
provisions at proposed Sec. 810.6(c)(2) and (3) as well as the
definition of ``operational safety'' contained in proposed Sec. 810.3
to further expand the provisions. AHUG, NEI, and EPRI recommended that
DOE consolidate proposed Sec. Sec. 810.6(c)(2) and (3) into a single
general authorization that focuses on the nationality of the recipients
of the operational safety information or assistance rather than on the
nuclear power plants. The commenters alleged that proposed Sec.
810.6(c)(2) would be applicable only to existing plants overseas, while
proposed Sec. 810.6(c)(3) would include new plants as well as existing
plants in the United States and that DOE did not provide a clear
rationale for its proposal. AHUG further commented that extending a
general authorization as proposed in the SNOPR to include assistance to
new nuclear power plants located in countries that are not eligible for
a general authorization to ensure state of the art
[[Page 9370]]
safety technologies and methodologies, including input from U.S.
nuclear operators, are incorporated at the design phase of a reactor
construction is crucial for the safety of nuclear plants.
Proposed Sec. 810.6(c)(2) is intended to authorize U.S. companies
to provide operational safety technologies and assistance to existing
plants in foreign countries so they can meet specific national or
international safety standards or requirements for operational safety.
Proposed Sec. 810.6(c)(3), on the other hand, is intended to authorize
important benchmarking activities at plants in the United States by
international entities or individuals, such as those conducted by the
INPO, and NRC-sponsored and -approved activities. The difference in
treatment between plants located in the United States and those
overseas is intentional. Assistance to U.S. facilities is not
assistance to foreign entities, and the incidental transfer of
technical information to foreign nationals providing the assistance is
not deemed by DOE to be a significant proliferation risk. However,
providing information during the design and construction of a new
facility in a destination requiring specific authorization constitutes
a much higher proliferation risk, and requires DOE approval. The basis
for the DOE decision to adopt the distinction between assistance to a
foreign reactor and benchmarking in the United States remains the basis
for Sec. 810.6(c)(3) in the final rule. NRC-sponsored or -licensed
activities in the United States or overseas are outside the scope of
part 810, as explicitly provided in Sec. 810.2(c)(1).
DOE also reviewed the proposed revision to the definition of
``operational safety'' provided by AHUG and EPRI. DOE proposed a
definition of ``operational safety'' in the SNOPR that would broaden
the scope of assistance and technology that could be generally
authorized. The suggested revisions as provided by AHUG and EPRI
further broadened DOE's proposed scope and include services that are
not considered merely safety but rather services to improve design and/
or efficiencies of nuclear reactors. Because the general authorization
relates only to operational safety, the broader definition that
includes design improvements or efficiencies has not been adopted. DOE
has not made revisions to the proposed definition of ``operational
safety'', but rather is adopting unchanged in today's final rule the
definition proposed in the SNOPR.
ERIN requested clarification on whether probabilistic risk
assessments (PRAs) for existing nuclear power plants in foreign
countries should be generally authorized. ERIN commented that PRAs do
not fall within the scope of part 810 because the methodology is
publicly available. Further, ERIN stated that while the information
included in the PRA is specific to the power plant, no knowledge to
design or operate the reactor more efficiently is transferred in the
process of developing a PRA or the final report. DOE has considered
this comment and agrees with ERIN's comment. DOE concludes in today's
final rule that PRAs are generally authorized activities within the
definition of ``operational safety'' for destinations typically
requiring specific authorization. No change to the rule is required to
address this comment.
NEI commented that in proposed Sec. 810.6(c)(1) of the SNOPR the
words ``which emergency cannot be met by other means'' should be
deleted. NEI stated that it is not in the interest of the United States
that persons subject to part 810 should, in the face of a current or
imminent radiological emergency, spend time trying to demonstrate that
no other means, foreign or domestic, could defuse that emergency, or
that the proposed assistance is uniquely capable of successfully doing
so. DOE declines to incorporate that suggestion because the phrase in
question provides DOE with the latitude to make the determination that
an activity can take place without the paperwork in place. This is the
qualitative analysis that DOE, not the U.S. company, must conduct when
considering such requests. However, to clarify the intent, the phrase
``in DOE's assessment'' has been added. The phrase now reads ``which
emergency in DOE's assessment cannot be met by other means.''
5. Other
NEI reiterated its view that exercise of the Secretary of Energy's
statutory authority under Sec. 57 b.(2) of the AEA to authorize
persons to engage or participate in the development or production of
special nuclear material outside the United States can and should be
delegated; however, as the AEA in section 161 n. does not allow for
delegation below the Secretary, the requested change has not been made
in the rule. NEI also commented that some language proposed in the
SNOPR does not conform to the NSG Guidelines in some areas. The U.S.
Government is a member of and fully supports the NSG; however, the
legal underpinning of the part 810 regulation is U.S. law, namely, the
AEA. The NSG Guidelines are adopted by the NSG by unanimous approval;
thus, in some important instances the part 810 regulation will not
conform to the NSG Guidelines but instead reflects U.S. law.
DOE will address with Enrichment Technology U.S. and Integrated
Systems Technology the questions posed in their comments concerning the
application of the final rule to their specific cases or authorization
conditions. NIC recommended a users group be created for part 810
authorization recipients. After consideration of this request, DOE has
decided that the need for a users group will be considered upon
completion of the PIP.
TerraPower commented that clarification is needed concerning
technologies and assistance associated with fuel research and
development programs that could be viewed as analogous to reprocessing
technologies and because, without a definition of ``reprocessing'' in
the rule, there is room for misinterpretation. DOE has considered this
comment and will address these specific concerns on a case-by-case
basis because the technology has a number of aspects that may or may
not constitute reprocessing depending on the specifics of the case. A
definition could be too restrictive in some applications, and
insufficient in others.
DOE will not address B&W comments concerning the extraterritorial
application of the rule as this is outside the scope of this
rulemaking. Other matters that were presented but are outside the scope
of this rulemaking include: EPRI's comment that any revision of part
810 is unnecessary as the United States already has the most stringent
and unilateral export controls in the world; and NIC's recommendations
to modernize the AEA 123 Agreement process and conduct a 360-degree
peer review of other nuclear technology export control regimes.
NEI submitted a number of editorial and clarifying revisions in a
red lined document, including a proposal that proposed Sec. 810.5(b)
should include a timeframe for a response (NEI proposed 30 days). The
proposed rule and this final rule already provide 30 days for responses
to requests for advice. Specific authorizations frequently require
interactions with foreign governments over whose response time DOE has
no control, thus attempting to incorporate a timeline in the final rule
would not achieve NEI's intended purpose of driving speedier DOE
approvals. Putting a hard deadline in the rule would require DOE to
reject the application if foreign government nonproliferation
assurances could not be obtained within the mandated time, and would
require the company to
[[Page 9371]]
resubmit and restart the process. DOE will address timelines in the PIP
and not in the final rule published today.
D. Technical Corrections
1. Sec. 810.1
NEI recommended adding a clause to proposed Sec. 810.1 ``(d)
Establish orderly and expeditious procedures for the consideration of
requests for specific authorization under this part.''
This phrase is, in part, a direct quote of Sec. 57 b. of the
Atomic Energy Act directing the adoption of procedures for processing
part 810 specific authorization requests. Such procedures were issued
in 1978 and amended in 1984. It does not add to the rule, nor does it
create enforceable language that will either help applicants obtain
their specific authorizations more rapidly or provide further direction
to DOE. Therefore, DOE does not incorporate this recommendation into
the final rule.
2. Sec. 810.3 Technical Services
AUECO commented that there was no definition of ``technical
services'' proposed in the SNOPR and requested clarification concerning
whether the quoted phrase is different from the defined term
``technical assistance.'' The term ``technical services'' occurs only
once in the 1986 version of the rule and in the SNOPR, in the
definition of ``sensitive nuclear technology.'' To avoid the potential
for confusion, DOE in today's final rule has replaced ``technical
services'' with ``assistance'' because they have the same intended
meaning. A new definition of ``assistance'' has been added to Sec.
810.3.
3. Sec. 810.3 Technical Assistance vs. Assistance
NEI commented that ``assistance'' should be globally replaced with
``technical assistance'' or ``assistance'' should be defined.
The phrase ``technical assistance'' occurred only twice in the
SNOPR beyond the definitions in proposed Sec. 810.3. All usages of
``technical assistance'' in today's final rule have been replaced with
``assistance'' and the definition modified accordingly. As noted, a new
definition of ``assistance'' has been added to Sec. 810.3.
In addition NEI commented that the phrase ``as determined by the
Secretary'' in the definition of ``assistance'' should be deleted
because ``it is vague and open-ended and reduces certainty about what
types of assistance are covered by Part 810. Any expansion of the reach
of the regulation should be accomplished only by an amendment, subject
to Section 553 of the APA. At a minimum, the rule should be clear that
any controls asserted on the basis of Secretarial determination over
specific types of technical assistance that are not listed in the rule
should apply only prospectively.''
The definition of ``assistance'' includes a list of activities that
can be construed as assistance, and cannot, by its nature, be a
comprehensive description of all the ways persons may endeavor to
assist persons in other countries with nuclear technology. The
inclusion of the phrase ``as determined by the Secretary'' is intended
to prevent circumvention of this rule by the mere renaming of
activities to avoid the descriptions included in this list. Therefore,
based on consideration of the comment, DOE determined to retain the
phrase in the final rule.
4. Sec. 810.6(f)
NEI commented that DOE should delete the ``and'' at the end of
Sec. 810.6(f) proposed in the SNOPR to clarify that any one of the
activities in subsections (a) through (g) of this section is
independently generally authorized, rather than requiring that all of
them be involved in order for the activity to be generally authorized.
DOE agrees with NEI and in this final rule replaces ``and'' with
``or'' to make the disjunctive nature of the list clear.
5. Sec. Sec. 810.6(c)(2) and 810.11(b)
NEI requested that DOE clarify ``that 810.6(c)(2) has correctly
numbered references. It calls for information in 810.11(b), which
refers the applicant to optional information from 810.9(b) and (c).''
The SNOPR proposed Sec. 810.11(b), which provided applicants the
option of providing information concerning the factors listed in
Sec. Sec. 810.9(b) and (c) of the SNOPR. DOE has determined that the
factors are more properly considered by DOE in making non-inimicality
determinations. Therefore, in the final rule Sec. 810.11(b) as
proposed in the SNOPR has been eliminated and Sec. 810.11(c) as
proposed in the SNOPR has been renumbered as Sec. 810.11(b).
In the final rule, the phrase ``and may provide information cited
in Sec. 810.11(b)'' is eliminated from Sec. 810.6(c)(2). The
elimination of Sec. 810.11(b) and subsequent renumbering also requires
changes to Sec. 810.11(a) that referenced Sec. 810.11(b). This clause
now references Sec. Sec. 810.9(b)(7), (8), and (9).
6. Sec. 810.16 Savings Clause
NEI and B&W both commented that the time frames in proposed Sec.
810.15 were inadequate. B&W recommended a complete grandfathering of
all current activities in countries moving from general authorization
to specific authorization classification. NEI pointed out that such
activities were unlikely to be found problematic by DOE. NEI
recommended a limited time frame and suggested that a lack of objection
from DOE would constitute acceptance.
DOE acknowledges that 90 days is too short a time for many entities
to request specific authorization for activities that were generally
authorized prior to issuance of the final rule, and in today's final
rule DOE has therefore extended the transition period to 180 days.
However, a finding of non-inimicality cannot be met by DOE not meeting
a deadline of any kind. Acknowledging that technology transfers have
already occurred, the savings clause in the final rule provides that
until DOE acts on an applicant's request, the applicant can continue
its part 810-controlled current activities.
V. Regulatory Review
A. Executive Order 12866
Today's final rule has been determined to be an economically
significant regulatory action under Executive Order 12866, ``Regulatory
Planning and Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this
action was subject to review under that Executive Order by the Office
of Information and Regulatory Affairs of the Office of Management and
Budget. The required economic impact analysis was prepared by DOE.
AREVA, AUECO, George Mason University, and NEI commented that the
economic analysis performed as a part of the rulemaking was based on
flawed data sets or data from soft growth periods, which the commenters
contended are not realistic in normal circumstances.
NEI's analysis is the most comprehensive of those provided and is
used in this discussion of the economic impacts of this final rule.
Rather than debate the assumptions between DOE's analysis and NEI's
analysis, DOE accepts NEI's basic claim that different assumptions will
result in different outcomes. NEI's critique claims that revisions to
part 810 as proposed in the SNOPR would have an annual impact of $10
million to the detriment of the U.S. nuclear industry.
In its analysis, NEI listed 14 key countries that will be moving
from generally authorized to specifically authorized classification and
based its conclusion concerning the economic impact of DOE's proposed
regulatory revisions on these 14 countries. NEI did not provide any
information about the specific opportunities provided in each
[[Page 9372]]
country, so DOE has assumed it is roughly equal to $700,000 per country
per year. As Croatia was included in NEI's list, and since that country
has been included on the Appendix list of generally authorized
destinations, any impact should be reduced by $700,000 per year,
bringing the impact down to $9.3 million per year.
NEI's critique also included a projected $5 million per year impact
for losses associated with deemed exports. The argument is related to
an economic loss attributed to those companies that would be required
to hire workers from countries that do not require specific
authorizations. While the DOE does acknowledge that there is additional
effort involved in hiring workers from these destinations into
positions where part 810-controlled technology would be shared, the
final rule does not preclude such hiring and, in fact, NNSA is working
on a PIP to reduce this burden. Under the 1986 version of the rule a
large number of the specific authorizations were, in fact, to allow
such workers to work in those positions. However, for the sake of
discussion, DOE accepts that there is an impact of $2.5 million per
year.
To be further conservative, DOE has omitted any potential
additional positive impact of countries moving from specific
authorizations to general authorization classification. Such changes
serve to reduce the impact of this rule further. For example, Vietnam
(although not one of NEI's identified 14 critical countries) has just
entered into a 123 Agreement with the United States, and is included in
the Appendix to the final rule as a generally authorized destination.
These corrections bring the net effect of the NEI based analysis to
$6.8 million per year, or roughly $100 million over the analysis period
(present to 2030). The Table below summarizes NEI's original assumption
and DOE's corrections:
------------------------------------------------------------------------
Annual Impacts
impact through
Changes (million/ 2030
yr) (millions)
------------------------------------------------------------------------
NEI.......................... Base........... $10 160
DOE Changes for Croatia's $0.7........... 9.3 148.8
status as GA.
DOE Changes for Deemed export $2.5........... 6.8 108.7
impact.
------------------------------------------------------------------------
DOE's economic analysis compared the potential impacts on the U.S.
nuclear exports of shifting countries from one type of authorization to
another for three different nuclear capacity forecasts. Using the World
Nuclear Association (WNA low projection), Nuclear Assurance
Corporation, and UxC nuclear capacity forecasts; DOE estimated the
potential for lost business in nuclear exports to range from $20 to $86
million per year over the 18-year window as potential export volume
destined for countries moving from generally authorized to specifically
authorized status. Using the same three nuclear capacity forecasts, DOE
also estimated the potential impacts on U.S. nuclear exports associated
with transferring technology to specifically authorized countries
reclassified as generally authorized countries to be between $86 to
$154 million per year.
DOE monetized the potential impact of the rule from moving
countries from the GA to SA category and from the SA to the GA
category. For countries moving from the GA to SA category, the monetary
impact is expected to be negative, since specific authorization
involves additional cost to applicants and time for DOE to process, and
some small fraction of SA applications may ultimately not be approved.
The impact of moving a country from the SA to GA category will, for the
same reasons, is expected to be positive. DOE calculated the net effect
on U.S. nuclear exports using the average annual yearly trade derived
from the WNA low projection from 2013 through 2030 and from four
scenarios that assume 10% to 40% of annual yearly trade will be
impacted either positively or negatively by the rule change. Using the
20% impact as the assumption for the primary impact estimate, DOE
estimated the costs to be $23 million/year and the benefits to be $43
million/year with a net benefit of $20 million/year at a 7% discount
rate. The net benefit of the rule ranged from a low of $9 million/year
to $53 million/year at a 7% discount rate as shown in the table below.
The estimates using a 3% discount rate are also presented in the table
below.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year Discount Period
Primary Low estimate High estimate dollars rate (%) covered
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized Monetized Costs ($Millions/Year)............. $22,690,617 $10,084,718 $60,508,311 2010 7 2013-2030
23,674,479 10,521,991 63,131,945 2010 3 2013-2030
Annualized Monetized Benefits ($Millions/Year).......... 42,586,759 18,927,448 113,564,690 2010 7 2013-2030
42,927,555 19,078,913 114,473,479 2010 3 2013-2030
Annualized Monetized Net Benefits ($Millions/Year)...... 19,896,142 8,842,730 53,056,379 2010 7 2013-2030
19,253,076 8,556,922 51,341,534 2010 3 2013-2030
--------------------------------------------------------------------------------------------------------------------------------------------------------
Both NEI and DOE's analyses concur that MW's of nuclear generation
serve as a rough approximation of potential market opportunity. In
looking at comprehensive forecasts from today to 2030, DOE notes that
at the maximum, the countries moving from generally authorized to
specific authorization status represent significantly less than 1% of
the total market.
B. Administrative Procedure Act
In accordance with 5 U.S.C. 553(b)(3)(B), the DOE finds that
providing an opportunity for public comment on office name changes in
DOE's internal organization structure prior to publication of this rule
is not necessary and contrary to the public interest because they are
minor technical changes. Prior notice and
[[Page 9373]]
opportunity to comment on these changes are unnecessary because they
are not subject to the exercise of discretion by the DOE.
C. National Environmental Policy Act
DOE determined that today's final rule is covered under the
Categorical Exclusion found in DOE's National Environmental Policy Act
regulations at paragraph A5 of Appendix A to Subpart D, 10 CFR part
1021, categorical exclusion A5, which applies to a rule or regulation
that interprets or amends an ``existing rule or regulation that does
not change the environmental effect of the rule or regulation being
amended.'' Accordingly, neither an environmental assessment nor an
environmental impact statement is required.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of an initial regulatory flexibility analysis for any rule
that by law must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. As required
by Executive Order 13272, ``Proper Consideration of Small Entities in
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published
procedures and policies on February 19, 2003, to ensure that the
potential impacts of its rules on small entities are properly
considered during the rulemaking process (68 FR 7990). DOE has made its
procedures and policies available on the Office of the General
Counsel's Web site: http://www.energy.gov/gc/downloads/executive-order-13272-consideration-small-entities-agency-rulemaking.
In the SNOPR, DOE certified that this rule would not have a
significant economic impact on a substantial number of small entities
and did not prepare a regulatory flexibility analysis for this
rulemaking. The DOE received no comments on the certification, and has
responded to comments related to the economic impacts of the rule
elsewhere in this preamble; no changes to the certification were made
based on comments received. As a result, the DOE certifies that today's
final rule will not have a significant impact on a substantial number
of small entities. The DOE's certification and supporting statement of
factual basis will be provided to the Chief Counsel for Advocacy of the
Small Business Administration pursuant to 5 U.S.C. 605(b).
E. Paperwork Reduction Act
U.S. companies that wish to export nuclear technology or assistance
within the scope of this final rule must provide DOE with information
concerning the technology to be transferred as well as the destination
and use or application of the assistance or technology. Depending on
the destination and the technology in question, a U.S. company will be
required to submit a report of the activity 30 days after the fact or a
request for a specific authorization from the Secretary. DOE submitted
a request for the reinstatement of the collection of information
associated with recordkeeping and reporting requirements of part 810 to
OMB for approval pursuant to the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.) and the procedures implementing that Act, 5 CFR
1320.1 et seq. The collection of information requirements for
compliance with part 810 and recordkeeping is subject to review and
approval by OMB under OMB Control Number 1901-0263. OMB approved the
reinstatement of the information collection on October 31, 2014. DOE
published notices in the Federal Register on March 7, 2014, FRN# 2014-
04984, p. 13048, and FRN# 2014-12800, p. 31928 soliciting comments on
the DOE estimate of the information collection burden. No public
comments were received on the 60-day or 30-day notices. In association
with this rulemaking revision for part 810, DOE is submitting for OMB
approval the revisions to this information collection.
Under the 1986 version of the rule, a list of countries at Sec.
810.8(a) contained 73 counties that required case-by-case review for
the Secretary to make a non-inimicality finding specifically
authorizing the transfer of any technology or assistance except where
generally authorized in Sec. 810.7. By default, all countries not
listed were generally authorized destinations for the transfer of
nuclear power plant technology and assistance to those countries
without prior approval from DOE. In this final rule, DOE restructured
the list to a positive list of destinations, including 51 destinations
to which the transfer of nuclear power plant technology will be
generally authorized. This revision has effected a net change of an
additional 74 countries that were by default generally authorized for
the transfer of nuclear power plant technology but will now require a
specific authorization. While this is an increase in the number of
destinations not eligible for a general authorization by default, in
DOE's estimation, the positive generally authorized destination list is
not expected to result in a substantial increase in the volume of
reporting or requests for specific authorization, as the subject
countries have no civilian nuclear programs or plans for civilian
nuclear programs in the near future.
The reporting and application burden is estimated at three hours
per response, and an average of three responses per distinct entity,
regardless of it being a report of generally authorized activities or a
request for specific authorization. This number includes the time for
reviewing the regulation, searching existing data sources, gathering
and maintaining the data needed, and completing and reviewing the
collection of information. DOE estimated for the 1986 version of the
rule that the total number of unduplicated respondents to be 145 with
the average of 2.22 responses per respondent, resulting in 322
responses and 966 total annual burden hours with the average burden per
response at 3 hours and the average annual burden per respondent at
6.66 hours. Under the final rule, DOE is estimating that the number of
respondents will remain the same but that the number of reports filed
per respondent to increase from 2.22 to 3.19, resulting in 463 total
annual responses and 1389 total annual burden hours. The average burden
per response is estimated to remain at 3 hours per respondent and the
average annual burden per respondent at 9.57 hours.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the Paperwork Reduction Act, unless that collection of
information displays a currently valid OMB Control Number.
F. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally
requires Federal agencies to examine closely the impacts of regulatory
actions on State, local, and tribal governments. Subsection 101(5) of
title I of that law defines a Federal intergovernmental mandate to
include any regulation that would impose upon State, local, or tribal
governments an enforceable duty, except a condition of Federal
assistance or a duty arising from participating in a voluntary federal
program. Title II of that law requires each Federal agency to assess
the effects of Federal regulatory actions on State, local, and tribal
governments, in the aggregate, or to the private sector, other than to
the extent
[[Page 9374]]
such actions merely incorporate requirements specifically set forth in
a statute. Section 202 of that title requires a Federal agency to
perform a detailed assessment of the anticipated costs and benefits of
any rule that includes a Federal mandate which may result in costs to
State, local, or tribal governments, or to the private sector, of $100
million or more in any one year (adjusted annually for inflation). 2
U.S.C. 1532(a) and (b). Section 204 of that title requires each agency
that proposes a rule containing a significant Federal intergovernmental
mandate to develop an effective process for obtaining meaningful and
timely input from elected officers of State, local, and tribal
governments (2 U.S.C. 1534).
This rule does not impose a Federal mandate on State, local, or
tribal governments or on the private sector. Accordingly, no assessment
or analysis is required under the Unfunded Mandates Reform Act of 1995.
G. Treasury and General Government Appropriations Act, 1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any proposed rule that may affect family
well-being. The final rule will not have any impact on the autonomy or
integrity of the family as an institution. Accordingly, DOE has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
H. Executive Order 13132
Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4,
1999), imposes certain requirements on agencies formulating and
implementing policies or regulations that preempt State law or that
have federalism implications. Agencies are required to examine the
constitutional and statutory authority supporting any action that would
limit the policymaking discretion of the States and carefully assess
the necessity for such actions. DOE has examined this rule and has
determined that it does not pre-empt State law and will not have a
substantial direct effect on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government. No further
action is required by Executive Order 13132.
I. Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by section 3(a), section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) Clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct while promoting simplification and burden reduction;
(4) specifies the retroactive effect, if any; (5) adequately defines
key terms; and (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires Executive
agencies to review regulations in light of applicable standards in
section 3(a) and section 3(b) to determine whether they are met or it
is unreasonable to meet one or more of them. DOE has completed the
required review and determined that, to the extent permitted by law,
the rule meets the relevant standards of Executive Order 12988.
J. Treasury and General Government Appropriations Act, 2001
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516 note), provides for agencies to review most disseminations
of information to the public under guidelines established by each
agency pursuant to general guidelines issued by OMB.
OMB's guidelines were published at 67 FR 8452 (February 22, 2002),
and DOE's guidelines were published at 67 FR 62446 (October 7, 2002).
DOE has reviewed this rule under the OMB and DOE guidelines and has
concluded that it is consistent with applicable policies in those
guidelines.
K. Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355
(May 22, 2001), requires Federal agencies to prepare and submit to OMB
a Statement of Energy Effects for any proposed significant energy
action. A ``significant energy action'' is defined as any action by an
agency that promulgated or is expected to lead to promulgation of a
final rule, and that: (1) Is a significant regulatory action under
Executive Order 12866, or any successor order; and (2) is likely to
have a significant adverse effect on the supply, distribution, or use
of energy, or (3) is designated by the Administrator of the Office of
Information and Regulatory Affairs as a significant energy action. For
any proposed significant energy action, the agency must give a detailed
statement of any adverse effects on energy supply, distribution, or use
should the proposal be implemented, and of reasonable alternatives to
the action and their expected benefits on energy supply, distribution,
and use. Today's regulatory action will not have a significant adverse
effect on the supply, distribution, or use of energy and is therefore
not a significant energy action. Accordingly, DOE has not prepared a
Statement of Energy Effects.
L. Executive Order 13609
Executive Order 13609 of May 1, 2012, ``Promoting International
Regulatory Cooperation,'' requires that, to the extent permitted by law
and consistent with the principles and requirements of Executive Order
13563 and Executive Order 12866, each Federal agency shall:
(a) If required to submit a Regulatory Plan pursuant to Executive
Order 12866, include in that plan a summary of its international
regulatory cooperation activities that are reasonably anticipated to
lead to significant regulations, with an explanation of how these
activities advance the purposes of Executive Order 13563 and this
order;
(b) Ensure that significant regulations that the agency identifies
as having significant international impacts are designated as such in
the Unified Agenda of Federal Regulatory and Deregulatory Actions, on
RegInfo.gov, and on Regulations.gov;
(c) In selecting which regulations to include in its retrospective
review plan, as required by Executive Order 13563, consider:
(i) Reforms to existing significant regulations that address
unnecessary differences in regulatory requirements between the United
States and its major trading partners, consistent with section 1 of
this order, when stakeholders provide adequate information to the
agency establishing that the differences are unnecessary; and
(ii) Such reforms in other circumstances as the agency deems
appropriate; and
(d) For significant regulations that the agency identifies as
having significant international impacts, consider, to the
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extent feasible, appropriate, and consistent with law, any regulatory
approaches by a foreign government that the United States has agreed to
consider under a regulatory cooperation council work plan.
DOE has reviewed this rule under the provisions of Executive Order
13609 and determined that the rule complies with all requirements set
forth in the order.
M. Congressional Notification
As required by 5 U.S.C. 801, DOE will submit to Congress a report
regarding the issuance of today's final rule prior to the effective
date set forth at the outset of this notice. The report will state that
it has been determined that the rule is not a ``major rule'' as defined
by 5 U.S.C. 801(2).
VI. Approval by the Office of the Secretary
The Office of the Secretary of Energy has approved the publication
of this final rule.
List of Subjects in 10 CFR Part 810
Foreign relations, Nuclear energy, Reporting and recordkeeping
requirements.
Issued in Washington, DC, on February 7, 2015.
Ernest J. Moniz,
Secretary of Energy.
For the reasons stated in the preamble, DOE amends title 10 of the
Code of Federal Regulations by revising part 810 to read as follows:
PART 810--ASSISTANCE TO FOREIGN ATOMIC ENERGY ACTIVITIES
Sec.
810.1 Purpose.
810.2 Scope.
810.3 Definitions.
810.4 Communications.
810.5 Interpretations.
810.6 Generally authorized activities.
810.7 Activities requiring specific authorization.
810.8 Restrictions on general and specific authorization.
810.9 Grant of specific authorization.
810.10 Revocation, suspension, or modification of authorization.
810.11 Information required in an application for specific
authorization.
810.12 Reports.
810.13 Additional information.
810.14 Special provision regarding Ukraine.
810.15 Violations.
810.16 Effective date and savings clause.
Appendix A to Part 810--Generally Authorized Destinations
Authority: Secs. 57, 127, 128, 129, 161, 222, and 232 Atomic
Energy Act of 1954, as amended by the Nuclear Nonproliferation Act
of 1978, Pub. L. 95-242, 68 Stat. 932, 948, 950, 958, 92 Stat. 126,
136, 137, 138 (42 U.S.C. 2077, 2156, 2157, 2158, 2201, 2272, 2280),
and the Intelligence Reform and Terrorism Prevention Act of 2004,
Pub. L. 108-458, 118 Stat. 3768; Sec. 104 of the Energy
Reorganization Act of 1974, Pub. L. 93-438; Sec. 301, Department of
Energy Organization Act, Pub. L. 95-91; National Nuclear Security
Administration Act, Pub. L. 106-65, 50 U.S.C. 2401 et seq., as
amended.
Sec. 810.1 Purpose.
The regulations in this part implement section 57 b.(2) of the
Atomic Energy Act, which empowers the Secretary, with the concurrence
of the Department of State, and after consultation with the Nuclear
Regulatory Commission, the Department of Commerce, and the Department
of Defense, to authorize persons to directly or indirectly engage or
participate in the development or production of special nuclear
material outside the United States. The purpose of the regulations in
this part is to:
(a) Identify activities that are generally authorized by the
Secretary and thus require no other authorization under this part;
(b) Identify activities that require specific authorization by the
Secretary and explain how to request authorization; and
(c) Specify reporting requirements for authorized activities.
Sec. 810.2 Scope.
(a) Part 810 (this part) applies to:
(1) All persons subject to the jurisdiction of the United States
who directly or indirectly engage or participate in the development or
production of any special nuclear material outside the United States;
and
(2) The transfer of technology that involves any of the activities
listed in paragraph (b) of this section either in the United States or
abroad by such persons or by licensees, contractors or subsidiaries
under their direction, supervision, responsibility, or control.
(b) The activities referred to in paragraph (a) of this section
are:
(1) Chemical conversion and purification of uranium and thorium
from milling plant concentrates and in all subsequent steps in the
nuclear fuel cycle;
(2) Chemical conversion and purification of plutonium and
neptunium;
(3) Nuclear fuel fabrication, including preparation of fuel
elements, fuel assemblies and cladding thereof;
(4) Uranium isotope separation (uranium enrichment), plutonium
isotope separation, and isotope separation of any other elements
(including stable isotope separation) when the technology or process
can be applied directly or indirectly to uranium or plutonium;
(5) Nuclear reactor development, production or use of the
components within or attached directly to the reactor vessel, the
equipment that controls the level of power in the core, and the
equipment or components that normally contain or come in direct contact
with or control the primary coolant of the reactor core;
(6) Development, production or use of production accelerator-driven
subcritical assembly systems;
(7) Heavy water production and hydrogen isotope separation when the
technology or process has reasonable potential for large-scale
separation of deuterium (\2\H) from protium (\1\H);
(8) Reprocessing of irradiated nuclear fuel or targets containing
special nuclear material, and post-irradiation examination of fuel
elements, fuel assemblies and cladding thereof, if it is part of a
reprocessing program; and
(9) The transfer of technology for the development, production, or
use of equipment or material especially designed or prepared for any of
the above listed activities. (See Nuclear Regulatory Commission
regulations at 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.)
(c) This part does not apply to:
(1) Exports authorized by the Nuclear Regulatory Commission,
Department of State, or Department of Commerce;
(2) Transfer of publicly available information, publicly available
technology, or the results of fundamental research;
(3) Uranium and thorium mining and milling (e.g., production of
impure source material concentrates such as uranium yellowcake and all
activities prior to that production step);
(4) Nuclear fusion reactors per se, except for supporting systems
involving hydrogen isotope separation technologies within the scope
defined in paragraph (b)(7) of this section and Sec. 810.7(c)(3);
(5) Production or extraction of radiopharmaceutical isotopes when
the process does not involve special nuclear material; and
(6) Transfer of technology to any individual who is lawfully
admitted for permanent residence in the United States or is a protected
individual under the Immigration and Naturalization Act (8 U.S.C.
1324b(a)(3)).
(d) Persons under U.S. jurisdiction are responsible for their
foreign licensees,
[[Page 9376]]
contractors, or subsidiaries to the extent that the former have control
over the activities of the latter.
Sec. 810.3 Definitions.
As used in this part 810:
Agreement for cooperation means an agreement with another nation or
group of nations concluded under sections 123 or 124 of the Atomic
Energy Act.
Assistance means assistance in such forms as instruction, skills,
training, working knowledge, consulting services, or any other
assistance as determined by the Secretary. Assistance may involve the
transfer of technical data.
Atomic Energy Act means the Atomic Energy Act of 1954, as amended.
Classified information means national security information
classified under Executive Order 13526 or any predecessor or
superseding order, and Restricted Data classified under the Atomic
Energy Act.
Cooperative enrichment enterprise means a multi-country or multi-
company (where at least two of the companies are incorporated in
different countries) joint development or production effort. The term
includes a consortium of countries or companies or a multinational
corporation.
Country, as well as government, nation, state, and similar entity,
shall be read to include Taiwan, consistent with section 4 of the
Taiwan Relations Act (22 U.S.C. 3303).
Development means any activity related to all phases before
production such as: Design, design research, design analysis, design
concepts, assembly and testing of prototypes, pilot production schemes,
design data, process of transforming design data into a product,
configuration design, integration design, and layouts.
DOE means the U.S. Department of Energy.
Enrichment means isotope separation of uranium or isotope
separation of plutonium, regardless of the type of process or
separation mechanism used.
Fissile material means isotopes that readily fission after
absorbing a neutron of any energy, either fast or slow. Fissile
materials are uranium-235, uranium-233, plutonium-239, and plutonium-
241.
Foreign national means an individual who is not a citizen or
national of the United States, but excludes U.S. lawful permanent
residents and protected individuals under the Immigration and
Naturalization Act (8 U.S.C. 1324b(a)(3)).
Fundamental research means basic and applied research in science
and engineering, the results of which ordinarily are published and
shared broadly within the scientific community, as distinguished from
proprietary research and from industrial development, design,
production, and product utilization, the results of which ordinarily
are restricted for proprietary or national security reasons.
General authorization means an authorization granted by the
Secretary under section 57 b.(2) of the Atomic Energy Act to provide
assistance or technology to foreign atomic energy activities subject to
this part and which does not require a request for, or the Secretary's
issuance of, a specific authorization.
IAEA means the International Atomic Energy Agency.
NNPA means the Nuclear Non-Proliferation Act of 1978, 22 U.S.C.
3201 et seq.
NPT means the Treaty on the Non-Proliferation of Nuclear Weapons,
done on July 1, 1968.
Nuclear reactor means an apparatus, other than a nuclear explosive
device, designed or used to sustain nuclear fission in a self-
sustaining chain reaction.
Operational safety means the capability of a reactor to be operated
in a manner that complies with national standards or requirements or
widely-accepted international standards and recommendations to prevent
uncontrolled or inadvertent criticality, prevent or mitigate
uncontrolled release of radioactivity to the environment, monitor and
limit staff exposure to radiation and radioactivity, and protect off-
site population from exposure to radiation or radioactivity.
Operational safety may be enhanced by providing expert advice,
equipment, instrumentation, technology, software, services, analyses,
procedures, training, or other assistance that improves the capability
of the reactor to be operated in compliance with such standards,
requirements or recommendations.
Person means:
(1) Any individual, corporation, partnership, firm, association,
trust, estate, public or private institution;
(2) Any group, government agency other than DOE, or any State or
political entity within a State; and
(3) Any legal successor, representative, agent, or agency of the
foregoing.
Production means all production phases such as: Construction,
production engineering, manufacture, integration, assembly or mounting,
inspection, testing, and quality assurance.
Production accelerator means a particle accelerator especially
designed, used, or intended for use with a production subcritical
assembly.
Production accelerator-driven subcritical assembly system means a
system comprised of a production subcritical assembly and a production
accelerator and which is especially designed, used, or intended for the
production of plutonium or uranium-233. In such a system, the
production accelerator target provides a source of neutrons used to
effect special nuclear material production in the production
subcritical assembly.
Production reactor means a nuclear reactor especially designed or
used primarily for the production of plutonium or uranium-233.
Production subcritical assembly means an apparatus that contains
source material or special nuclear material to produce a nuclear
fission chain reaction that is not self-sustaining and that is
especially designed, used, or intended for the production of plutonium
or uranium-233.
Publicly available information means information in any form that
is generally accessible, without restriction, to the public.
Publicly available technology means technology that is already
published or has been prepared for publication; arises during, or
results from, fundamental research; or is included in an application
filed with the U.S. Patent Office and eligible for foreign filing under
35 U.S.C. 184.
Restricted Data means all data concerning:
(1) Design, manufacture, or utilization of atomic weapons;
(2) The production of special nuclear material; or
(3) The use of special nuclear material in the production of
energy, but shall not include data declassified or removed from the
Restricted Data category pursuant to section 142 of the Atomic Energy
Act.
Secretary means the Secretary of Energy.
Sensitive nuclear technology means any information (including
information incorporated in a production or utilization facility or
important component part thereof) which is not available to the public
(see definition of ``publicly available information'') and which is
important to the design, construction, fabrication, operation, or
maintenance of a uranium enrichment or nuclear fuel reprocessing
facility or a facility for the production of heavy water, but shall not
include Restricted Data controlled pursuant to chapter 12 of the Atomic
Energy Act. The information may take a tangible form such as a model,
prototype, blueprint, or
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operation manual or an intangible form such as assistance.
Source material means:
(1) Uranium or thorium, other than special nuclear material; or
(2) Ores that contain by weight 0.05 percent or more of uranium or
thorium, or any combination of these materials.
Special nuclear material means:
(1) Plutonium,
(2) Uranium-233, or
(3) Uranium enriched above 0.711 percent by weight in the isotope
uranium-235.
Specific authorization means an authorization granted by the
Secretary under section 57b.(2) of the Atomic Energy Act, in response
to an application filed under this part, to engage in specifically
authorized nuclear activities subject to this part.
Technical data means data in such forms as blueprints, plans,
diagrams, models, formulae, engineering designs, specifications,
manuals, and instructions written or recorded on other media or devices
such as disks, tapes, read-only memories, and computational
methodologies, algorithms, and computer codes that can directly or
indirectly affect the production of special nuclear material.
Technology means assistance or technical data required for the
development, production or use of any plant, facility, or especially
designed or prepared equipment for the activities described in Sec.
810.2(b).
Use means operation, installation (including on-site installation),
maintenance (checking), repair, overhaul, or refurbishing.
United States, when used in a geographical sense, includes Puerto
Rico and all territories and possessions of the United States.
Sec. 810.4 Communications.
(a) All communications concerning the regulations in this part
should be addressed to: U.S. Department of Energy, Washington, DC
20585. Attention: Senior Policy Advisor, National Nuclear Security
Administration/Office of Nonproliferation and Arms Control (NPAC),
Telephone (202) 586-1007.
(b) Communications also may be delivered to DOE's headquarters at
1000 Independence Avenue SW., Washington, DC 20585. All clearly marked
proprietary information will be given the maximum protection allowed by
law.
(c) Communications may also be delivered by email to:
[email protected]. For ``fast track'' activities described in
Sec. Sec. 810.6(c)(1) and (c)(2) emails should be sent to: [email protected]. Notifications regarding activity in the
Ukraine should be delivered by email to: [email protected].
Sec. 810.5 Interpretations.
(a) The advice of the DOE Office of Nonproliferation and Arms
Control may be requested on whether a proposed activity falls outside
the scope of this part, is generally authorized under Sec. 810.6, or
requires a specific authorization under Sec. 810.7. However, unless
authorized by the Secretary in writing, no interpretation of the
regulations in this part other than a written interpretation by the DOE
General Counsel is binding upon DOE.
(b) When advice is requested from the DOE Office of
Nonproliferation and Arms Control, or a binding, written determination
is requested from the DOE General Counsel, a response normally will be
made within 30 calendar days and, if this is not feasible, an interim
response will explain the reason for the delay.
(c) The DOE Office of Nonproliferation and Arms Control may
periodically publish abstracts of general or specific authorizations
that may be of general interest, exclusive of proprietary business-
confidential data submitted to DOE or other information protected by
law from unauthorized disclosure.
Sec. 810.6 Generally authorized activities.
The Secretary has determined that the following activities are
generally authorized, provided that no sensitive nuclear technology or
assistance described in Sec. 810.7 is involved:
(a) Engaging directly or indirectly in the production of special
nuclear material at facilities in countries or with entities listed in
the Appendix to this part;
(b) Transfer of technology to a citizen or national of a country
other than the United States not listed in the Appendix to this part
and working at an NRC-licensed facility, provided:
(1) The foreign national is lawfully employed by or contracted to
work for a U.S. employer in the United States;
(2) The foreign national executes a confidentiality agreement with
the U.S. employer to safeguard the technology from unauthorized use or
disclosure;
(3) The foreign national has been granted unescorted access in
accordance with NRC regulations at an NRC-licensed facility; and
(4) The foreign national's U.S. employer authorizing access to the
technology complies with the reporting requirements in Sec. 810.12(g).
(c) Activities at any safeguarded or NRC-licensed facility to:
(1) Prevent or correct a current or imminent radiological emergency
posing a significant danger to the health and safety of the off-site
population, which emergency in DOE's assessment cannot be met by other
means, provided DOE is notified in writing in advance and does not
object within 48 hours of receipt of the advance notification;
(2) Furnish operational safety information or assistance to
existing safeguarded civilian nuclear reactors outside the United
States in countries with safeguards agreements with the IAEA or an
equivalent voluntary offer, provided DOE is notified in writing and
approves the activity in writing within 45 calendar days of the notice.
The applicant should provide all the information required under Sec.
810.11 and specific references to the national or international safety
standards or requirements for operational safety for nuclear reactors
that will be addressed by the assistance; or
(3) Furnish operational safety information or assistance to
existing, proposed, or new-build civilian nuclear facilities in the
United States, provided DOE is notified by certified mail return
receipt requested and approves the activity in writing within 45
calendar days of the notice. The applicant should provide all the
information required under Sec. 810.11.
(d) Participation in exchange programs approved by the Department
of State in consultation with DOE;
(e) Activities carried out in the course of implementation of the
``Agreement between the United States of America and the IAEA for the
Application of Safeguards in the United States,'' done on December 9,
1980;
(f) Activities carried out by persons who are full-time employees
of the IAEA or whose employment by or work for the IAEA is sponsored or
approved by the Department of State or DOE; or
(g) Extraction of Molybdenum-99 for medical use from irradiated
targets of enriched uranium, provided that the activity does not also
involve purification and recovery of enriched uranium materials, and
provided further, that the technology used does not involve significant
components relevant for reprocessing spent nuclear reactor fuel (e.g.,
high-speed centrifugal contactors, pulsed columns).
Sec. 810.7 Activities requiring specific authorization.
Any person requires a specific authorization by the Secretary
before:
(a) Engaging in any of the activities listed in Sec. 810.2(b) with
any foreign country or entity not specified in the Appendix to this
part;
[[Page 9378]]
(b) Providing or transferring sensitive nuclear technology to any
foreign country or entity; or
(c) Engaging in or providing technology (including assistance) for
any of the following activities with respect to any foreign country or
entity (or a citizen or national of that country other than U.S. lawful
permanent residents or protected individuals under the Immigration and
Naturalization Act (8 U.S.C. 1324b(a)(3)):
(1) Uranium isotope separation (uranium enrichment), plutonium
isotope separation, or isotope separation of any other elements
(including stable isotope separation) when the technology or process
can be applied directly or indirectly to uranium or plutonium;
(2) Fabrication of nuclear fuel containing plutonium, including
preparation of fuel elements, fuel assemblies, and cladding thereof;
(3) Heavy water production, and hydrogen isotope separation, when
the technology or process has reasonable potential for large-scale
separation of deuterium (\2\H) from protium (\1\H);
(4) Development, production or use of a production accelerator-
driven subcritical assembly system;
(5) Development, production or use of a production reactor; or
(6) Reprocessing of irradiated nuclear fuel or targets containing
special nuclear material.
Sec. 810.8 Restrictions on general and specific authorization.
A general or specific authorization granted by the Secretary under
this part:
(a) Is limited to activities involving only unclassified
information and does not permit furnishing classified information;
(b) Does not relieve a person from complying with the relevant laws
or the regulations of other U.S. Government agencies applicable to
exports; and
(c) Does not authorize a person to engage in any activity when the
person knows or has reason to know that the activity is intended to
provide assistance in designing, developing, fabricating, or testing a
nuclear explosive device.
Sec. 810.9 Grant of specific authorization.
(a) An application for authorization to engage in activities for
which specific authorization is required under Sec. 810.7 should be
made to the U.S. Department of Energy, National Nuclear Security
Administration, Washington, DC 20585, Attention: Senior Policy Advisor,
Office of Nonproliferation and Arms Control (NPAC).
(b) The Secretary will approve an application for specific
authorization if it is determined, with the concurrence of the
Department of State and after consultation with the Nuclear Regulatory
Commission, Department of Commerce, and Department of Defense, that the
activity will not be inimical to the interest of the United States. In
making such a determination, the Secretary will take into account the
following factors:
(1) Whether the United States has an agreement for cooperation in
force covering exports to the country or entity involved;
(2) Whether the country is a party to, or has otherwise adhered to,
the NPT;
(3) Whether the country is in good standing with its acknowledged
nonproliferation commitments;
(4) Whether the country is in full compliance with its obligations
under the NPT;
(5) Whether the country has accepted IAEA safeguards obligations on
all nuclear materials used for peaceful purposes and has them in force;
(6) Whether other nonproliferation controls or conditions exist on
the proposed activity, including that the recipient is duly authorized
by the country to receive and use the technology sought to be
transferred;
(7) Significance of the assistance or transferred technology
relative to the existing nuclear capabilities of the country;
(8) Whether the transferred technology is part of an existing
cooperative enrichment enterprise or the supply chain of such an
enterprise;
(9) The availability of comparable assistance or technology from
other sources; and
(10) Any other factors that may bear upon the political, economic,
competitiveness, or security interests of the United States, including
the obligations of the United States under treaties or other
international agreements, and the obligations of the country under
treaties or other international agreements.
(c) If the proposed activity involves the export of sensitive
nuclear technology, the requirements of sections 127 and 128 of the
Atomic Energy Act and of any applicable United States international
commitments must also be met. For the export of sensitive nuclear
technology, in addition to the factors in paragraph (b) of this
section, the Secretary will take into account:
(1) Whether the country has signed, ratified, and is implementing a
comprehensive safeguards agreement with the IAEA and has in force an
Additional Protocol based on the Model Additional Protocol, or, pending
this, in the case of a regional accounting and control arrangement for
nuclear materials, is implementing, in cooperation with the IAEA, a
safeguards agreement approved by the IAEA Board of Governors prior to
the publication of INFCIRC/540 (September 1997); or alternatively
whether comprehensive safeguards, including the measures of the Model
Additional Protocol, are being applied in the country;
(2) Whether the country has not been identified in a report by the
IAEA Secretariat that is under consideration by the IAEA Board of
Governors, as being in breach of obligations to comply with the
applicable safeguards agreement, nor continues to be the subject of
Board of Governors decisions calling upon it to take additional steps
to comply with its safeguards obligations or to build confidence in the
peaceful nature of its nuclear program, nor as to which the IAEA
Secretariat has reported that it is unable to implement the applicable
safeguards agreement. This criterion would not apply in cases where the
IAEA Board of Governors or the United Nations Security Council
subsequently decides that adequate assurances exist as to the peaceful
purposes of the country's nuclear program and its compliance with the
applicable safeguards agreements. For the purposes of this paragraph,
``breach'' refers only to serious breaches of proliferation concern;
(3) Whether the country is adhering to the Nuclear Suppliers Group
Guidelines and, where applicable, has reported to the Security Council
of the United Nations that it is implementing effective export controls
as identified by Security Council Resolution 1540; and
(4) Whether the country adheres to international safety conventions
relating to nuclear or other radioactive materials or facilities.
(d) Unless otherwise prohibited by U.S. law, the Secretary may
grant an application for specific authorization for activities related
to the enrichment of source material and special nuclear material,
provided that:
(1) The U.S. Government has received written nonproliferation
assurances from the government of the country;
(2) That it/they accept(s) the sensitive enrichment equipment and
enabling technologies or an operable enrichment facility under
conditions that do not permit or enable unauthorized replication of the
facilities;
(3) That the subject enrichment activity will not result in the
production of uranium enriched to greater than 20% in the isotope
uranium-235; and
(4) That there are in place appropriate security arrangements to
protect the
[[Page 9379]]
activity from use or transfer inconsistent with the country's national
laws.
(e) Approximately 30 calendar days after the Secretary's grant of a
specific authorization, a copy of the Secretary's determination may be
provided to any person requesting it at DOE's Public Reading Room,
unless the applicant submits information demonstrating that public
disclosure will cause substantial harm to its competitive position.
This provision does not affect any other authority provided by law for
the non-disclosure of information.
Sec. 810.10 Revocation, suspension, or modification of authorization.
The Secretary may revoke, suspend, or modify a general or specific
authorization:
(a) For any material false statement in an application for specific
authorization or in any additional information submitted in its
support;
(b) For failing to provide a report or for any material false
statement in a report submitted pursuant to Sec. 810.12;
(c) If any authorization governed by this part is subsequently
determined by the Secretary to be inimical to the interest of the
United States or otherwise no longer meets the legal criteria for
approval; or
(d) Pursuant to section 129 of the Atomic Energy Act.
Sec. 810.11 Information required in an application for specific
authorization.
(a) An application letter must include the following information:
(1) The name, address, and citizenship of the applicant, and
complete disclosure of all real parties in interest; if the applicant
is a corporation or other legal entity, where it is incorporated or
organized; the location of its principal office; and the degree of any
control or ownership by any foreign individual, corporation,
partnership, firm, association, trust, estate, public or private
institution or government agency;
(2) The country or entity to receive the assistance or technology;
the name and location of any facility or project involved; and the name
and address of the person for which or whom the activity is to be
performed;
(3) A description of the assistance or technology to be provided,
including a complete description of the proposed activity, its
approximate monetary value, and a detailed description of any specific
project to which the activity relates as specified in Sec. Sec.
810.9(b)(7), (8), and (9); and
(4) The designation of any information that if publicly disclosed
would cause substantial harm to the competitive position of the
applicant.
(b) Except as provided in Sec. 810.6(b), an applicant seeking to
employ a citizen or national of a country not listed in the Appendix in
a position that could result in the transfer of technology subject to
Sec. 810.2, or seeking to employ any foreign national in the United
States or in a foreign country that could result in the export of
assistance or transfer of technology subject to Sec. 810.7 must
request a specific authorization. The applicant must provide, with
respect to each foreign national to whom access to technology will be
granted, the following:
(1) A description of the technology that would be made available to
the foreign national;
(2) The purpose of the proposed transfer, a description of the
applicant's technology control program, and any Nuclear Regulatory
Commission standards applicable to the employer's grant of access to
the technology;
(3) A copy of any confidentiality agreement to safeguard the
technology from unauthorized use or disclosure between the applicant
and the foreign national;
(4) Background information about the foreign national, including
the individual's citizenship, all countries where the individual has
resided for more than six months, the training or educational
background of the individual, all work experience, any other known
affiliations with persons engaged in activities subject to this part,
and any current immigration or visa status in the United States; and
(5) A statement signed by the foreign national that he/she will
comply with the regulations under this part; will not disclose the
applicant's technology without DOE's prior written authorization; and
will not, at any time during or after his/her employment with the
applicant, use the applicant's technology for any nuclear explosive
device, for research on or development of any nuclear explosive device,
or in furtherance of any military purpose.
(c) An applicant for a specific authorization related to the
enrichment of fissile material must submit information that
demonstrates that the proposed transfer will avoid, so far as
practicable, the transfer of enabling design or manufacturing
technology associated with such items; and that the applicant will
share with the recipient only information required for the regulatory
purposes of the recipient country or to ensure the safe installation
and operation of a resulting enrichment facility, without divulging
enabling technology.
Sec. 810.12 Reports.
(a) Each person who has received a specific authorization shall,
within 30 calendar days after beginning the authorized activity,
provide to DOE a written report containing the following information:
(1) The name, address, and citizenship of the person submitting the
report;
(2) The name, address, and citizenship of the person for whom or
which the activity is being performed;
(3) A description of the activity, the date it began, its location,
status, and anticipated date of completion; and
(4) A copy of the DOE letter authorizing the activity.
(b) Each person carrying out a specifically authorized activity
shall inform DOE, in writing within 30 calendar days, of completion of
the activity or of its termination before completion.
(c) Each person granted a specific authorization shall inform DOE,
in writing within 30 calendar days, when it is known that the proposed
activity will not be undertaken and the granted authorization will not
be used.
(d) DOE may require reports to include such additional information
that may be required by applicable U.S. law, regulation, or policy with
respect to the specific nuclear activity or country for which specific
authorization is required.
(e) Each person, within 30 calendar days after beginning any
generally authorized activity under Sec. 810.6, shall provide to DOE:
(1) The name, address, and citizenship of the person submitting the
report;
(2) The name, address, and citizenship of the person for whom or
which the activity is being performed;
(3) A description of the activity, the date it began, its location,
status, and anticipated date of completion; and
(4) A written assurance that the applicant has an agreement with
the recipient ensuring that any subsequent transfer of materials,
equipment, or technology transferred under general authorization under
circumstances in which the conditions in Sec. 810.6 would not be met
will take place only if the applicant obtains DOE's prior written
approval.
(f) Individuals engaging in generally authorized activities as
employees of persons required to report are not themselves required to
submit the reports described in paragraph (e) of this section.
(g) Persons engaging in generally authorized activities under Sec.
810.6(b) are required to notify DOE that a citizen
[[Page 9380]]
or national of a country not listed in the Appendix to this part has
been granted access to information subject to Sec. 810.2 in accordance
with Nuclear Regulatory Commission access requirements. The report
should contain the information required in Sec. 810.11(b).
(h) All reports should be sent to: U.S. Department of Energy,
National Nuclear Security Administration, Washington, DC 20585,
Attention: Senior Policy Advisor, Office of Nonproliferation and Arms
Control (NPAC).
Sec. 810.13 Additional information.
DOE may at any time require a person engaging in any generally or
specifically authorized activity to submit additional information.
Sec. 810.14 Special provisions regarding Ukraine.
(a) Pre-activity notification requirements. Any person beginning
any generally authorized activity involving Ukraine shall provide to
DOE at least ten days prior to beginning that activity a report
containing the following information:
(1) The name, address, and citizenship of the person submitting the
notification;
(2) The name, address, and citizenship of the person for which the
activity is to be performed;
(3) A description of the activity, the date it is proposed to
begin, its location, status, and anticipated date of completion; and
(4) A written assurance that the person that is to perform the
activity has an agreement with the recipient that any subsequent
transfer of technology or information transferred under general
authorization will not be transferred to a country that is not listed
in the Appendix to this part without the prior written approval of DOE.
(b) Post-activity reporting requirements. Every person completing a
generally authorized activity in Ukraine shall provide to DOE within
ten days following the original transfer of technology or information
written confirmation that such transfer was completed in accordance
with the description of the activity provided as required by paragraph
(a) of this section.
Sec. 810.15 Violations.
(a) The Atomic Energy Act provides that:
(1) In accordance with section 232 of the AEA, permanent or
temporary injunctions, restraining or other orders may be granted to
prevent a violation of any provision of the Atomic Energy Act or any
regulation or order issued thereunder.
(2) In accordance with section 222 of the AEA, whoever willfully
violates, attempts to violate, or conspires to violate any provision of
section 57 of the Atomic Energy Act may be fined up to $10,000 or
imprisoned up to 10 years, or both. If the offense is committed with
intent to injure the United States or to aid any foreign nation, the
penalty could be up to life imprisonment or a $20,000 fine, or both.
(b) In accordance with Title 18 of the United States Code, section
1001, whoever knowingly and willfully falsifies, conceals, or covers up
a material fact or makes or uses false, fictitious or fraudulent
statements or representations shall be fined under that title or
imprisoned up to five or eight years depending on the crime, or both.
Sec. 810.16 Effective date and savings clause.
(a) The regulations in this part are effective March 25, 2015.
(b) Except for actions that may be taken by DOE pursuant to Sec.
810.10, the regulations in this part do not affect the validity or
terms of any specific authorizations granted under regulations in
effect before March 25, 2015 or generally authorized activities under
those regulations for which the contracts, purchase orders, or
licensing arrangements were already in effect. Persons engaging in
activities that were generally authorized under regulations in effect
before March 25, 2015, but that require specific authorization under
the regulations in this part, must request specific authorization by
August 24, 2015 and may continue their activities until DOE acts on the
request.
Appendix A to Part 810--Generally Authorized Destinations
Argentina
Australia
Austria
Belgium
Brazil
Bulgaria
Canada
Chile (For all activities related to INFCIRC/834 only)
Colombia
Croatia
Cyprus
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Hungary
Indonesia
International Atomic Energy Agency
Ireland
Italy
Japan
Kazakhstan
Korea, Republic of
Latvia
Lithuania
Luxembourg
Malta
Mexico (For all activities related to INFCIRC/203 Parts 1 and 2 and
INFCIRC/825 only)
Morocco
Netherlands
Norway
Poland
Portugal
Romania
Slovakia
Slovenia
South Africa
Spain
Sweden
Switzerland
Taiwan
Turkey
Ukraine (Refer to Sec. 810.14 for specific information and
requirements)
United Arab Emirates
United Kingdom
Vietnam
[FR Doc. 2015-03479 Filed 2-20-15; 8:45 am]
BILLING CODE 6450-01-P