[Federal Register Volume 88, Number 26 (Wednesday, February 8, 2023)]
[Rules and Regulations]
[Pages 8217-8219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02456]


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DEPARTMENT OF ENERGY

10 CFR Part 810

RIN 1994-AA04


Assistance to Foreign Atomic Energy Activities

AGENCY: National Nuclear Security Administration (NNSA), Department of 
Energy (DOE).

ACTION: Final rule.

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SUMMARY: On December 29, 2022, the Secretary of Energy (``Secretary'') 
issued determinations modifying the generally authorized destination 
status of Mexico and revoking the general authorizations for exports of 
controlled nuclear technology and assistance to Colombia and Egypt 
under DOE's regulation on Assistance to Foreign Atomic Energy 
Activities. Accordingly, DOE is issuing this final rule to remove the 
restriction on the general authorization previously applicable to 
Mexico and to remove Colombia and Egypt from the generally authorized 
destinations list in appendix A.

DATES: This rule is effective on February 8, 2023.

FOR FURTHER INFORMATION CONTACT: Ms. Katie Strangis, Deputy Director, 
Office of Nonproliferation and Arms Control (NPAC), National Nuclear 
Security Administration, Department of Energy, 1000 Independence Avenue 
SW, Washington, DC 20585, telephone (202) 586-8623; Mr. Thomas Reilly, 
Office of the General Counsel, GC-53, Department of Energy, 1000 
Independence Avenue SW, Washington, DC 20585, telephone (202) 586-3417; 
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 and Discussion of Final Rule
II. Good Cause for Dispensing With Notice and Comment
III. Regulatory Review
IV. Approval of the Office of the Secretary

I. Background and Discussion of Final Rule

    On December 29, 2022, the Secretary issued two determinations, (1) 
``determination and authorization pursuant to section 57 b.(2) of the 
Atomic Energy Act of 1954, as amended, regarding exports of nuclear 
technology and assistance to Mexico'' and (2) ``determination and 
revocation of general authorizations pursuant to Department of Energy 
regulations at 10 CFR part 810 regarding exports of nuclear technology 
and assistance to Colombia and Egypt,'' modifying the generally 
authorized destination status of Mexico and revoking the general 
authorizations for exports to Colombia and Egypt of controlled nuclear 
technology and assistance, which were published in the Federal Register 
on January 31, 2023 (88 FR 6243-6244); (88 FR 6247). The Atomic Energy 
Act of 1954, as amended (42 U.S.C. 2077) (AEA), 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 of title 10, Code of Federal Regulations (part 810) 
implements section 57 b.(2) of the AEA, pursuant to which the Secretary 
has granted a general authorization for certain categories of 
activities which the Secretary has found to be non-inimical to the 
interest of the United States--including assistance or transfers of 
technology to the generally authorized destinations listed in appendix 
A to part 810. The Appendix A list currently includes Colombia, Egypt, 
and Mexico, with Mexico currently listed as a generally authorized 
destination only for activities related to INFCIRC/203 Parts 1 and 2 
and INFCIRC/825. In light of the Secretary's Determinations to expand 
Mexico's generally authorized status to cover the full scope of exports 
of part 810-controlled nuclear technology and assistance, and to revoke 
the general authorizations for exports of part 810-controlled nuclear 
technology and assistance to Colombia and Egypt, DOE is amending the 
generally authorized destinations list in appendix A by removing the 
restrictive language after Mexico and removing Colombia and Egypt from 
Appendix A.

II. Good Cause for Dispensing With Notice and Comment

    In accordance with the Administrative Procedure Act (APA), an 
agency may waive the notice and comment procedure if it finds, for good 
cause, that it is ``impracticable, unnecessary, or contrary to the 
public interest.'' 5 U.S.C. 553(b). Additionally, 5 U.S.C. 553(d) 
provides that an agency may waive the 30-day delayed effective date 
upon finding of good cause.
    DOE finds good cause that notice and comment for this rule is 
unnecessary due to the nature of the revisions. This final rule simply 
makes ministerial changes to appendix A by removing the restriction on 
the general authorization previously applicable to Mexico and by 
removing Colombia and Egypt from the generally authorized destinations 
list. Comments cannot alter the regulation

[[Page 8218]]

given that the modification of Mexico's generally authorized 
destination status and the revocation of the general authorizations for 
Colombia and Egypt have already been made effective through the 
Secretarial Determinations issued on December 29, 2022, and published 
on January 31, 2023, at 88 FR 6243-6244 and 88 FR 6247.
    Accordingly, DOE has concluded that there is good cause to publish 
this rule without prior opportunity for public comment because the 
action merely aligns appendix A with the Secretarial Determinations. A 
delay in effective date is unnecessary for these same reasons. 
Therefore, these amendments are published as final and are effective 
February 8, 2023.

III. Regulatory Review

A. Executive Order 12866

    This final rule has been determined not to be a significant 
regulatory action under Executive Order 12866, ``Regulatory Planning 
and Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this action 
was not subject to review under that Executive order by the Office of 
Information and Regulatory Affairs (OIRA) of the Office of Management 
and Budget (OMB).

B. National Environmental Policy Act

    DOE has determined that this 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, which 
applies to a rulemaking that amends an existing rule or regulation and 
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.

C. 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 discussed 
previously, DOE has determined that providing notice and opportunity 
for public comment on this final rule are unnecessary. Therefore, no 
regulatory flexibility analysis has been prepared for this final rule.
    The changes to appendix A are summarized in Section I of this 
document. DOE has reviewed the changes under the provisions of the 
Regulatory Flexibility Act and the procedures and policies published on 
February 19, 2003. The changes update the list of generally authorized 
destinations. They do not expand the scope of activities currently 
regulated under 10 CFR part 810.
    DOE estimates that approximately 10 percent of the entities 
impacted by the part 810 regulation are small businesses. Small 
businesses impacted by the part 810 regulation generally fall within 
two North American Industry Classification System codes: engineering 
services (541330) and computer systems designs services (541512). 
Often, their requests for authorization include the transfer of 
computer codes or other similar products. Generally speaking, small 
businesses reported that their initial filing of a part 810 request for 
authorization required up to 40 hours of legal assistance, but follow-
on reporting and requests required significantly less assistance.
    The requirements for small businesses exporting nuclear technology 
abroad would not substantively change because the revisions to this 
rule do not add new burdens or duties to small businesses. The 
obligations of any person subject to the jurisdiction of the United 
States who engages directly or indirectly in the production of special 
nuclear material outside the United States have not changed in a manner 
that would provide any significant economic impact on small businesses. 
This rulemaking change requires such persons to obtain specific 
authorization before making such transfers to Colombia and Egypt, but 
this change is not expected to have any significant impact. Conversely, 
this rulemaking no longer requires such persons to obtain specific 
authorization before making such transfers to Mexico, which is expected 
to ease the burden on small businesses.
    On the basis of the foregoing, DOE certifies this rule would not 
have a significant economic impact on a substantial number of small 
entities. Accordingly, DOE has not prepared a regulatory flexibility 
analysis for this rulemaking.

D. Paperwork Reduction Act

    This final rule imposes no information collection or recordkeeping 
requirements under the Paperwork Reduction Act (44 U.S.C. 3501 et 
seq.).

E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA) requires each 
Federal agency to assess the effects of Federal regulatory actions on 
State, local, and Tribal governments, and the private sector. Public 
Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For regulatory actions 
likely to result in a rule that may cause the expenditure by State, 
local, and Tribal governments, in the aggregate, or by the private 
sector of $100 million or more in any one year (adjusted annually for 
inflation), section 202 of UMRA requires a Federal agency to publish a 
written statement that estimates the resulting costs, benefits, and 
other effects on the national economy (2 U.S.C. 1532(a),(b)). DOE 
examined this final rule according to UMRA and its statement of policy 
and has determined that the rule contains neither an intergovernmental 
mandate, nor a mandate that may result in the expenditure by State, 
local, and Tribal government, in the aggregate, or by the private 
sector, of $100 million or more in any year. Accordingly, no further 
assessment or analysis is required under UMRA.

F. 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 would not preempt State law and would 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.

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 rulemaking that may affect family well-
being. This rule would have no 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 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy, Supply, Distribution, or Use,'' 66 FR 
28355 (May

[[Page 8219]]

22, 2001) requires Federal agencies to prepare and submit to OMB a 
Statement of Energy Effects for any 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 OIRA 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. This regulatory 
action would 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.

I. 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.

J. Congressional Notification

    As required by 5 U.S.C. 801, DOE will submit to Congress a report 
regarding the issuance of this final rule prior to the effective date 
set forth at the outset of this rulemaking. 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).

IV. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this final 
rule.

List of Subjects in 10 CFR Part 810

    Foreign relations, Nuclear energy, Reporting and recordkeeping 
requirements.

Signing Authority

    This document of the Department of Energy was signed on December 
29, 2022, by Jennifer Granholm, Secretary of Energy. That document with 
the original signature and date is maintained by DOE. For 
administrative purposes only, and in compliance with requirements of 
the Office of the Federal Register, the undersigned DOE Federal 
Register Liaison Officer has been authorized to sign and submit the 
document in electronic format for publication, as an official document 
of the Department of Energy. This administrative process in no way 
alters the legal effect of this document upon publication in the 
Federal Register.

    Signed in Washington, DC, on February 1, 2023.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.

    For the reasons set forth in the preamble, the Department of Energy 
amends part 810 of chapter III of title 10 of the Code of Federal 
Regulations as set forth below.

PART 810--ASSISTANCE TO FOREIGN ATOMIC ENERGY ACTIVITIES

0
1. The authority citation for part 810 continues to read as follows:

    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.

Appendix A to Part 810 [Amended]

0
2. Appendix A to part 810 is amended by:
0
a. Removing ``Colombia'' and ``Egypt''; and
0
b. Removing the text ``(For all activities related to INFCIRC/203 Parts 
1 and 2 and INFCIRC/825 only)'' after ``Mexico''.

[FR Doc. 2023-02456 Filed 2-7-23; 8:45 am]
BILLING CODE 6450-01-P