This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

55278 

Vol. 76, No. 173 

Wednesday, September 7, 2011 

DEPARTMENT OF ENERGY 

10 CFR Part 810 

RIN 1994–AA02 

Assistance to Foreign Atomic Energy 

Activities 

AGENCY: National Nuclear Security 

Administration, Department of Energy 

(DOE). 

ACTION: Notice of proposed rulemaking. 

SUMMARY: DOE proposes to amend its 

regulation concerning unclassified 

assistance to foreign atomic energy 

activities. This regulation provides that 

persons subject to the jurisdiction of the 

United States who engage directly or 

indirectly in the production of special 

nuclear material outside the United 

States must be authorized to do so by 

the Secretary of Energy (Secretary). The 

proposed revisions update and clarify 

several provisions in the current 

regulation, and identify information 

applicants are required to submit in 

support of applications for an 

authorization under this part. The 

revisions are intended to reduce 

uncertainties for industry users 

concerning which foreign nuclearrelated activities by U.S. persons are 

‘‘generally authorized’’ under the 

regulation and which activities require 

a ‘‘specific authorization’’ from the 

Secretary. In this regard, one proposed 

organizational change is the listing of 

countries and territories for which a 

general authorization for foreign atomic 

energy activities is available. This 

proposed change contrasts with the 

current regulation, which lists those 

countries for which a specific 

authorization to conduct such activities 

is required. Unclassified nuclear 

activities are generally authorized with 

respect to these listed countries if they 

do not involve ‘‘sensitive nuclear 

technology’’ as defined in the 

regulation. Conversely, the proposed 

revised regulation specifically identifies 

those assistance activities and 

technologies under DOE’s jurisdiction, 

the export of which requires a specific 

authorization from the Secretary. 

Additionally, DOE is proposing to add 

regulations to address ‘‘deemed 

exports.’’ Companies seeking to employ 

foreign nationals in positions involving 

a proposed transfer of technology are 

provided information on the 

documentation required to be submitted 

to request specific authorization for 

those transfers. Finally, DOE proposes 

to update its regulations in this area to 

reflect terminological and other changes 

in nuclear technology since the last 

major update in 1986. Finally, points of 

contact references have been updated to 

reflect the current DOE organizational 

structure. 

DATES: Written comments must be 

postmarked on or before November 7, 

2011 to ensure consideration. 

ADDRESSES: You may submit comments, 

identified by RIN 1994–AA02, by any of 

the following methods: 

1. Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

2. E-mail: Part810.NOPR@hq.doe.gov 

Include RIN 1994–AA02 in the subject 

line of the message. 

3. Mail: Richard Goorevich, Senior 

Policy Advisor, Office of 

Nonproliferation and International 

Security, NA 24, National Nuclear 

Security Administration, Department of 

Energy, 1000 Independence Avenue, 

SW., Washington, DC 20585. 

Due to potential delays in DOE’s 

receipt and processing of mail sent 

through the U.S. Postal Service, DOE 

encourages responders to submit 

comments electronically to ensure 

timely receipt. 

All submissions must include the RIN 

for this rulemaking, RIN 1994–AA02. 

For detailed instructions on submitting 

comments and additional information 

on the rulemaking process, see the 

‘‘Public Comment Procedures’’ heading 

of the SUPPLEMENTARY INFORMATION

section of this document. 

FOR FURTHER INFORMATION CONTACT: 

Richard Goorevich, Senior Policy 

Advisor, Office of Nonproliferation and 

International Security, NA 24, National 

Nuclear Security Administration, 

Department of Energy, 1000 

Independence Avenue, SW., 

Washington, DC 20585, telephone 202– 

586–0589; Janet Barsy or Elliot Oxman, 

Office of the General Counsel, GC–53, 

Department of Energy, 1000 

Independence Avenue, SW., 

Washington, DC 20585, telephone 202– 

586–3429 (Ms. Barsy) or 202–586–1755 

(Mr. Oxman); or Katie Strangis, National 

Nuclear Security Administration, Office 

of the General Counsel, 1000 

Independence Avenue, SW., 

Washington, DC 20585, telephone 202– 

586–8623. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Description of Proposed Changes 

III. Public Comment Procedures 

IV. Regulatory Review 

A. Executive Order 12866 

B. National Environmental Policy Act 

C. Regulatory Flexibility Act 

D. Paperwork Reduction Act 

E. Unfunded Mandates Reform Act of 1995 

F. Treasury and Government 

Appropriations Act, 1999 

G. Executive Order 13132 

H. Executive Order 12988 

I. Treasury and General Government 

Appropriations Act, 2001 

J. Executive Order 13211 

V. Approval by the Office of the Secretary 

I. Background 

DOE’s regulation in 10 CFR part 810 

implements section 57b. of the Atomic 

Energy Act of 1954, as amended by 

section 302 of the Nuclear NonProliferation Act of 1978 (NNPA) (42 

U.S.C 2077(b)). The statute provides that 

it ‘‘shall be unlawful for any person to 

directly or indirectly engage or 

participate in the development or 

production of any special nuclear 

material outside of the United States 

except (1) As specifically authorized 

under an agreement for cooperation 

made pursuant to section 123 * * * or 

(2) upon authorization by the Secretary 

of Energy after a determination that 

such activity will not be inimical to the 

interest of the United States. * * *’’ 

Part 810 regulates the export of 

unclassified nuclear technology and 

assistance, to facilitate international 

commerce while at the same time 

protecting against the spread of nuclear 

technologies and material that would be 

contrary to the nonproliferation and 

other national security interests of the 

United States. More specifically, the 

purposes of the part 810 regulation are: 

(1) To enable DOE to control the export 

of nuclear technologies and services 

while protecting the interest of, and 

advancing, U.S. nonproliferation and 

other national security objectives; (2) to 

facilitate such exports by identifying 

nuclear technology and related 

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Federal Register / Vol. 76, No. 173 / Wednesday, September 7, 2011 / Proposed Rules 55279 

assistance activities that can be 

‘‘generally authorized’’ by the Secretary 

and thus require no further 

authorization under part 810; (3) to 

identify the specific transfers of 

assistance and technology which require 

specific authorization by the Secretary; 

(4) to explain how to request a specific 

authorization from the Secretary; and (5) 

to identify the reporting requirements 

for activities subject to part 810. 

The part 810 regulation has not been 

comprehensively updated since 1986. 

Some of the terminology contained in 

the current regulation has become 

inconsistent with guidelines issued by 

the Nuclear Suppliers Group (NSG), an 

international group of nuclear supplier 

countries, including the United States, 

which seeks to promote the 

nonproliferation of nuclear weapons 

through the implementation of 

guidelines for nuclear exports. The 

existing part 810 regulation also 

contains certain technical references 

and definitions that do not reflect 

current science, and other terms and 

references whose inclusion in the 

regulation is no longer necessary. 

II. Description of Proposed Changes 

DOE is publishing this notice of 

proposed rulemaking (NOPR) to clarify 

the regulatory restrictions and 

requirements pertaining to unclassified 

atomic energy assistance, and nuclear 

technology transfers, to foreign 

destinations. The proposed changes 

would update some of the definitions 

used in the regulation; identify 

countries and territories as to which a 

‘‘general authorization’’ applies; and 

identify the activities subject to a 

‘‘specific authorization’’. Additionally, 

the proposed rule would: (1) Make clear 

what types of technology transfers, 

which can include either technical data 

or technical assistance, fall within the 

scope of the regulation; (2) provide for 

added technical clarity of certain terms 

and technology; (3) revise, delete, and 

add definitions for certain terms 

contained in the regulation; (4) identify 

the information required to be provided 

by applicants for a part 810 

authorization, including requests for 

authorization of ‘‘deemed exports’’; and 

(5) update points of contact information 

to reflect current Departmental 

organizational structure and office 

designations. 

The proposed changes to part 810 are 

summarized below in the order in 

which they appear: 

1. The proposed changes to § 810.1 

‘‘Purpose’’ would state the statutory 

basis for the regulation and clarify the 

purpose and authorization 

requirements. 

2. The proposed changes to 

paragraghs (a) and (b) in § 810.2 

‘‘Scope’’ are intended to state explicitly 

DOE’s jurisdiction under section 57 b. of 

the Atomic Energy Act with regard to 

unclassified nuclear export activities by 

U.S. persons that include assistance and 

transfer of technology abroad and to 

foreign nationals employed by U.S. 

companies, whether the subject 

activities are conducted in the United 

States or abroad by U.S. persons or by 

licensees, contractors or subsidiaries 

under their direction, supervision, 

responsibility, or control. Proposed 

§ 810.2(c) would retain the exemptions 

for all exports licensed by the Nuclear 

Regulatory Commission; and would 

exempt ‘‘public information’’ and ‘‘basic 

scientific research’’ as those terms are 

proposed to be defined in § 810.3. 

Additionally, proposed § 810.2(c) would 

make clear the exclusion from the scope 

of the part 810 regulation of uranium 

and thorium mining and milling and 

nuclear fusion reactors when not used 

in support of systems involving 

hydrogen isotope separation. The 

proposed addition of these two 

exemptions is intended to clarify that 

activities related to uranium and 

thorium mining and milling and nuclear 

fusion reactors, per se, are not within 

the scope of part 810. 

3. In proposed § 810.3 ‘‘Definitions’’, 

a number of new definitions are 

proposed to reflect terminological 

changes and technological 

developments since the part 810 

regulation was last updated (in 1986), 

and to provide additional clarity to 

certain terms currently defined and 

used in the regulation. For example, the 

definition of ‘‘accelerator-driven 

subcritical assembly’’ would be replaced 

with ‘‘production accelerator-driven 

subcritical assembly system’’; the terms 

‘‘non-nuclear-weapon state’’, 

‘‘operational safety’’ and ‘‘subcritical 

assembly’’ are proposed to be deleted 

from the current definitions. The 

proposed rule would also add new and 

revised definitions: ‘‘basic scientific 

research,’’ ‘‘cooperative enrichment 

enterprise’’, ‘‘enrichment,’’ ‘‘fissile 

material’’, ‘‘production accelerator’’, 

‘‘production accelerator-driven 

subcritical assembly system’’, 

‘‘production subcritical assembly’’, 

‘‘reprocessing’’, ‘‘specific 

authorization’’, ‘‘specifically authorized 

nuclear activities’’, ‘‘technology’’ 

(including ‘‘development’’ and 

‘‘production’’), ‘‘technical assistance’’, 

‘‘technical data’’, and ‘‘use’’. Definitions 

are also proposed to be added for 

‘‘DOE’’ and ‘‘Secretary’’. 

4. Proposed §§ 810.4 

‘‘Communications’’ and 810.5 

‘‘Interpretations’’ would be changed to 

identify the responsible office under the 

current Departmental organizational 

structure to which applications, 

questions, or requests should be 

addressed. This proposed revision is 

intended to ensure that part 810-related 

correspondence will be directed 

appropriately and help facilitate prompt 

responses to those applications, 

questions, or other requests. 

5. The current § 810.6 ‘‘Authorization 

requirement’’ quotes section 57 b. of the 

Atomic Energy Act. This notice 

proposes to delete the quotation, and to 

address the statutory basis instead in the 

‘‘Authority’’ section of the preamble and 

proposed § 810.1 ‘‘Purpose’’. 

6. Proposed § 810.6 ‘‘Generally 

Authorized Activities’’—currently 

§ 810.7, re-numbered § 810.6 in the 

proposed rule—would identify activities 

that are generally authorized by the 

Secretary, and the countries and 

territories to which general 

authorizations apply. Section 810.6(a) 

would identify generally authorized 

activities. Section 810.6(b) would 

identify the countries and territories, 

and facilities therein, that would qualify 

for a general authorization. The current 

§ 810.7 (b) ‘‘furnishing public 

information’’ would be deleted from the 

list of generally authorized activities 

and would be included in proposed 

§ 810.2, as exempt from the scope of this 

part. Current § 810.7(c) would be 

deleted. The ‘‘fast track’’ safety general 

authorization has rarely been used, and 

has proved confusing to applicants. In 

summary, the proposed § 810.6 would 

identify the activities, countries, 

territories, destinations, and facilities to 

which the general authorization is 

applicable. 

7. Proposed § 810.7 Activities 

requiring specific authorization. This 

proposed section, renumbered from 

§ 810.8, would be modified to indicate 

that, unless an activity is generally 

authorized under proposed § 810.6, a 

specific authorization from the 

Secretary would be required before 

engaging directly or indirectly in the 

production of special nuclear material 

outside the United States. The current 

regulation in § 810.2 (a) provides a 

broad general authorization for all 

activities not requiring a specific 

authorization as described in § 810.8. 

8. Proposed § 810.8 Restrictions on 

general and specific authorization. The 

present restrictions, currently in § 810.9, 

would remain unchanged. 

9. Proposed § 810.9 ‘‘Grant of specific 

authorization’’—currently § 810.10— 

would add a new paragraph (b) to 

establish a time limit on all specific 

authorizations. Each specific 

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55280 Federal Register / Vol. 76, No. 173 / Wednesday, September 7, 2011 / Proposed Rules 

authorization approved by the Secretary 

is proposed to be limited to a period of 

up to five years. This proposal is 

intended to ensure that U.S. persons 

granted specific authorizations from the 

Secretary keep DOE informed of their 

activities and planned nuclear 

technology transfers, and to facilitate 

DOE’s ability to confirm the adherence 

of those activities to U.S. 

nonproliferation policy. Additionally, 

language would be included in 

proposed § 810.9(b) identifying the 

factors, consonant with U.S. 

international nonproliferation 

commitments, considered by the 

Secretary in granting a specific 

authorization. Proposed § 810.9(c) 

would be expanded to provide clarity to 

applicants that request a specific 

authorization to transfer sensitive 

nuclear technology as defined in 

proposed § 810.3. In addition to the 

current requirements of sections 127 

and 128 of the Atomic Energy Act, the 

proposed regulation lists criteria, 

relevant to U.S. nonproliferation policy 

and international commitments, that 

would be considered in determining 

whether to authorize an export 

involving sensitive nuclear technology. 

A new paragraph (d) is proposed to be 

added, concerning requests to engage in 

foreign atomic energy assistance 

activities related to the enrichment of 

fissile material (as defined in proposed 

§ 810.3). The proposed provision is 

designed to facilitate U.S. conformity to 

the Nuclear Suppliers Group 

Guidelines. 

10. The current § 810.11 is proposed 

as § 810.10 Revocation, suspension, or 

modification of authorization. Proposed 

§ 810.10(c) would add the phrase ‘‘or 

technology transfer’’ after the words 

‘‘authorized assistance.’’ 

11. The current § 810.12 is proposed 

as § 810.11, Information required in an 

application for specific authorization, 

and would be expanded to add more 

detail about the information required for 

DOE to process a specific authorization 

request, including applications for 

‘‘deemed export’’ authorization. Section 

810.11(a) would require the submission 

of the same information required by the 

current regulation (§ 810.12(a)). 

Proposed paragraph (b) would solicit 

any information the applicant wishes to 

provide concerning the factors listed in 

proposed § 810.9(b). Proposed 

paragraph (c) would address the 

required content for applications filed 

by U.S. companies seeking to employ, 

and to accord access to nuclear 

technology subject to this part by, 

foreign nationals with temporary, 

student, or immigrant visa status in the 

United States. This proposed section is 

intended to address situations 

comparable to those covered by the 

‘‘deemed export’’ rule in 15 CFR 

734.2(b)(2) of the Commerce 

Department’s Export Administration 

Regulations. Under this proposal, no 

part 810 specific authorization would be 

required if the foreign national 

employee (or prospective employee) is 

lawfully admitted for permanent 

residence in the United States, or is a 

protected individual under the 

Immigration and Nationalization Act (8 

U.S.C. 1324b(a)(3)). As proposed, the 

part 810 regulation would make explicit 

DOE’s current practice of requiring an 

applicant to provide detailed 

information concerning the nationality, 

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. In addition, the 

applicant must provide a description of 

the subject technology, a copy of any 

confidentiality agreement between the 

U.S. company employer and the foreign 

national, and written nonproliferation 

assurances by the foreign national. 

Finally, proposed paragragh (d) would 

identify 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. 

12. The current §§ 810.13, 810.14, and 

810.15 would be renumbered as 

proposed § 810.12 Reports, proposed 

§ 810.13 Additional information, and 

proposed § 810.14 Violations. A 

proposed addition in § 810.12(g) would 

allow DOE to require companies granted 

authorizations under part 810 to submit 

certain reports to DOE, to include 

information required by U.S. law 

concerning specific nuclear activities or 

specific countries exports to which 

require a specific authorization. 

Because DOE is making changes to 

most sections of part 810, it is 

publishing the entire part 810 for public 

comment. 

III. Public Comment Procedures 

Interested persons are invited to 

participate by submitting data, views, or 

arguments. Written comments should be 

submitted to the address indicated in 

the ADDRESSES section of this notice. All 

comments submitted in writing or in 

electronic form may be made available 

to the public in their entirety. Personal 

information such as your name, address, 

telephone number, e-mail address, etc., 

will not be removed from your 

submission. Comments will be available 

for public inspection in the DOE 

Freedom of Information Act Reading 

Room (1E–190), 1000 Independence 

Avenue, SW., Washington, DC 20585, 

between the hours of 9 a.m. and 4 p.m., 

Monday through Friday, except Federal 

holidays. Members of the public who 

wish to review the comments submitted 

should contact Alexander Morris, FOIA 

Officer, at (202) 586–3159. Comments 

made on this rulemaking will also be 

posted on http://www.regulations.gov. 

Written comments received by the date 

indicated in the DATES section of this 

notice of proposed rulemaking will be 

addressed and considered prior to 

publication of the final rule. Any 

information that a commenter considers 

to be confidential must be so identified 

and submitted in writing, one copy 

only. DOE reserves the right to 

determine the appropriateness of 

confidential status for the information 

and to treat it in accordance with its 

determination. See 10 CFR 1004.11. 

IV. Regulatory Review 

A. Executive Order 12866 

This proposed rule has been 

determined to not 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 of the Office of Management and 

Budget. 

B. National Environmental Policy Act 

DOE has determined that this 

proposed 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. 

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 required by 

Executive Order 13272, ‘‘Proper 

Consideration of Small Entities in 

Agency Rulemaking,’’ 67 FR 53461 

(August 16, 2002), DOE published 

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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.gc.doe.gov. 

DOE has reviewed this proposed rule 

under the provisions of the Regulatory 

Flexibility Act and the procedures and 

policies published on February 19, 

2003. The proposed rule offers clarity 

on regulatory restrictions and 

requirements pertaining to unclassified 

assistance to foreign atomic energy 

activities; it does not expand the scope 

of activities currently regulated under 

10 CFR part 810. 

The proposed changes to the 

preamble of part 810 and § 810.1 

reposition (to the ‘‘Authority’’ section, 

above) and update statutory citations, 

and clarify the purpose statement. There 

is no change that will impact small 

businesses or the review time necessary 

to prepare or submit requests for 

authorization. 

Section 810.2 is proposed to be 

expanded to provide further detail on 

the scope of activities that are subject to 

part 810. As a consequence, more 

information will be available to small 

businesses as they formulate their 

business strategies. These changes 

should assist small businesses to 

determine which nuclear export 

activities undertaken with foreign 

parties require authorization under this 

part. This additional information should 

reduce the time required to identify 

activities that are controlled by part 810, 

and also lessen the costs associated with 

developing documentation to support 

applications for authorization. 

Section 810.3, Definitions, is 

proposed to be updated to reflect 

changes in technology and to provide 

additional clarity. Specifically, for 

example, the definition of ‘‘acceleratordriven subcritical assembly’’ would be 

replaced with ‘‘production acceleratordriven subcritical assembly system’’; 

and the terms ‘‘non-nuclear-weapon 

state’’ and ‘‘operational safety and 

subcritical assembly’’ would be deleted 

from the regulation. New and revised 

definitions would be added: ‘‘basic 

scientific research’’, ‘‘cooperative 

enrichment enterprise’’, ‘‘DOE’’, 

‘‘enrichment’’, ‘‘fissile material’’, 

‘‘production accelerator-driven 

subcritical assembly system’’, 

‘‘production subcritical assembly’’, 

‘‘reprocessing’’, ‘‘Secretary’’, ‘‘specific 

authorization’’, ‘‘specifically authorized 

nuclear activities’’, ‘‘technology’’, 

‘‘technical assistance’’, ‘‘technical data’’, 

and ‘‘use’’. These definitional updates 

and additions would not change the 

scope of the activities controlled under 

this part. Rather, the new and revised 

definitions should provide greater 

clarity to small businesses, decrease the 

time for small businesses to evaluate 

activities for implications of this 

regulation, and also lessen the costs 

associated with developing 

documentation to support their 

applications for authorization. 

Section 810.4 and § 810.5 are 

proposed to be changed to reflect the 

current organizational structure of the 

DOE office responsible for 

administering part 810, and should not 

impact small businesses. The proposed 

revision will help ensure that 

correspondence is directed 

appropriately and expedite application 

processing time. Section 810.6 would be 

deleted. It quotes the provisions of 

section 57 b. of the Atomic Energy Act 

of 1954 and is not required for the text 

of the regulation. Its deletion would 

require an applicant to consult a source 

outside part 810 to locate the statutory 

text of section 57 b. 

Sections 810.7, Generally authorized 

activities, and 810.8, Activities 

requiring specific authorization, would 

be revised and renumbered as §§ 810.6 

and 810.7, respectively. The revised text 

of § 810.6 would provide more detail 

concerning activities that are generally 

authorized by the Secretary, and 

identify countries and territories, and 

facilities therein, to which general 

authorizations apply. The proposed 

change should only impact small 

businesses positively. Providing this 

clarification concerning activities that 

are generally authorized would assist 

small businesses to determine when 

they need to submit a request for 

specific authorization, as stated in 

proposed § 810.7. Paragraghs (a) and (g) 

of current § 810.7 would be deleted 

because the regulation does not control 

public information; therefore a general 

authorization is not necessary. The 

substance of paragragh (b) of the current 

§ 810.7 would be retained and 

renumbered as § 810.6(b)(2). The current 

§ 810.7(c) would be deleted from the 

text. This ‘‘fast track’’ safety general 

authorization has been used only once, 

by a large corporation, to address an 

imminent threat to the public after an 

earthquake. 

New § 810.8, Restrictions on general 

and specific authorizations, would 

continue the same restrictions as are 

contained in the current part 810, and 

therefore would not add any new 

burdens on small businesses. New 

§ 810.9, grant of specific authorization, 

is proposed to outline the process for 

applying for a specific authorization. 

Paragragh (a) would provide updated 

information on the current DOE 

organizational structure. Paragragh (b) 

would retain identification of the other 

U.S. departments and agencies (the 

Departments of State, Defense, and 

Commerce, and the Nuclear Regulatory 

Commission) that review part 810 

authorization requests; it would also 

include a time limit on specific 

authorizations, and revise and add 

factors DOE would consider in making 

an authorization determination. The 

five-year maximum period has been a 

matter of DOE practice for a number of 

years; it is now being proposed to be 

added to the regulation to provide 

clarity to companies applying for a 

specific authorization. Paragragh (b) 

would be expanded to provide 

additional information to U.S. 

companies that request a specific 

authorization to transfer sensitive 

nuclear technology. This change should 

provide useful information to 

applicants, but not create additional 

requirements or negatively impact a 

small business applying for a specific 

authorization. A new paragragh (c) is 

proposed, concerning activities related 

to the enrichment of fissile material; and 

has been added to facilitate U.S. 

conformity to the Nuclear Suppliers 

Group Guidelines. Although satisfaction 

of the requirements of this proposal 

would require more effort by an 

applicant, it is unlikely that a small 

business would engage in foreign atomic 

energy activities involving the 

enrichment of fissile material. 

New § 810.10, Revocation, 

suspension, or modification of 

authorizations, has minimal proposed 

updates, and is intended to provide 

greater clarity. New § 810.11, 

Information required in an application 

for specific authorization, would be 

expanded to add more detail about the 

information required to process an 

authorization, including a ‘‘deemed 

export’’ authorization. The revisions to 

this section would provide additional, 

and more specific, information 

concerning the matters required to be 

addressed in an application, thus 

making the application process clearer 

to small businesses. Adoption of this 

proposed revision should positively 

impact the amount of time and 

resources a small business would have 

to devote to the application process, 

without adding any new requirements 

for small businesses and also decreasing 

the processing time for the application 

within the Department. New § 810.11 

would also require an applicant to 

provide information concerning 

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activities related to the enrichment of 

fissile materials. As noted, it is unlikely 

that a small business would engage in 

foreign atomic energy assistance 

activities of this nature. 

New § 810.12, Reports, would be 

updated with the correct DOE 

organizational structure, with no 

adverse impact on small businesses. The 

proposed changes to §§ 810.13 and 

810.14 are minimal, and should impose 

no increased burden on applicants. 

In practice, the requirements for small 

businesses exporting nuclear technology 

would not substantively change because 

the proposed revisions to this rule do 

not impact sections of the rule 

containing those requirements or 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 would not change in a manner 

that would have any impact on small 

businesses. 

Furthermore, DOE has conducted a 

review of the potential small businesses 

that may be impacted by this proposed 

rule. This review consisted of an 

analysis of the number of businesses 

impacted generally since 2007–2008, 

and a determination of which of those 

are considered ‘‘small businesses’’ by 

the Small Business Administration. 

Approximately 90% of the businesses 

impacted by this rule are not considered 

small businesses (out of 56 businesses 

examined, 5 qualify as small 

businesses). Additionally, the number of 

requests for authorization or reports of 

generally authorized activities from 

each small business on average was one 

or fewer per year, while larger 

companies had as many as 100 requests 

for authorization or reports of generally 

authorized activities per year. The latter 

businesses fall within two North 

American Industry Classification 

System codes, for engineering services 

and computer systems designs services. 

Often, their requests for authorization 

include the transfer of computer codes 

or other similar products. The proposed 

changes to this rule would not alter 

whether these businesses do or do not 

receive authorization under part 810, 

thus not adversely affecting their ability 

to conduct business in the same manner 

they do at present. Moreover, they will 

benefit from a clarified request process. 

Generally, small businesses reported 

that their initial filing of a part 810 

request for authorization required up to 

40 hours of legal assistance, but followon reporting and requests required 

significantly less such assistance. 

On the basis of the foregoing, DOE 

certifies that this proposed 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. 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). 

D. Paperwork Reduction Act 

The proposed rule would not impose 

a collection of information requirement 

subject to 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 (Pub. L. 104–4) generally 

requires Federal agencies to examine 

closely the impacts of regulatory actions 

on State, local, and tribal governments. 

Section 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 

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 proposed rule would 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. 

F. 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 proposed rule would 

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. 

G. 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 

proposed 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. 

H. 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 

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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 proposed 

rule meets the relevant standards of 

Executive Order 12988. 

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 proposed rule under the 

OMB and DOE guidelines and has 

concluded that it is consistent with 

applicable policies in those guidelines. 

J. 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 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. 

V. Approval by the Office of the 

Secretary 

The Office of the Secretary of Energy 

has approved the publication of this 

proposed rule. 

List of Subjects in 10 CFR Part 810 

Foreign relations, Nuclear energy, 

Reporting and recordkeeping 

requirements. 

Issued in Washington, DC, on August 17, 

2011. 

Steven Chu, 

Secretary of Energy. 

For the reasons stated in the 

preamble, DOE proposes to amend 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 Violations. 

810.15 Effective date and savings clause. 

Authority: Secs. 57, 127, 128, 129, 161, and 

223, Atomic Energy Act of 1954, as amended 

by the Nuclear Non-Proliferation 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, 2273); 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. 

§ 810.1 Purpose. 

These regulations implement section 

57 b. 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 (NRC), the 

Department of Commerce, and the 

Department of Defense, to authorize 

persons subject to the jurisdiction of the 

United States to engage directly or 

indirectly in the 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 

activities subject to this part. 

§ 810.2 Scope. 

(a) This part applies to: 

(1) All persons subject to the 

jurisdiction of the United States 

(hereinafter ‘‘U.S. persons’’) who or that 

engage directly or indirectly in the 

production of special nuclear material 

outside the United States, by 

transferring to foreign persons 

technology that is related to the 

production of special nuclear material; 

and 

(2) Assistance and the transfer of 

technology by U.S. persons to foreign 

persons, conducted either in the United 

States or abroad by U.S. 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 involve the 

following: 

(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 reactors; 

(6) Accelerator-driven subcritical 

assembly systems, specially designed or 

intended for plutonium or uranium-233 

production; 

(7) Hydrogen isotope separation and 

heavy water production; 

(8) Reprocessing of irradiated nuclear 

materials or targets containing special 

nuclear material; 

(9) Changes in form or content of 

irradiated nuclear materials containing 

special nuclear material, and hot cell 

facilities; 

(10) Storage of irradiated nuclear 

materials; 

(11) Processing of high level 

radioactive waste; 

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(12) Movement of irradiated nuclear 

materials, including specially designed 

containers therefor; 

(13) The transfer of technology for the 

development, production, or use of 

equipment or material specially 

designed or prepared for any of the 

above listed activities. (See NRC 

regulations under 10 CFR part 110, 

Appendix A through Appendix K) for 

an illustrative list of items considered to 

be specially designed or prepared for 

certain listed nuclear activities.); and 

(14) Other activities related to the 

production of special nuclear material 

outside the United States as the 

Secretary may determine, notice of 

which shall be published in the Federal 

Register. 

(c) This part does not apply to: 

(1) Exports licensed by the NRC; 

(2) Public information or basic 

scientific research; 

(3) Uranium and thorium mining and 

milling; and 

(4) Nuclear fusion reactors per se, 

except for supporting systems involving 

hydrogen isotope separation. 

§ 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. 

Atomic Energy Act means the Atomic 

Energy Act of 1954, as amended. 

Basic scientific research means 

experimental or theoretical work 

undertaken principally to acquire new 

knowledge of the fundamental 

principles of phenomena and observable 

facts, not primarily directed towards a 

specific practical aim or objective. 

Classified information means national 

security information classified under 

Executive Order 13526 or any 

predecessor or superseding order, or 

Restricted Data classified under the 

Atomic Energy Act. 

Cooperative enrichment enterprise 

means a multi-country or multicompany (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 multi-national corporation. 

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, uranium233, plutonium-239, and plutonium241. 

Foreign national means an individual 

who is not a citizen or national of the 

United States. 

Foreign person means a person other 

than a U.S. person. 

General authorization means an 

authorization granted by the Secretary 

under section 57 b.(2) of the Atomic 

Energy Act to provide assistance to 

foreign atomic energy activities subject 

to this part 810 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 NonProliferation Act of 1978, Pub. L. 95– 

242, 22 U.S.C. 3201 et seq. 

NPT means the Treaty on the NonProliferation 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-supporting chain 

reaction. 

Open meeting means a conference, 

seminar, trade show, or other gathering 

that all technically qualified members of 

the public may attend and at which they 

may make written or other personal 

record of the proceedings, 

notwithstanding that— 

(1) A reasonable registration fee may 

be charged; or 

(2) A reasonable numerical limit 

exists on actual attendance. 

Person means— 

(1)(i) Any individual, corporation, 

partnership, firm, association, trust, 

estate, public or private institution, 

group, Government agency other than 

DOE, or any State or political entity 

within a State; and 

(ii) Any legal successor, 

representative, agent, or agency of the 

foregoing. 

(2) Persons under U.S. jurisdiction are 

responsible for their foreign licensees, 

contractors, or subsidiaries to the extent 

that the former have control over the 

activities of the latter. 

Production accelerator means a 

particle accelerator specially 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 specially 

designed, used, or intended for the 

production of plutonium or uranium233. 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 specially 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 

specially designed, used, or intended for 

the production of plutonium or 

uranium-233. 

Public information means: 

(1)(i) Information available in 

periodicals, books, or other print or 

electronic media for distribution to any 

member of the public, or to a 

community of persons such as those in 

a scientific, engineering, or educational 

discipline or in a particular commercial 

activity who are interested in a subject 

matter; 

(ii) Information available in public 

libraries, public reading rooms, public 

document rooms, public archives, or 

public data banks, or in university 

courses; 

(iii) Information that has been 

presented at an open meeting (see 

definition of ‘‘open meeting’’); 

(iv) Information that has been made 

available internationally without 

restriction on its further dissemination; 

or 

(v) Information contained in an 

application that has been filed with the 

U.S. Patent Office and eligible for 

foreign filing under 35 U.S.C. 184 or 

that has been made available under 5 

U.S.C. 552, the Freedom of Information 

Act. 

(2) Public information must be 

available to the public prior to, or at the 

same time as, it is transmitted to a 

foreign recipient. It does not include 

any technical embellishment, 

enhancement, explanation or 

interpretation that in itself is not public 

information, or information subject to 

sections 147 and 148 of the Atomic 

Energy Act. 

Reprocessing means a process or 

operation, the purpose of which is to 

extract radioactive isotopes from 

irradiated source and special nuclear 

materials for further use. 

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. 

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Sensitive nuclear technology means 

any information (including information 

incorporated in a production or 

utilization facility or important 

component part thereof) that is not 

available to the public (see definition of 

‘‘public information’’) 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 operation 

manual or an intangible form such as 

technical services. 

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 57 b.(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. 

Specifically authorized nuclear 

activities means the provision of 

assistance, including the transfer of 

technology, to foreign persons related 

to: 

(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) Hydrogen isotope separation and 

heavy water production; 

(4) Production accelerator-driven 

subcritical assembly systems; 

(5) Production reactors; and 

(6) Reprocessing of irradiated nuclear 

fuel or targets containing special nuclear 

material. 

Technology means specific 

information required for the 

development, production, or use of any 

facility or activity listed in § 810.2(c). 

This information may take the form of 

technical data or technical assistance. 

(1) Development is related to all 

phases before production such as: 

(i) Design; 

(ii) Design research; 

(iii) Design analysis; 

(iv) Design concepts; 

(v) Assembly and testing of 

prototypes; 

(vi) Pilot production schemes; 

(vii) Design data; 

(viii) Process of transforming design 

data into a product; 

(ix) Configuration design; 

(x) Integration design; and 

(xi) Layouts. 

(2) Production means all production 

phases such as: 

(i) Construction; 

(ii) Production engineering; 

(iii) Manufacture; 

(iv) Integration; 

(v) Assembly or mounting; 

(vi) Inspection; 

(vii) Testing; and 

(viii) Quality assurance. 

Technical assistance means assistance 

in such forms as instruction, skills, 

training, working knowledge, consulting 

services, or any other assistance as 

determined by the Secretary. Technical 

assistance may involve transfer of 

technical data. 

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. 

Use means operation, installation 

(including on-site installation), and 

maintenance (checking), repair, 

overhaul, and refurbishing. 

United States, when used in a 

geographical sense, includes all 

territories and possessions of the United 

States. 

§ 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 International 

Security (NA 24), Telephone (202) 586– 

0589. 

(b) Communications also may be 

delivered to DOE’s headquarters at 1000 

Independence Avenue, SW., 

Washington, DC. All clearly marked 

proprietary information will be given 

the maximum protection allowed by 

law. 

§ 810.5 Interpretations. 

(a) The advice of the DOE Office of 

Nonproliferation and International 

Security may be requested on whether 

a proposed activity falls outside the 

scope of this part, is generally 

authorized under § 810.6, or requires 

specific authorization under § 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 

International Security, or a binding, 

written determination is requested from 

the DOE General Counsel, a response 

normally will be made within 30 days 

and, if this is not feasible, an interim 

response will explain the reason for the 

delay. 

§ 810.6 Generally authorized activities. 

(a) In accordance with section 57 b.(2) 

of the Atomic Energy Act, the Secretary 

has determined that activities by U.S. 

persons that involve engaging directly 

or indirectly in the production of 

nuclear material outside the United 

States, including by providing 

assistance or transferring technology in 

ways that do not involve specifically 

authorized nuclear activities, are 

generally authorized to be undertaken 

with respect to the IAEA and the 

countries and territories, and facilities 

therein, identified in paragraphs (b)(1) 

through (5) of this section, provided that 

no sensitive nuclear technology is 

transferred. 

(b) The activities described in 

paragraph (a) of this section are 

generally authorized with respect to the 

IAEA and: 

(1) The following countries and 

territories, and the facilities in such 

countries or territories: 

Argentina, 

Australia, 

Austria, 

Bangladesh, 

Belgium, 

Brazil, 

Bulgaria, 

Canada, 

Colombia, 

Cyprus, 

Czech Republic, 

Denmark, 

Egypt, 

Estonia, 

Finland, 

France, 

Germany, 

Greece, 

Hungary, 

Indonesia, 

Ireland, 

Italy, 

Japan, 

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Kazakhstan, 

Latvia, 

Lithuania, 

Luxembourg, 

Malta, 

Morocco, 

Netherlands, 

Norway, 

Peru, 

Poland, 

Portugal, 

Korea, Republic of 

Romania, 

Slovakia, 

Slovenia, 

South Africa, 

Spain, 

Sweden, 

Switzerland, 

Taiwan, 

Thailand, 

Turkey, 

Ukraine, 

United Arab Emirates, 

United Kingdom. 

(2) Any safeguarded facility in order 

to prevent or correct a current or 

imminent radiological emergency 

posing a significant danger to the health 

and safety of the off-site population and 

that cannot be met by other means, 

provided DOE is notified in writing in 

advance and does not object; 

(3) Any country or territory, if 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; 

(4) Any country or territory, if carried 

out in the course of participation in 

exchange programs approved by the 

Department of State in consultation 

with DOE; 

(5) Any country or territory, if carried 

out by persons, other than experts and 

consultants who are full-time employees 

of the IAEA, whose employment is 

sponsored by the U.S. Government. 

§ 810.7 Activities requiring specific 

authorization. 

Unless generally authorized by 

§ 810.6, a U.S. person requires specific 

authorization by the Secretary before 

engaging directly or indirectly in the 

production of special nuclear material 

outside the United States. 

§ 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 Restricted Data or 

other classified information; 

(b) Does not relieve a person from 

complying with relevant laws or the 

regulations of other Government 

agencies applicable to exports; 

(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. 

§ 810.9 Grant of specific authorization. 

(a) An application for authorization to 

provide assistance or transfer 

technology for which specific 

authorization is required under § 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 International 

Security (NA 24). 

(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, the Department 

of Commerce, and the Department of 

Defense, that the activity will not be 

inimical to the interest of the United 

States. Each application approved for 

specific authorization generally will be 

for a period up to five years. In making 

an authorization determination, the 

Secretary will take into account the 

following factors: 

(1) Whether the United States has an 

agreement for peaceful nuclear 

cooperation in force covering exports to 

the country, territory, or international 

organization involved; 

(2) Whether the country or the 

authorities of the territory involved is/ 

are a party to, or has/have otherwise 

adhered to, the NPT; 

(3) Whether the country or the 

authorities of the territory involved is/ 

are in good standing with its/their 

acknowledged nonproliferation 

commitments; 

(4) Whether the country or the 

authorities of the territory involved has/ 

have accepted IAEA safeguards 

obligations on all nuclear materials used 

for peaceful purposes and has/have 

them in force; 

(5) Whether there exist other 

nonproliferation controls or conditions 

on the proposed activity, including that 

the recipient is duly authorized by the 

country’s government or the authorities 

of the territory involved to receive and 

operate the technology sought to be 

transferred; 

(6) Significance of the assistance or 

technology transfer relative to the 

existing nuclear capabilities of the 

recipient country or territory; 

(7) Whether the transfer is part of an 

existing cooperative enrichment 

enterprise or the supply chain of such 

an enterprise; 

(8) The availability of comparable 

assistance or technology from other 

sources; and 

(9) Any other factors that may bear 

upon the political, economic, 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 

recipient country or the authorities of 

the territory involved under treaties or 

other international agreements. 

(c) If the proposed assistance or 

technology transfer involves the export 

of sensitive nuclear technology as 

defined in § 810.3, 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 subparagraph (b), the 

Secretary will take into account: 

(1) Whether the recipient country or 

the authorities of the recipient territory 

is/are a party to, or has/have adhered to, 

the NPT and is/are in full compliance 

with its/their obligations under the 

NPT; 

(2) Whether the recipient 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 recipient country or 

territory; 

(3) Whether the recipient country or 

the authorities of the territory has/have 

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/continue to be the subject of 

Board of Governors decisions calling 

upon it/them to take additional steps to 

comply with its/their safeguards 

obligations or to build confidence in the 

peaceful nature of its/their 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 

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Federal Register / Vol. 76, No. 173 / Wednesday, September 7, 2011 / Proposed Rules 55287 

Security Council subsequently decides 

that adequate assurances exist as to the 

peaceful purposes of the recipient’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; 

(4) Whether the recipient country or 

territory 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 

(5) Whether the recipient country or 

territory 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: the United 

States Government has received written 

assurances from the government of the 

country or the authorities of the territory 

involved— 

(1) That it/they accepts/accept the 

sensitive enrichment equipment and 

enabling technologies, or an operable 

enrichment facility under conditions 

that do not permit or enable replication 

of the facilities; 

(2) That the subject enrichment 

activity will not result in the production 

of uranium enriched to greater than 

20% in the isotope uranium-235; and 

(3) That there are in place appropriate 

security arrangements to protect the 

activity from use or transfer inconsistent 

with the country’s national laws or the 

law applicable in the territory involved. 

(e) Approximately 30 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 the Department’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. 

§ 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 § 810.12; 

(c) If any authorized assistance or 

technology transfer is subsequently 

determined 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. 

§ 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 

person; 

(2) The country or territory, or the 

international organization, 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 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; and 

(4) The designation of any 

information that if publicly disclosed 

would cause substantial harm to the 

competitive position of the applicant. 

(b) The applicant should also include, 

as an attachment to the application 

letter, any information the applicant 

wishes to provide concerning the factors 

listed in § 810.9(b) and (c). 

(c) U.S. persons seeking to employ a 

foreign national of a country not listed 

in § 810.6(b) in a position that could 

result in the transfer or technology 

subject to § 810.6(a), or seeking to 

employ any foreign national in a 

position that could result in the transfer 

of technology subject to § 810.7, must 

request a specific authorization. No 

application for specific authorization is 

required if the foreign national 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)). The applicant must 

provide, with respect to each foreign 

national to whom the applicant seeks to 

release technology subject to this part: 

(1) A description of the technology 

that will be made available to the 

foreign national; 

(2) The purpose of the proposed 

release, and a description of the 

applicant’s technology control program; 

(3) A copy of any confidentiality 

agreement between the applicant and 

the foreign national; 

(4) Background information about the 

foreign national, including the 

individual’s citizenship, all countries or 

territories 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 current immigration or visa status 

in the United States; and 

(5) A signed undertaking 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. 

(d) 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 territory or to ensure the safe 

installation and operation of a resulting 

enrichment facility, without divulging 

enabling technology; 

§ 810.12 Reports. 

(a) Each person who has received a 

specific authorization shall, within 30 

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 days, 

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55288 Federal Register / Vol. 76, No. 173 / Wednesday, September 7, 2011 / Proposed Rules 

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 days, when it is 

known that the proposed activity will 

not be undertaken and the granted 

authorization will not be used. 

(d) Each person, within 30 days after 

beginning any generally authorized 

activity under § 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) An assurance that the applicant 

has an agreement with the recipient 

ensuring that any subsequent transfer of 

materials, equipment, or technology 

transferred under general authorization 

to a country or territory with respect to 

which the conditions in § 810.6 are not 

met will take place only if the applicant 

obtains DOE approval. 

(e) Persons engaging in generally 

authorized activities as employees of 

persons required to report are not 

themselves required to report. 

(f) Persons engaging in activities 

generally authorized under § 810.6(b) 

are not subject to reporting requirements 

under this section. 

(g) 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. 

(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 

International Security (NA 24). 

§ 810.13 Additional information. 

DOE may at any time require a person 

engaging in any generally or specifically 

authorized activity to submit additional 

information. 

§ 810.14 Violations. 

(a) The Atomic Energy Act provides 

that: 

(1) Permanent or temporary 

injunctions or restraining orders may be 

granted to prevent any person from 

violating any provision of the Atomic 

Energy Act or its implementing 

regulations. 

(2) Any person convicted of violating 

or conspiring or attempting 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 and a 

$20,000 fine. 

(b) Title 18 of the United States Code, 

section 1001, provides that persons 

convicted of willfully falsifying, 

concealing, or covering up a material 

fact or making false, fictitious or 

fraudulent statements or representations 

may be fined up to $10,000 or 

imprisoned up to five years, or both. 

§ 810.15 Effective date and savings clause. 

Except for actions that may be taken 

by DOE pursuant to § 810.10, the 

regulations in this part do not affect the 

validity or terms of any specific 

authorizations granted under 

regulations in effect before October 7, 

2011 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 October 7, 2011, but that 

require specific authorization under the 

regulations in this part, must request 

specific authorization by December 6, 

2011 but may continue their activities 

until DOE acts on the request. 

[FR Doc. 2011–22679 Filed 9–6–11; 8:45 am] 

BILLING CODE 6450–01–P 

FEDERAL RESERVE SYSTEM 

12 CFR Part 225 

Capital Plans; Proposed Agency 

Information Collection Activities: 

Comment Request 

AGENCY: Board of Governors of the 

Federal Reserve System. 

ACTION: Request for comments. 

SUMMARY: On June 15, 1984, the Office 

of Management and Budget (OMB) 

delegated to the Board of Governors of 

the Federal Reserve System (Board) its 

approval authority under the Paperwork 

Reduction Act (PRA), pursuant to its 

regulations, to approve of and assign 

OMB control numbers to collection of 

information requests and requirements 

conducted or sponsored by the Board 

under conditions set forth in its 

regulations. Board-approved collections 

of information are incorporated into the 

official OMB inventory of currently 

approved collections of information. 

Copies of the Paperwork Reduction Act 

Submission, supporting statements and 

approved collection of information 

instruments are placed into OMB’s 

public docket files. The Federal Reserve 

may not conduct or sponsor, and the 

respondent is not required to respond 

to, an information collection that has 

been extended, revised, or implemented 

on or after October 1, 1995, unless it 

displays a currently valid OMB control 

number. 

DATES: Comments must be submitted on 

or before November 7, 2011. 

ADDRESSES: You may submit comments, 

identified by FR Y–14A and FR Y–14Q, 

by any of the following methods: 

• Agency Web Site: http:// 

www.federalreserve.gov. Follow the 

instructions for submitting comments at 

http://www.federalreserve.gov/ 

generalinfo/foia/ProposedRegs.cfm. 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: 

regs.comments@federalreserve.gov. 

Include docket number in the subject 

line of the message. 

• Fax: 202/452–3819 or 202/452– 

3102. 

• Mail: Jennifer J. Johnson, Secretary, 

Board of Governors of the Federal 

Reserve System, 20th Street and 

Constitution Avenue, NW., Washington, 

DC 20551. 

All public comments are available 

from the Board’s Web site at http:// 

www.federalreserve.gov/generalinfo/ 

foia/ProposedRegs.cfm as submitted, 

unless modified for technical reasons. 

Accordingly, your comments will not be 

edited to remove any identifying or 

contact information. Public comments 

may also be viewed electronically or in 

paper form in Room MP–500 of the 

Board’s Martin Building (20th and C 

Streets, NW.) between 9 a.m. and 5 p.m. 

on weekdays. 

Additionally, commenters should 

send a copy of their comments to the 

OMB Desk Officer by mail to the Office 

of Information and Regulatory Affairs, 

U.S. Office of Management and Budget, 

New Executive Office Building, Room 

10235, 725 17th Street, NW., 

Washington, DC 20503 or by fax to 202– 

395–6974. 

FOR FURTHER INFORMATION CONTACT: A 

copy of the PRA OMB submission, 

including the proposed reporting 

schedules and instructions, supporting 

statement, and other documentation 

will be placed into OMB’s public docket 

files, once approved. These documents 

will also be made available on the 

Federal Reserve Board’s public Web site 

at: http://www.federalreserve.gov/ 

boarddocs/reportforms/review.cfm or 

may be requested from the agency 

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