Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 46829 

through 920.55, of this part shall require 

at least eight concurring votes. 

* * * * * 

■ 4. Add § 920.45 to read as follows: 

§ 920.45 Contributions. 

The committee may accept voluntary 

contributions, but these shall only be 

used to pay expenses incurred pursuant 

to § 920.47 and § 920.48. Furthermore, 

such contributions shall be free from 

any encumbrances by the donor, and the 

committee shall retain complete control 

of their use. 

■ 5. Add § 920.47 to read as follows: 

§ 920.47 Production and postharvest 

research. 

The committee, with the approval of 

the Secretary, may establish or provide 

for the establishment of projects 

involving research designed to assist or 

improve the efficient production and 

postharvest handling of kiwifruit. 

■ 6. Add § 920.48 to read as follows: 

§ 920.48 Market research and 

development. 

The committee, with the approval of 

the Secretary, may establish or provide 

for the establishment of marketing 

research and development projects 

designed to assist, improve, or promote 

the marketing, distribution, and 

consumption of kiwifruit. 

[FR Doc. 2013–18627 Filed 8–1–13; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF ENERGY 

10 CFR Part 810 

RIN 1994–AA02 

Assistance to Foreign Atomic Energy 

Activities 

AGENCY: National Nuclear Security 

Administration (NNSA), Department of 

Energy (DOE). 

ACTION: Supplemental notice of 

proposed rulemaking and public 

meetings. 

SUMMARY: On September 7, 2011, DOE 

issued a notice of proposed rulemaking 

(NOPR) to propose the first 

comprehensive updating of regulations 

concerning Assistance to Foreign 

Atomic Energy Activities since 1986. 

The NOPR reflected a need to make the 

regulations consistent with current 

global civil nuclear trade practices and 

nonproliferation norms, and to update 

the activities and technologies subject to 

the Secretary of Energy’s specific 

authorization and DOE reporting 

requirements. It also identified 

destinations with respect to which most 

assistance would be generally 

authorized and destinations that would 

require a specific authorization by the 

Secretary of Energy. After careful 

consideration of all comments received, 

DOE today is issuing this supplemental 

notice of proposed rulemaking (SNOPR) 

to respond to those comments, propose 

new or revised rule changes, and afford 

interested parties a second opportunity 

to comment. 

DATES: Written comments must be 

postmarked on or before October 31, 

2013 to ensure consideration. DOE will 

hold two public meetings. The first 

public meeting will be held in the Large 

Auditorium at the U.S. Department of 

Energy, Forrestal Building, on August 5, 

2013, from 1 to 4 p.m. DOE has also 

arranged a call-in line for this first 

meeting. Interested persons should 

inform DOE of their intent to participate 

by phone or attend in-person, as there 

are a limited number of lines for the call 

and there is limited room capacity in 

the auditorium. DOE asks that interested 

persons send their requests to 

participate in this meeting via email at 

Part810.SNOPR@nnsa.doe.gov, by 4:30 

p.m. on August 2, 2013. To ensure inperson participation, email the request 

by 10 a.m., August 2, 2013. DOE will 

confirm its receipt of requests and, at 

that time, provide further logistical 

information, including the call-in 

number for those participating by 

phone. DOE will hold a second public 

meeting in September. The 

announcement of the second public 

meeting will be provided in a future 

Federal Register notice. 

ADDRESSES: You may submit comments, 

identified by RIN 1994–AA02, by any of 

the following methods: 

1. Federal Rulemaking Portal: http:// 

www.regulations.gov/ 

#!docketDetail;D=DOE-HQ-2011-0035. 

Follow the instructions for submitting 

comments. 

2. Email: Part810.SNOPR@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. 

The first public meeting for this 

SNOPR will be held at the U.S. 

Department of Energy, Forrestal 

Building, Large Auditorium, 1000 

Independence Avenue SW., 

Washington, DC 20585. 

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. Discussion of Comments Received on the 

September 2011 NOPR 

A. Process Issues 

1. Compliance With APA Rulemaking 

Requirements 

2. Part 810 Process Improvements 

B. Classification of Foreign Destinations 

1. Generally Authorized Destinations 

Proposed To Require Specific 

Authorization 

2. Continued Specific Authorization 

Destinations 

3. Former Generally Authorized 

Destinations 

4. Emerging Civil Nuclear Trading Partner 

Countries 

C. Activities Requiring Part 810 

Authorization 

1. Special Nuclear Material Nexus 

Requirement 

2. Activities Supporting Commercial Power 

Reactors 

3. ‘‘Deemed Exports’’ and ‘‘Deemed ReExports’’ 

4. Technology Transfers To Individuals 

With Dual Citizenship or Permanent 

Residency 

5. Operational Safety Activities 

6. Offshore Activities: ‘‘Control-in-Fact’’ 

7. Back-end Activities 

8. Nuclear Regulatory Commission and 

Departments of Commerce and State 

Approved Activities 

9. Medical Isotope Production 

10. Activities Carried Out by International 

Atomic Energy Agency Personnel 


emcdonald on DSK67QTVN1PROD with PROPOSALS
46830 Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 

*Prior to 1986, § 810.1 and its predecessors 

referred to ‘‘persons’’ who engage in activities 

subject to part 810. 48 FR 2518 (Feb. 4, 1983); 40 

FR 44846 (Sep. 30, 1975); 21 FR 418 (Jan. 20, 1956). 

In 1986, DOE amended § 810.1 to add ‘‘U.S.’’ before 

‘‘persons’’ (51 FR 44570, Dec. 10, 1986), but did not 

employ that phrase anywhere else in part 810; all 

other provisions of the regulation in effect from 

1986 to the present utilize simply ‘‘persons.’’ The 

solitary reference to ‘‘U.S. persons’’ in § 810.1 was 

unnecessary in 1986, and continued usage of ‘‘U.S.’’ 

is also unnecessary now. Today, DOE proposes to 

revert to the use of ‘‘persons’’ in proposed § 810.1. 

11. Transfer of Public Information and 

Research Results 

12. Transfer of Sales, Marketing, and 

Sourcing Information 

13. Transfer of ‘‘Americanized’’ 

Technology 

D. Explanation of Proposed Changes to Part 

810 Terms 

V. 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 General Government 

Appropriations Act, 1999 

G. Executive Order 13132 

H Executive Order 12988 

I. Treasury and General Government 

Appropriations Act, 2001 

J. Executive Order 13211 

K. Executive Order 13609 

VI. Approval by the Office of the Secretary 

I. Background 

The Department of Energy’s (DOE) 

part 810 regulation implements section 

57 b.(2) of the Atomic Energy Act (AEA) 

of 1954, as amended by section 302 of 

the Nuclear Nonproliferation Act of 

1978 (NNPA). Part 810 controls the 

export of unclassified nuclear 

technology and assistance. It enables 

peaceful nuclear trade by helping to 

assure that nuclear technologies 

exported from the United States will not 

be used for non-peaceful purposes. Part 

810 controls the export of nuclear 

technology and assistance by identifying 

activities that can be ‘‘generally 

authorized’’ by the Secretary, thereby 

requiring no further authorization under 

part 810. It also controls those activities 

that require ‘‘specific authorization’’ by 

the Secretary. Part 810 also delineates 

the process for applying for specific 

authorization from the Secretary and 

identifies the reporting requirements for 

activities subject to part 810. 

Part 810 has not been 

comprehensively updated since 1986. 

Since then, the global civil nuclear 

market has expanded, particularly in 

China, the Middle East, and Eastern 

Europe, with vendors from France, 

Japan, the Republic of Korea, Russia, 

and Canada having emerged to serve 

customers in these emerging markets. 

DOE believes the regulation should be 

updated to ensure that the part 810 

nuclear export controls remain effective 

and efficient as the commercial nuclear 

market expands. This means carefully 

determining destinations and activities 

that are generally authorized or subject 

to a specific authorization, and assuring 

that the determinations are consistent 

with current U.S. national security, 

diplomatic, and trade policy. 

On September 7, 2011, DOE issued a 

NOPR to propose the updating of part 

810 (76 FR 55278). The NOPR listed 

destinations for which most assistance 

to foreign atomic energy activities 

would be generally authorized, and 

activities that would require a specific 

authorization by the Secretary of 

Energy. Activities requiring specific 

authorization are set forth in proposed 

§ 810.7. Additionally, the NOPR 

identified types of technology transfers 

subject to the regulation. DOE received 

numerous comments on the NOPR. 

After careful consideration of all 

comments received, DOE today is 

issuing this SNOPR to respond to those 

comments and afford interested parties 

a second opportunity to comment. 

As described below and in response 

to comments received from the public 

on the NOPR, this SNOPR proposes a 

number of substantial changes to the 

current rule that are different than those 

contained in the NOPR. Additionally, 

certain changes to the current rule 

proposed in the NOPR are re-proposed 

for consideration in this SNOPR. Details 

of the proposed changes to the current 

part 810 and the NOPR contained in this 

SNOPR are summarized in Section II 

and discussed in greater detail in 

Section IV. 

II. Description of Proposed Changes 

In response to the NOPR, the 

Department received written comments 

from over 30 entities, and over 3,000 

form letters coordinated by the 

Consumer Energy Alliance. Two 

commenters, the Nuclear Energy 

Institute and a law firm on behalf of the 

Ad Hoc Utility Group (a number of 

companies that operate 56 nuclear 

reactors at 35 sites), offered specific text 

revisions to the entirety of part 810; 

other commenters focused more 

narrowly on one or more specific 

provisions of particular interest to the 

submitter. All of the comments are 

available for review on line at: http:// 

www.regulations.gov/ 

#!docketDetail;D=DOE-HQ-2011-0035. 

Docket ID: DOE–HQ–2011–0035. 

This SNOPR responds to the 

comments received in response to the 

NOPR and proposes changes to the 

current part 810. Today’s proposed 

changes, summarized by section, are as 

follows: 

1. The proposed change to § 810.1 

‘‘Purpose’’ states the statutory basis and 

purpose for the part 810 regulation, 

eliminating the need for current § 810.6. 

Unlike the NOPR, which proposed to 

retain unchanged the phrase ‘‘U.S. 

persons’’ in the current § 810.1, today’s 

proposal would replace ‘‘U.S. persons’’ 

with ‘‘persons.’’ *

2. The proposed change to paragraph 

(a) in § 810.2 ‘‘Scope’’ states DOE’s 

jurisdiction under section 57 b.(2) of the 

Atomic Energy Act. Proposed § 810.2(b) 

would identify activities governed by 

the regulation when those activities, 

whether conducted in the United States 

or abroad, directly or indirectly result in 

the development or production of 

special nuclear material (SNM). 

Proposed § 810.2(c) would identify 

exempt activities, some retained from 

the current part 810 regulation, and the 

following are proposed to be added: 

• Exports authorized by the 

Departments of State or Commerce, or 

the Nuclear Regulatory Commission; 

• Transfer of ‘‘publicly available 

information,’’ ‘‘publicly available 

technology,’’ and the results of 

‘‘fundamental research’’; 

• Assistance for certain mining and 

milling activities, and certain fusion 

reactors because these activities do not 

involve the production or use of special 

nuclear material; 

• Production or extraction of 

radiopharmaceutical isotopes when the 

process does not involve special nuclear 

material; and 

• Transfers to lawful permanent 

residents of the United States or 

protected individuals under the 

Immigration and Naturalization Act (8 

U.S.C. 1324b(a)(3)). 

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

a number of new or revised definitions 

are proposed, to reflect terminological 

changes and technological 

developments since the part 810 

regulation was last updated and to 

provide additional clarity to certain 

terms currently defined and used in the 

regulation. They are described in 

Section IV. D. of this Preamble. 

4. Proposed § 810.4 

‘‘Communications’’ and § 810.5 

‘‘Interpretations’’ update points of 

contact information to reflect current 

Departmental organizational structure 

and office designations for applications, 

questions, or requests. The SNOPR adds 

a proposed new paragraph (c) to § 810.5 

that reflects DOE’s intent to periodically 

publish abstracts of general or specific 


emcdonald on DSK67QTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 46831 

authorizations, excluding applicants’ 

proprietary data and other information 

protected by law from public disclosure, 

that may be of general interest. 

5. Current § 810.6 ‘‘Authorization 

requirement,’’ which quotes section 57 

b. of the Atomic Energy Act, is proposed 

to be deleted and replaced, as it was in 

the NOPR, by proposed § 810.1 

‘‘Purpose.’’ 

6. The current § 810.7 ‘‘Generally 

authorized activities’’ is today, as in the 

NOPR, proposed to be re-numbered as 

§ 810.6. It would identify activities the 

Secretary has found to be not inimical 

to the interest of the United States and 

which may be generally authorized. 

(1) Proposed paragraph (a) would 

generally authorize assistance or 

transfers of technology to destinations 

listed in the proposed Appendix. The 

current § 810.8(a) uses the opposite 

classification approach. It lists 

destinations for which a specific 

authorization is required. 

(2) The current § 810.7(a) ‘‘furnishing 

public information’’ would be deleted 

from the list of generally authorized 

activities. In the NOPR, ‘‘public 

information’’ was proposed to be 

exempt from part 810. In proposed 

§ 810.2(c)(2) of the SNOPR, ‘‘publicly 

available information,’’ ‘‘publicly 

available technology,’’ and the results of 

‘‘fundamental research’’ (all as defined 

in proposed § 810.3) would be exempt 

from the scope of part 810. 

(3) In a new approach to deemed 

exports in the SNOPR, proposed 

§ 810.6(b) would generally authorize 

technology transfers to citizens or 

nationals of specific authorization 

destinations who are lawfully employed 

by or contracted to work for nuclear 

industry employers in the United States, 

subject to the individual meeting 

Nuclear Regulatory Commission access 

requirements and executing a 

confidentiality agreement to prevent 

unauthorized disclosure of nuclear 

technology to which those individuals 

are afforded access. Deemed export 

reporting requirements with respect to 

these individuals are set forth in 

proposed § 810.12(g). 

(4) The existing ‘‘fast track’’ general 

authorization in current § 810.7(b) for 

emergency activities at any safeguarded 

facility and operational safety assistance 

to existing foreign safeguarded reactors 

was not included in the NOPR. In the 

SNOPR, the authorization in the current 

regulation is proposed to be retained, in 

paragraphs (c)(1) and (c)(2), 

respectively, but with a revised 

definition of ‘‘operational safety.’’ 

Furnishing operational safety 

information or assistance to existing, 

proposed, or new-build nuclear power 

plants in the United States would be 

authorized in proposed § 810.6(c)(3). 

(5) Proposed paragraph (d) would 

generally authorize exchange programs 

approved by the Department of State 

with DOE concurrence, similar to the 

provision in § 810.6(b)(4) of the NOPR. 

(6) Proposed paragraphs (e) and (f) 

would authorize certain cooperative 

activities with the International Atomic 

Energy Agency (IAEA), namely, 

activities carried out in the course of 

implementation of the ‘‘Agreement 

between the United States of America 

and the [IAEA] for the Application of 

Safeguards in the United States’’; and 

those carried out by full-time employees 

of the IAEA, or by individuals whose 

employment or work is sponsored or 

approved by the Department of State or 

DOE. Similar provisions were set forth 

in §§ 810.6(b)(3) and (5) of the NOPR. 

(7) Proposed paragraph (g) would 

authorize transfers of technology and 

assistance for the extraction of 

Molybdenum-99 from spent nuclear fuel 

in certain circumstances. This provision 

is not in the current rule, nor was it 

proposed in the NOPR. 

7. Proposed § 810.7—renumbered 

from the current § 810.8—‘‘Activities 

requiring specific authorization’’ would 

continue to list activities that would 

require a specific authorization for all 

foreign destinations. The NOPR 

proposed to eliminate the list and 

require a specific authorization for 

engaging in the production of special 

nuclear material. 

8. Proposed § 810.8 ‘‘Restrictions on 

general and specific authorization’’ 

would remain unchanged from § 810.9 

in the current rule and the NOPR, 

except for the following editorial 

revisions: replacing ‘‘these regulations’’ 

with ‘‘this part’’ in the introductory 

phrase; replacing ‘‘Restricted Data and 

other classified information’’ with 

‘‘classified information’’ in proposed 

paragraph (a), and replacing 

‘‘Government agencies’’ with ‘‘U.S. 

Government agencies’’ in paragraph (b). 

9. Proposed § 810.9 ‘‘Grant of specific 

authorization,’’ currently § 810.10 and 

proposed § 810.9 in the NOPR, would 

identify the factors, consonant with U.S. 

international nonproliferation 

commitments, that would be considered 

by the Secretary in granting a specific 

authorization. Proposed paragraph (b) 

would add as factors to be considered: 

whether the government of the country 

concerned is in good standing with 

respect to its nonproliferation 

commitments (proposed paragraph 

(b)(3)); and whether, under proposed 

paragraph (b)(8), the transfer is part of 

an existing ‘‘cooperative enrichment 

enterprise’’ (as defined in proposed 

§ 810.3) or the supply chain of such an 

enterprise. Proposed § 810.9(c) 

addresses the export of sensitive nuclear 

technology as defined in § 810.3, and 

would be expanded to describe 

additional factors, which include 

compliance with the U.S.’s Nuclear 

Suppliers Group (NSG) commitments, 

the Secretary would take into account 

when considering a specific 

authorization request for the transfer of 

sensitive nuclear technology. The 

United States adheres to the NSG 

Guidelines for Nuclear Transfers (IAEA 

Information Circular [INFCIRC] 254/ 

Part1) and Guidelines for Transfers of 

Nuclear-related Dual-Use Equipment, 

Materials, Software and Related 

Technology (IAEA INFCIRC/254/Part 2). 

The current versions of both sets of 

Guidelines can be found at 

www.nuclearsuppliersgroup.org. As in 

the NOPR, a new paragraph (d) is 

proposed to be added, concerning 

requests to engage in authorized foreign 

atomic energy assistance activities 

related to the enrichment of source 

material and special nuclear material. 

Approval of such requests would be 

conditioned upon the receipt of written 

nonproliferation assurances from the 

government of the country concerned, a 

proposal designed to facilitate U.S. 

conformity to the Nuclear Supplier 

Group Guidelines. 

10. Proposed § 810.10 ‘‘Revocation, 

suspension, or modification of 

authorization,’’ currently § 810.11, 

would (as in the NOPR) make an 

editorial revision, changing ‘‘authorized 

assistance’’ in paragraph (c) to 

‘‘authorization governed by this part.’’ 

11. The current § 810.12, renumbered 

as proposed § 810.11 ‘‘Information 

required in an application for specific 

authorization,’’ would (as in the NOPR) 

be expanded to add more detail about 

the information required for DOE to 

process a specific authorization request, 

including applications for ‘‘deemed 

export’’ and ‘‘deemed re-export’’ 

authorizations. Section 810.11(a) 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) and (c). 

Current § 810.12(a) requires that an 

application for specific authorization 

include information regarding ‘‘the 

degree of any control or ownership by 

any foreign person or entity’’. The 

NOPR proposed to add a definition of 

the undefined term ‘‘foreign person’’ to 

state: ‘‘Foreign person means a person 

other than a U.S. person’’. For the 

reasons explained in the footnote in 


emcdonald on DSK67QTVN1PROD with PROPOSALS
46832 Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 

Section II, Description of Proposed 

Changes, the SNOPR proposes to delete 

the term ‘‘U.S. person’’ from the first 

paragraph in § 810.1 of the current 

regulation. Since the term ‘‘foreign 

person’’ is used only once in the current 

regulation (in § 810.12(a)), and was used 

only once in the NOPR (proposed 

§ 810.11(a)—unchanged from current 

§ 810.12(a))—DOE has determined that 

to avoid any possible confusion between 

usages of ‘‘person’’ and ‘‘foreign 

national’’, the SNOPR proposes to revise 

the formulation of proposed § 810.11(a) 

without reference to ‘‘foreign person’’. 

Instead, proposed § 810.11(a)(1) would 

request information concerning an 

applicant’s foreign ownership or control 

by asking about ‘‘the degree of any 

control or ownership by any foreign 

individual, corporation, partnership, 

firm, association, trust, estate, public or 

private institution or government 

agency’’. 

Proposed paragraph (c) has been 

modified from proposed language in the 

NOPR but would continue to address 

the required content for applications 

filed by U.S. companies seeking to 

employ in the United States citizens or 

nationals of specific authorization 

countries that would result in the 

transfer of technology subject to 

proposed §§ 810.2 or 810.7 (deemed 

exports). Submission of the same 

information would also be required with 

respect to any such citizen or national 

whom the part 810 applicant seeks to 

employ abroad in either a general or 

specific authorization country (a 

deemed re-export). Under today’s 

proposal, no part 810 authorization 

would be required for an individual 

who is lawfully admitted for permanent 

residence in the United States or is a 

protected individual under the 

Immigration and Naturalization Act (8 

U.S.C. 1324b(a)(3)). 

The SNOPR proposes that § 810.11(c) 

would make explicit DOE’s current 

practice of requiring an applicant for a 

specific authorization to provide 

detailed information concerning the 

citizenship, visa status, educational 

background, and employment history of 

each foreign national to whom the 

applicant seeks to grant access to 

technology subject to the part 810 

regulation. In addition, the applicant 

would be required to provide a 

description of the subject technology, a 

copy of any confidentiality agreement 

between the U.S. employer and the 

employee concerning the protection of 

the employer’s proprietary business data 

from unauthorized disclosure, and 

written nonproliferation assurances by 

the individual. Finally, proposed 

paragraph (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, renumbered 

as proposed § 810.12, would be changed 

by proposed changes in reporting 

obligations. A proposed addition in 

§ 810.12(d) would require companies to 

submit reports to DOE, to include 

information required by U.S. law 

concerning specific civil nuclear 

activities or exports to countries for 

which a specific authorization is 

required. Under proposed § 810.12(e)(4), 

the reference to reporting on materials 

and equipment would be retained to 

ensure that any technical data that is 

transferred as part of dual-use 

equipment is reported. Proposed 

paragraph (g) is new and describes the 

reporting requirements of U.S. 

employers with respect to their deemed 

export and deemed re-export 

employees. 

13. The current § 810.14, § 810.15 and 

§ 810.16 would, as in the NOPR, be 

renumbered as proposed § 810.13 

‘‘Additional information,’’ proposed 

§ 810.14 ‘‘Violations,’’ and proposed 

§ 810.15 ‘‘Effective date and savings 

clause.’’ 

III. Public Comment Procedures 

Interested persons are invited to 

submit comments on this regulatory 

proposal. 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, email 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, and on the Internet at: http:// 

www.regulations.gov/ 

#!docketDetail;D=DOE-HQ-2011-0035. 

If you submit information that you 

believe to be exempt by law from public 

disclosure, you should submit one 

complete copy, as well as one copy from 

which the information claimed to be 

exempt by law from public disclosure 

has been deleted. DOE is responsible for 

the final determination with regard to 

disclosure or nondisclosure of the 

information and for treating it 

accordingly under the DOE Freedom of 

Information regulations at 10 CFR 

1004.11. 

Public Meeting 

The first public meeting will be held 

at the time, date, and place indicated in 

the DATES and ADDRESSES sections of 

this SNOPR. Any person who is 

interested in attending in-person, 

participating by phone, or making an 

oral presentation in-person or through 

the call-in line should email a request 

to the email address in the DATES section 

by the date and time specified for 

making such requests. As noted in the 

DATES section, the number of lines 

available to call into the meeting is 

limited. For all oral presentations, the 

person should provide a daytime phone 

number where he or she can be reached. 

Each oral presentation may be limited 

and may in no instance be longer than 

20 minutes. Persons making an oral 

presentation in-person are requested to 

bring 3 copies of their prepared 

statement to the public meeting and 

submit it to the registration desk. 

Persons making an oral presentation 

through the call-in line are requested to 

email their statement either before or 

after the public meeting to the email 

address in the DATES section. DOE 

reserves the right to select the persons 

who will speak. DOE also reserves the 

right to schedule speakers’ presentations 

and to establish the procedures for 

conducting the meeting. A DOE official 

will be designated to preside at the 

meeting. The meeting will not be a 

judicial or evidentiary-type hearing. 

Any further procedural rules for the 

conduct of the meeting will be 

announced by the presiding official. 

After the public meeting, interested 

persons may submit further comments 

until the end of the comment period. A 

transcript of the meeting will be made, 

and the entire record of this rulemaking 

will be retained by DOE and posted at 

regulations.gov. 

IV. Discussion of Comments Received 

on the September 2011 NOPR 

Overview 

As noted above in Section II, 

Description of Proposed Changes, DOE 

received written comments on the 

NOPR from over 30 individual entities 

and over 3,000 form letters from entities 

coordinated by the Consumer Energy 

Alliance. 

The commenters represented diverse 

interests and raised concerns about 

different sections of the proposed rule, 

but they acknowledged the important 

goals of part 810: 

• Effective threat reduction. Part 810 

should be updated to more effectively 

address proliferation challenges, as 

there have been significant changes in 

geopolitics, economics, technologies 


emcdonald on DSK67QTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 46833 

and relationships between the United 

States and its nuclear trading partners 

since the regulation last underwent 

comprehensive revision in 1986. 

• Effective nuclear trade support. Part 

810 should support U.S. companies 

competing to provide nuclear 

technology for peaceful purposes in 

global civil nuclear reactor markets. 

• Efficient regulation. The part 810 

licensing process should be efficient, 

transparent, timely, and predictable. 

The cost of regulation to the government 

and industry should not exceed the 

benefits. Duplicative or unnecessary 

regulatory requirements should be 

avoided. 

DOE has reviewed the comments and 

now proposes in this SNOPR to further 

revise part 810 based on considerations 

of those comments. The comments were 

analyzed and placed into three 

categories: 

A. Process Issues 

B. Classification of Foreign Destinations 

C. Activities Requiring Part 810 

Authorization 

A. Process Issues 

1. Compliance With Administrative 

Procedure Act Rulemaking 

Requirements 

Multiple commenters claimed the 

NOPR contravened various 

requirements of the Administrative 

Procedure Act (APA) and various 

Executive Orders. The alleged defects 

were: 

• Inadequate notice and opportunity 

to comment—failure to explain DOE’s 

rationale for proposed changes 

sufficient to permit meaningful 

comment by interested parties. 

• Inadequate impact analysis— 

failure to consider the economic and 

paperwork impacts of the proposed rule 

changes and their consistency with 

other U.S. export control regulatory 

regimes and U.S. trade policies, 

including the National Export Initiative 

and Export Control Reform Initiative. 

• Unreasonable effective date— 

failure to give exporters enough time to 

comply before the rule becomes 

effective. 

The issuance of this SNOPR, which 

includes explanatory rationales of the 

revisions proposed, provides another 

opportunity for the public to comment 

on changes DOE is considering with 

regard to part 810. Additionally, 

working together with the Department 

of Commerce, DOE completed an 

economic analysis that considers the 

potential impacts of the amendments 

contained in this SNOPR. 

With respect to the effective date of 

the final rule, on December 2, 2011, 

DOE posted at http:// 

www.regulations.gov/ 

#!docketDetail;D=DOE-HQ-2011-0035 in 

Docket DOE–HQ–2011–0035 a 

clarification, in response to 

commenters’ request, of the dates stated 

in the NOPR’s proposed § 810.15 

‘‘Effective date and savings clause.’’ 

DOE explained that the references to 

‘‘October 7, 2011’’ and ‘‘December 6, 

2011’’ were placeholders calculated in 

the publication process for the NOPR. 

The effective date and savings clause of 

any final part 810 rule would be 

calculated from the publication date of 

the final rule and would provide 

sufficient time for exporters to comply 

with the rule as adopted. 

2. Part 810 Process Improvements 

Many commenters maintained that 

the part 810 approval process is unduly 

protracted, and that processing delays 

put U.S. suppliers at a competitive 

disadvantage with companies in other 

countries. Many concerns with the 

NOPR indicated less a problem with the 

merits of the proposed changes than 

with the commenters’ belief that the 

proposed rule revisions would 

impermissibly broaden the scope of part 

810. Given the reduced number of 

destinations proposed to be generally 

authorized, commenters expressed 

concern that the overall proposed 

changes to part 810 would mean even 

longer application preparation and DOE 

processing times for specific 

authorizations, resulting in lost business 

opportunities for U.S. companies during 

the authorization process. These 

commenters asked for changes to make 

the part 810 application processes more 

orderly and expeditious. Among the 

recommendations received were: 

a. Make Part 810 Processes More 

Transparent, Orderly, and Efficient 

The Department acknowledges 

commenters’ concerns that the time 

frame for issuance of specific 

authorizations can impose business 

risks for companies seeking to make 

nuclear exports requiring specific 

authorization. The process can also be 

made more open and understandable. 

Accordingly, the Department has 

initiated a process improvement 

program with the goal of making the 

authorization process International 

Standards Organization (ISO) 9001 

compliant. The Department is interested 

in receiving public comments on the 

process changes discussed in this notice 

as well as other suggestions and ideas 

on how to make the Department’s 

authorization process more transparent, 

efficient and comprehensible. As an 

initial step to improve understanding of 

the new part 810 application process, 

DOE is offering Figure 1, a simplified 

graphic decision tree, and Figure 2, a 

simplified process map. 

BILLING CODE 6450–01–P 


emcdonald on DSK67QTVN1PROD with PROPOSALS
46834 Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 

BILLING CODE 6450–01–C 

The following process changes to 

make the licensing process more open 

and efficient are under consideration: 

• Awaiting receipt of foreign 

government nonproliferation assurances 

frequently delays the grant of part 810 

specific authorizations. Sovereign 

foreign governments can be asked to 

respond promptly, but they cannot be 

mandated to do so. However, in concert 

with the Department of State, DOE is 

considering measures to improve the 

timeliness of foreign government 

response times. 

• Reduce timeframes for internal DOE 

and interagency reviews. 

• Develop and implement an elicensing system to provide more 


emcdonald on DSK67QTVN1PROD with PROPOSALSEP02AU13.027</GPH>
Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 46835 

uniform and transparent authorization 

standards and practices. 

• Publish periodically, as 

appropriate, abstracts of general or 

specific authorizations that may be of 

general interest, redacting companyidentifying and proprietary business 

information, to increase transparency. 

• Publicly report on the number of 

specific authorizations sought, approved 

and rejected, and the average 

authorization processing time, to 

enhance transparency and 

accountability. 

• Create expedited procedures for 

authorization of activities that present 

the lowest proliferation risk, as 

determined by the criteria proposed in 

§ 810.9(b). 

Many of these actions were proposed 

by commenters and have merit: as 

noted, DOE is initiating a process 

quality improvement program to make 

the processing of part 810 applications 

more orderly, expeditious, effective, and 

transparent. These internal process 

changes can be made independently of 

the rulemaking process. Consequently, 

conclusion of this part 810 rulemaking 

should not be delayed during the time 

internal Departmental process changes 

are developed and implemented. In the 

interim, DOE will continue to adhere to 

current interagency procedures for 

processing, reviewing and approving 

specific authorizations as set forth in the 

‘‘Amendment to Procedures Established 

Pursuant to the Nuclear 

Nonproliferation Act of 1978.’’ 49 FR 

20780 (May 16, 1984). 

b. Specific Authorization Practices 

The NOPR proposed that specific 

authorizations ‘‘generally will be for a 

period up to five years.’’ Commenters 

noted that the proposal was cast as a 

generalization about an authorization 

whose term should depend on specific 

circumstances. Upon consideration, the 

rule proposed today omits any reference 

to a time period for part 810 

authorizations, leaving the term of 

specific authorizations to be established, 

as at present, on a case-by-case basis. 

There were no adverse comments on the 

proposed § 810.9 in the NOPR, which 

identifies the factors that would be 

considered by the Secretary in granting 

a specific authorization. 

One commenter recommended that, 

prior to revoking a specific 

authorization before its expiration, DOE 

should be required to consult with the 

same agencies with which it consults 

before approving the specific 

authorization in the first instance. 

Today’s supplemental proposed rule 

would not adopt specific regulatory 

language to require such a procedure 

because expeditious action may be 

required; however, interagency 

collaboration would be the norm in 

these circumstances. 

c. Reports on Authorized Activities 

Commenters noted that proposed 

§ 810.12(d) of the NOPR referred to 

reporting requirements for any activity 

under proposed § 810.6, but subsection 

(f) stated that persons engaging in 

activities generally authorized under 

proposed § 810.6(b) would not be 

subject to reporting requirements under 

this section. The inconsistency was a 

drafting error, which has been corrected. 

Today’s proposal continues the current 

requirement; reports would be required 

for generally authorized activities. New 

requirements have been proposed in 

today’s SNOPR for reporting by U.S. 

companies with respect to their deemed 

export and deemed re-export 

employees. 

B. Classification of Foreign Destinations 

Under the authority of section 57 b.(2) 

of the AEA, the Secretary may authorize 

the export of assistance or the transfer 

of technology for the development or 

production of special nuclear material 

by persons subject to U.S. jurisdiction 

upon a determination that the activity 

will not be ‘‘inimical’’ to the interest of 

the United States. Classification of 

activities and foreign destinations as 

‘‘generally authorized’’ or, conversely, 

the determination that other activities 

and destinations merit a specific 

authorization, is a matter committed to 

agency discretion. The Secretary’s 

decision that a specific authorization is 

or is not required for a particular 

proposed export is based on U.S. 

nuclear and national security policies. 

Consonant with those policies, the 

Secretary therefore may determine that 

a country or entity is either generally 

authorized or requires a specific 

authorization. Under the AEA, the 

Department is to promote widespread 

participation in the development and 

utilization of atomic energy for peaceful 

purposes. The AEA, however, makes 

national security the paramount 

concern. Consequently, assistance to, 

participation in, or technology transfer 

for, the development or production of 

special nuclear material outside the 

United States may be authorized only 

upon a determination by the Secretary 

that such activities will not be ‘‘inimical 

to the interest of the United States,’’ 

such determination to be made only 

with the concurrence of the Department 

of State and after consultation with the 

Nuclear Regulatory Commission, the 

Department of Defense, and the 

Department of Commerce. 

Multiple commenters objected that 

exports to some countries that do not 

require a specific authorization under 

the current part 810 classification 

approach would require a specific 

authorization under the NOPR that DOE 

proposed on September 7, 2011. 

Classification of activities by destination 

as ‘‘generally authorized’’ is an 

administrative tool to avoid unnecessary 

reviews of foreign atomic energy 

assistance activities in countries that 

present little or no proliferation risk, 

and are known nuclear trading partners. 

General authorizations reflect the 

assessment that the Secretary can make 

a non-inimicality finding regarding the 

provision of assistance and technology 

to particular countries on an advance 

programmatic basis, without performing 

a transaction-specific analysis or 

obtaining specific nonproliferation 

assurances from the government of the 

intended foreign recipient. 

Historically, the Department’s 

approach has been to identify those 

countries that pose inimicality concerns 

and to require exporters to obtain 

specific authorizations for assistance to 

those countries. Over time, the part 810 

list of countries for which specific 

authorizations are required has become 

outdated. One country on the list no 

longer exists (Yugoslavia). Kazakhstan, 

Ukraine and the United Arab Emirates 

have become civil nuclear trading 

partners of the United States pursuant to 

an Agreement for Cooperation under 

section 123 of the AEA (‘‘123 

Agreement’’). For example, in 2009 the 

United Arab Emirates entered into a 123 

Agreement with the United States. 

In recognition of the fact that global 

markets for peaceful nuclear energy and 

nuclear fuel cycle trading relationships 

have become more dynamic in recent 

years, the NOPR proposed to change the 

approach of classifying foreign 

destinations, from listing destinations 

for which a specific authorization is 

required to establishing a list of 

generally authorized destinations for 

which a specific authorization would 

not be required. The SNOPR continues 

the NOPR’s proposed approach. The 

SNOPR includes a proposed Appendix 

that lists destinations to which 

unclassified nuclear assistance or 

technology transfers would be generally 

authorized. The Appendix would be 

maintained, revised, and updated in 

accordance with the requirements of the 

Administrative Procedure Act (5 U.S.C. 

§ 553). 

A destination is included on the 

proposed generally authorized list based 

on the Secretary’s ‘‘not inimical’’ 

determination required by section 57 b. 

(2) of the AEA. Examples of types of 


emcdonald on DSK67QTVN1PROD with PROPOSALS
46836 Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 

considerations taken into account 

include the existence of a 123 

Agreement with the United States, a full 

scope safeguards agreement with the 

IAEA, satisfactory experience as a civil 

nuclear trading partner, and compliance 

with international nonproliferation 

regimes. The proposed affirmative 

approach of listing the generally 

authorized destinations rather than the 

destinations requiring a specific 

authorization would be more consistent 

with the U.S. Government’s national 

security obligations and nuclear 

nonproliferation policies. 

Multiple companies and industry 

groups commented that under the 

proposed destination classification 

approach in the NOPR, there would be 

77 current destinations for which 

specific authorization is not now 

required, but under the NOPR approach 

would be required. These commenters 

feared such reclassification would 

create an undue burden on nuclear 

commerce, and an administrative 

burden on U.S. companies and the 

Department, as more activities would 

require specific authorization. 

DOE’s analysis of civil nuclear trade 

with the countries whose general or 

specific authorization classification 

would be changed indicates that the 

predicted burdens of the proposed 

change would be less substantial, and 

more manageable, than commenters 

claimed. Confidential reports companies 

file with DOE regarding generally 

authorized activities show minimal 

current civil nuclear commerce with 

countries that are ‘‘generally 

authorized’’ destinations under the 

current rule but that would not be 

generally authorized under the SNOPR. 

This confirms the conclusion of the 

Economic Impact Analysis DOE 

performed and which is summarized in 

Section V.A. That analysis indicates that 

potential trade volumes in countries 

proposed to be changed from generally 

authorized status, and where U.S. trade 

may be adversely affected by the 

proposed change, are a very small part 

of the global nuclear market, and they 

are about half the size of the markets in 

the three countries proposed to move to 

generally authorized status, and where 

U.S. trade would be favorably affected 

by the change. Many of those reports 

concern foreign nationals working at 

U.S. nuclear installations, not nuclear 

trade activity. Most importantly, any 

anticipated additional burdens do not 

overcome the sound national security 

reasons for the Department’s proposed 

approach to classification of foreign 

destinations. 

1. Generally Authorized Destinations 

There were no objections from the 

NOPR commenters about the 47 

destinations proposed to be placed on 

the generally authorized destinations 

list. Those destinations are listed in the 

proposed Appendix of this SNOPR. The 

Secretary has determined that the 

provision of assistance or transfer of 

technology related to the development 

or production of special nuclear 

material to these countries and the 

International Atomic Energy Agency as 

described in proposed § 810.2(b) is not 

inimical to the interest of the United 

States. Each country and the IAEA has 

in force a 123 Agreement with the 

United States, the country has an 

acceptable IAEA safeguards regime, or 

there is a Project and Supply Agreement 

among the country, the United States, 

and the IAEA. Many general 

authorization destinations are well 

established, long-term U.S. civil nuclear 

trading partners, such as Japan, 

Australia, Canada, the Republic of 

Korea, and the EURATOM member 

countries. Others, like Poland, South 

Africa, Turkey, and Thailand, are less 

active in civil nuclear commerce, but 

have demonstrated interest in U.S. 

technical assistance by entering into 

discussions with U.S. companies for 

development of civil nuclear programs. 

As in the NOPR, three countries on the 

current specific authorization 

destination list are now proposed to be 

generally authorized destinations: 

Ukraine, the United Arab Emirates, and 

Kazakhstan. Each has entered into a 123 

Agreement with the United States and 

actively is engaged in peaceful civil 

nuclear activities. 

Several NOPR commenters noted that 

the United States has had a long, 

peaceful nuclear trading relationship 

with Mexico, even though the two 

countries do not have a 123 Agreement. 

Commenters claimed the proposed rule 

would disrupt the provision of technical 

assistance to the existing Laguna Verde 

nuclear power station, a U.S.-designed 

nuclear power plant that continues to 

rely on U.S.-supplied equipment and 

assistance. Commenters pointed out that 

this assistance has taken place under a 

Project and Supply Agreement among 

the United States, Mexico, and the 

IAEA. Similarly, Chile recently signed a 

Project and Supply Agreement with the 

United States and the IAEA concerning 

the supply of fuel to two research 

reactors in Chile. In addition, Mexico 

and Chile are parties to the Treaty on 

the Nonproliferation of Nuclear 

Weapons (NPT) and have safeguards 

agreements with the IAEA, including 

Additional Protocols. These facts are 

sufficient for the Secretary to make a 

non-inimicality determination. The 

Department has considered the 

comments in light of the Mexico Project 

and Supply Agreement and has 

determined that certain specified 

transfers will not be inimical to U.S. 

interests. The Department proposes in 

this SNOPR to include in the Appendix 

to this part those activities in Mexico 

related to IAEA INFCIRC/203 Parts 1 

and 2 and INFCIRC/825, and activities 

in Chile related to IAEA INFCIRC/834. 

If the public has any comments 

regarding other agreements equivalent 

to 123 Agreements, as a basis to 

designate additional countries as 

generally authorized, DOE would 

welcome them. 

2. Continued Specific Authorization 

Destinations 

Assistance or the transfer of 

technology related to the development 

or production of special nuclear 

material to 73 destinations that are on 

the current § 810.8(a) list of specific 

authorization destinations would 

continue to require specific 

authorization under today’s proposed 

rule. Historically, most of the specific 

authorization destinations did not have 

123 Agreements, comprehensive 

safeguards, or similar agreements with 

the IAEA, so any proposed assistance 

presented actual or potential 

proliferation risks that merited close 

scrutiny. Countries in this group 

include Afghanistan, Belarus, Iran, Iraq, 

Israel, Democratic People’s Republic of 

Korea, and Pakistan. Some countries are 

in volatile or unstable regions. No NOPR 

commenters objected to retaining the 

specific authorization requirements for 

countries that currently require specific 

authorization, except with respect to 

China, India and Russia. 

Multiple commenters advocated 

moving China, India, and Russia from 

the specific authorization list to the 

general authorization list. They stressed 

the fact that the United States has 

entered into 123 Agreements with each 

country, and that each country already 

has nuclear weapons and the technology 

to produce fissile material in support of 

such programs. They asserted that 

requiring applicants to secure a specific 

authorization for transfers to those 

countries hampers the ability of U.S. 

companies to compete effectively in 

global civil nuclear commerce. 

After duly considering the comments 

and consulting with the Departments of 

State, Commerce and Defense, and the 

Nuclear Regulatory Commission, DOE 

remains of the view that it is not 

appropriate to change the part 810 

specific authorization status of these 


emcdonald on DSK67QTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 46837 

three countries at this time. Continuing 

their current status is justified for 

diplomatic and national security 

reasons, and in the case of India, for 

legal considerations. For India, the enduser accountability requirements 

Congress enacted in the Henry J. Hyde 

United States-India Peaceful Atomic 

Energy Cooperation Act of 2006 (22 

U.S.C. 8001) make it infeasible to 

classify India as a generally authorized 

destination. The information required to 

be submitted in an application for a 

specific authorization for part 810 

exports to India is needed to provide 

information for the project-by-project 

and end-user review accountability and 

reporting with respect to India as 

required by that statute. China and 

Russia are nuclear weapons states that 

have not provided the level of 

transparency regarding the division 

between their respective civilian and 

military nuclear programs to warrant 

general authorization of transfers of 

technology and assistance for peaceful 

use. DOE has granted numerous nuclear 

technology export authorizations to both 

China and Russia over the years. DOE 

would expect to continue making such 

authorizations in the future, based upon 

consideration of the specific facts of 

each proposed transaction. 

DOE recognizes that increasing the 

number of destinations for which 

specific authorization is required has 

the potential to increase the time 

required to process a larger number of 

part 810 applications. If the SNOPR as 

proposed today is adopted, DOE will 

closely monitor application processing 

times as it works to improve the part 

810 approval process consonant with 

maintaining the ability of U.S. 

companies to compete effectively in 

global markets. 

3. Generally Authorized Destinations 

Proposed To Require Specific 

Authorization 

DOE received many comments about 

the number of current generally 

authorized destinations that are 

proposed to be specifically authorized 

destinations. Most of these countries 

have no civil nuclear programs, are 

unlikely to have nuclear programs in the 

foreseeable future, have not signed a 123 

Agreement with the United States, or 

are not parties to the NPT. Countries in 

this group include Belize, Ethiopia, 

Lebanon, Liechtenstein, and Nepal. 

There is no reason to place countries 

that have not expressed interest in civil 

nuclear trade on the proposed generally 

authorized list. Without such interest, 

there is little reason or basis for the 

Secretary to make a non-inimicality 

finding. Since the NOPR’s publication, 

the 123 Agreements of Peru and 

Bangladesh have expired. Accordingly, 

Peru and Bangladesh have been 

removed from the proposed generally 

authorized destinations set forth in the 

proposed Appendix in today’s SNOPR. 

Some commenters suggested that U.S. 

nuclear companies may want to hire 

citizens from what would be former 

generally authorized destinations, 

presenting a ‘‘deemed export’’ issue for 

the employer. Similarly, commenters 

asserted that some U.S. companies are 

interested in marketing to, or sourcing 

nuclear goods and services from, these 

countries for use in the United States. 

Concerns related to deemed exports, 

marketing and supply chain activities 

are more appropriately addressed in 

Section IV.C. 3. as an activity issue, 

rather than as a destination issue. There 

is no need to add destinations to the 

proposed generally authorized list to 

resolve activity issues. 

4. Emerging Civil Nuclear Trading 

Partner Countries 

Some commenters objected to DOE’s 

proposed classification of emerging civil 

nuclear countries such as Saudi Arabia, 

Jordan, Philippines, and Malaysia as 

requiring specific authorization. 

Commenters noted these countries are 

planning to develop indigenous nuclear 

power programs but have not yet 

concluded 123 Agreements with the 

United States. DOE supports growing 

civil nuclear trade for peaceful purposes 

with these countries. However, granting 

them generally authorized status at the 

present time would be premature, since 

there is little basis for a non-inimical 

determination. Information needed for 

such a determination normally is 

provided through a Nuclear 

Proliferation Assessment Statement 

which is required for Section 123 

Agreements. The first step for 

consideration as a candidate for 

classification as a generally authorized 

destination generally would be a 

country’s conclusion of a 123 

Agreement with the United States. After 

that, DOE would consider factors such 

as compliance with international 

nonproliferation regimes prior to 

designation of the country as a generally 

authorized destination. DOE would also 

consider adding to the Appendix other 

countries that are party to a Project and 

Supply Agreement with the United 

States and the IAEA, even if they do not 

have a 123 Agreement. Special effort 

will be made to work with such 

countries to engage with their 

governments to develop swift processes 

for obtaining nonproliferation 

assurances until such time as they can 

be added to the general authorization 

list. 

Conclusion: 

DOE proposes in today’s SNOPR to 

retain the destination classifications 

proposed in the NOPR unchanged, 

except for the addition of Mexico and 

Chile (with respect to specific activities 

under the applicable IAEA Information 

Circulars) to the list of generally 

authorized destinations, the addition of 

the IAEA as a generally authorized 

destination, and the deletion of 

Bangladesh and Peru as generally 

authorized destinations. 

C. Activities Requiring Part 810 

Authorization 

1. Special Nuclear Material Nexus 

Requirement 

Part 810 implements provision (2) of 

AEA section 57 b. for activities: 

(1) By any person; 

(2) Directly or indirectly engaging or 

participating in the development or 

production of special nuclear material; 

and 

(3) Outside the United States. 

Multiple commenters claimed the 

proposed regulation in the NOPR would 

extend the scope of part 810 to activities 

that do not assist or participate in the 

development or production of special 

nuclear material. Because the AEA 

prohibits (subject to stated statutory 

conditions) indirect participation in the 

development or production of special 

nuclear material, the Secretary has 

broad discretion to determine which 

activities, in addition to those which 

directly involve engagement or 

participation in the development or 

production of special nuclear material 

outside the United States, indirectly 

constitute such engagement or 

participation and consequently are 

within the scope of part 810 and need 

to be specifically authorized. This 

discretion is balanced against the 

declared policy of the AEA in section 1 

b. that the ‘‘development, use, and 

control of atomic energy shall be 

directed so as to promote world peace, 

improve the general welfare, increase 

the standard of living, and strengthen 

free competition in private enterprise.’’ 

Whether an activity should be generally 

authorized or specifically authorized is 

a policy matter. 

2. Activities Supporting Commercial 

Power Reactors 

Multiple parties commented that the 

scope of ‘‘nuclear reactor’’ activities in 

§ 810.2 should be limited to reactor 

technologies that produce special 

nuclear material and are of significant 

proliferation concern. Commenters 


emcdonald on DSK67QTVN1PROD with PROPOSALS
46838 Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 

recognized that assistance to foreign 

production reactors should be subject to 

specific authorization but maintained 

that some forms of assistance to foreign 

power reactors have little or no 

relationship to the production of special 

nuclear material. Commenters noted 

that the low-enriched uranium in fuel is 

subject to material accountability and 

control programs from the enrichment 

facility to the reactor. They pointed out 

that power reactor production of spent 

nuclear fuel is not a particularly 

proliferation-sensitive activity because 

spent nuclear fuel is not useful without 

reprocessing, an activity that directly 

produces special nuclear material, and 

requires specific authorization. 

Assistance to foreign power reactors 

historically has been within the scope of 

part 810, and DOE believes it should 

remain so because the reactors use 

special nuclear material as fuel and 

produce special nuclear material (the 

plutonium contained in spent nuclear 

fuel). Historically, part 810 has 

generally authorized assistance to 

commercial power reactors in most 

nations and safety-related assistance 

even to reactors in specific 

authorization countries. Upon 

consideration of the comments, the 

Department believes that the interest in 

an orderly and expeditious part 810 

application review process would be 

advanced by requiring a specific 

authorization only for assistance 

relating to the items within or attached 

directly to the reactor vessel, the 

equipment that controls the level of 

power in the core, and the equipment or 

components that normally contain or 

come in direct contact with or control 

the primary coolant of the reactor core. 

Today’s proposed definition of ‘‘nuclear 

reactor’’ in § 810.3 and the scope of part 

810 in proposed § 810.2 are consistent 

with the NRC’s definition in 10 CFR 

110.2 and list of NRC-regulated 

components at Appendix A to Part 110- 

Illustrative List of Nuclear Reactor 

Equipment Under NRC Export Licensing 

Authority, and items within what is 

commonly considered to comprise the 

nuclear steam supply system. These 

proposed changes to § 810.3 and § 810.2 

are responsive to commenter requests 

for a clear description of reactor 

technology subject to part 810 and 

consistency with other regulatory 

programs. 

3. ‘‘Deemed Exports’’ and ‘‘Deemed Reexports’’ 

Many commenters claimed that 

requiring U.S. employers to obtain 

specific authorization for their foreign 

employees working in the United States, 

combined with the reduced number of 

generally authorized countries under 

the proposed approach to destination 

classification, could prevent U.S. 

nuclear employers from hiring the best 

available qualified people and adversely 

impact the operation of U.S. nuclear 

facilities and the ability of vendors to 

compete globally. It is well established 

that any transfer of part 810-controlled 

nuclear technology to a foreign national 

is ‘‘deemed’’ to be an export to the 

country of citizenship or lawful 

permanent residence of the individual, 

whether the transfer takes place in the 

United States (a ‘‘deemed export’’) or 

abroad (a ‘‘deemed re-export’’). 

Commenters contended that providing 

nuclear technology to foreign employees 

so they can work at nuclear companies 

in the United States cannot lead to even 

the indirect production of special 

nuclear material in foreign facilities, 

and any risk of unauthorized exports by 

these employees would be mitigated if 

the U.S. employer: (1) follows the NRC 

access authorization standards for 

facility access or access to information 

such as those found in 10 CFR part 10 

(Criteria and Procedures for 

Determining Eligibility for Access), part 

26 (Fitness for Duty) or part 73 (Physical 

protection of plants and materials) for 

the foreign employee; and (2) enters into 

a confidentiality agreement with the 

employee. Commenters recommended 

that DOE rely upon employer 

compliance with NRC access 

requirements for non-U.S. citizens 

working in U.S. nuclear facilities and 

employee confidentiality agreements to 

prevent wrongful use or disclosure of 

the employer’s sensitive nuclear 

technology. The commenters asserted 

that compliance with this procedure 

would suffice to protect the technology, 

obviating the need to require 

duplicative access authorization under 

part 810. 

DOE considered these comments and, 

after consultation with the NRC, 

proposes to accept the commenters’ 

recommendation. Under today’s 

SNOPR, § 810.6 would generally 

authorize technology access to citizens 

and nationals from specific 

authorization countries working for U.S. 

employers in the United States at an 

NRC-licensed facility provided that the 

employee: 

• Is lawfully employed by or 

contracted to work for a U.S. employer 

in the United States; 

• Executes a confidentiality 

agreement with the U.S. employer that 

safeguards the technology from 

unauthorized use or disclosure; and 

• Has been granted unescorted access 

in accordance with NRC 10 CFR part 10, 

part 26 or part 73 at an NRC-licensed 

facility. 

The employer authorizing access to the 

technology would be required to report 

the access as proposed in § 810.12(g). 

This approach would recognize 

authorization under established NRC 

standards and the employer’s interest in 

protecting its confidential information 

as sufficient control of technology 

transferred to foreign employees 

working in the United States. This 

approach is intended to address 

situations comparable to those covered 

by the Department of Commerce’s 

deemed export rule in 15 CFR 

734.2(b)(2) of the Export Administration 

Regulations. U.S. employers seeking to 

employ foreign nationals to engage in 

activities requiring specific 

authorization as described in proposed 

§ 810.7 would continue to require a 

specific authorization under part 810 in 

all circumstances. 

The SNOPR amends the definition of 

‘‘foreign national’’ as proposed in the 

NOPR; the current regulation does not 

utilize the term ‘‘foreign national’’. This 

term was included, and defined, in the 

NOPR to describe the category of 

individuals with respect to whom 

citizenship, employment background, 

and other information is required before 

specific authorization for technology 

transfers as described in § 810.11(c) of 

the NOPR may be approved; i.e., 

deemed exports or deemed re-exports. 

In the SNOPR, the proposed definition 

of ‘‘foreign national’’ has been revised to 

add the phrase ‘‘but excludes U.S. 

lawful permanent residents and 

protected individuals under the 

Immigration and Naturalization Act (8 

U.S.C. 1324b(a)(3)’’. This proposed 

addition clarifies the definition of 

‘‘foreign national’’ by stating in one 

place who is and is not considered to be 

a foreign national; in the NOPR this 

matter was set forth in proposed 

§ 810.11(c). 

Proposed §§ 810.11 and 810.12, as in 

the NOPR, would make explicit DOE’s 

current practice of requiring the 

employer to provide detailed 

information on the foreign national 

employee’s background, a description of 

the subject assistance or technology, a 

copy of the confidentiality agreement 

with the employee, and written 

nonproliferation assurances by the 

foreign national employee. Proposed 

§ 810.12, similar to the requirements of 

the NOPR, would delineate the 

reporting requirements for U.S. 

companies giving foreign national 

employees access to part 810-controlled 

technology. 

Finally, it has been DOE’s practice to 

consider nuclear technology transfers to 


emcdonald on DSK67QTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 46839 

individuals who are lawfully admitted 

for permanent residence in the United 

States or who are protected individuals 

under the Immigration and 

Naturalization Act (8 U.S.C. 1324b(a)(3)) 

the same as transfers to U.S. citizens, 

and therefore not exports. This practice 

is reflected in proposed § 810.2(c)(6) as 

an exemption from part 810. 

4. Technology Transfers to Individuals 

With Dual Citizenship or Permanent 

Residency 

Several companies and industry 

groups commented that the provisions 

in proposed § 810.11(c) of the NOPR did 

not provide clarity on the application of 

the rule to individuals with dual 

citizenship or citizens of specific 

authorization countries with lawful 

permanent residence in a generally 

authorized country. 

Commenters recommended that 

citizenship for part 810 purposes be 

determined by the country of the 

individual’s most recent citizenship or 

permanent residence—rather than the 

country with the more restrictive 

authorization status. Use of the most 

recent country of citizenship or 

permanent residence would mean, for 

example, that a transfer of nuclear 

technology to an individual who is a 

citizen of a special authorization 

country and who later obtained lawful 

permanent residence in a generally 

authorized country would be generally 

authorized since the transfer of nuclear 

technology would be to a generally 

authorized destination. Commenters 

represented that adoption of this 

approach would enable nuclear partner 

countries in the European Union to 

comply with European Union nondiscrimination laws. 

The SNOPR does not resolve the dual 

nationality/lawful permanent residence 

issue. After due consideration, DOE has 

decided that it is not appropriate to 

address this matter by rule. Unlike 

exports subject to the Department of 

Commerce’s Export Administration 

Regulations, nuclear technology 

transfers administered by DOE under 

part 810 require further scrutiny of the 

end use, in order to ensure adherence to 

United States nonproliferation 

commitments as a member of the 

Nuclear Suppliers Group. The 

authorization decisions in these 

situations are fact-specific, and DOE 

will continue to deal with them on a 

case-by-case basis. 

5. Operational Safety Activities 

In 1993, part 810 was revised to 

establish a new general authorization for 

assistance that would enhance the 

operational safety of existing civilian 

nuclear power reactors in specific 

authorization countries. The 1993 

general authorization built on the prior 

general authorization for assistance to 

prevent or correct an existing or 

imminent radiological emergency 

posing a significant danger to public 

health and safety. Unlike for other 

generally authorized activities, the 

operational safety authorization was not 

automatic. It required DOE’s written 

approval within 30 days, rather than the 

longer review and approval process 

required for specific authorizations. To 

assist applicants in determining 

whether the assistance they proposed 

qualified for ‘‘fast track’’ treatment, a 

definition of ‘‘operational safety’’ was 

added to § 810.3 ‘‘Definitions.’’ 

The NOPR proposed to eliminate the 

1993 fast track general authorization for 

operational safety, but to retain the 

general authorization to address current 

or imminent radiological emergencies 

when no other means to address the 

emergency is available. The NOPR also 

proposed to delete the definition of 

‘‘operational safety.’’ Multiple 

commenters objected that the NOPR 

changes would restrict U.S. public and 

private entities from participating in 

cooperative efforts to promote nuclear 

safety. They favored retaining the fast 

track general authorization. 

The 1993 revision to part 810 was 

necessary to authorize expedited 

assistance to civilian nuclear reactors in 

specific authorization countries. 

Commenters on the NOPR pointed out 

that with DOE’s proposed destination 

classification approach, there would be 

no specific authorization country list. 

Operational safety assistance from U.S. 

companies therefore would need 

specific authorization in many countries 

that are currently generally authorized 

destinations. 

A primary purpose of the 1993 

amendments was to recognize the 

public interest in civilian reactor safety 

and the U.S. Government’s interest in 

international cooperation to improve the 

safety of reactors worldwide. 

Commenters pointed out that 

assessments and benchmarking of U.S. 

and foreign reactor practices performed 

by international teams supported by the 

Institute of Nuclear Power Operators 

and the World Association of Nuclear 

Operators and U.S. nuclear companies 

serve the U.S. national interest in global 

reactor safety. The Department has 

determined that activities approved or 

carried out by the Nuclear Regulatory 

Commission or the Department of State 

may be either exempt under 

§ 810.2(c)(1) or generally authorized 

under § 810.6(d) of today’s proposed 

regulations. 

A second purpose of the 1993 

amendments was to ‘‘enable U.S. firms 

to compete more effectively with foreign 

competitors for safety-related nuclear 

business.’’ This objective is consistent 

with the policy statement in section 1 b. 

of the AEA supporting the development, 

use, and control of peaceful nuclear 

energy and strengthening free 

competition in private enterprise. 

Commenters asserted that eliminating 

the fast track authorization would 

reduce the ability of U.S. firms to 

compete effectively for safety-related 

nuclear business. Commenters 

explained that U.S. companies are not 

the exclusive source of services for 

operating reactors, and if U.S. 

regulations inhibit U.S. companies from 

doing work on a foreign reactor, nonU.S. companies will provide the service. 

Commenters maintained that 

eliminating the ‘‘fast track’’ would 

reduce U.S. competitiveness in global 

markets and U.S. Government influence 

on foreign nuclear programs. 

A third purpose of the 1993 

amendments was to ‘‘eliminate 

unnecessary paperwork and timeconsuming bureaucratic delays’’ when 

public safety was at stake. The current 

‘‘fast track’’ procedure combines a prior 

notification and approval requirement 

with a requirement that DOE review and 

act on the request on an expedited basis. 

The Department’s experience with fast 

track requests has not been entirely 

satisfactory. The ‘‘fast track’’ has been 

used very seldom in the years since 

1993, and many requests have not tied 

proposed assistance to established 

safety standards. Unsupported 

assertions that a service is safety-related 

to obtain expedited consideration and 

approval for an activity that merits a 

full-scale review do not serve the 

interests of industry or national 

security. However, the system worked 

as intended during the 2011 Fukushima 

Daiichi disaster, and DOE promptly 

used the existing emergency authority to 

permit rapid U.S. industry response to 

Japan’s request for assistance. 

Based on these considerations, DOE 

today proposes to retain the fast track 

procedure for safety-related requests, 

with some modifications as follows: 

• Proposed § 810.6(c)(1) would 

generally authorize assistance to prevent 

or correct a current or imminent 

radiological emergency with 48 hour 

prior notice to DOE; 

• Proposed § 810.6(c)(2) would 

continue the fast track general 

authorization for safety-related 

assistance to existing safeguarded 

foreign commercial reactors. The 

assistance must support the reactor 

operator’s compliance with national or 


emcdonald on DSK67QTVN1PROD with PROPOSALS
46840 Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 

international safety requirements or 

standards. To obtain fast track approval, 

the applicant would be required to 

provide DOE notice at least 45 days 

before the start of the activity, and could 

proceed only after receiving DOE’s 

approval in writing; 

• Proposed § 810.6(c)(3) would 

generally authorize safety-related 

assistance to nuclear power plants in 

the United States; and 

• Proposed § 810.6(d) would 

generally authorize assistance pursuant 

to exchange programs approved by the 

Department of State in consultation 

with DOE, in addition to the exemption 

in proposed § 810.2(c)(1) for activities 

authorized by other agencies. 

6. Offshore Activities: ‘‘Control-in-Fact’’ 

Some companies and industry groups 

commented on the NOPR that the 

existing § 810.2(b) provision that makes 

part 810 controls applicable to activities 

conducted abroad by foreign licensees, 

contractors and subsidiaries subject to 

control by persons under U.S. 

jurisdiction is overly broad and 

confusing. One commenter 

recommended that applicability be 

limited to foreign-controlled 

subsidiaries, with control determined by 

reference to corporate governance 

arrangements. The applicability 

determination depends on the degree of 

control that the person subject to U.S. 

jurisdiction has over the assistance 

transaction, not the legal status of its 

subsidiary or other affiliate. The inquiry 

to determine whether there exists 

sufficient control to make part 810 

applicable to a given proposed transfer 

of nuclear assistance depends on the 

specific circumstances of the 

transaction, not merely corporate 

governance provisions. DOE has 

considered the comments and today 

proposes to retain proposed § 810.2(a)(2) 

substantially as proposed in the NOPR 

and not to include a mechanistic 

formula to determine when control-infact exists. 

7. Back-end Activities 

The proposed regulations in the 

NOPR expressly added certain back-end 

of the fuel cycle activities that were not 

explicit in prior versions of the 

regulations: post-irradiation 

examination of spent nuclear fuel; 

storage of irradiated nuclear materials; 

movement of irradiated nuclear 

materials; and processing of spent 

irradiated nuclear materials for disposal 

(e.g., processing for burial or 

vitrification). Multiple commenters 

maintained that these activities have no 

connection to the development or 

production of special nuclear material 

and pose an insignificant proliferation 

risk. They maintained DOE should not 

regulate these activities under part 810. 

Separation and reprocessing of special 

nuclear material are back-end activities 

that have always been covered by part 

810 but were not explicitly identified in 

the regulations. The NOPR proposed to 

specifically identify the back-end 

activities because they can be a part of 

a separation and reprocessing program. 

Today’s SNOPR would make no change 

to the current status of back-end 

activities. Back-end activities related to 

special nuclear material reprocessing 

would continue to require specific 

authorization. Otherwise, back-end 

activities would not be subject to part 

810. 

8. NRC, Commerce, and State Approved 

Activities 

Existing provisions of § 810.2 ‘‘Scope’’ 

exclude activities authorized by the 

NRC from the scope of part 810. 

Commenters recommended that the 

proposed regulations extend that 

exclusion to activities licensed by the 

Departments of Commerce and State, to 

avoid duplicative regulation. The rule 

proposed today adopts that 

recommendation. In cases where a 

request for an export license involves 

multiple agency jurisdictions, the 

responsible agencies would consult and 

determine which agency would exercise 

jurisdictional control over the 

application. 

9. Medical Isotope Production 

Various commenters said the 

proposed definition of ‘‘reprocessing’’ in 

the NOPR was too broad because it 

could have the unintended consequence 

of making medical isotope production 

subject to part 810. DOE considered the 

comments and has deleted the 

definition of reprocessing in today’s 

SNOPR. The SNOPR adds a proposed 

exemption in § 810.2(c)(5) for the 

production or extraction of 

radiopharmaceutical isotopes when the 

process does not involve use of special 

nuclear material. Extraction of 

Molybdenum-99 from irradiated targets 

for medical use is proposed to be 

generally authorized in this SNOPR, in 

proposed § 810.6(g). 

10. Activities Carried Out by IAEA 

Personnel 

Some commenters criticized as 

unduly restrictive the NOPR’s proposal 

to restrict the general authorization for 

IAEA activities to personnel ‘‘whose 

employment is sponsored by the U.S. 

Government.’’ The purpose of proposed 

§ 810.6(e) is to enable full U.S. 

cooperation with IAEA personnel who 

are not citizens or nationals of generally 

authorized countries or with individuals 

working for the IAEA in specific 

authorization destinations. The IAEA 

therefore has been added to the list of 

generally authorized destinations in the 

proposed Appendix. The SNOPR 

proposes to generally authorize 

activities carried out by individuals who 

are full-time employees of the IAEA, or 

whose employment or work is 

sponsored or approved by the 

Department of State or Department of 

Energy. Under the SNOPR, engagement 

by IAEA employees in activities covered 

by proposed § 810.7 would still require 

specific authorization. 

11. Transfer of Public Information and 

Research Results 

Under the current rule, the transfer of 

‘‘public information’’ is generally 

authorized. The NOPR proposed to 

exempt ‘‘public information’’ from the 

scope of part 810. Commenters did not 

object to that change. However, 

commenters claimed that DOE’s 

application of the term ‘‘public 

information’’ had on occasion been 

unduly restrictive and burdensome. 

Multiple companies and industry 

groups commented that adoption of the 

NOPR’s proposed definitions of 

‘‘technology’’ and ‘‘technical data’’ 

would unduly restrict the information 

that could be transferred without a 

specific authorization. They also alleged 

inconsistencies in the way various types 

of information are defined in part 810 

compared to other U.S. export control 

programs. Similarly, multiple academic 

institutions and organizations 

commented that the NOPR’s definition 

of ‘‘basic scientific research’’ was too 

narrow and was inconsistent with 

Presidential Decision Directive 189 and 

the Department of Commerce controls 

that use the term ‘‘fundamental 

research.’’ 

DOE considered the comments and 

proposes today to replace the term 

‘‘public information’’ with the terms 

‘‘publicly available information’’ and 

‘‘publicly available technology,’’ and to 

replace the term ‘‘basic scientific 

research’’ with ‘‘fundamental research.’’ 

The proposed definitions of these terms 

are intended to comport with usages in 

other export control programs, be 

consistent with regulatory exclusions in 

those programs, and generally to reduce 

the burden of regulatory compliance for 

industry and academic institutions. 

12. Transfer of Sales, Marketing, and 

Sourcing Information 

Multiple commenters observed that 

the distinction between publicly 

available information, which can be 


emcdonald on DSK67QTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 46841 

disclosed or transferred without 

restriction, and technical information 

relating to proliferation-sensitive 

enrichment and reprocessing activities, 

which must always be specifically 

authorized, is not well delineated with 

respect to activities important to U.S. 

industry’s competition for civil nuclear 

trade in global markets. Commenters 

noted that there is a body of proprietary 

information that U.S. nuclear energy 

companies need to share with foreign 

customers or vendors that is not useful 

to develop or produce special nuclear 

material. The commenters identified 

several types of reactor information 

transfers they believed should be 

generally authorized: 

• Commercial information—(e.g., 

prices, warranties, and representations) 

is normally included in marketing 

proposals or bids. Such information is 

proprietary, but not technical. 

• General technical information— 

(e.g., general design information, service 

offerings, and performance capabilities) 

is normally included in bids and 

proposals. The commenters stated that 

the information is not sufficiently 

detailed to assist in the production of 

SNM. 

• Sourcing requirements 

information—(e.g., detailed component 

drawings and specifications) is normally 

provided to foreign vendors in order to 

permit them to bid for business from 

U.S. companies. The covered sourcing 

information would be for specific 

components and services to be used by 

customers of U.S. vendors, not for 

production of SNM outside the United 

States. 

• Due diligence information— 

Commercial and financial information 

normally provided to a potential foreign 

investor fulfilling its legal due diligence 

obligation to owners. 

• Trade mission information— 

Exchanges of general commercial and 

technical information with foreign 

entities in the course of government- or 

industry-sponsored events designed to 

promote international commerce. 

• Plant tour information— 

Information obtained visually during 

U.S. facility visits by foreign business or 

government officials for commercial or 

regulatory purposes. 

Commenters claimed that a general 

authorization for disclosure of these 

types of information is appropriate 

because it is not useful for the 

production of special nuclear material 

and is conveyed subject to agreements 

that place restrictions on the recipient’s 

use. It is in the technology owner’s 

interest to be sure the recipient only 

receives the information it needs to 

evaluate a proposed transaction and can 

only use the information for limited 

specified purposes. The commenters 

also were concerned that requiring a 

specific authorization for sales and 

sourcing activities would impose 

regulatory compliance costs and delays 

that could restrict U.S. company 

participation in growing global nuclear 

markets. 

Commenters recommended that 

information conveyed for marketing and 

sourcing purposes be generally 

authorized if it is an established 

business practice for the information to 

be disclosed to support sales and 

sourcing programs, and if neither the 

export nor the re-export of the 

information would include detailed 

design, production, or manufacturing 

technology sufficient to permit the 

production of special nuclear material. 

They pointed to the License Exception 

‘‘TSU’’ in the Department of 

Commerce’s Export Administration 

Regulations, EAR section 740.13(b), and 

the Department of State’s 2010 decision 

to drop prior International Traffic in 

Arms Regulations (ITAR) notice and 

approval requirements for certain 

proposals for military equipment (75 FR 

52622) as reasonable approaches to this 

issue. 

The Department recognizes that 

competition for nuclear business is 

fierce, and many foreign competitors of 

U.S. nuclear companies are statesponsored enterprises, thus offering 

foreign customers and vendors attractive 

alternatives to U.S. companies as 

trading partners. Part 810 is meant to 

enable U.S. companies to compete 

effectively to garner sales, and secure 

components and services that may not 

be available in the United States. 

However, the purpose of part 810 is 

different from the purposes of the ITAR 

and EAR. Part 810 does not regulate 

marketing or sourcing activities as such, 

only the provision of assistance and the 

transfer of technology. Marketing or 

sourcing activities are regulated under 

this part or exempt based on the 

technical data transferred, not the use of 

the data. If controlled technical data is 

transferred in a bid, proposal, 

solicitation, trade show, or plant tour, 

the activity would be subject to part 

810. If no technical data were 

transferred, the transaction would not 

be within the scope of part 810 as 

proposed in § 810.2. If a company was 

uncertain whether a transfer was 

exempt or requires authorization, it 

could contact DOE. Companies have 

sought and received guidance from DOE 

before investing marketing resources in 

order to determine that its services 

could be authorized if it won a contract. 

Accordingly, the SNOPR does not 

propose a blanket exemption for 

marketing and sourcing activities. 

The benefit of a blanket general 

authorization would be limited for 

several reasons. First, most marketing 

and sourcing transfers are to generally 

authorized countries. Second, most 

proposals and marketing 

communications do not contain 

technical data that would enable the 

recipient to develop or produce special 

nuclear material. Third, under the 

current part 810 and the SNOPR, 

companies can request guidance or 

interpretations to inform their proposals 

and solicitations. In the absence of any 

information from interested parties 

quantifying expected sales and sourcing 

activity that would be burdened by a 

specific authorization requirement, 

there is no general authorization 

proposed today for this activity. 

13. Transfer of ‘‘Americanized’’ 

Technology 

Two commenters asserted that the 

purpose and intent of the NOPR’s 

proposed definition of ‘‘cooperative 

enrichment enterprise’’ were unclear. 

They said that to build and operate their 

U.S. enrichment facility, it was 

necessary to ‘‘Americanize’’ foreign 

technology, adapting it to meet U.S. 

regulatory and industry standards. The 

Americanization process requires 

collaboration with foreign personnel. 

They acknowledged that the transfer of 

U.S. technology to a foreign recipient is 

subject to a specific authorization and 

U.S. consent rights, and did not object 

to the conditions imposed by proposed 

§ 810.9(d). They were concerned, 

however, that proposed § 810.9(d) 

would unreasonably limit the foreign 

supplier from using or retransferring 

Americanized technology even when 

the retransfer was done in accordance 

with Nuclear Suppliers Group (NSG) 

guidelines. 

Other commenters raised the same 

issue with respect to determining when 

any software commingling U.S. and 

foreign technology would be considered 

‘‘U.S.-based’’ for export control 

purposes. They claimed uncertainty 

about ‘‘contamination’’ of foreign-origin 

technology with U.S. technology would 

discourage nuclear cooperation and 

incorporation of U.S. technology in 

foreign reactors. They recommended 

that DOE adopt a de minimis standard, 

exempting re-exports if the U.S. content 

is less than 25% of the total value of the 

software or technology. 

The purpose of the proposed change 

regarding cooperative enrichment 

enterprises in the NOPR was to enable 

multinational entities to function 

effectively, while maintaining DOE 


emcdonald on DSK67QTVN1PROD with PROPOSALS
46842 Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 

oversight and consistency with NSG 

guidelines. As proposed today, part 810 

would not limit the ability of a 

cooperative enrichment enterprise that 

receives a specific authorization from 

using and retransferring foreign 

technology in accordance with the 

authorization. The proposed new rule 

should not affect cooperative 

enrichment enterprises either positively 

or negatively. Authorizations for 

cooperative enrichment enterprises and 

other technology transfers by 

collaborative enterprises would only be 

made on a case-by-case basis, 

considering all the relevant facts and 

circumstances relevant to proliferation. 

There may be circumstances when a 

transfer is de minimis, but the 

determination should be made on the 

case specific facts. A blanket exception 

based on an arbitrary monetary value 

would not be appropriate. No change to 

the proposal contained in the NOPR is 

warranted. 

D. Explanation of Proposed Changes to 

Part 810 Terms 

The existing regulation has 24 defined 

terms. The SNOPR proposes to add or 

substantially revise 22 terms, delete 2 

terms, and leave 14 terms essentially 

unchanged, for a total of 36 defined 

terms in the proposed regulation. 

The following terms would be added 

by the SNOPR to update the terms used 

in Part 810 to make them consistent 

with terms used in U.S. export control 

programs and NSG guidelines: 

Development, Cooperative enrichment 

enterprise, Enrichment, Fundamental 

research, Fissile material, Production, 

Technical assistance, Technical data, 

Technology, and Use. The following 

terms would be added or revised in line 

with the proposed changes in the 

approach to authorized destinations and 

authorized activities: Specific 

authorization, Production accelerator, 

Production accelerator-driven 

subcritical assembly system, 

Operational safety, General 

authorization, Production subcritical 

assembly, Publicly available 

information, Publicly available 

technology, and Foreign national. The 

term ‘‘Country’’ was proposed to be 

added to clarify that Taiwan would be 

covered under this proposed rule, 

consistent with section 4 of the Taiwan 

Relations Act, 22 U.S.C. § 3303, and the 

United States’ one-China policy, under 

which the United States maintains 

unofficial relations with Taiwan. These 

terms were proposed to define 

administrative terms: Secretary, 

Country, and DOE. The following terms 

are proposed to be retained with no 

change except technical edits or format 

changes: Agreement for cooperation, 

Atomic Energy Act, IAEA, Sensitive 

nuclear technology, Source material, 

Special nuclear material, Person, 

Classified information, Nuclear reactor, 

NNPA, Production reactor, Restricted 

Data, NPT, and United States. The 

following terms would be deleted as 

obsolete or unused: Non-nuclearweapon state and Open meeting. 

V. Regulatory Review 

A. Executive Order 12866 

Today’s proposed rule has been 

determined to be an economically 

significant regulatory action under 

Executive Order 12866, ‘‘Regulatory 

Planning and Review,’’ 58 FR 51735 

(October 4, 1993). Accordingly, this 

action was subject to review under that 

Executive Order by the Office of 

Information and Regulatory Affairs of 

the Office of Management and Budget. 

The required economic impact analysis 

has been prepared by the Department of 

Energy. The analysis examined the size 

of the nuclear markets affected by the 

proposed changes and forecasted that 

the technology export markets that 

should be positively affected by the 

change in export destination 

classification are likely to be larger than 

those which could be adversely affected. 

The expected range of trade volume 

differences between the positively and 

adversely affected market segments is in 

the range of $32 million per year to $75 

million per year over the period 2013 to 

2030. In addition to this calculation, 

DOE presents in the economic impact 

analysis theoretical annualized costs 

and benefits at 3% and 7% discount 

rates based on one industry-generated 

forecast. It should be noted that the 

discounted numbers, approximately $23 

million in costs and $43 million in 

benefits, reflect one hypothetical 

analysis that, as discussed in the 

economic analysis, is based on nuclear 

capacity forecasts. The analysis 

concluded that the greatest potential for 

impact resulting from the changes 

proposed in this rulemaking could 

occur in connection with transactions 

occurring in destinations that would be 

moved from general to specific 

authorization. Because significant trade 

can and does occur with countries for 

which specific authorization would be 

required, the actual impact would be 

much smaller than the total volume of 

trade. The actual effect of the change in 

annual U.S. technology export trade 

volumes is likely to be in the range of 

$5 to $50 million per year over this 

same period. The analysis also noted 

that it assumed that all destinations that 

are not on the Appendix’s generally 

authorized list will remain off the list. 

It is likely, however, that some countries 

that are developing indigenous civil 

nuclear programs will enter into 

Agreements for Cooperation and would 

be added to the Appendix of generally 

authorized destinations, thereby 

obviating any impacts related to the 

specific authorization process. The 

analysis is publicly available at the DOE 

Web site http://nnsa.energy.gov/ 

nonproliferation/nis/10CFRPart810, the 

Department of Commerce Web site 

http://www.trade.gov/mas/ian/ 

industryregulationmasinput/index.asp 

and at http://www.regulations.gov/ 

#!docketDetail;D=DOE-HQ-2011-0035 

under ‘‘Assistance to Foreign Atomic 

Energy Activities’’. 

B. National Environmental Policy Act 

DOE determined that today’s SNOPR 

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 

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. 

Today’s proposed changes to part 810 

are summarized in Section II of the 

Preamble. DOE has reviewed the 

changes under the provisions of the 

Regulatory Flexibility Act and the 

procedures and policies published on 

February 19, 2003. The proposed 

changes clarify the authorization 

requirements pertaining to the provision 

of assistance to foreign atomic energy 


emcdonald on DSK67QTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 46843 

activities and make changes in response 

to the comments received in response to 

the NOPR. They do not expand the 

scope of activities currently regulated 

under 10 CFR part 810. 

The requirements for small businesses 

exporting nuclear technology abroad 

would not substantively change because 

the proposed 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 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. Out of 56 businesses 

impacted by part 810, only 5 qualify as 

small businesses. The number of 

requests for authorization or reports of 

generally authorized activities from 

each small business on average was one 

or less per year, while the larger 

businesses can have as many as 100 

requests for authorization or reports of 

generally authorized activities per year. 

The small 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 

what these businesses need to do to 

receive a part 810 authorization. So, 

there would be no impact on their 

ability to move forward and conduct 

business in the same manner they have 

previously, except that the changes 

might make it easier by clarifying some 

terms used to define regulated activities. 

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. 

On the basis of the foregoing, DOE 

certifies the SNOPR 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 collection of information under 

this supplemental proposed rule was 

previously approved under Office of 

Management and Budget Control 

Number 1901–0263. 

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. 

Subsection 101(5) of title I of that law 

defines a Federal intergovernmental 

mandate to include any regulation that 

would impose upon State, local, or 

tribal governments an enforceable duty, 

except a condition of Federal assistance 

or a duty arising from participating in a 

voluntary federal program. Title II of 

that law requires each Federal agency to 

assess the effects of Federal regulatory 

actions on State, local, and tribal 

governments, in the aggregate, or to the 

private sector, other than to the extent 

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 supplemental 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 supplemental 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 

supplemental 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 

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 


emcdonald on DSK67QTVN1PROD with PROPOSALS
46844 Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 

supplemental 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 today’s supplemental 

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 the Office of 

Information and Regulatory Affairs as a 

significant energy action. For any 

proposed significant energy action, the 

agency must give a detailed statement of 

any adverse effects on energy supply, 

distribution, or use should the proposal 

be implemented, and of reasonable 

alternatives to the action and their 

expected benefits on energy supply, 

distribution, and use. Today’s regulatory 

action 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. 

K. Executive Order 13609 

Executive Order 13609 of May 1, 

2012, ‘‘Promoting International 

Regulatory Cooperation,’’ requires that, 

to the extent permitted by law and 

consistent with the principles and 

requirements of Executive Order 13563 

and Executive Order 12866, each 

Federal agency shall: 

(a) If required to submit a Regulatory 

Plan pursuant to Executive Order 12866, 

include in that plan a summary of its 

international regulatory cooperation 

activities that are reasonably anticipated 

to lead to significant regulations, with 

an explanation of how these activities 

advance the purposes of Executive 

Order 13563 and this order; 

(b) Ensure that significant regulations 

that the agency identifies as having 

significant international impacts are 

designated as such in the Unified 

Agenda of Federal Regulatory and 

Deregulatory Actions, on RegInfo.gov, 

and on Regulations.gov; 

(c) In selecting which regulations to 

include in its retrospective review plan, 

as required by Executive Order 13563, 

consider: 

(i) Reforms to existing significant 

regulations that address unnecessary 

differences in regulatory requirements 

between the United States and its major 

trading partners, consistent with section 

1 of this order, when stakeholders 

provide adequate information to the 

agency establishing that the differences 

are unnecessary; and 

(ii) Such reforms in other 

circumstances as the agency deems 

appropriate; and 

(d) For significant regulations that the 

agency identifies as having significant 

international impacts, consider, to the 

extent feasible, appropriate, and 

consistent with law, any regulatory 

approaches by a foreign government that 

the United States has agreed to consider 

under a regulatory cooperation council 

work plan. 

DOE has reviewed this supplemental 

proposed rule under the provisions of 

Executive Order 13609 and determined 

that the rule complies with all 

requirements set forth in the order. 

VI. Approval by the Office of the 

Secretary 

The Office of the Secretary of Energy 

has approved the publication of today’s 

supplemental proposed rule. 

List of Subjects in 10 CFR Part 810 

Foreign relations, Nuclear energy, 

Reporting and recordkeeping 

requirements. 

Issued in Washington, DC, on July 30, 

2013. 

Ernest J. Moniz, 

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. 

Appendix A to Part 810—Generally 

Authorized Destinations 

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

223, 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, 2273), 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. 

§ 810.1 Purpose. 

The regulations in this part 

implement section 57 b.(2) of the 

Atomic Energy Act, which empowers 

the Secretary, with the concurrence of 

the Department of State, and after 

consultation with the Nuclear 

Regulatory Commission, the Department 

of Commerce, and the Department of 

Defense, to authorize persons to directly 

or indirectly engage or participate in the 

development or production of special 

nuclear material outside the United 

States. The purpose of the regulations in 

this part is to: 

(a) Identify activities that are 

generally authorized by the Secretary 

and thus require no other authorization 

under this part; 

(b) Identify activities that require 

specific authorization by the Secretary 

and explain how to request 

authorization; and 

(c) Specify reporting requirements for 

authorized activities. 

§ 810.2 Scope. 

(a) Part 810 (this part) applies to: 

(1) All persons subject to the 

jurisdiction of the United States who 

directly or indirectly engage or 

participate in the development or 


emcdonald on DSK67QTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 46845 

production of any special nuclear 

material outside the United States; and 

(2) The transfer of technology that 

involves any of the activities listed in 

paragraph (b) of this section either in 

the United States or abroad by such 

persons or by licensees, contractors or 

subsidiaries under their direction, 

supervision, responsibility, or control. 

(b) The activities referred to in 

paragraph (a) of this section are: 

(1) Chemical conversion and 

purification of uranium and thorium 

from milling plant concentrates and in 

all subsequent steps in the nuclear fuel 

cycle; 

(2) Chemical conversion and 

purification of plutonium and 

neptunium; 

(3) Nuclear fuel fabrication, including 

preparation of fuel elements, fuel 

assemblies and cladding thereof; 

(4) Uranium isotope separation 

(uranium enrichment), plutonium 

isotope separation, and isotope 

separation of any other elements 

(including stable isotope separation) 

when the technology or process can be 

applied directly or indirectly to 

uranium or plutonium; 

(5) Nuclear reactor development, 

production or use of the components 

within or attached directly to the reactor 

vessel, the equipment that controls the 

level of power in the core, and the 

equipment or components that normally 

contain or come in direct contact with 

or control the primary coolant of the 

reactor core; 

(6) Development, production or use of 

production accelerator-driven 

subcritical assembly systems; 

(7) Heavy water production and 

hydrogen isotope separation when the 

technology or process has reasonable 

potential for large-scale separation of 

deuterium (2H) from protium (1H); 

(8) Reprocessing of irradiated nuclear 

fuel or targets containing special nuclear 

material, and post-irradiation 

examination of fuel elements, fuel 

assemblies and cladding thereof, if it is 

part of a reprocessing program; and 

(9) The transfer of technology for the 

development, production, or use of 

equipment or material especially 

designed or prepared for any of the 

above listed activities. (See Nuclear 

Regulatory Commission regulations at 

10 CFR part 110, Appendices A through 

K, and O, for an illustrative list of items 

considered to be especially designed or 

prepared for certain listed nuclear 

activities.) 

(c) This part does not apply to: 

(1) Exports authorized by the Nuclear 

Regulatory Commission, Department of 

State, or Department of Commerce; 

(2) Transfer of publicly available 

information, publicly available 

technology, or the results of 

fundamental research; 

(3) Uranium and thorium mining and 

milling (e.g., production of impure 

source material concentrates such as 

uranium yellowcake and all activities 

prior to that production step); 

(4) Nuclear fusion reactors per se, 

except for supporting systems involving 

hydrogen isotope separation 

technologies within the scope defined 

in paragraph (b)(7) of this section and 

§ 810.7(b)(3); 

(5) Production or extraction of 

radiopharmaceutical isotopes when the 

process does not involve special nuclear 

material; and 

(6) Transfer of technology to any 

individual who is lawfully admitted for 

permanent residence in the United 

States or is a protected individual under 

the Immigration and Naturalization Act 

(8 U.S.C. 1324b(a)(3)). 

(d) Persons under U.S. jurisdiction are 

responsible for their foreign licensees, 

contractors, or subsidiaries to the extent 

that the former have control over the 

activities of the latter. 

§ 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. 

Classified information means national 

security information classified under 

Executive Order 13526 or any 

predecessor or superseding order, and 

Restricted Data classified under the 

Atomic Energy Act. 

Cooperative enrichment enterprise 

means a multi-country or 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. 

Country, as well as government, 

nation, state, and all related terms, shall 

be read to include Taiwan, consistent 

with section 4 of the Taiwan Relations 

Act, 22 U.S.C. 3303, and the United 

States’ one-China policy, under which 

the United States maintains unofficial 

relations with Taiwan. 

Development means any activity 

related to all phases before production 

such as: design, design research, design 

analysis, design concepts, assembly and 

testing of prototypes, pilot production 

schemes, design data, process of 

transforming design data into a product, 

configuration design, integration design, 

and layouts. 

DOE means the U.S. Department of 

Energy. 

Enrichment means isotope separation 

of uranium or isotope separation of 

plutonium, regardless of the type of 

process or separation mechanism used. 

Fissile material means isotopes that 

readily fission after absorbing a neutron 

of any energy, either fast or slow. Fissile 

materials are uranium-235, uranium233, plutonium-239, and plutonium241. 

Foreign national means an individual 

who is not a citizen or national of the 

United States, but excludes U.S. lawful 

permanent residents and protected 

individuals under the Immigration and 

Naturalization Act (8 U.S.C. 

1324b(a)(3)). 

Fundamental research means basic 

and applied research in science and 

engineering, the results of which 

ordinarily are published and shared 

broadly within the scientific 

community, as distinguished from 

proprietary research and from industrial 

development, design, production, and 

product utilization, the results of which 

ordinarily are restricted for proprietary 

or national security reasons. 

General authorization means an 

authorization granted by the Secretary 

under section 57 b.(2) of the Atomic 

Energy Act to provide assistance or 

technology to foreign atomic energy 

activities subject to this part and which 

does not require a request for, or the 

Secretary’s issuance of, a specific 

authorization. 

IAEA means the International Atomic 

Energy Agency. 

NNPA means the Nuclear 

Nonproliferation Act of 1978, Public 

Law 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-sustaining chain 

reaction. 

Operational safety means the 

capability of a reactor to be operated in 

a manner that complies with national 

standards or requirements or widelyaccepted international standards and 

recommendations to prevent 

uncontrolled or inadvertent criticality, 

prevent or mitigate uncontrolled release 

of radioactivity to the environment, 

monitor and limit staff exposure to 

radiation and radioactivity, and protect 

off-site population from exposure to 

radiation or radioactivity. Operational 

safety may be enhanced by providing 

expert advice, equipment, 


emcdonald on DSK67QTVN1PROD with PROPOSALS
46846 Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 

instrumentation, technology, software, 

services, analyses, procedures, training, 

or other assistance that improves the 

capability of the reactor to be operated 

in compliance with such standards, 

requirements or recommendations. 

Person means: 

(1) Any individual, corporation, 

partnership, firm, association, trust, 

estate, public or private institution, 

(2) Any group, government agency 

other than DOE, or any State or political 

entity within a State; and 

(3) Any legal successor, 

representative, agent, or agency of the 

foregoing. 

Production means all production 

phases such as: construction, 

production engineering, manufacture, 

integration, assembly or mounting, 

inspection, testing, and quality 

assurance. 

Production accelerator means a 

particle accelerator especially designed, 

used, or intended for use with a 

production subcritical assembly. 

Production accelerator-driven 

subcritical assembly system means a 

system comprised of a production 

subcritical assembly and a production 

accelerator and which is especially 

designed, used, or intended for the 

production of plutonium or 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 especially designed or used 

primarily for the production of 

plutonium or uranium-233. 

Production subcritical assembly 

means an apparatus that contains source 

material or special nuclear material to 

produce a nuclear fission chain reaction 

that is not self-sustaining and that is 

especially designed, used, or intended 

for the production of plutonium or 

uranium-233. 

Publicly available information means 

information in any form that is generally 

accessible, without restriction, to the 

public. 

Publicly available technology means 

technology that is already published or 

has been prepared for publication; arises 

during, or results from, fundamental 

research; or is included in an 

application filed with the U.S. Patent 

Office and eligible for foreign filing 

under 35 U.S.C. 184. 

Restricted Data means all data 

concerning: 

(1) Design, manufacture, or utilization 

of atomic weapons; 

(2) The production of special nuclear 

material; or 

(3) The use of special nuclear material 

in the production of energy, but shall 

not include data declassified or 

removed from the Restricted Data 

category pursuant to section 142 of the 

Atomic Energy Act. 

Secretary means the Secretary of 

Energy. 

Sensitive nuclear technology means 

any information (including information 

incorporated in a production or 

utilization facility or important 

component part thereof) which is not 

available to the public (see definition of 

‘‘publicly available information’’) and 

which is important to the design, 

construction, fabrication, operation, or 

maintenance of a uranium enrichment 

or nuclear fuel reprocessing facility or a 

facility for the production of heavy 

water, but shall not include Restricted 

Data controlled pursuant to chapter 12 

of the Atomic Energy Act. The 

information may take a tangible form 

such as a model, prototype, blueprint, or 

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. 

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 the 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. 

Technology means technical 

assistance or technical data required for 

the development, production or use of 

any plant, facility, or especially 

designed or prepared equipment for the 

activities described in § 810.2(b). 

Use means operation, installation 

(including on-site installation), 

maintenance (checking), repair, 

overhaul, or refurbishing. 

United States, when used in a 

geographical sense, includes Puerto 

Rico and all territories and possessions 

of the United States. 

§ 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– 

7924. 

(b) Communications also may be 

delivered to DOE’s headquarters at 1000 

Independence Avenue SW., 

Washington, DC 20585. All clearly 

marked proprietary information will be 

given the maximum protection allowed 

by law. 

§ 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 a 

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 

calendar days and, if this is not feasible, 

an interim response will explain the 

reason for the delay. 

(c) The DOE Office of 

Nonproliferation and International 

Security may periodically publish 

abstracts of general or specific 

authorizations that may be of general 

interest, exclusive of proprietary 

business-confidential data submitted to 

DOE or other information protected by 

law from unauthorized disclosure. 

§ 810.6 Generally authorized activities. 

The Secretary has determined that the 

following activities are generally 

authorized, provided that no sensitive 

nuclear technology or assistance 

described in § 810.7 is involved: 

(a) Engaging directly or indirectly in 

the production of special nuclear 


emcdonald on DSK67QTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 46847 

material at facilities in countries or with 

entities listed in the Appendix to this 

part; 

(b) Transfer of technology to a citizen 

or national of a country not listed in the 

Appendix to this part and working at an 

NRC-licensed facility, provided: 

(1) The foreign national is lawfully 

employed by or contracted to work for 

a U.S. employer in the United States; 

(2) The foreign national executes a 

confidentiality agreement with the U.S. 

employer to safeguard the technology 

from unauthorized use or disclosure; 

(3) The foreign national has been 

granted unescorted access in accordance 

with NRC regulations at an NRClicensed facility; and 

(4) The foreign national’s U.S. 

employer authorizing access to the 

technology complies with the reporting 

requirements in § 810.12(g). 

(c) Activities at any safeguarded 

facility to: 

(1) Prevent or correct a current or 

imminent radiological emergency 

posing a significant danger to the health 

and safety of the off-site population, 

which emergency cannot be met by 

other means, provided DOE is notified 

in writing in advance and does not 

object within 48 hours of receipt of the 

advance notification; 

(2) Furnish operational safety 

information or assistance to existing 

safeguarded civilian nuclear reactors 

outside the United States in countries 

with safeguards agreements with the 

IAEA or an equivalent voluntary offer, 

provided DOE is notified in writing and 

approves the activity in writing 

within45 calendar days of the notice. 

The applicant should provide all the 

information required under § 810.11 and 

specific references to the national or 

international safety standards or 

requirements for operational safety for 

nuclear reactors that will be addressed 

by the assistance, and may provide 

information cited in § 810.11(b); or 

(3) Furnish operational safety 

information or assistance to existing, 

proposed, or new-build civilian nuclear 

power plants in the United States, 

provided DOE is notified by certified 

mail return receipt requested and 

approves the activity in writing 

within45 calendar days of the notice. 

The applicant should provide all the 

information required under § 810.11. 

(d) Participation in exchange 

programs approved by the Department 

of State in consultation with DOE; 

(e) Activities carried out in the course 

of implementation of the ‘‘Agreement 

between the United States of America 

and the [IAEA] for the Application of 

Safeguards in the United States,’’ done 

on December 9, 1980; 

(f) Activities carried out by persons 

who are full-time employees of the 

IAEA or whose employment by or work 

for the IAEA is sponsored or approved 

by the Department of State or DOE; and 

(g) Extraction of Molybdenum-99 for 

medical use from irradiated targets of 

enriched uranium, provided that the 

activity does not also involve 

purification and recovery of enriched 

uranium materials, and provided 

further, that the technology used does 

not involve significant components 

relevant for reprocessing spent nuclear 

reactor fuel (e.g., high-speed centrifugal 

contactors, pulsed columns). 

§ 810.7 Activities requiring specific 

authorization. 

Unless generally authorized by 

§ 810.6, any person requires a specific 

authorization by the Secretary before: 

(a) Engaging in any of the activities 

listed in § 810.2(b), with any foreign 

country or entity not specified in the 

Appendix to this part; 

(b) Providing or transferring sensitive 

nuclear technology to any foreign 

country; or 

(c) Engaging in or providing 

technology (including technical 

assistance) for any of the following 

activities with respect to any foreign 

country (or a citizen or national of that 

country other than U.S. lawful 

permanent residents or protected 

individuals under the Immigration and 

Naturalization Act (8 U.S.C. 

1324b(a)(3)): 

(1) Uranium isotope separation 

(uranium enrichment), plutonium 

isotope separation, or isotope separation 

of any other elements (including stable 

isotope separation) when the technology 

or process can be applied directly or 

indirectly to uranium or plutonium; 

(2) Fabrication of nuclear fuel 

containing plutonium, including 

preparation of fuel elements, fuel 

assemblies, and cladding thereof; 

(3) Heavy water production, and 

hydrogen isotope separation, when the 

technology or process has reasonable 

potential for large-scale separation of 

deuterium (2H) from protium (1H); 

(4) Development, production or use of 

a production accelerator-driven 

subcritical assembly system; 

(5) Development, production or use of 

a production reactor; or 

(6) Reprocessing of irradiated nuclear 

fuel or targets containing special nuclear 

material. 

§ 810.8 Restrictions on general and 

specific authorization. 

A general or specific authorization 

granted by the Secretary under this part: 

(a) Is limited to activities involving 

only unclassified information and does 

not permit furnishing classified 

information; 

(b) Does not relieve a person from 

complying with the relevant laws or the 

regulations of other U.S. Government 

agencies applicable to exports; and 

(c) Does not authorize a person to 

engage in any activity when the person 

knows or has reason to know that the 

activity is intended to provide 

assistance in designing, developing, 

fabricating, or testing a nuclear 

explosive device. 

§ 810.9 Grant of specific authorization. 

(a) An application for authorization to 

engage in activities 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, Department of 

Commerce, and Department of Defense, 

that the activity will not be inimical to 

the interest of the United States. In 

making such a determination, the 

Secretary will take into account the 

following factors: 

(1) Whether the United States has an 

agreement for cooperation in force 

covering exports to the country or entity 

involved; 

(2) Whether the country is a party to, 

or has otherwise adhered to, the NPT; 

(3) Whether the country is in good 

standing with its acknowledged 

nonproliferation commitments; 

(4) Whether the recipient country is in 

full compliance with its obligations 

under the NPT; 

(5) Whether the country has accepted 

IAEA safeguards obligations on all 

nuclear materials used for peaceful 

purposes and has them in force; 

(6) Whether other nonproliferation 

controls or conditions exist on the 

proposed activity, including that the 

recipient is duly authorized by the 

country to receive and use the 

technology sought to be transferred; 

(7) Significance of the assistance or 

transferred technology relative to the 

existing nuclear capabilities of the 

recipient country; 

(8) Whether the transferred 

technology is part of an existing 

cooperative enrichment enterprise or 

the supply chain of such an enterprise; 

(9) The availability of comparable 

assistance or technology from other 

sources; and 


emcdonald on DSK67QTVN1PROD with PROPOSALS
46848 Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 

(10) Any other factors that may bear 

upon the political, economic, 

competitiveness, or security interests of 

the United States, including the 

obligations of the United States under 

treaties or other international 

agreements, and the obligations of the 

recipient country under treaties or other 

international agreements. 

(c) If the proposed activity involves 

the export of sensitive nuclear 

technology, the requirements of sections 

127 and 128 of the Atomic Energy Act 

and of any applicable United States 

international commitments must also be 

met. For the export of sensitive nuclear 

technology, in addition to the factors in 

paragraph (b) of this section, the 

Secretary will take into account: 

(1) Whether the 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; 

(2) Whether the recipient country has 

not been identified in a report by the 

IAEA Secretariat that is under 

consideration by the IAEA Board of 

Governors, as being in breach of 

obligations to comply with the 

applicable safeguards agreement, nor 

continues to be the subject of Board of 

Governors decisions calling upon it to 

take additional steps to comply with its 

safeguards obligations or to build 

confidence in the peaceful nature of its 

nuclear program, nor as to which the 

IAEA Secretariat has reported that it is 

unable to implement the applicable 

safeguards agreement. This criterion 

would not apply in cases where the 

IAEA Board of Governors or the United 

Nations Security Council subsequently 

decides that adequate assurances exist 

as to the peaceful purposes of the 

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; 

(3) Whether the recipient country is 

adhering to the Nuclear Suppliers 

Group Guidelines and, where 

applicable, has reported to the Security 

Council of the United Nations that it is 

implementing effective export controls 

as identified by Security Council 

Resolution 1540; and 

(4) Whether the recipient country 

adheres to international safety 

conventions relating to nuclear or other 

radioactive materials or facilities. 

(d) Unless otherwise prohibited by 

U.S. law, the Secretary may grant an 

application for specific authorization for 

activities related to the enrichment of 

source material and special nuclear 

material, provided that: 

(1) The U.S. Government has received 

written nonproliferation assurances 

from the government of the country; 

(2) That it/they accept(s) the sensitive 

enrichment equipment and enabling 

technologies or an operable enrichment 

facility under conditions that do not 

permit or enable unauthorized 

replication of the facilities; 

(3) That the subject enrichment 

activity will not result in the production 

of uranium enriched to greater than 

20% in the isotope uranium-235; and 

(4) That there are in place appropriate 

security arrangements to protect the 

activity from use or transfer inconsistent 

with the country’s national laws. 

(e) Approximately 30 calendar days 

after the Secretary’s grant of a specific 

authorization, a copy of the Secretary’s 

determination may be provided to any 

person requesting it at 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 authorization governed by 

this part is subsequently determined by 

the Secretary to be inimical to the 

interest of the United States or 

otherwise no longer meets the legal 

criteria for approval; or 

(d) Pursuant to section 129 of the 

Atomic Energy Act. 

§ 810.11 Information required in an 

application for specific authorization. 

(a) An application letter must include 

the following information: 

(1) The name, address, and 

citizenship of the applicant, and 

complete disclosure of all real parties in 

interest; if the applicant is a corporation 

or other legal entity; where it is 

incorporated or organized; the location 

of its principal office; and the degree of 

any control or ownership by any foreign 

individual, corporation, partnership, 

firm, association, trust, estate, public or 

private institution or government 

agency; 

(2) The country or entity to receive 

the assistance or technology; the name 

and location of any facility or project 

involved; and the name and address of 

the person for which or whom the 

activity is to be performed; 

(3) A description of the assistance or 

technology to be provided, including a 

complete description of the proposed 

activity, its approximate monetary 

value, and a detailed description of any 

specific project to which the activity 

relates; 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) Except as provided in § 810.6(b), 

an applicant seeking to employ a citizen 

or national of a country not listed in the 

Appendix in a position that could result 

in the transfer of technology subject to 

§ 810.2, or seeking to employ any 

foreign national in the United States or 

in a foreign country that could result in 

the export of assistance or transfer of 

technology subject to § 810.7, must 

request a specific authorization for the 

employment. The applicant must 

provide, with respect to each foreign 

national to whom access to technology 

will be granted, the following: 

(1) A description of the technology 

that would be made available to the 

foreign national; 

(2) The purpose of the proposed 

transfer, a description of the applicant’s 

technology control program, and the 

Nuclear Regulatory Commission 

standards applicable to the employer’s 

grant of access to the technology; 

(3) A copy of any confidentiality 

agreement between the applicant and 

the foreign national as required by 

§ 810.6(b)(2); 

(4) Background information about the 

foreign national, including the 

individual’s citizenship, all countries 

where the individual has resided for 

more than six months, the training or 

educational background of the 

individual, all work experience, any 

other known affiliations with persons 

engaged in activities subject to this part, 


emcdonald on DSK67QTVN1PROD with PROPOSALS
Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 46849 

and current immigration or visa status 

in the United States; and 

(5) A statement signed by the foreign 

national that he/she will comply with 

the regulations under this part; will not 

disclose the applicant’s technology 

without DOE’s prior written 

authorization; and will not, at any time 

during or after his/her employment with 

the applicant, use the applicant’s 

technology for any nuclear explosive 

device, for research on or development 

of any nuclear explosive device, or in 

furtherance of any military purpose. 

(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 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 

calendar days after beginning the 

authorized activity, provide to DOE a 

written report containing the following 

information: 

(1) The name, address, and 

citizenship of the person submitting the 

report; 

(2) The name, address, and 

citizenship of the person for whom or 

which the activity is being performed; 

(3) A description of the activity, the 

date it began, its location, status, and 

anticipated date of completion; and 

(4) A copy of the DOE letter 

authorizing the activity. 

(b) Each person carrying out a 

specifically authorized activity shall 

inform DOE, in writing within 30 

calendar days, of completion of the 

activity or of its termination before 

completion. 

(c) Each person granted a specific 

authorization shall inform DOE, in 

writing within 30 calendar days, when 

it is known that the proposed activity 

will not be undertaken and the granted 

authorization will not be used. 

(d) DOE may require reports to 

include such additional information 

that may be required by applicable U.S. 

law, regulation, or policy with respect to 

the specific nuclear activity or country 

for which specific authorization is 

required. 

(e) Each person, within 30 calendar 

days after beginning any generally 

authorized activity under § 810.6, shall 

provide to DOE: 

(1) The name, address, and 

citizenship of the person submitting the 

report; 

(2) The name, address, and 

citizenship of the person for whom or 

which the activity is being performed; 

(3) A description of the activity, the 

date it began, its location, status, and 

anticipated date of completion; and 

(4) A written assurance that the 

applicant has an agreement with the 

recipient ensuring that any subsequent 

transfer of materials, equipment, or 

technology transferred under general 

authorization under circumstances in 

which the conditions in § 810.6 would 

not be met will take place only if the 

applicant obtains DOE’s prior written 

approval. 

(f) Individuals engaging in generally 

authorized activities as employees of 

persons required to report are not 

themselves required to submit the 

reports described in paragraph (e) of this 

section. 

(g) Persons engaging in generally 

authorized activities under § 810.6(b) 

are required to notify the Department 

that a citizen or national of a country 

not listed in the Appendix to this part 

has been granted access to information 

subject to § 810.2 in accordance with 

Nuclear Regulatory Commission access 

requirements. The report should contain 

the information required in § 810.11(b). 

(h) All reports should be sent to: U.S. 

Department of Energy, National Nuclear 

Security Administration, Washington, 

DC 20585, Attention: Senior Policy 

Advisor, Office of Nonproliferation and 

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, or both. 

(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 [date 30 days 

after date of publication of final rule] 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 [date 30 days after date 

of publication of final rule], but that 

require specific authorization under the 

regulations in this part, must request 

specific authorization by [date 90 days 

after date of publication of final rule] 

and may continue their activities until 

DOE acts on the request. 

Appendix A to Part 810—Generally 

Authorized Destinations 

Argentina 

Australia 

Austria 

Belgium 

Brazil 

Bulgaria 

Canada 

Chile (For all activities related to INFCIRC/ 

834 only) 

Colombia 

Cyprus 

Czech Republic 

Denmark 

Egypt 

Estonia 

Finland 

France 

Germany 

Greece 

Hungary 

Indonesia 

International Atomic Energy Agency 

Ireland 

Italy 

Japan 

Kazakhstan 

Korea, Republic of 

Latvia 

Lithuania 

Luxembourg 

Malta 

Mexico (For all activities related to INFCIRC/ 

203 Parts 1 and 2 and INFCIRC/825 only) 

Morocco 

Netherlands 

Norway 

Poland 

Portugal 

Romania 


emcdonald on DSK67QTVN1PROD with PROPOSALS
46850 Federal Register / Vol. 78, No. 149 / Friday, August 2, 2013 / Proposed Rules 

1 12 U.S.C. 1756, 1766, 1781, and 1782. 

2 Id. 

3 Id. 

4 12 CFR 741.6 and 748.1. 

5 Id. Currently, corporate credit unions use an 

electronic system for submitting data online 

different from the system used by natural person 

FICUs. 

Slovakia 

Slovenia 

South Africa 

Spain 

Sweden 

Switzerland 

Taiwan 

Thailand 

Turkey 

Ukraine 

United Arab Emirates 

United Kingdom 

[FR Doc. 2013–18691 Filed 8–1–13; 8:45 am] 

BILLING CODE 6450–01–P 

NATIONAL CREDIT UNION 

ADMINISTRATION 

12 CFR Parts 741 and 748 

RIN 3313–AE25 

Filing Financial and Other Reports 

AGENCY: National Credit Union 

Administration (NCUA). 

ACTION: Proposed rule. 

SUMMARY: The NCUA Board (Board) 

proposes to amend its regulations 

regarding filing financial, statistical, and 

other reports and credit union profiles 

by requiring all federally-insured credit 

unions (FICU) to file this information 

electronically using NCUA’s 

information management system or 

other electronic means specified by 

NCUA. Under the current rule, FICUs 

are required to file this information 

online only if they have the capacity to 

do so. 

DATES: NCUA is issuing this proposal 

with a 30-day comment period instead 

of its typical 60-day time frame. NCUA 

believes the proposal is simple, and 30 

days is sufficient for the public to digest 

and comment on the proposal. 

Comments must be received on or 

before September 3, 2013. 

ADDRESSES: You may submit comments 

by any of the following methods (Please 

send comments by one method only): 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• NCUA Web site: http:// 

www.ncua.gov/ 

RegulationsOpinionsLaws/ 

proposed_regs/proposed_regs.html. 

Follow the instructions for submitting 

comments. 

• Email: Address to 

regcomments@ncua.gov. Include ‘‘[Your 

name] Comments on Notice of Proposed 

Rulemaking for Parts 741 and 748, 

Filing financial and other reports’’ in 

the email subject line. 

• Fax: (703) 518–6319. Use the 

subject line described above for email. 

• Mail: Address to Mary F. Rupp, 

Secretary of the Board, National Credit 

Union Administration, 1775 Duke 

Street, Alexandria, Virginia 22314– 

3428. 

• Hand Delivery/Courier: Same as 

mail address. 

Public Inspection: You may view all 

public comments on NCUA’s Web site 

at http://www.ncua.gov/Legal/Regs/ 

Pages/PropRegs.aspx as submitted, 

except for those we cannot post for 

technical reasons. NCUA will not edit or 

remove any identifying or contact 

information from the public comments 

submitted. You may inspect paper 

copies of comments in NCUA’s law 

library at 1775 Duke Street, Alexandria, 

Virginia 22314, by appointment 

weekdays between 9 a.m. and 3 p.m. To 

make an appointment, call (703) 518– 

6546 or send an email to 

OGCMail@ncua.gov. 

FOR FURTHER INFORMATION CONTACT: 

Frank Kressman, Associate General 

Counsel or Sarah Chung, Staff Attorney, 

Office of General Counsel, at the above 

address or telephone (703) 518–1178 or 

Mark Vaughan, Director, Division of 

Analytics and Surveillance, Office of 

Examination and Insurance, at the above 

address or telephone (703) 518–6360. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Summary of the Proposed Rule 

III. Regulatory Procedures 

I. Background 

A. What are the current requirements for 

filing reports? 

The Federal Credit Union Act (Act) 

provides NCUA with broad authority to 

require FICUs, including corporate 

credit unions, to submit financial data 

and other information as required by the 

Board.1 The Act directs each FICU to 

make reports of condition to the Board 

on dates selected by the Board.2 The 

Board has broad discretion to set the 

conditions and information 

requirements for such reports.3 More 

specifically, NCUA requires FICUs to 

submit financial reports, reports of 

officials, credit union profiles, and other 

reports.4

Section 741.6(a) of NCUA’s 

regulations requires FICUs to file 

financial, statistical, and other reports, 

including call reports. Section 748.1 of 

NCUA’s regulations requires the 

president or managing official of each 

FICU to certify compliance with a 

variety of requirements in its credit 

union profile. 

Under NCUA’s current regulations, a 

FICU must use NCUA’s information 

management system, or other electronic 

means specified by NCUA, to submit its 

reportable data online, unless it is 

unable to do so.5 In this case, a FICU 

must file written reports in accordance 

with NCUA instructions. 

B. How many FICUs file manually? 

As of March 31, 2013, 59 of 6,753 

FICUs filed manually. The largest of 

these credit unions had $21 million in 

assets, and 45 of them had fewer than 

$2 million in assets. The overwhelming 

majority of these manual filers are 

federal credit unions. Approximately 

one quarter of manual filers report 

having email and internet access and 

appear to have the capacity to file 

reports and profiles electronically. 

NCUA recently completed an initiative 

to provide free laptops and technical 

assistance to manual filers. This 

initiative helped some FICUs transition 

to online filing. 

II. Summary of the Proposed Rule 

A. Why is NCUA proposing this rule? 

Executive Order 13579 provides that 

independent agencies, including NCUA, 

should consider if they can modify, 

streamline, expand, or repeal existing 

rules to make their programs more 

effective and less burdensome. NCUA 

seeks to reduce operating costs and 

promote environmentally responsible 

practices. NCUA estimates it costs the 

agency $125 per filer per quarter to 

process manual filings of call reports 

alone. NCUA proposes to require all 

FICUs to submit call reports and other 

data and to update their credit union 

profiles online to reduce the expense of 

printing and mailing paper forms and 

other processing costs. Filing manually 

will no longer be an option. 

Additionally, NCUA intends to 

increase efficiency, enhance accuracy of 

data, and provide a secure access portal 

that is the sole means for FICUs to 

submit, edit, and view data NCUA 

collects. Online reporting is more 

efficient and cost effective and enhances 

the accuracy of credit union data. In 

addition, it permits FICUs to submit 

data securely to NCUA from any 

computer with internet access. This 

system eliminates mailing and printing 

delays and missing information, and 

provides real-time warnings throughout 

the input process to ensure data 

integrity. 


emcdonald on DSK67QTVN1PROD with PROPOSALS