[Federal Register Volume 80, Number 35 (Monday, February 23, 2015)]
[Rules and Regulations]
[Pages 9359-9380]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-03479]



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Federal Register / Vol. 80, No. 35 / Monday, February 23, 2015 / 
Rules and Regulations

[[Page 9359]]



DEPARTMENT OF ENERGY

10 CFR Part 810

RIN 1994-AA02


Assistance to Foreign Atomic Energy Activities

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: DOE is issuing the first comprehensive updating of regulations 
concerning Assistance to Foreign Atomic Energy Activities since 1986, 
reflecting a need to make the regulations consistent with current 
global civil nuclear trade practices and nonproliferation norms, and to 
update the activities and technologies subject to the Secretary of 
Energy's specific authorization and DOE reporting requirements. This 
rule also identifies destinations with respect to which most assistance 
would be generally authorized and destinations that would require a 
specific authorization by the Secretary of Energy.

DATES: This rule is effective March 25, 2015.

FOR FURTHER INFORMATION CONTACT: Mr. Richard Goorevich, Senior Policy 
Advisor, or Ms. Katie Strangis, Senior Policy Advisor, Office of 
Nonproliferation and Arms Control (NPAC), National Nuclear Security 
Administration, Department of Energy, 1000 Independence Avenue SW., 
Washington, DC 20585, telephone 202-586-0589 (Mr. Goorevich) or 202-
586-8623 (Ms. Strangis); Mr. Elliot Oxman, Office of the General 
Counsel, GC-53, Department of Energy, 1000 Independence Avenue SW., 
Washington, DC 20585, telephone 202-586-1755; or Mr. Zachary Stern, 
Office of the General Counsel, National Nuclear Security 
Administration, Department of Energy, 1000 Independence Avenue SW., 
Washington, DC 20585, telephone 202-586-8627.

SUPPLEMENTARY INFORMATION:

I. Background
II. Description of Changes in the Final Rule
III. Transition Process to Final Rule
    A. Current Specific Authorization Requests
    B. Current Generally Authorized Activities
    C. Previously Unreported Deemed Exports and Deemed Re-Exports
IV. Discussion of Public Comments and the Final Rule
    A. Process Issues
    1. Compliance With Administrative Procedure Act Rulemaking 
Requirements
    2. Part 810 Process Improvements
    B. Classification of Foreign Destinations
    1. Mexico
    2. Ukraine
    3. Croatia and Vietnam
    4. Continued Specific Authorization Destinations (Russia, India 
and China)
    5. Thailand and Norway
    C. Activities Requiring Part 810 Authorization
    1. Special Nuclear Material Nexus Requirement
    2. Activities Supporting Commercial Power Reactors
    3. Deemed Exports and Deemed Re-Exports Employee Issues
    4. Operational Safety Activities
    5. Other
    D. Technical Corrections
    1. Sec.  810.1
    2. Sec.  810.3 Technical Services
    3. Sec.  810.3 Technical Assistance vs. Assistance
    4. Sec.  810.6(f)
    5. Sec. Sec.  810.6(c)(2) and 810.11(b)
    6. Sec.  810.16 Savings Clause
V. Regulatory Review
    A. Executive Order 12866
    B. Administrative Procedure Act
    C. National Environmental Policy Act
    D. Regulatory Flexibility Act
    E. Paperwork Reduction Act
    F. Unfunded Mandates Reform Act of 1995
    G. Treasury and General Government Appropriations Act, 1999
    H. Executive Order 13132
    I. Executive Order 12988
    J. Treasury and General Government Appropriations Act, 2001
    K. Executive Order 13211
    L. Executive Order 13609
    M. Congressional Notification
VI. Approval by the Office of the Secretary

PART 810--ASSISTANCE TO FOREIGN ATOMIC ENERGY ACTIVITIES

I. Background

    The Department of Energy's part 810 regulation (10 CFR part 810) 
implements section 57b.(2) of the Atomic Energy Act of 1954 (AEA), as 
amended by section 302 of the Nuclear Nonproliferation Act of 1978 
(NNPA). Part 810 controls the export of unclassified nuclear technology 
and assistance. It enables peaceful nuclear trade by helping to assure 
that nuclear technologies exported from the United States will not be 
used for non-peaceful purposes. Part 810 controls the export of nuclear 
technology and assistance by identifying activities that can be 
``generally authorized'' by the Secretary, thereby requiring no further 
authorization under part 810. It also controls those activities that 
require ``specific authorization'' by the Secretary. Part 810 also 
delineates the process for applying for specific authorization from the 
Secretary and identifies the reporting requirements for activities 
subject to part 810.
    While some revisions to part 810 were made in 1993 and 2000, part 
810 has not been comprehensively updated since 1986. Since then, the 
global civil nuclear market has expanded, particularly in China, the 
Middle East, and Eastern Europe, with vendors from France, Japan, the 
Republic of Korea, Russia, and Canada emerging to serve customers in 
these markets. DOE believes the regulation should be updated to ensure 
that the part 810 nuclear export controls remain effective and 
efficient as the commercial nuclear market continues to expand. This 
means carefully determining which destinations and activities can be 
generally authorized and which will require a specific authorization, 
and assuring that the determinations are consistent with U.S. national 
security, diplomatic, and trade policy.
    On September 7, 2011, DOE issued the NOPR to propose the updating 
of part 810 (76 FR 55278). The NOPR listed destinations for which most 
assistance to foreign atomic energy activities would be generally 
authorized, and activities that would require a specific authorization 
by the Secretary of Energy. Additionally, the NOPR identified types of 
technology transfers subject to the regulation. DOE received numerous 
comments on the NOPR. After careful consideration of all comments 
received on the NOPR, on August 2, 2013 DOE issued a supplemental 
notice of proposed rulemaking (SNOPR) and public meetings to respond to 
those comments, propose new or revised rule changes,

[[Page 9360]]

and afford interested parties a second opportunity to comment (78 FR 
46829). DOE held its first public meeting on August 5, 2013. On October 
29, 2013 DOE issued a notice of a second public meeting and extension 
of the comment period and on March 25, 2014 re-opened the comment 
period until April 2, 2014. Today, DOE is issuing this final rule.
    As described below and in response to comments received from the 
public on the SNOPR, in the final rule announced today, DOE makes only 
a few changes to the existing rule, what will be referred to 
hereinafter as ``the 1986 version of the rule,'' that are different 
than those proposed in the SNOPR. Details of today's changes to the 
1986 version of part 810 are summarized in Section II. Responses to 
public comments received on the SNOPR are discussed in Section IV.

II. Description of Changes in the Final Rule

    In response to the SNOPR, DOE received written comments from 26 
entities as well as oral comments made at public meetings. All of the 
comments and meeting transcripts are available for review on line at: 
http://www.regulations.gov/#!docketDetail;D=DOE-HQ-2011-0035, Docket 
ID: DOE-HQ-2011-0035. This final rule responds to the comments received 
in response to the SNOPR and makes changes to the 1986 version of the 
rule. Final changes to the current rule, organized by section, are 
summarized below:
    1. The change to Sec.  810.1 ``Purpose'' states the statutory basis 
and purpose of the part 810 regulation, eliminating the need for the 
1986 version of Sec.  810.6. ``U.S. persons'' has been replaced with 
``persons.''
    2. The change to paragraph (a) in Sec.  810.2 ``Scope'' states 
DOE's jurisdiction under Sec.  57b.(2) of the Atomic Energy Act. 
Paragraph (b) in Sec.  810.2 identifies activities governed by the 
regulation when those activities, whether conducted in the United 
States or abroad, constitute engaging or participating, directly or 
indirectly, in the development or production of special nuclear 
material outside the United States. Paragraph (c) of Sec.  810.2 
identifies exempt activities, some retained from the 1986 version of 
the rule. A person directly or indirectly engaging or participating in 
the development or production of special nuclear material outside the 
United States may be, for example, a U.S. citizen, a foreign national 
or a subsidiary of a U.S. company located abroad. The activity may take 
place in the United States, in a country listed in the Appendix or in a 
country not listed in the Appendix. Part 810 does not apply to 
transfers of nuclear technology or assistance within the United States 
between or among U.S. citizens, citizens or nationals of foreign 
countries who are U.S. lawful permanent residents, or protected 
individuals under the Immigration and Naturalization Act (8 U.S.C. 
1324b(a)(3)), because such transfers would not constitute engaging or 
participating, directly or indirectly, in the development or production 
of special nuclear material outside the United States.
    3. The following exempt activities are added:
    <bullet> Exports authorized by the Department of State (DOS) or 
Department of Commerce (DOC), or the Nuclear Regulatory Commission 
(NRC);
    <bullet> Transfer of ``publicly available information,'' ``publicly 
available technology,'' and the results of ``fundamental research'';
    <bullet> 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;
    <bullet> Production or extraction of radiopharmaceutical isotopes 
when the process does not involve special nuclear material; and
    <bullet> Transfers to lawful permanent residents of the United 
States or protected individuals under the Immigration and 
Naturalization Act (8 U.S.C. 1324b(a)(3)).
    4. In Sec.  810.3 ``Definitions'' of this final rule, a number of 
definitions are added and revisions are made to existing definitions to 
reflect terminological changes and technological developments since the 
part 810 regulation was last updated, and to provide additional clarity 
to certain terms defined and used in the 1986 version of the rule.
    The 1986 version of the rule has 23 defined terms. This final rule 
substantially revises 5 terms, adds 23 terms, deletes 5 terms, and 
leaves 13 terms essentially unchanged, for a total of 36 defined terms 
in the regulation.
    The following terms have been added to the final rule to update the 
terms used in part 810 to make them consistent with terms used in other 
U.S. export control programs and Nuclear Suppliers Group (NSG) 
guidelines (IAEA Information Circular [INFCIRC] 254/Part 1): 
Assistance, cooperative enrichment enterprise, development, enrichment, 
fissile material, fundamental research, production, technical data, 
technology, and use. The following terms are added or revised in line 
with changes in the approach of the final rule to authorized 
destinations and authorized activities: Foreign national, general 
authorization, operational safety, production accelerator, production 
accelerator-driven subcritical assembly system, production subcritical 
assembly, publicly available information, publicly available 
technology, and specific authorization. The term ``country'' has been 
added to clarify that Taiwan is covered under this final rule, 
consistent with section 4 of the Taiwan Relations Act (22 U.S.C. 3303). 
The terms ``Secretary'' and ``DOE'' were added to define administrative 
terms. The following terms are retained with no change except technical 
edits or format changes: ``Agreement for cooperation'', ``Atomic Energy 
Act'', ``classified information'', ``IAEA'', ``NNPA'', ``NPT'', 
``nuclear reactor'', ``person'', ``production reactor'', ``Restricted 
Data'', ``sensitive nuclear technology'', ``source material'', 
``special nuclear material'', and ``United States''. The following 
terms have been deleted as unused: ``accelerator-driven subassembly'', 
``non-nuclear-weapon state'', ``open meeting'', ``public information'', 
and ``subcritical assembly''.
    Several changes from the definitions proposed in the SNOPR are made 
in the final rule including: ``technical assistance'' is changed to 
``assistance,'' the term ``technical assistance'' is replaced with 
``assistance'' in the definition of ``technology'', and the term 
``technical services'' is replaced with ``assistance'' in the 
definition of ``sensitive nuclear technology''. These changes are 
explained in section IV.D. in response to public comments on the SNOPR.
    5. Sections 810.4 ``Communications'' and Sec.  810.5 
``Interpretations'' update points of contact information to reflect the 
current DOE organizational structure and office designations for 
applications, questions, or requests. Section 810.4(c) has been added 
to allow communication, fast-track requests, and Ukraine notifications 
to be emailed. The final rule adds paragraph (c) to Sec.  810.5 that 
states DOE may periodically publish abstracts of general or specific 
authorizations, excluding applicants' proprietary data and other 
information protected by law from public disclosure, that may be of 
general interest.
    6. The 1986 version of Sec.  810.6 ``Authorization requirement,'' 
which quotes Sec.  57 b. of the Atomic Energy Act, is deleted and 
replaced by Sec.  810.1 ``Purpose.''
    7. The 1986 version of Sec.  810.7 ``Generally authorized 
activities'' is re-numbered as Sec.  810.6. It identifies

[[Page 9361]]

activities the Secretary has found to be not inimical to the interest 
of the United States if conducted in a destination listed in the 
Appendix to the final rule. The introductory text eliminates the 
specific reference to Sec.  57 b.(2) of the Atomic Energy Act.
    (i) Paragraph (a) generally authorizes assistance or transfers of 
technology to destinations listed in the Appendix to the final rule. 
The 1986 version of Sec.  810.8(a) uses the opposite classification 
approach. It lists destinations for which a specific authorization is 
required.
    (ii) The 1986 version of Sec.  810.7(a) ``furnishing public 
information'' is deleted from the list of generally authorized 
activities because under the final rule ``public information'' is no 
longer a defined term. Specifically, in Sec.  810.2(c)(2) of the final 
rule, ``publicly available information,'' ``publicly available 
technology,'' and the results of ``fundamental research'' (all as 
defined in Sec.  810.3 of this final rule) are exempt from the scope of 
part 810.
    (iii) In a new approach to deemed exports, Sec.  810.6(b) of this 
final rule generally authorizes nuclear technology transfers to 
citizens or nationals of specific authorization destinations who are 
lawfully employed by or contracted to work for nuclear industry 
employers in the United States, subject to such individuals meeting NRC 
unescorted access requirements and executing a confidentiality 
agreement to prevent unauthorized disclosure of nuclear technology to 
which those individuals are afforded access. Deemed export reporting 
requirements with respect to these individuals are set forth in Sec.  
810.12(g).
    (iv) The existing ``fast track'' general authorization in the 1986 
version of Sec.  810.7(b) for emergency activities at any safeguarded 
facility and operational safety assistance to existing foreign 
safeguarded reactors has been retained in Sec. Sec.  810.6 (c)(1) and 
(c)(2) of the final rule, respectively, but with a revised definition 
of ``operational safety.'' Paragraph (c)(1) includes the phrase ``in 
DOE's assessment,'' modifying the emergency clause to make DOE 
responsible for deciding potential ``other means.'' Furnishing 
operational safety information or assistance to existing safeguarded 
civilian nuclear reactors outside the United States in countries with 
safeguards agreements with the IAEA or an equivalent voluntary offer, 
for example, performance of probabilistic risk assessments, is 
authorized in Sec.  810.6(c)(2). In Sec.  810.6(c)(2) the SNOPR 
proposed to include an option to provide information cited in Sec.  
810.11(b). This proposal has not been adopted in the final rule.
    (v) Furnishing operational safety information or assistance to 
existing, proposed, or new-build nuclear power plants in the United 
States is authorized in Sec.  810.6(c)(3), for example, participation 
in safety assessments by organizations such as the Institute of Nuclear 
Power Operations (INPO).
    (vi) Section 810.6(d) generally authorizes exchange programs 
approved by the DOS with DOE consultation. Sections 810.6(e) and (f) 
authorize certain cooperative activities with the IAEA, namely, 
activities carried out in the course of implementation of the 
``Agreement between the United States of America and the [IAEA] for the 
Application of Safeguards in the United States''; and those carried out 
by full-time employees of the IAEA, or by individuals whose employment 
or work is sponsored or approved by the DOS or DOE. The final rule 
replaces the word ``and'' with the disjunctive ``or'' at the end of 
subparagraph (f) to clarify that any of the listed activities are 
generally authorized.
    (vii) Section 810.6(g) is a new provision that authorizes transfers 
of technology and assistance for the extraction of Molybdenum-99 from 
irradiated nuclear material in certain circumstances.
    8. Section 810.7--renumbered from the 1986 version of Sec.  810.8--
``Activities requiring specific authorization'' continues to list 
activities that require a specific authorization for all foreign 
destinations. The initial phrase ``Unless generally authorized by Sec.  
810.6'' proposed in the SNOPR has been removed as unnecessary.
    9. Section 810.8 ``Restrictions on general and specific 
authorization'' remains unchanged from Sec.  810.9 in the 1986 version 
of the rule, except for the following editorial revisions: Replacing 
``these regulations'' with ``this part'' in the introductory phrase; 
replacing ``Restricted Data and other classified information'' with 
``classified information'' in paragraph (a), and replacing ``Government 
agencies'' with ``U.S. Government agencies'' in paragraph (b).
    10. Section 810.9 ``Grant of specific authorization'' of the final 
rule, Sec.  810.10 of the 1986 version, identifies the factors 
consistent with U.S. international nonproliferation commitments that 
will be considered by the Secretary in granting a specific 
authorization. Paragraph (b) adds as factors to be considered: Whether 
the government of the country concerned is in good standing with 
respect to its nonproliferation commitments (subparagraph (b)(3)); and 
whether, under subparagraph (b)(8), the transfer is part of an existing 
``cooperative enrichment enterprise'' (as defined in Sec.  810.3 of 
this final rule) or the supply chain of such an enterprise. Section 
810.9(c) addresses the export of ``sensitive nuclear technology'' as 
the quoted term is defined in Sec.  810.3 of this final rule. This 
section is expanded to describe additional factors, which include 
compliance with the United States' NSG commitments, the Secretary will 
take into account when considering a specific authorization request for 
transfers of sensitive nuclear technology. The United States adheres to 
the NSG Guidelines for Nuclear Transfers, and NSG Guidelines for 
Transfers of Nuclear-related Dual-Use Equipment, Materials, Software 
and Related Technology (IAEA INFCIRC/254/Part 2). The current versions 
of both sets of Guidelines can be found at 
www.nuclearsuppliersgroup.org. In the final rule a new paragraph (d) is 
added to Sec.  810.9 concerning requests to engage in authorized 
foreign atomic energy assistance activities related to the enrichment 
of source material and special nuclear material. Approval of such 
requests will be conditioned upon the receipt of written 
nonproliferation assurances from the government of the destination 
country concerned. This process is designed to facilitate U.S. 
conformity to the NSG Guidelines.
    11. Section 810.10 ``Revocation, suspension, or modification of 
authorization,'' as renumbered from the 1986 version of Sec.  810.11, 
makes an editorial revision, changing ``authorized assistance'' in 
paragraph (c) to ``authorization governed by this part.''
    12. The 1986 version of Sec.  810.12, renumbered in the final rule 
as Sec.  810.11 ``Information required in an application for specific 
authorization,'' is expanded to add more detail about the information 
required for DOE to process a specific authorization request, including 
applications for ``deemed export'' and ``deemed re-export'' 
authorizations. Section 810.11(a) of the final rule requires the 
submission of the same information required by the 1986 version of the 
rule (Sec.  810.12(a)).
    The 1986 version of Sec.  810.12(a) required that an application 
for specific authorization include information regarding ``the degree 
of any control or ownership by any foreign person or entity''. Since 
the term ``foreign person'' is used only once in the 1986 version of 
the regulation (in Sec.  810.12(a)), DOE proposed in the SNOPR to 
revise proposed Sec.  810.11(a) without reference to ``foreign 
person''. To avoid any possible confusion between usages of

[[Page 9362]]

``person'' and ``foreign national'', the final rule adopts this change 
and Sec.  810.11(a)(1) requests information concerning an applicant's 
foreign ownership or control by asking about ``the degree of any 
control or ownership by any foreign individual, corporation, 
partnership, firm, association, trust, estate, public or private 
institution or government agency''.
    The SNOPR proposed in paragraph (b) to solicit any information the 
applicant wishes to provide concerning the factors listed in proposed 
Sec. Sec.  810.9(b) and (c). However, this proposal has not been 
adopted. Instead, specific required applicant information has been 
added to Sec.  810.11(a)(3) of the final rule. Therefore, proposed 
Sec.  810.11(c) of the SNOPR is renumbered Sec.  810.11(b) in this 
final rule. Likewise, proposed Sec.  810.11(d) of the SNOPR is numbered 
Sec.  810.11(c) in this final rule.
    Section 810.11(b) addresses the required content for applications 
filed by U.S. companies seeking to employ in the United States citizens 
or nationals of specific authorization countries that could result in 
the transfer of technology subject to Sec. Sec.  810.2 or 810.7 (deemed 
exports). Submission of the same information is also required with 
respect to any such citizen or national whom the part 810 applicant 
seeks to directly employ abroad in either a general or specific 
authorization country (a deemed re-export) that could result in the 
export of assistance or transfer of technology requiring a specific 
authorization. As proposed in the SNOPR, and adopted in the final rule, 
no part 810 authorization is required for an individual who is lawfully 
admitted for permanent residence in the United States or is a protected 
individual under the Immigration and Naturalization Act (8 U.S.C. 
1324b(a)(3)).
    As proposed in the SNOPR and adopted in the final rule, Sec.  
810.11(b) makes explicit DOE's current practice of requiring an 
applicant for a specific authorization to provide detailed information 
concerning the citizenship, visa status, educational background, and 
employment history of each foreign national to whom the applicant seeks 
to grant access to technology subject to the part 810 regulation. The 
applicant is also required to provide a description of the subject 
technology, a copy of any confidentiality agreement between the U.S. 
employer and the employee concerning the protection of the employer's 
proprietary business data from unauthorized disclosure, and written 
nonproliferation assurances by the individual. Section 810.11(b)(3) has 
been revised to eliminate the reference to Sec.  810.6(b)(2), and 
reduce cross-referencing in the document.
    Finally, Sec.  810.11(c) identifies the information required to be 
submitted by an applicant seeking a specific authorization to engage in 
foreign atomic energy assistance activities related to the enrichment 
of fissile material.
    13. The 1986 version of Sec.  810.13 is renumbered as Sec.  810.12 
in the final rule and changes reporting obligations. An addition in 
Sec.  810.12(d) of the final rule requires companies to submit reports 
to DOE concerning activities requiring specific authorization, to 
include information required by U.S. law concerning specific civil 
nuclear activities in or exports to destinations for which a specific 
authorization is required. Under Sec.  810.12(e)(4) of the final rule 
the reference to reporting on materials and equipment transferred under 
a general authorization is retained to ensure, among other things, that 
any technical data that is transferred as part of dual-use equipment is 
reported. In this final rule, paragraph (g) describes the reporting 
requirements of U.S. employers with respect to their deemed export and 
deemed re-export employees.
    14. The 1986 version of Sec.  810.14 is renumbered in the final 
rule as Sec.  810.13, ``Additional information.'' The section is 
otherwise unchanged.
    15. In the final rule, a new Sec.  810.14 has been added to 
describe specific reporting requirements with respect to Ukraine. While 
the SNOPR contained a proposal to move Ukraine to the general 
authorization list, that proposal was made prior to the current 
geopolitical situation in that country. In light of those 
circumstances, DOE is finalizing its SNOPR proposal with the inclusion 
of advance notification requirements prior to beginning any generally 
authorized activity in Ukraine. A written report within 10 days 
following the original transfer of material, equipment or technology is 
also required for all activities in Ukraine subject to part 810. A more 
detailed explanation of the reason for this addition is in Section 
IV.B.2.
    16. Section 810.15 ``Violations'' retains the same section number 
in the final rule as it has in the 1986 version of the rule, although 
it was proposed to be renumbered in both the NOPR and the SNOPR. 
Section 810.15 in the final rule contains a number of revisions that 
bring the wording into alignment with the applicable statutory 
language.
    17. Section 810.16, ``Effective date and savings clause'', which 
was proposed to be renumbered in the NOPR and the SNOPR, retains the 
same section number in the final rule as it has in the 1986 version of 
the rule. The only change to the language, as proposed in the SNOPR, is 
an extension of the date persons must come into compliance with the 
rule from 90 to 180 days.
    18. In this final rule, Croatia is added to the Appendix list of 
generally authorized destinations because on July 1, 2013, it joined 
the European Atomic Energy Community (Euratom) and therefore the 
provisions of the peaceful nuclear cooperation agreement entered into 
pursuant to AEA Sec.  123 (``123 Agreement'') between the United States 
and Euratom apply to supply to Croatia of U.S. nuclear material and 
equipment. Vietnam is also added to the Appendix list of generally 
authorized destinations because on October 3, 2014, a 123 Agreement 
between Vietnam and the United States entered into force. Thailand has 
been deleted from the list of generally authorized destinations because 
its 123 Agreement with the United States has expired and there has not 
been a decision to renew the Agreement. In this final rule, a reference 
has been added to the Appendix list regarding Ukraine, in order to 
ensure applicants are aware of the added requirements in Sec.  810.14 
of the final rule, as discussed in Section IV.B.2.
    19. DOE/NNSA recently changed the name of the Office of 
Nonproliferation and International Security (NA-24) to the Office of 
Nonproliferation and Arms Control (NPAC). The final rule in Sec. Sec.  
810.4, 810.5, 810.9, and 810.12 reflect this change.

III. Transition Process to Final Rule

    DOE recognizes that, as a result of the rule announced today, some 
persons will have foreign atomic energy assistance activities in 
process concerning destinations whose general authorization or specific 
authorization status has changed. This section describes actions to 
provide a seamless transition to the final rule.

A. Current Specific Authorization Requests

    Any pending specific authorization request for a destination that 
is now generally authorized in the final rule, namely, Croatia, 
Kazakhstan, Ukraine, United Arab Emirates, and Vietnam, should be 
withdrawn starting on the effective date of the rule. Contact DOE to 
formally withdraw the request. Pending requests for specific 
authorization to Ukraine are subject to the 10-day notification 
requirement set forth in Sec.  810.14(a) of the final rule.

[[Page 9363]]

B. Current Generally Authorized Activities

    As stated in Sec.  810.16, generally authorized activities for 
which the contracts, purchase orders, or licensing arrangements were 
already in effect before March 25, 2015, but that require specific 
authorization under the final rule, must be the subject of a specific 
authorization request by August 24, 2015 but may continue until DOE 
acts on the request.

C. Previously Unreported Deemed Exports and Deemed Re-Exports

    DOE recognizes that many companies with employees who are citizens 
or nationals of countries now subject to specific authorization 
requirements under the final rule announced today may not have 
previously reported the transfer of part 810 covered technology to such 
individuals to DOE under the 1986 version of the rule, as required, and 
further, that in many cases technology transfers already have occurred. 
A record of part 810-controlled generally authorized technology 
transfers to these employees is necessary for DOE to adequately monitor 
these transfers. Companies that have made unreported generally 
authorized transfers should provide the information required by Sec.  
810.11 of the final rule for each transfer to any foreign national who 
continues to have access to part 810-controlled technology by August 
24, 2015.

IV. Discussion of Public Comments and the Final Rule

    On August 2, 2013 DOE published the SNOPR, inviting public comments 
on regulatory proposals DOE formulated in consideration of comments 
received on the NOPR. Thereafter, DOE held two formal public meetings 
to give the public an opportunity to make oral comments and ask 
questions about the proposed regulatory changes in the SNOPR. In 
addition, DOE extended the time period for the public to submit written 
comments on the SNOPR. DOE received comments from 26 industry members 
and organizations. The majority of commenters expressly supported some 
of the SNOPR changes to the NOPR, such as proposals:
    1. Limiting the scope of technology covered by part 810
    2. Generally authorizing deemed exports to certain U.S. nuclear 
industry employees
    3. Facilitating nuclear safety and other exchange activities
    4. Generally authorizing nuclear technology exports to Mexico, 
Chile, Kazakhstan, Ukraine, and the United Arab Emirates
    5. Continuing the general authorization for emergency activities 
and operational safety assistance
    6. Proposing that
    a. Routine storage, processing, and transportation of spent nuclear 
fuel would be outside the scope of part 810,
    b. Activities licensed by the DOS and DOC would be outside the 
scope of part 810, and
    c. The transfer of publicly available information would be outside 
the scope of part 810.
    Commenters also supported DOE's initiation of a process improvement 
program (PIP) to reduce specific authorization processing time, and 
DOE's plan to create a guide to part 810 and an electronic application 
and tracking (e-810) system. Several organizations and companies 
offered to participate in developing the PIP and drafting a guide.
    The Nuclear Energy Institute (NEI), the primary industry trade 
association, provided a comprehensive set of comments in response to 
the SNOPR. The Ad-hoc Utility Group (AHUG), Exelon, and the Chamber of 
Commerce of the United States (USCC) fully endorsed NEI's comments. 
AREVA and the US India Business Council (USIBC) supported NEI's 
comments. Black and Veatch endorsed NEI's comments. Westinghouse stated 
that it ``largely concurred'' with NEI comments. In this discussion of 
the public comments, unless these commenters provided different 
perspectives on the same matter, NEI will be referenced when discussing 
the comments.
    Many commenters, including the American Nuclear Society (ANS), 
AREVA, Babcock and Wilcox (B&W), the Center for Strategic and 
International Studies (CSIS), EnergySolutions, Exelon, Fluor, G.C. 
Rudy/Integrated Systems Technology (IST), NEI, the Nuclear 
Infrastructure Council (NIC), and Westinghouse, also made requests for 
guidance or clarification on part 810 that would not require a change 
from the regulatory text proposed in the SNOPR. Depending on the 
specific nature of these requests, DOE may address each request as part 
of a formal guide, more informally as part of a Frequently Asked 
Questions (FAQ) page on the proposed Web site, or in response to 
individual requests made pursuant to Sec.  810.5--Interpretations.
    This final rule implements the important goals of part 810:
    <bullet> Effective nuclear proliferation threat reduction,
    <bullet> Effective civil nuclear trade support, and
    <bullet> Efficient regulation.
    DOE has reviewed the public comments received in response to the 
SNOPR. The final rule adopts most of the regulatory revisions proposed 
in the SNOPR, and incorporates some further changes based on careful 
consideration of public comments. The public comments were analyzed and 
placed into three categories:
    <bullet> Process Issues
    <bullet> Classification of Foreign Destinations
    <bullet> Activities Requiring Part 810 Authorization

A. Process Issues

1. Compliance With Administrative Procedure Act Rulemaking Requirements
    NEI in part claimed the SNOPR violated the Administrative Procedure 
Act (APA) by providing inadequate explanation of the proposed changes, 
particularly the proposed general vs. specific authorization 
destination classifications. NEI included China, Russia, and India in 
this discussion, although these three countries have been, and remain, 
destinations requiring specific authorization. NEI, in 80 pages of 
comments on the destination classification issue, called for DOE to 
``withdraw and re-publish the rule with enough information regarding 
its factual, legal and policy rationales to allow stakeholders to 
comment meaningfully.'' AREVA stated ``DOE has not put forth a 
sufficient rationale for the change in designation of these 
countries.'' AUECO ``join[ed] the U.S. Chamber of Commerce in calling 
upon DOE to withdraw the rule.'' In response to these concerns and 
comments, and the desire to hear from as many commenters as possible, 
DOE re-opened the comment period to allow for more public comments.
    The SNOPR preamble adequately and reasonably explained the reasons 
for DOE's proposed reclassification of foreign destinations, as well as 
other proposed changes to the part 810 regulation. It also explained 
the reasons why DOE proposed the Secretary could not generally 
authorize nuclear technology transfers to China, Russia, and India. 
Adequate notice was provided for meaningful comments from the public on 
the SNOPR as evidenced by 26 separate letters of comments submitted to 
DOE, including lengthy and detailed comments from NEI and AREVA. DOE's 
new approach in the final rule to classifying general and specific 
authorization destinations is a reasonable policy decision, made in 
compliance with the requirements of the APA and as authorized by the 
AEA.

[[Page 9364]]

2. Part 810 Process Improvements
    As noted in the SNOPR, many NOPR commenters were concerned that the 
part 810 specific authorization process is unduly protracted, and that 
processing delays put U.S. suppliers at a competitive disadvantage with 
companies in other countries. It appeared that many concerns with the 
NOPR and SNOPR proposals indicated less dissatisfaction with the merits 
of the proposed regulatory changes than the commenters' belief that the 
proposed rule revisions would continue or worsen delays in receiving 
specific authorizations.
    AHUG, ANS, AREVA, B&W, CSIS, EnergySolutions, Exelon, Fluor, GC 
Rudy/IST, NEI, NIC, and Westinghouse all made suggestions and comments 
related to improving the processing of specific authorization requests. 
In many cases these comments reiterated those received during the NOPR 
comment period. As these comments are not directed to the content of 
the proposed rule, they will not be addressed here but rather in the 
PIP that is ongoing currently.
    Similarly, commenters' concerns about process ``burdens'' appeared 
to drive their comments about the substance of the proposed regulatory 
changes. As noted, DOE proposed and has underway a PIP separate from 
the rulemaking to make the part 810 authorization process more 
transparent, orderly, and efficient in order to address specific 
authorization time in process.
    The part 810 PIP is part of a larger NNSA plan to be ISO 9001 
compliant. The PIP team will focus on improving performance as measured 
by these critical to quality characteristics:
    <bullet> Effective nuclear proliferation threat reduction in a 
changing world,
    <bullet> Openness, predictability, and clarity of regulation, and
    <bullet> Efficiency: Performing the mission of preventing 
proliferation without wasting time, money, or placing unnecessary 
burdens on U.S. companies competing in global markets.
    The PIP team also will:
    <bullet> Measure process performance by listening to applicant 
``customers'' and process implementers. Receiving these inputs will be 
key to realistic problem definition and development of effective 
process improvements.
    <bullet> Analyze causes of delays in DOE processing time for an 
application.
    <bullet> Recommend actions to sustain improved performance in 
processing part 810 applications for specific authorization.
    Anticipated improvements in the processing time of part 810 
applications that may come from the PIP include these recommended 
actions from commenters:
    <bullet> Digitize the 810 authorization process (e810)--
Digitization of the authorization process will make the applications 
easier to complete; streamline the review process, increase 
transparency by enabling applicant tracking; provide a searchable 
archive of past decisions; and facilitate audits required for ISO 
compliance. In this rule, DOE has added explicit email communication 
options, including applications, fast-track requests, and Ukraine 
notifications in Sec.  810.4(c).
    <bullet> Reduce application processing time--This effort will begin 
by DOE analyzing the authorization case database to determine causes of 
processing time variation and undue delay. The PIP team will conduct 
benchmark studies to identify best practices and methods to improve 
efficiency. The team will work with the DOS to find ways to request and 
secure foreign governments' nonproliferation assurances more promptly, 
and make internal DOE and inter-agency reviews of part 810 specific 
authorization applications more efficient by reducing unnecessary 
reviews and approvals.
    <bullet> Develop a guidance document--Many SNOPR commenters sought 
guidance or clarification on specific issues and recommended DOE 
prepare a guidance document or Web site to improve transparency. As 
noted above, DOE intends to develop a document or Web site that may 
include responses to requests made under Sec.  810.5 (with proprietary 
information redacted), FAQs, and process maps of various part 810 
activities. DOE will continue to adhere to current inter-agency 
procedures for processing, reviewing and approving specific 
authorizations as set forth in the ``Amendment to Procedures 
Established Pursuant to the Nuclear Nonproliferation Act of 1978.'' 49 
FR 20780 (May 16, 1984).

B. Classification of Foreign Destinations

    The general authorization versus specific authorization proposed 
country classifications provoked considerable comments in response to 
the NOPR. The SNOPR explained the rationale for the proposed changes 
and proposed to change some classifications. Many of the NOPR comments 
were repeated in SNOPR comments. AHUG, AREVA, AUECO, B&W, CSIS, 
EnergySolutions, Electric Power Research Institute (EPRI), Exelon, 
Fluor, National Association of Manufacturers (NAM), NEI, NIC, USIBC, 
U.S. Russia Business Council, and Westinghouse all expressed concerns 
with the reclassification of countries that was proposed in the SNOPR.
    AHUG cited Chile, Jamaica, Jordan, Namibia, New Zealand, Nigeria, 
and the Philippines as countries that deserved generally authorized 
status ``due to their participation in key international nuclear 
nonproliferation regimes, including the Treaty on the Non-Proliferation 
of Nuclear Weapons (NPT), the comprehensive safeguards agreement (CSA) 
with the IAEA and an Additional Protocol (AP) thereto, and the NSG''. 
Further, they noted that New Zealand and the Philippines have been 
granted a general license pursuant to 10 CFR 110.26 under NRC's 
regulations as destinations authorized to receive ``minor'' reactor 
components.
    B&W named Saudi Arabia, Jordan, the Philippines, and Malaysia, and 
Fluor named the Philippines and Singapore as countries that deserved 
generally authorized status, but provided no specific arguments 
regarding their suitability for the non-inimicality determination 
mandated by AEA Sec.  57b.(2).
    EnergySolutions commented ``The Department has failed to account 
for the burden imposed by the proposed rule and the message it sends to 
foreign nations.'' The company repeated the claim it made in response 
to the NOPR that reversing the approach to country designations was 
unwarranted. In its comments on the SNOPR, EnergySolutions further 
commented ``the SNOPR sends a message to countries that have not been 
considered a proliferation risk for over 70 years and have maintained 
safe nuclear operations, that the United States now views them as a 
potential liability. While the Department may view this new Rulemaking 
as a way to provide additional oversight to trade countries, 
EnergySolutions fears that it has the potential to adversely affect 
foreign relations with our trading partners.''
    DOE has considered commenters' recommendations for countries to be 
reconsidered for classification as generally authorized destinations. 
Under section 57b.(2) of the AEA, the Secretary may authorize the 
transfer of nuclear technology for the development or production of 
special nuclear material by persons subject to U.S. jurisdiction upon a 
determination that the activity will not be ``inimical'' to the 
interest of the United States. Classification of activities and foreign 
destinations as ``generally authorized'' or, conversely, the 
determination that other activities and destinations necessitate a 
specific authorization is a matter committed to agency discretion. The 
Secretary's decision that a specific

[[Page 9365]]

authorization is or is not required for a proposed transaction is based 
on U.S. nuclear and national security policies. Consonant with those 
policies, the Secretary may determine that transactions with a country 
or entity are either generally authorized or require a specific 
authorization. Under the AEA, DOE is to promote widespread 
participation in the development and utilization of atomic energy for 
peaceful purposes. The AEA, however, makes national security the 
paramount concern. Consequently, assistance to, participation in, or 
technology transfer for the development or production of special 
nuclear material outside the United States may be authorized only upon 
a determination by the Secretary that such activities will not be 
``inimical to the interest of the United States''. A destination is 
included on the proposed generally authorized list based on the 
Secretary's ``not inimical'' determination required by section 57b.(2) 
of the AEA. Examples of types of considerations taken into account 
include the existence of a 123 Agreement with the United States, a full 
scope safeguards agreement with the IAEA, satisfactory experience as a 
civil nuclear trading partner, and being a party to nonproliferation 
treaties and membership in international nonproliferation regimes. That 
determination can be made only with the concurrence of the DOS and 
after consultation with the NRC, the Department of Defense (DOD), and 
the DOC.
    DOE appreciates commenters' recommendations for countries to be 
reconsidered for classification to generally authorized status. 
However, classification of activities by destination as ``generally 
authorized'' is an administrative tool to avoid unnecessary reviews of 
foreign atomic energy assistance activities in countries that present 
little or no proliferation risk, and are known nuclear trading 
partners. General authorizations reflect the assessment that the 
Secretary has made a non-inimicality finding regarding the provision of 
assistance and technology to particular countries on an advance 
programmatic basis, without performing a transaction-specific analysis 
or obtaining specific nonproliferation assurances from the government 
of the intended foreign recipient.
    The world has changed since the original part 810 rule was issued. 
The creation of new countries and the threat of proliferative 
activities in countries with limited ability to manage or deter such 
threats must be considered in the Secretary's determination of non-
inimicality. The Secretary has considered that being a party to 
nonproliferation treaties (including but not limited to other regional 
treaties such as the Treaty for the Prohibition of Nuclear Weapons in 
Latin America (Treaty of Tlatelolco), African Nuclear Weapon Free Zone 
Treaty (Treaty of Pelindaba), South Pacific Nuclear Free Zone Treaty 
(Treaty of Roratonga)), while an important part of such a determination 
is not alone sufficient to make a finding of non-inimicality. The NRC's 
regulation at 10 CFR 110.26 is limited to reactor components only for 
reactors generating less than 5MW, which is not an adequate indication 
of a country's ability to manage nuclear technology and prevent its use 
in ways ``inimical to the interest of the United States.''
    No comments were received regarding the SNOPR proposal to remove 
Bangladesh and Peru from the generally authorized destination list; 
therefore the proposed deletion is retained in the final rule.
    The final rule retains the destination classifications proposed in 
the SNOPR unchanged, except for clarification concerning the 
availability of general authorizations for Ukraine (Sec.  810.14) and 
the addition of Croatia and Vietnam as generally authorized 
destinations and the removal of Thailand. DOE will provide notice of 
future changes to the Appendix in the Federal Register.
1. Mexico
    EPRI noted that additional IAEA agreements beyond INFCIRC/203 and 
INFCIRC/825 with Mexico may be developed, and suggested clarifying 
language to allow countries concluding such agreements to be included 
in the general authorization destinations Appendix list to the final 
rule. DOE has decided not to incorporate such changes in the final 
rule. While DOE is prepared at present to include Mexico on the 
Appendix list, on the basis of its agreement with the IAEA, DOE has 
determined to approach other such agreements on a case-by-case basis.
2. Ukraine
    The Secretary's decision that a specific authorization is or is not 
required for a particular proposed export is based on U.S. nuclear and 
national security policies. When the existing regulations were 
promulgated in 1986, Ukraine was not a party to any international 
nuclear cooperation agreements. Ukraine has since entered into a 123 
Agreement with the United States, has engaged in civil nuclear trade 
with the United States under the 123 Agreement, and has developed a 
track record as a responsible nuclear nonproliferation partner.
    Moreover, Ukraine is heavily dependent on nuclear reactors for 
generation of electricity. Currently, there are 15 operating reactors 
in Ukraine that generate about 50% of the electricity used there. While 
Ukraine is now a civil nuclear trading partner of the United States, 
these reactors rely almost entirely on services and nuclear fuel from 
the Russian Federation to operate. Recent geopolitical developments in 
Ukraine involving the Russian Federation underlie the U.S. Government's 
determination to help ensure that Ukraine is able to maintain a stable 
civil nuclear energy program independent of and without support from 
the Russian Federation.
    However, transfers of nuclear technology and assistance to areas 
that are not under control of the Government of Ukraine could present a 
proliferation risk, and a case-by-case non-inimicality determination is 
needed for transfers to those areas. For this reason, Sec.  810.14 in 
the final rule identifies an additional requirement, for persons about 
to begin any generally authorized activity involving Ukraine, to notify 
DOE at least ten days prior to beginning such activity. Following 
notification of a proposed transfer to Ukraine pursuant to Sec.  
810.14, the Secretary may invoke the authority in Sec.  810.10 (c) if 
he determines that transfer is inimical to the interest of the United 
States at that time. Thus, that transfer would not be considered 
generally authorized and the applicant would need to file a request for 
specific authorization in accordance with Sec. Sec.  810.7 and 11.
3. Croatia and Vietnam
    NEI noted that ``Croatia, now a member-state of the European Union, 
should be added to the Appendix.'' In addition, as noted in section II, 
Vietnam, as of May 26, 2014 signed a 123 Agreement with the United 
States, and that agreement entered into force on October 3, 2014. DOE 
has added both Croatia and Vietnam to the list of generally authorized 
destinations in the Appendix to this final rule.
4. Continued Specific Authorization Destinations (Russia, India and 
China)
    B&W, EnergySolutions, Fluor, Lightbridge, and NEI all repeated 
comments on the NOPR regarding DOE's proposal to retain Russia, India, 
and China as destinations requiring specific authorization. Some 
disagreed with the SNOPR's explanatory rationale in section IV.B.2, but 
failed to provide sufficient justification to warrant any change in the 
current specific

[[Page 9366]]

authorization status of these three countries.
    After duly considering the comments and consulting with the DOS, 
DOC, DOD, and NRC, the Secretary remains of the view that it is not 
appropriate to change the part 810 specific authorization status of 
these three countries at this time for the same reasons as articulated 
in the SNOPR in section IV.B.2.
5. Thailand and Norway
    The Appendix to the final rule has been changed from the SNOPR to 
omit Thailand, whose 123 Agreement with the United States has expired. 
As there has not been a decision regarding renewal of the Agreement at 
this time, under this final rule Thailand will therefore be a 
specifically authorized destination.
    The Appendix to the final rule includes Norway, whose 123 Agreement 
with the United States has expired. However, the United States and 
Norway are negotiating a renewal of the 123 Agreement. Thus, the 
Department has determined that Norway will remain a generally 
authorized destination under this final rule.

C. Activities Requiring Part 810 Authorization

1. Special Nuclear Material Nexus Requirement
    As explained in SNOPR section IV.C.1, the Secretary has broad 
discretion to determine which activities indirectly constitute 
sufficient engagement or participation in the production of special 
nuclear material to bring them within the scope of part 810. The 
decision is based on the nature of the technology or assistance to be 
provided. As such, whether an activity is generally authorized is a 
matter of policy. A number of commenters (including; NEI, B&W, 
Westinghouse, Fluor, ANS, NIC, AREVA, EPRI and ERIN Engineering and 
Research Inc. (ERIN)) stated that the SNOPR resolved some of their 
concerns with the sufficiency of the nexus between some covered 
activities or technologies and the production of special nuclear 
material to be subject to part 810 but maintained that the scope 
remained too broad or unclear in some cases. NEI also supported the 
proposed exclusion from part 810 of technologies and assistance under 
the jurisdiction of the DOS and DOC and requested the same treatment 
for NRC-approved activities, which was already explicit in Sec.  
810.2(c)(1) as proposed in the SNOPR and adopted in the final rule.
    NEI commented that DOE should limit the scope of part 810 to 
technologies that are ``especially designed for the production or 
processing of special nuclear material,'' such as enrichment, 
reprocessing, and production reactors. Adoption of this proposal would 
move light water reactor (LWR) technology outside the scope of part 
810, even though it has been within the scope since the inception of 
part 810. Although LWRs are designed primarily for power production, 
they do directly produce plutonium, which is within the scope of part 
810. Therefore, the final rule retains LWRs in the scope of part 810.
    NEI and NIC further commented that there should be explicit 
exemptions or authorization for the transfer of sales, marketing or 
sourcing information, to provide U.S. business with more flexibility to 
operate in the very competitive international civil nuclear market 
because U.S. businesses are at a disadvantage to foreign competitors 
that are not subject to technology controls similar to part 810 
requirements. DOE is not prepared to exempt the transfer of part 810-
controlled technology based on the intent of the transfer but will 
consider the content of the transfer when making a determination of 
part 810's applicability. That means that if part 810-controlled 
technical data is transferred in a bid, proposal, solicitation, trade 
show, or plant tour, the activity is subject to part 810 controls and 
requirements but if no such technical data is transferred, the activity 
is not within the scope of part 810 and therefore not subject to those 
controls.
    NEI and B&W commented that the SNOPR lacked clear and justified 
thresholds for how much recipient control, modification or U.S. content 
in jointly developed technology would be enough to trigger part 810 
coverage of an activity. NEI recommended that DOE adopt specific 
percentage values as de minimis thresholds based on the total value of 
technology to be transferred. NEI also proposed that only 
``enhancements'' to foreign technology should be subject to part 810, 
but other changes, such as conforming foreign technology to U.S. codes 
and standards (commonly known as Americanization), should not generally 
make the transfer of technology subject to part 810. In a related 
comment, TerraPower asserted that DOE should set a de minimis threshold 
of 5% ownership before that ownership must be disclosed in an 
application for specific authorization. The comments above are largely 
restatements of views expressed in response to the NOPR and were 
addressed in the SNOPR preamble (Section IV.C.13.). The SNOPR explained 
that a mechanistic approach is not appropriate for part 810 coverage 
determinations for authorization of activities such as cooperative 
enrichment enterprises and other technology transfers by collaborative 
enterprises. DOE will continue to make coverage determinations based on 
the specific facts of the proposed activity including but not limited 
to technology to be transferred, the significance of the technology to 
the production of special nuclear material, end user destination, and 
end use duration of the activity such as single transfer or an ongoing 
activity, rather than by mechanistic rule because the facts of each 
case are unique and not readily addressed by a de minimis threshold or 
characterization.
    NEI reiterated its recommendation to add the term ``control-in-
fact'' to the definition in Sec.  810.3 and to apply the concept to the 
application of the scope of Sec.  810.2(a)(1) as well as revisions and 
clarifications to that provision to include the term ``control-in-
fact.'' NEI recommended that DOE explicitly include in Sec.  
810.2(a)(2) the clarification that foreign ``licensees, contractors, or 
subsidiaries under [the] direction, supervision, responsibility or 
control'' of persons described by the proposed rule in Sec.  
810.2(a)(1) are within the scope of part 810 only if the technology 
transferred is of U.S. origin. Further, NEI recommended that control be 
determined by reference to corporate governance arrangements, instead 
of the specific terms and circumstances of the proposed activity. DOE 
has considered this comment again and has determined to adopt Sec.  
810.2(a) and (b) as proposed without further revision. DOE will review 
the specific fact pattern of the activity that includes the transfer of 
part 810-controlled technologies, which in some cases may not match the 
stated governance or ``control'' of the company but which is specific 
to the technology transfer in question.
    B&W, TerraPower, NEI, and AHUG also commented that the definition 
of ``technology'' should be revised to use the conjunctive ``and'' in 
place of ``or'' before ``use'' in proposed Sec.  810.3, thereby 
limiting the scope of part 810 to activities and technologies directly 
associated with the production of special nuclear material, creating a 
minimum threshold for technology and assistance provided, and mirroring 
the wording currently guiding the NSG. The proposed use of the 
disjunctive ``or'' in the definition of ``technology'' in proposed 
Sec.  810.3 was intentional. Any of the listed forms of assistance is 
sufficient to trigger part 810 coverage. It is not necessary to specify 
all of the

[[Page 9367]]

technology forms; therefore the change has not been made to the 
definition.
    AUECO commented that under the SNOPR, DOE would subject academic 
and scientific communications and research to new and burdensome deemed 
export requirements without sufficient statutory basis, and that burden 
would be further exacerbated by the general/specific authorization 
proposed reclassification of 77 countries. The SNOPR proposal, they 
argued, would jeopardize the free flow of academic collaboration that 
is explicitly protected by the AEA, without DOE identifying a clear or 
direct connection to the production of special nuclear material.
    Part 810's statutory basis is the AEA, which states its purpose is 
to ``support the conducting, assisting and fostering of research in 
order to encourage maximum scientific progress'' through the 
establishment of policies that benefit not only the development of 
technology but also, and paramount, the common defense and security of 
the United States. While part 810 requirements concerning deemed 
exports may apply in an academic setting, DOE understands that most 
work performed by academic institutions qualifies as fundamental 
research, which is exempt from part 810 coverage under Sec.  
810.2(c)(2) of the final rule. Issuance of the final rule does not 
constitute a new burden for academic institutions and comports with AEA 
purposes. It is those activities that go beyond fundamental research 
and are applied research and development that have always been within 
the scope of part 810 controls. No change has been made in this final 
rule in response to this comment.
    AUECO and NEI welcomed the definition of ``fundamental research'' 
proposed in the SNOPR but commented that it fell short of protecting 
applied research and development at universities, which they argued is 
the intent of the AEA. The definition announced today achieves the 
intent of the AEA both to encourage fundamental research and to protect 
information whose dissemination is restricted for national security 
reasons. NEI also recommended revising the definition of ``fundamental 
research'' to exclude proprietary ``industrial development'' and 
``product utilization'' from the definition. DOE wishes to clarify that 
proprietary development or utilization information is not exempted from 
controls in the final rule because development and use technology is 
beyond basic scientific exploration that is intended to remain outside 
the scope of part 810. Applied research crosses the boundary from 
theoretical scientific inquiry to potential reactor specific 
applications of new technologies. This type of research will not be 
generally authorized because it can be applied to a facility that could 
be involved in the production of special nuclear material. The 
definition of ``fundamental research'' in the final rule remains 
unchanged from that proposed in the SNOPR.
    AUECO also commented that the SNOPR's proposed definition of 
``publicly available information'' did not address information that has 
been cleared for release by the appropriate entity but has not yet been 
officially released, and that lack of clarity on this point adversely 
affects academic institutions with respect to transferring nuclear 
technology to foreign national researchers. AUECO recommended that 
information that will be or is eligible for unlimited release should be 
considered ``publicly available information'' and therefore not subject 
to part 810 controls in academic settings. DOE considers information 
published in academic journals or otherwise available to the general 
public to be ``publicly available technology'' for the purposes of 
deemed exports prior to actual publication as long as the information 
has been appropriately authorized for release and there is a clear 
intent to publish all results, and directs commenters to examine the 
definition of ``publicly available technology'' for clarification. This 
subject will be dealt with in more detail in the PIP.
    NEI also commented that the definition of ``publicly available 
information'' should conform to the text of and guidance concerning the 
ITAR (International Traffic in Arms Regulations) administered by DOS 
and DOC's EAR (Export Administration Regulations). DOE has considered 
NEI's request but has determined to retain the definition as proposed 
in the SNOPR because the definition as formulated in the final rule 
adequately and completely incorporates the characteristics of 
information that DOE considers to be publicly available.
2. Activities Supporting Commercial Power Reactors
    NEI and B&W commented that controlling LWR technology is 
unnecessary, because it is ubiquitous and available more freely from 
many foreign vendors. Further, requiring a specific authorization for 
such technology to any country does little, in the commenters' view, to 
stem proliferation and would hurt the competitive position of U.S. 
vendors. AHUG, Fluor, and NEI stated that requiring a specific 
authorization for U.S. vendors offering nuclear technologies that are 
identical or similar to those that have been previously approved for 
export burdens U.S. vendors, giving their competitors an advantage 
without a nonproliferation benefit. Both DOE and the commenters 
recognize that the harm to U.S. vendors is exacerbated by lengthy part 
810 application processing time required to secure a specific 
authorization. DOE believes the way to resolve the time-in-process 
problem is through the PIP, not by relaxing the standards for the 
Secretary's non-inimicality determination. It should be noted that the 
1986 version of Sec.  810.10(b)(7) expressly states that in making the 
non-inimicality determination, the Secretary will take into account 
``[t]he availability of comparable assistance from other sources''. The 
final rule retains this provision.
    NEI and AUECO commented that the description and definition of the 
portions of the ``nuclear reactor'' that would be covered by part 810, 
as proposed in Sec. Sec.  810.2 and 810.3 of the SNOPR, were an 
improvement from the NOPR and provided clarity, but did not align with 
the NRC's part 110 Appendix A definition of a nuclear reactor. The 
proposed definition of ``nuclear reactor'' in Sec.  810.3 in the SNOPR 
is almost identical to the NRC definition in 10 CFR 110.2. Also, the 
proposed scope of part 810 controls concerning nuclear reactors has 
been aligned with the language used in NRC's part 110 Appendix A. 
Specifically, the wording ``components within or attached directly to 
the reactor vessel, the equipment that controls the level of power in 
the core, and the equipment or components that normally contain or come 
in direct contact with or control the primary coolant of the reactor 
core'' in Sec.  810.2(b)(5) of the SNOPR has been adopted in today's 
rule to align directly with language used in Appendix A of NRC's part 
110 regulation.
    NEI further commented that the description of the scope of covered 
technologies concerning nuclear reactors proposed in Sec.  810.2 of the 
SNOPR did not address the limits of application of the regulation to 
analogous components or systems in boiling water reactors and 
pressurized water reactors. As a general principle, DOE considers the 
technology related to the primary coolant in the reactor core as within 
the scope of part 810 controls. However, NRC's part 110 regulation 
specifically excludes the steam turbine generator portion of a nuclear 
power plant from its definition of a utilization facility. Since the 
definition and scope statement in the SNOPR's proposed rule

[[Page 9368]]

were meant to align with part 110, DOE has determined that the steam 
turbine generator portion of a nuclear plant is licensed by the DOC and 
is not subject to part 810 requirements.
    B&W commented that DOE should develop a list of Widely Available 
Technologies. B&W further recommended that DOE solicit national 
laboratory and industry input to publish and update the list through a 
Federal Register Notice. Per B&W's comment, the technology list would 
include an exhaustive list of technologies or assistance associated 
with those technologies and be generally authorized to non-embargoed 
countries. DOE has not added a widely available technology list to part 
810 at this time because the Secretary has not made a non-inimicality 
finding about the transfer of technologies directly or indirectly 
related to the production of special nuclear material but rather the 
destination of those technologies. Instead, DOE will address 
technologies and approving the transfers of them in the PIP. As a part 
of the PIP process, DOE will seek stakeholder input during planned 
outreach programs.
    NEI, B&W, Fluor, AHUG, and NIC provided similar comments to the 
effect that if technology related to nuclear reactors continues to be 
defined as proposed in Sec.  810.2 of the SNOPR, some formulation of a 
``fast track'' or hybrid authorization process should be included in 
the regulation text or a general authorization provided for transfers 
of identified technologies. This process would not apply to technology 
transfers to embargoed or non-NSG member countries but all other 
specifically authorized destinations. Expediting the approval of 
nuclear reactor technology transfers to destinations requiring specific 
authorizations will be addressed in the PIP that is being conducted 
independently from this rulemaking. Therefore DOE will not incorporate 
a change or add a general authorization for nuclear reactor 
technologies at this time.
3. Deemed Exports and Deemed Re-Exports Employee Issues
    AUECO, NEI, B&W, and Westinghouse repeated in response to the SNOPR 
their recommendation in comments on the NOPR concerning the transfer of 
part 810-covered technology to individuals who are citizens (including 
those with dual citizenship) of specific authorization countries but 
have lawful permanent residence in a generally authorized country. The 
commenters advanced the view that, in determining whether a specific 
authorization is required, DOE should follow the DOC policy of using 
the individual's most recent country of citizenship or permanent 
residency to determine citizenship. Current DOE practice is to consider 
all countries of an individual's allegiance (citizenship or permanent 
residency) in making the requisite non-inimicality determination. 
Authorization decisions in these situations are fact-specific, and DOE 
will continue to deal with them on a case-by-case basis. Therefore DOE 
is not incorporating this suggestion in the final rule.
    ANS, AREVA, AUECO, NEI, and AHUG welcomed the general authorization 
proposed in the SNOPR at Sec.  810.6(b) for foreign nationals working 
at NRC-licensed facilities who are granted unescorted access in 
accordance with NRC regulations. The commenters also suggested 
expanding the general authorization to include foreign nationals 
working in the United States at non-NRC licensed facilities, based on 
NRC regulations governing access to safeguards information (SGI) or a 
U.S. security clearance for access to classified information. DOE 
determined that NRC's regulations and reviews governing unescorted 
access to NRC licensed facilities are much more detailed than SGI 
protection requirements, which mandate only a search by the Federal 
Bureau of Investigation to identify any criminal records of the 
individual for whom the applicant is requesting access. Alternatively, 
for unescorted access to controlled technology in an NRC-licensed 
facility, an individual must undergo a stringent review in addition to 
complying with the SGI's requirement, including, but not limited to, a 
psychological interview, drug testing, and employment history check. 
After consulting with the NRC, DOE and NRC concurred that, for the 
reasons described above, SGI review criteria are not sufficient to 
justify providing a general authorization under part 810 for foreign 
nationals to have access to part 810-controlled technologies. In 
addition, DOE was unable to identify a cohort of foreign nationals who 
would have security clearances and are nationals of countries not on 
the part 810 Appendix list that would justify adoption of the 
suggestion in the final rule. No other regulatory regimes or persuasive 
factors were identified by the other commenters as a basis for DOE to 
make the requested change. Therefore, DOE has decided to adopt Sec.  
810.6(b) as proposed in the SNOPR.
    NEI further requested that DOE should clarify in guidance that the 
general authorization for deemed exports would continue to apply to 
NRC-cleared individuals working in the United States for a U.S. company 
who are no longer working at the NRC-licensed facility, but who require 
access to part 810-controlled information. Under this suggestion, the 
authorization would extend to foreign nationals working in the United 
States at any U.S. company, even if unescorted access status has 
expired. DOE is not adopting this proposal in today's final rule 
because the termination of NRC unescorted access could occur for a 
variety of reasons which must be considered. DOE invites applicants 
with respect to the requirements of Sec.  810.11(b)(2) to document any 
NRC clearances granted to subject foreign nationals that may be used to 
inform DOE's determination of non-inimicality for the deemed export.
    AREVA commented that positions requiring critical skill sets may go 
unfilled due to the increased number of foreign nationals working for 
AREVA in the United States and overseas that will no longer be eligible 
for a general authorization because under the SNOPR proposal, more 
countries would be specific authorization destinations, therefore 
restricting a larger number of possible hires from accessing part 810-
controlled technology. In addition, AREVA stated that the provision 
would only address current employees but not address future hires and 
thus complicate hiring decisions. DOE has weighed this comment and 
understands that companies are concerned about burdens to comply with 
deemed export controls under the final rule, given the increase in the 
number of specifically authorized destinations. DOE will continue to 
require companies to seek authorization to provide access to part 810-
controlled technologies to individuals who are citizens of specifically 
authorized countries because the transfer of technology to a citizen of 
a specific authorization destination is considered an export to that 
country and therefore deemed an export, which requires a Secretarial 
non-inimicality finding before the export can be authorized. But under 
the PIP, DOE will endeavor to institute efficiencies to decrease the 
review and approval times for deemed export authorizations.
    Exelon stated that the cost of review of I-9 forms (required by 
U.S. Citizenship and Immigration Services) to determine the number of 
foreign nationals working at U.S. nuclear facilities who are citizens 
of specifically authorized countries will be overly burdensome and 
impede hiring and internal reassignments. In this regard,

[[Page 9369]]

the final rule makes all employees granted unescorted access to an NRC-
licensed facility generally authorized, obviating any need to research 
the citizenship status of employees who have been granted unescorted 
access to an NRC-licensed facility. In addition, the required I-9 forms 
provide readily available data on new foreign national employees that 
should help companies determine whether a foreign national needing 
access to part 810-controlled information will require a specific 
authorization.
    NEI and B&W both commented that the time frames in the supplemental 
proposed rule at Sec.  810.15 were inadequate, DOE acknowledges that 90 
days is too short a time for many entities to review internal 
compliance programs, review employment records, file reports with DOE 
on current foreign employees receiving part 810-controlled technology, 
and submit necessary requests for specific authorization, and in 
today's final rule DOE has therefore extended the transition period to 
180 days.
    Fluor commented that it is not reasonable for a U.S. company to 
treat its non-U.S. citizen employees working in offices/subsidiaries 
located in foreign countries differently (e.g., an employee who is a 
citizen of specific authorization country working in a country on the 
general authorization Appendix list would require a specific 
authorization to access part 810-controlled technology); and requested 
that foreign nationals employed at U.S. subsidiaries in countries not 
listed in the Appendix be eligible for a general authorization as long 
as the company can assure DOE that the part 810-covered technology 
transferred to the foreign national is protected from unauthorized 
disclosure. The final rule retains the approach, as implemented under 
the 1986 version of the rule and as proposed in the NOPR and SNOPR, to 
deemed re-exports. That is, whether a specific authorization is 
required for a foreign national (as defined in Sec.  810.3) employed in 
a foreign country depends on the general or specific authorization 
designation of the foreign national's country of citizenship. Under the 
final rule, companies working with entities outside the U.S., whether 
or not they are wholly owned subsidiaries, are authorized either 
generally or through a specific authorization to transfer specific 
technology. DOE will continue to require compliance with the transfer 
of part 810-controlled technology no matter where the export takes 
place.
    B&W and Fluor made a similar proposal: That DOE view part 810-
controlled technology transfers to companies in some subset of 
countries (B&W proposed NSG member states) as eligible for general 
authorization with respect to deemed re-exports, meaning the recipient 
entity would be generally authorized, as well as all its employees, 
regardless of citizenship, so long as the foreign nationals are 
employed legally (and in the case of Fluor's comment, so long as a 
confidentiality agreement is in place). As noted above, DOE has 
determined to retain in the final rule adopted today the regulatory 
approach to deemed re-exports under the 1986 version of part 810 and in 
the NOPR and SNOPR.
    B&W and NEI suggested that the language contained in Sec.  
810.11(c) as proposed in the SNOPR (Sec.  810.11(b) in the final rule) 
indicates that mere ``employment'' of a foreign national who is a 
citizen of a country not listed in the Appendix, by a U.S. company or 
its foreign subsidiary, would require a specific authorization. This is 
incorrect. Under the SNOPR and under today's final rule, a specific 
authorization is required for the transfer of part 810-controlled 
technology or information to a foreign national, not merely employment 
of that individual by a U.S. company or its foreign subsidiary.
    B&W and NEI also recommended that DOE streamline the proposed part 
810 rule to clarify that U.S. companies are only required to comply 
with the proposed deemed export requirements to the extent that 
compliance does not violate applicable employment laws in those 
countries where a company's foreign national employees are employed. 
The intent of Sec.  810.11(b) as proposed and made final is to control 
technology transfers, not employment. It enables DOE to implement its 
authority to authorize re-exports of transferred technology. Companies 
may hire whomever they choose. However, the AEA is the foundation upon 
which the regulation at part 810 and makes clear that U.S. companies 
are not free to transfer part 810-controlled technology to employees 
who are citizens of countries that are not listed in the Appendix 
without a specific authorization or who meet the requirements of Sec.  
810.6(b) of the final rule.
    NEI commented that as proposed in the SNOPR, a foreign national is 
required to interact with DOE to secure a specific authorization. That 
assertion is incorrect. DOE consent is requested by and granted to the 
U.S. company-applicant under the rule, and not directly to the foreign 
national. It is the responsibility of the person subject to part 810 to 
ensure that transfers and retransfers of U.S. technology and assistance 
are under its control and take place in compliance with part 810.
    AUECO commented that the rule ``should also explicitly authorize 
deemed exports to foreign nationals of Appendix A [sic] countries who 
meet the requirements of Sec.  810.6(b)(1, 2 and 4) . . .)'' This 
recommendation indicates a misreading of Sec.  810.6. Proposed Sec.  
810.6(a) of the SNOPR explicitly authorizes specified activities with 
entities in countries listed in the Appendix. Section 810.6 proposed in 
the SNOPR and adopted in today's final rule includes all nationals or 
citizens of countries listed in the Appendix for all activities except 
those described in Sec.  810.7.
    In conclusion, DOE carefully weighed the comments received 
concerning deemed exports and deemed re-exports. In the discussion 
above, DOE has provided clarity for issues raised by commenters, but 
has determined that it is unnecessary to make changes to the 
requirements for deemed export and deemed re-export authorizations as 
proposed in the SNOPR. DOE will address potential improvements for 
efficiencies for such applications in the PIP and continue to work 
directly with part 810 applicants that have fact-specific compliance 
questions.
4. Operational Safety Activities
    AREVA, AHUG, and EPRI strongly supported the inclusion of the 
proposed definition of ``operational safety'' and the proposed general 
authorization provisions contained in the SNOPR for proposed Sec.  
810.6(c) (adopted as Sec.  810.6(b) in the final rule). AHUG and EPRI 
provided comments and a red line text of the general authorization 
provisions at proposed Sec.  810.6(c)(2) and (3) as well as the 
definition of ``operational safety'' contained in proposed Sec.  810.3 
to further expand the provisions. AHUG, NEI, and EPRI recommended that 
DOE consolidate proposed Sec. Sec.  810.6(c)(2) and (3) into a single 
general authorization that focuses on the nationality of the recipients 
of the operational safety information or assistance rather than on the 
nuclear power plants. The commenters alleged that proposed Sec.  
810.6(c)(2) would be applicable only to existing plants overseas, while 
proposed Sec.  810.6(c)(3) would include new plants as well as existing 
plants in the United States and that DOE did not provide a clear 
rationale for its proposal. AHUG further commented that extending a 
general authorization as proposed in the SNOPR to include assistance to 
new nuclear power plants located in countries that are not eligible for 
a general authorization to ensure state of the art

[[Page 9370]]

safety technologies and methodologies, including input from U.S. 
nuclear operators, are incorporated at the design phase of a reactor 
construction is crucial for the safety of nuclear plants.
    Proposed Sec.  810.6(c)(2) is intended to authorize U.S. companies 
to provide operational safety technologies and assistance to existing 
plants in foreign countries so they can meet specific national or 
international safety standards or requirements for operational safety. 
Proposed Sec.  810.6(c)(3), on the other hand, is intended to authorize 
important benchmarking activities at plants in the United States by 
international entities or individuals, such as those conducted by the 
INPO, and NRC-sponsored and -approved activities. The difference in 
treatment between plants located in the United States and those 
overseas is intentional. Assistance to U.S. facilities is not 
assistance to foreign entities, and the incidental transfer of 
technical information to foreign nationals providing the assistance is 
not deemed by DOE to be a significant proliferation risk. However, 
providing information during the design and construction of a new 
facility in a destination requiring specific authorization constitutes 
a much higher proliferation risk, and requires DOE approval. The basis 
for the DOE decision to adopt the distinction between assistance to a 
foreign reactor and benchmarking in the United States remains the basis 
for Sec.  810.6(c)(3) in the final rule. NRC-sponsored or -licensed 
activities in the United States or overseas are outside the scope of 
part 810, as explicitly provided in Sec.  810.2(c)(1).
    DOE also reviewed the proposed revision to the definition of 
``operational safety'' provided by AHUG and EPRI. DOE proposed a 
definition of ``operational safety'' in the SNOPR that would broaden 
the scope of assistance and technology that could be generally 
authorized. The suggested revisions as provided by AHUG and EPRI 
further broadened DOE's proposed scope and include services that are 
not considered merely safety but rather services to improve design and/
or efficiencies of nuclear reactors. Because the general authorization 
relates only to operational safety, the broader definition that 
includes design improvements or efficiencies has not been adopted. DOE 
has not made revisions to the proposed definition of ``operational 
safety'', but rather is adopting unchanged in today's final rule the 
definition proposed in the SNOPR.
    ERIN requested clarification on whether probabilistic risk 
assessments (PRAs) for existing nuclear power plants in foreign 
countries should be generally authorized. ERIN commented that PRAs do 
not fall within the scope of part 810 because the methodology is 
publicly available. Further, ERIN stated that while the information 
included in the PRA is specific to the power plant, no knowledge to 
design or operate the reactor more efficiently is transferred in the 
process of developing a PRA or the final report. DOE has considered 
this comment and agrees with ERIN's comment. DOE concludes in today's 
final rule that PRAs are generally authorized activities within the 
definition of ``operational safety'' for destinations typically 
requiring specific authorization. No change to the rule is required to 
address this comment.
    NEI commented that in proposed Sec.  810.6(c)(1) of the SNOPR the 
words ``which emergency cannot be met by other means'' should be 
deleted. NEI stated that it is not in the interest of the United States 
that persons subject to part 810 should, in the face of a current or 
imminent radiological emergency, spend time trying to demonstrate that 
no other means, foreign or domestic, could defuse that emergency, or 
that the proposed assistance is uniquely capable of successfully doing 
so. DOE declines to incorporate that suggestion because the phrase in 
question provides DOE with the latitude to make the determination that 
an activity can take place without the paperwork in place. This is the 
qualitative analysis that DOE, not the U.S. company, must conduct when 
considering such requests. However, to clarify the intent, the phrase 
``in DOE's assessment'' has been added. The phrase now reads ``which 
emergency in DOE's assessment cannot be met by other means.''
5. Other
    NEI reiterated its view that exercise of the Secretary of Energy's 
statutory authority under Sec.  57 b.(2) of the AEA to authorize 
persons to engage or participate in the development or production of 
special nuclear material outside the United States can and should be 
delegated; however, as the AEA in section 161 n. does not allow for 
delegation below the Secretary, the requested change has not been made 
in the rule. NEI also commented that some language proposed in the 
SNOPR does not conform to the NSG Guidelines in some areas. The U.S. 
Government is a member of and fully supports the NSG; however, the 
legal underpinning of the part 810 regulation is U.S. law, namely, the 
AEA. The NSG Guidelines are adopted by the NSG by unanimous approval; 
thus, in some important instances the part 810 regulation will not 
conform to the NSG Guidelines but instead reflects U.S. law.
    DOE will address with Enrichment Technology U.S. and Integrated 
Systems Technology the questions posed in their comments concerning the 
application of the final rule to their specific cases or authorization 
conditions. NIC recommended a users group be created for part 810 
authorization recipients. After consideration of this request, DOE has 
decided that the need for a users group will be considered upon 
completion of the PIP.
    TerraPower commented that clarification is needed concerning 
technologies and assistance associated with fuel research and 
development programs that could be viewed as analogous to reprocessing 
technologies and because, without a definition of ``reprocessing'' in 
the rule, there is room for misinterpretation. DOE has considered this 
comment and will address these specific concerns on a case-by-case 
basis because the technology has a number of aspects that may or may 
not constitute reprocessing depending on the specifics of the case. A 
definition could be too restrictive in some applications, and 
insufficient in others.
    DOE will not address B&W comments concerning the extraterritorial 
application of the rule as this is outside the scope of this 
rulemaking. Other matters that were presented but are outside the scope 
of this rulemaking include: EPRI's comment that any revision of part 
810 is unnecessary as the United States already has the most stringent 
and unilateral export controls in the world; and NIC's recommendations 
to modernize the AEA 123 Agreement process and conduct a 360-degree 
peer review of other nuclear technology export control regimes.
    NEI submitted a number of editorial and clarifying revisions in a 
red lined document, including a proposal that proposed Sec.  810.5(b) 
should include a timeframe for a response (NEI proposed 30 days). The 
proposed rule and this final rule already provide 30 days for responses 
to requests for advice. Specific authorizations frequently require 
interactions with foreign governments over whose response time DOE has 
no control, thus attempting to incorporate a timeline in the final rule 
would not achieve NEI's intended purpose of driving speedier DOE 
approvals. Putting a hard deadline in the rule would require DOE to 
reject the application if foreign government nonproliferation 
assurances could not be obtained within the mandated time, and would 
require the company to

[[Page 9371]]

resubmit and restart the process. DOE will address timelines in the PIP 
and not in the final rule published today.

D. Technical Corrections

1. Sec.  810.1
    NEI recommended adding a clause to proposed Sec.  810.1 ``(d) 
Establish orderly and expeditious procedures for the consideration of 
requests for specific authorization under this part.''
    This phrase is, in part, a direct quote of Sec.  57 b. of the 
Atomic Energy Act directing the adoption of procedures for processing 
part 810 specific authorization requests. Such procedures were issued 
in 1978 and amended in 1984. It does not add to the rule, nor does it 
create enforceable language that will either help applicants obtain 
their specific authorizations more rapidly or provide further direction 
to DOE. Therefore, DOE does not incorporate this recommendation into 
the final rule.
2. Sec.  810.3 Technical Services
    AUECO commented that there was no definition of ``technical 
services'' proposed in the SNOPR and requested clarification concerning 
whether the quoted phrase is different from the defined term 
``technical assistance.'' The term ``technical services'' occurs only 
once in the 1986 version of the rule and in the SNOPR, in the 
definition of ``sensitive nuclear technology.'' To avoid the potential 
for confusion, DOE in today's final rule has replaced ``technical 
services'' with ``assistance'' because they have the same intended 
meaning. A new definition of ``assistance'' has been added to Sec.  
810.3.
3. Sec.  810.3 Technical Assistance vs. Assistance
    NEI commented that ``assistance'' should be globally replaced with 
``technical assistance'' or ``assistance'' should be defined.
    The phrase ``technical assistance'' occurred only twice in the 
SNOPR beyond the definitions in proposed Sec.  810.3. All usages of 
``technical assistance'' in today's final rule have been replaced with 
``assistance'' and the definition modified accordingly. As noted, a new 
definition of ``assistance'' has been added to Sec.  810.3.
    In addition NEI commented that the phrase ``as determined by the 
Secretary'' in the definition of ``assistance'' should be deleted 
because ``it is vague and open-ended and reduces certainty about what 
types of assistance are covered by Part 810. Any expansion of the reach 
of the regulation should be accomplished only by an amendment, subject 
to Section 553 of the APA. At a minimum, the rule should be clear that 
any controls asserted on the basis of Secretarial determination over 
specific types of technical assistance that are not listed in the rule 
should apply only prospectively.''
    The definition of ``assistance'' includes a list of activities that 
can be construed as assistance, and cannot, by its nature, be a 
comprehensive description of all the ways persons may endeavor to 
assist persons in other countries with nuclear technology. The 
inclusion of the phrase ``as determined by the Secretary'' is intended 
to prevent circumvention of this rule by the mere renaming of 
activities to avoid the descriptions included in this list. Therefore, 
based on consideration of the comment, DOE determined to retain the 
phrase in the final rule.
4. Sec.  810.6(f)
    NEI commented that DOE should delete the ``and'' at the end of 
Sec.  810.6(f) proposed in the SNOPR to clarify that any one of the 
activities in subsections (a) through (g) of this section is 
independently generally authorized, rather than requiring that all of 
them be involved in order for the activity to be generally authorized.
    DOE agrees with NEI and in this final rule replaces ``and'' with 
``or'' to make the disjunctive nature of the list clear.
5. Sec. Sec.  810.6(c)(2) and 810.11(b)
    NEI requested that DOE clarify ``that 810.6(c)(2) has correctly 
numbered references. It calls for information in 810.11(b), which 
refers the applicant to optional information from 810.9(b) and (c).''
    The SNOPR proposed Sec.  810.11(b), which provided applicants the 
option of providing information concerning the factors listed in 
Sec. Sec.  810.9(b) and (c) of the SNOPR. DOE has determined that the 
factors are more properly considered by DOE in making non-inimicality 
determinations. Therefore, in the final rule Sec.  810.11(b) as 
proposed in the SNOPR has been eliminated and Sec.  810.11(c) as 
proposed in the SNOPR has been renumbered as Sec.  810.11(b).
    In the final rule, the phrase ``and may provide information cited 
in Sec.  810.11(b)'' is eliminated from Sec.  810.6(c)(2). The 
elimination of Sec.  810.11(b) and subsequent renumbering also requires 
changes to Sec.  810.11(a) that referenced Sec.  810.11(b). This clause 
now references Sec. Sec.  810.9(b)(7), (8), and (9).
6. Sec.  810.16 Savings Clause
    NEI and B&W both commented that the time frames in proposed Sec.  
810.15 were inadequate. B&W recommended a complete grandfathering of 
all current activities in countries moving from general authorization 
to specific authorization classification. NEI pointed out that such 
activities were unlikely to be found problematic by DOE. NEI 
recommended a limited time frame and suggested that a lack of objection 
from DOE would constitute acceptance.
    DOE acknowledges that 90 days is too short a time for many entities 
to request specific authorization for activities that were generally 
authorized prior to issuance of the final rule, and in today's final 
rule DOE has therefore extended the transition period to 180 days. 
However, a finding of non-inimicality cannot be met by DOE not meeting 
a deadline of any kind. Acknowledging that technology transfers have 
already occurred, the savings clause in the final rule provides that 
until DOE acts on an applicant's request, the applicant can continue 
its part 810-controlled current activities.

V. Regulatory Review

A. Executive Order 12866

    Today's final rule has been determined to be an economically 
significant regulatory action under Executive Order 12866, ``Regulatory 
Planning and Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this 
action was subject to review under that Executive Order by the Office 
of Information and Regulatory Affairs of the Office of Management and 
Budget. The required economic impact analysis was prepared by DOE. 
AREVA, AUECO, George Mason University, and NEI commented that the 
economic analysis performed as a part of the rulemaking was based on 
flawed data sets or data from soft growth periods, which the commenters 
contended are not realistic in normal circumstances.
    NEI's analysis is the most comprehensive of those provided and is 
used in this discussion of the economic impacts of this final rule. 
Rather than debate the assumptions between DOE's analysis and NEI's 
analysis, DOE accepts NEI's basic claim that different assumptions will 
result in different outcomes. NEI's critique claims that revisions to 
part 810 as proposed in the SNOPR would have an annual impact of $10 
million to the detriment of the U.S. nuclear industry.
    In its analysis, NEI listed 14 key countries that will be moving 
from generally authorized to specifically authorized classification and 
based its conclusion concerning the economic impact of DOE's proposed 
regulatory revisions on these 14 countries. NEI did not provide any 
information about the specific opportunities provided in each

[[Page 9372]]

country, so DOE has assumed it is roughly equal to $700,000 per country 
per year. As Croatia was included in NEI's list, and since that country 
has been included on the Appendix list of generally authorized 
destinations, any impact should be reduced by $700,000 per year, 
bringing the impact down to $9.3 million per year.
    NEI's critique also included a projected $5 million per year impact 
for losses associated with deemed exports. The argument is related to 
an economic loss attributed to those companies that would be required 
to hire workers from countries that do not require specific 
authorizations. While the DOE does acknowledge that there is additional 
effort involved in hiring workers from these destinations into 
positions where part 810-controlled technology would be shared, the 
final rule does not preclude such hiring and, in fact, NNSA is working 
on a PIP to reduce this burden. Under the 1986 version of the rule a 
large number of the specific authorizations were, in fact, to allow 
such workers to work in those positions. However, for the sake of 
discussion, DOE accepts that there is an impact of $2.5 million per 
year.
    To be further conservative, DOE has omitted any potential 
additional positive impact of countries moving from specific 
authorizations to general authorization classification. Such changes 
serve to reduce the impact of this rule further. For example, Vietnam 
(although not one of NEI's identified 14 critical countries) has just 
entered into a 123 Agreement with the United States, and is included in 
the Appendix to the final rule as a generally authorized destination.
    These corrections bring the net effect of the NEI based analysis to 
$6.8 million per year, or roughly $100 million over the analysis period 
(present to 2030). The Table below summarizes NEI's original assumption 
and DOE's corrections:

------------------------------------------------------------------------
                                                   Annual      Impacts
                                                   impact      through
                                   Changes       (million/       2030
                                                    yr)       (millions)
------------------------------------------------------------------------
NEI..........................  Base...........          $10          160
DOE Changes for Croatia's      $0.7...........          9.3        148.8
 status as GA.
DOE Changes for Deemed export  $2.5...........          6.8        108.7
 impact.
------------------------------------------------------------------------

    DOE's economic analysis compared the potential impacts on the U.S. 
nuclear exports of shifting countries from one type of authorization to 
another for three different nuclear capacity forecasts. Using the World 
Nuclear Association (WNA low projection), Nuclear Assurance 
Corporation, and UxC nuclear capacity forecasts; DOE estimated the 
potential for lost business in nuclear exports to range from $20 to $86 
million per year over the 18-year window as potential export volume 
destined for countries moving from generally authorized to specifically 
authorized status. Using the same three nuclear capacity forecasts, DOE 
also estimated the potential impacts on U.S. nuclear exports associated 
with transferring technology to specifically authorized countries 
reclassified as generally authorized countries to be between $86 to 
$154 million per year.
    DOE monetized the potential impact of the rule from moving 
countries from the GA to SA category and from the SA to the GA 
category. For countries moving from the GA to SA category, the monetary 
impact is expected to be negative, since specific authorization 
involves additional cost to applicants and time for DOE to process, and 
some small fraction of SA applications may ultimately not be approved. 
The impact of moving a country from the SA to GA category will, for the 
same reasons, is expected to be positive. DOE calculated the net effect 
on U.S. nuclear exports using the average annual yearly trade derived 
from the WNA low projection from 2013 through 2030 and from four 
scenarios that assume 10% to 40% of annual yearly trade will be 
impacted either positively or negatively by the rule change. Using the 
20% impact as the assumption for the primary impact estimate, DOE 
estimated the costs to be $23 million/year and the benefits to be $43 
million/year with a net benefit of $20 million/year at a 7% discount 
rate. The net benefit of the rule ranged from a low of $9 million/year 
to $53 million/year at a 7% discount rate as shown in the table below. 
The estimates using a 3% discount rate are also presented in the table 
below.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                       Year       Discount      Period
                                                               Primary          Low estimate      High estimate      dollars     rate  (%)     covered
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized Monetized Costs ($Millions/Year).............        $22,690,617        $10,084,718        $60,508,311         2010            7    2013-2030
                                                                 23,674,479         10,521,991         63,131,945         2010            3    2013-2030
Annualized Monetized Benefits ($Millions/Year)..........         42,586,759         18,927,448        113,564,690         2010            7    2013-2030
                                                                 42,927,555         19,078,913        114,473,479         2010            3    2013-2030
Annualized Monetized Net Benefits ($Millions/Year)......         19,896,142          8,842,730         53,056,379         2010            7    2013-2030
                                                                 19,253,076          8,556,922         51,341,534         2010            3    2013-2030
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Both NEI and DOE's analyses concur that MW's of nuclear generation 
serve as a rough approximation of potential market opportunity. In 
looking at comprehensive forecasts from today to 2030, DOE notes that 
at the maximum, the countries moving from generally authorized to 
specific authorization status represent significantly less than 1% of 
the total market.

B. Administrative Procedure Act

    In accordance with 5 U.S.C. 553(b)(3)(B), the DOE finds that 
providing an opportunity for public comment on office name changes in 
DOE's internal organization structure prior to publication of this rule 
is not necessary and contrary to the public interest because they are 
minor technical changes. Prior notice and

[[Page 9373]]

opportunity to comment on these changes are unnecessary because they 
are not subject to the exercise of discretion by the DOE.

C. National Environmental Policy Act

    DOE determined that today's final rule is covered under the 
Categorical Exclusion found in DOE's National Environmental Policy Act 
regulations at paragraph A5 of Appendix A to Subpart D, 10 CFR part 
1021, categorical exclusion A5, which applies to a rule or regulation 
that interprets or amends an ``existing rule or regulation that does 
not change the environmental effect of the rule or regulation being 
amended.'' Accordingly, neither an environmental assessment nor an 
environmental impact statement is required.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process (68 FR 7990). DOE has made its 
procedures and policies available on the Office of the General 
Counsel's Web site: http://www.energy.gov/gc/downloads/executive-order-13272-consideration-small-entities-agency-rulemaking.
    In the SNOPR, DOE certified that this rule would not have a 
significant economic impact on a substantial number of small entities 
and did not prepare a regulatory flexibility analysis for this 
rulemaking. The DOE received no comments on the certification, and has 
responded to comments related to the economic impacts of the rule 
elsewhere in this preamble; no changes to the certification were made 
based on comments received. As a result, the DOE certifies that today's 
final rule will not have a significant impact on a substantial number 
of small entities. The DOE's certification and supporting statement of 
factual basis will be provided to the Chief Counsel for Advocacy of the 
Small Business Administration pursuant to 5 U.S.C. 605(b).

E. Paperwork Reduction Act

    U.S. companies that wish to export nuclear technology or assistance 
within the scope of this final rule must provide DOE with information 
concerning the technology to be transferred as well as the destination 
and use or application of the assistance or technology. Depending on 
the destination and the technology in question, a U.S. company will be 
required to submit a report of the activity 30 days after the fact or a 
request for a specific authorization from the Secretary. DOE submitted 
a request for the reinstatement of the collection of information 
associated with recordkeeping and reporting requirements of part 810 to 
OMB for approval pursuant to the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.) and the procedures implementing that Act, 5 CFR 
1320.1 et seq. The collection of information requirements for 
compliance with part 810 and recordkeeping is subject to review and 
approval by OMB under OMB Control Number 1901-0263. OMB approved the 
reinstatement of the information collection on October 31, 2014. DOE 
published notices in the Federal Register on March 7, 2014, FRN# 2014-
04984, p. 13048, and FRN# 2014-12800, p. 31928 soliciting comments on 
the DOE estimate of the information collection burden. No public 
comments were received on the 60-day or 30-day notices. In association 
with this rulemaking revision for part 810, DOE is submitting for OMB 
approval the revisions to this information collection.
    Under the 1986 version of the rule, a list of countries at Sec.  
810.8(a) contained 73 counties that required case-by-case review for 
the Secretary to make a non-inimicality finding specifically 
authorizing the transfer of any technology or assistance except where 
generally authorized in Sec.  810.7. By default, all countries not 
listed were generally authorized destinations for the transfer of 
nuclear power plant technology and assistance to those countries 
without prior approval from DOE. In this final rule, DOE restructured 
the list to a positive list of destinations, including 51 destinations 
to which the transfer of nuclear power plant technology will be 
generally authorized. This revision has effected a net change of an 
additional 74 countries that were by default generally authorized for 
the transfer of nuclear power plant technology but will now require a 
specific authorization. While this is an increase in the number of 
destinations not eligible for a general authorization by default, in 
DOE's estimation, the positive generally authorized destination list is 
not expected to result in a substantial increase in the volume of 
reporting or requests for specific authorization, as the subject 
countries have no civilian nuclear programs or plans for civilian 
nuclear programs in the near future.
    The reporting and application burden is estimated at three hours 
per response, and an average of three responses per distinct entity, 
regardless of it being a report of generally authorized activities or a 
request for specific authorization. This number includes the time for 
reviewing the regulation, searching existing data sources, gathering 
and maintaining the data needed, and completing and reviewing the 
collection of information. DOE estimated for the 1986 version of the 
rule that the total number of unduplicated respondents to be 145 with 
the average of 2.22 responses per respondent, resulting in 322 
responses and 966 total annual burden hours with the average burden per 
response at 3 hours and the average annual burden per respondent at 
6.66 hours. Under the final rule, DOE is estimating that the number of 
respondents will remain the same but that the number of reports filed 
per respondent to increase from 2.22 to 3.19, resulting in 463 total 
annual responses and 1389 total annual burden hours. The average burden 
per response is estimated to remain at 3 hours per respondent and the 
average annual burden per respondent at 9.57 hours.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the Paperwork Reduction Act, unless that collection of 
information displays a currently valid OMB Control Number.

F. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires Federal agencies to examine closely the impacts of regulatory 
actions on State, local, and tribal governments. Subsection 101(5) of 
title I of that law defines a Federal intergovernmental mandate to 
include any regulation that would impose upon State, local, or tribal 
governments an enforceable duty, except a condition of Federal 
assistance or a duty arising from participating in a voluntary federal 
program. Title II of that law requires each Federal agency to assess 
the effects of Federal regulatory actions on State, local, and tribal 
governments, in the aggregate, or to the private sector, other than to 
the extent

[[Page 9374]]

such actions merely incorporate requirements specifically set forth in 
a statute. Section 202 of that title requires a Federal agency to 
perform a detailed assessment of the anticipated costs and benefits of 
any rule that includes a Federal mandate which may result in costs to 
State, local, or tribal governments, or to the private sector, of $100 
million or more in any one year (adjusted annually for inflation). 2 
U.S.C. 1532(a) and (b). Section 204 of that title requires each agency 
that proposes a rule containing a significant Federal intergovernmental 
mandate to develop an effective process for obtaining meaningful and 
timely input from elected officers of State, local, and tribal 
governments (2 U.S.C. 1534).
    This rule does not impose a Federal mandate on State, local, or 
tribal governments or on the private sector. Accordingly, no assessment 
or analysis is required under the Unfunded Mandates Reform Act of 1995.

G. Treasury and General Government Appropriations Act, 1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any proposed rule that may affect family 
well-being. The final rule will not have any impact on the autonomy or 
integrity of the family as an institution. Accordingly, DOE has 
concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

H. Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 
1999), imposes certain requirements on agencies formulating and 
implementing policies or regulations that preempt State law or that 
have federalism implications. Agencies are required to examine the 
constitutional and statutory authority supporting any action that would 
limit the policymaking discretion of the States and carefully assess 
the necessity for such actions. DOE has examined this rule and has 
determined that it does not pre-empt State law and will not have a 
substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government. No further 
action is required by Executive Order 13132.

I. Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. With regard to the review 
required by section 3(a), section 3(b) of Executive Order 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation: (1) Clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under any guidelines issued by the Attorney 
General. Section 3(c) of Executive Order 12988 requires Executive 
agencies to review regulations in light of applicable standards in 
section 3(a) and section 3(b) to determine whether they are met or it 
is unreasonable to meet one or more of them. DOE has completed the 
required review and determined that, to the extent permitted by law, 
the rule meets the relevant standards of Executive Order 12988.

J. Treasury and General Government Appropriations Act, 2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516 note), provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by OMB.
    OMB's guidelines were published at 67 FR 8452 (February 22, 2002), 
and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). 
DOE has reviewed this rule under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

K. Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to OMB 
a Statement of Energy Effects for any proposed significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgated or is expected to lead to promulgation of a 
final rule, and that: (1) Is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy, or (3) is designated by the Administrator of the Office of 
Information and Regulatory Affairs as a significant energy action. For 
any proposed significant energy action, the agency must give a detailed 
statement of any adverse effects on energy supply, distribution, or use 
should the proposal be implemented, and of reasonable alternatives to 
the action and their expected benefits on energy supply, distribution, 
and use. Today's regulatory action will not have a significant adverse 
effect on the supply, distribution, or use of energy and is therefore 
not a significant energy action. Accordingly, DOE has not prepared a 
Statement of Energy Effects.

L. Executive Order 13609

    Executive Order 13609 of May 1, 2012, ``Promoting International 
Regulatory Cooperation,'' requires that, to the extent permitted by law 
and consistent with the principles and requirements of Executive Order 
13563 and Executive Order 12866, each Federal agency shall:
    (a) If required to submit a Regulatory Plan pursuant to Executive 
Order 12866, include in that plan a summary of its international 
regulatory cooperation activities that are reasonably anticipated to 
lead to significant regulations, with an explanation of how these 
activities advance the purposes of Executive Order 13563 and this 
order;
    (b) Ensure that significant regulations that the agency identifies 
as having significant international impacts are designated as such in 
the Unified Agenda of Federal Regulatory and Deregulatory Actions, on 
RegInfo.gov, and on Regulations.gov;
    (c) In selecting which regulations to include in its retrospective 
review plan, as required by Executive Order 13563, consider:
    (i) Reforms to existing significant regulations that address 
unnecessary differences in regulatory requirements between the United 
States and its major trading partners, consistent with section 1 of 
this order, when stakeholders provide adequate information to the 
agency establishing that the differences are unnecessary; and
    (ii) Such reforms in other circumstances as the agency deems 
appropriate; and
    (d) For significant regulations that the agency identifies as 
having significant international impacts, consider, to the

[[Page 9375]]

extent feasible, appropriate, and consistent with law, any regulatory 
approaches by a foreign government that the United States has agreed to 
consider under a regulatory cooperation council work plan.
    DOE has reviewed this rule under the provisions of Executive Order 
13609 and determined that the rule complies with all requirements set 
forth in the order.

M. Congressional Notification

    As required by 5 U.S.C. 801, DOE will submit to Congress a report 
regarding the issuance of today's final rule prior to the effective 
date set forth at the outset of this notice. The report will state that 
it has been determined that the rule is not a ``major rule'' as defined 
by 5 U.S.C. 801(2).

VI. Approval by the Office of the Secretary

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

List of Subjects in 10 CFR Part 810

    Foreign relations, Nuclear energy, Reporting and recordkeeping 
requirements.

    Issued in Washington, DC, on February 7, 2015.
Ernest J. Moniz,
Secretary of Energy.

    For the reasons stated in the preamble, DOE amends title 10 of the 
Code of Federal Regulations by revising part 810 to read as follows:

PART 810--ASSISTANCE TO FOREIGN ATOMIC ENERGY ACTIVITIES

Sec.
810.1 Purpose.
810.2 Scope.
810.3 Definitions.
810.4 Communications.
810.5 Interpretations.
810.6 Generally authorized activities.
810.7 Activities requiring specific authorization.
810.8 Restrictions on general and specific authorization.
810.9 Grant of specific authorization.
810.10 Revocation, suspension, or modification of authorization.
810.11 Information required in an application for specific 
authorization.
810.12 Reports.
810.13 Additional information.
810.14 Special provision regarding Ukraine.
810.15 Violations.
810.16 Effective date and savings clause.
Appendix A to Part 810--Generally Authorized Destinations

    Authority:  Secs. 57, 127, 128, 129, 161, 222, and 232 Atomic 
Energy Act of 1954, as amended by the Nuclear Nonproliferation Act 
of 1978, Pub. L. 95-242, 68 Stat. 932, 948, 950, 958, 92 Stat. 126, 
136, 137, 138 (42 U.S.C. 2077, 2156, 2157, 2158, 2201, 2272, 2280), 
and the Intelligence Reform and Terrorism Prevention Act of 2004, 
Pub. L. 108-458, 118 Stat. 3768; Sec. 104 of the Energy 
Reorganization Act of 1974, Pub. L. 93-438; Sec. 301, Department of 
Energy Organization Act, Pub. L. 95-91; National Nuclear Security 
Administration Act, Pub. L. 106-65, 50 U.S.C. 2401 et seq., as 
amended.


Sec.  810.1  Purpose.

    The regulations in this part implement section 57 b.(2) of the 
Atomic Energy Act, which empowers the Secretary, with the concurrence 
of the Department of State, and after consultation with the Nuclear 
Regulatory Commission, the Department of Commerce, and the Department 
of Defense, to authorize persons to directly or indirectly engage or 
participate in the development or production of special nuclear 
material outside the United States. The purpose of the regulations in 
this part is to:
    (a) Identify activities that are generally authorized by the 
Secretary and thus require no other authorization under this part;
    (b) Identify activities that require specific authorization by the 
Secretary and explain how to request authorization; and
    (c) Specify reporting requirements for authorized activities.


Sec.  810.2  Scope.

    (a) Part 810 (this part) applies to:
    (1) All persons subject to the jurisdiction of the United States 
who directly or indirectly engage or participate in the development or 
production of any special nuclear material outside the United States; 
and
    (2) The transfer of technology that involves any of the activities 
listed in paragraph (b) of this section either in the United States or 
abroad by such persons or by licensees, contractors or subsidiaries 
under their direction, supervision, responsibility, or control.
    (b) The activities referred to in paragraph (a) of this section 
are:
    (1) Chemical conversion and purification of uranium and thorium 
from milling plant concentrates and in all subsequent steps in the 
nuclear fuel cycle;
    (2) Chemical conversion and purification of plutonium and 
neptunium;
    (3) Nuclear fuel fabrication, including preparation of fuel 
elements, fuel assemblies and cladding thereof;
    (4) Uranium isotope separation (uranium enrichment), plutonium 
isotope separation, and isotope separation of any other elements 
(including stable isotope separation) when the technology or process 
can be applied directly or indirectly to uranium or plutonium;
    (5) Nuclear reactor development, production or use of the 
components within or attached directly to the reactor vessel, the 
equipment that controls the level of power in the core, and the 
equipment or components that normally contain or come in direct contact 
with or control the primary coolant of the reactor core;
    (6) Development, production or use of production accelerator-driven 
subcritical assembly systems;
    (7) Heavy water production and hydrogen isotope separation when the 
technology or process has reasonable potential for large-scale 
separation of deuterium (\2\H) from protium (\1\H);
    (8) Reprocessing of irradiated nuclear fuel or targets containing 
special nuclear material, and post-irradiation examination of fuel 
elements, fuel assemblies and cladding thereof, if it is part of a 
reprocessing program; and
    (9) The transfer of technology for the development, production, or 
use of equipment or material especially designed or prepared for any of 
the above listed activities. (See Nuclear Regulatory Commission 
regulations at 10 CFR part 110, Appendices A through K, and O, for an 
illustrative list of items considered to be especially designed or 
prepared for certain listed nuclear activities.)
    (c) This part does not apply to:
    (1) Exports authorized by the Nuclear Regulatory Commission, 
Department of State, or Department of Commerce;
    (2) Transfer of publicly available information, publicly available 
technology, or the results of fundamental research;
    (3) Uranium and thorium mining and milling (e.g., production of 
impure source material concentrates such as uranium yellowcake and all 
activities prior to that production step);
    (4) Nuclear fusion reactors per se, except for supporting systems 
involving hydrogen isotope separation technologies within the scope 
defined in paragraph (b)(7) of this section and Sec.  810.7(c)(3);
    (5) Production or extraction of radiopharmaceutical isotopes when 
the process does not involve special nuclear material; and
    (6) Transfer of technology to any individual who is lawfully 
admitted for permanent residence in the United States or is a protected 
individual under the Immigration and Naturalization Act (8 U.S.C. 
1324b(a)(3)).
    (d) Persons under U.S. jurisdiction are responsible for their 
foreign licensees,

[[Page 9376]]

contractors, or subsidiaries to the extent that the former have control 
over the activities of the latter.


Sec.  810.3  Definitions.

    As used in this part 810:
    Agreement for cooperation means an agreement with another nation or 
group of nations concluded under sections 123 or 124 of the Atomic 
Energy Act.
    Assistance means assistance in such forms as instruction, skills, 
training, working knowledge, consulting services, or any other 
assistance as determined by the Secretary. Assistance may involve the 
transfer of technical data.
    Atomic Energy Act means the Atomic Energy Act of 1954, as amended.
    Classified information means national security information 
classified under Executive Order 13526 or any predecessor or 
superseding order, and Restricted Data classified under the Atomic 
Energy Act.
    Cooperative enrichment enterprise means a multi-country or multi-
company (where at least two of the companies are incorporated in 
different countries) joint development or production effort. The term 
includes a consortium of countries or companies or a multinational 
corporation.
    Country, as well as government, nation, state, and similar entity, 
shall be read to include Taiwan, consistent with section 4 of the 
Taiwan Relations Act (22 U.S.C. 3303).
    Development means any activity related to all phases before 
production such as: Design, design research, design analysis, design 
concepts, assembly and testing of prototypes, pilot production schemes, 
design data, process of transforming design data into a product, 
configuration design, integration design, and layouts.
    DOE means the U.S. Department of Energy.
    Enrichment means isotope separation of uranium or isotope 
separation of plutonium, regardless of the type of process or 
separation mechanism used.
    Fissile material means isotopes that readily fission after 
absorbing a neutron of any energy, either fast or slow. Fissile 
materials are uranium-235, uranium-233, plutonium-239, and plutonium-
241.
    Foreign national means an individual who is not a citizen or 
national of the United States, but excludes U.S. lawful permanent 
residents and protected individuals under the Immigration and 
Naturalization Act (8 U.S.C. 1324b(a)(3)).
    Fundamental research means basic and applied research in science 
and engineering, the results of which ordinarily are published and 
shared broadly within the scientific community, as distinguished from 
proprietary research and from industrial development, design, 
production, and product utilization, the results of which ordinarily 
are restricted for proprietary or national security reasons.
    General authorization means an authorization granted by the 
Secretary under section 57 b.(2) of the Atomic Energy Act to provide 
assistance or technology to foreign atomic energy activities subject to 
this part and which does not require a request for, or the Secretary's 
issuance of, a specific authorization.
    IAEA means the International Atomic Energy Agency.
    NNPA means the Nuclear Non-Proliferation Act of 1978, 22 U.S.C. 
3201 et seq.
    NPT means the Treaty on the Non-Proliferation of Nuclear Weapons, 
done on July 1, 1968.
    Nuclear reactor means an apparatus, other than a nuclear explosive 
device, designed or used to sustain nuclear fission in a self-
sustaining chain reaction.
    Operational safety means the capability of a reactor to be operated 
in a manner that complies with national standards or requirements or 
widely-accepted international standards and recommendations to prevent 
uncontrolled or inadvertent criticality, prevent or mitigate 
uncontrolled release of radioactivity to the environment, monitor and 
limit staff exposure to radiation and radioactivity, and protect off-
site population from exposure to radiation or radioactivity. 
Operational safety may be enhanced by providing expert advice, 
equipment, instrumentation, technology, software, services, analyses, 
procedures, training, or other assistance that improves the capability 
of the reactor to be operated in compliance with such standards, 
requirements or recommendations.
    Person means:
    (1) Any individual, corporation, partnership, firm, association, 
trust, estate, public or private institution;
    (2) Any group, government agency other than DOE, or any State or 
political entity within a State; and
    (3) Any legal successor, representative, agent, or agency of the 
foregoing.
    Production means all production phases such as: Construction, 
production engineering, manufacture, integration, assembly or mounting, 
inspection, testing, and quality assurance.
    Production accelerator means a particle accelerator especially 
designed, used, or intended for use with a production subcritical 
assembly.
    Production accelerator-driven subcritical assembly system means a 
system comprised of a production subcritical assembly and a production 
accelerator and which is especially designed, used, or intended for the 
production of plutonium or uranium-233. In such a system, the 
production accelerator target provides a source of neutrons used to 
effect special nuclear material production in the production 
subcritical assembly.
    Production reactor means a nuclear reactor especially designed or 
used primarily for the production of plutonium or uranium-233.
    Production subcritical assembly means an apparatus that contains 
source material or special nuclear material to produce a nuclear 
fission chain reaction that is not self-sustaining and that is 
especially designed, used, or intended for the production of plutonium 
or uranium-233.
    Publicly available information means information in any form that 
is generally accessible, without restriction, to the public.
    Publicly available technology means technology that is already 
published or has been prepared for publication; arises during, or 
results from, fundamental research; or is included in an application 
filed with the U.S. Patent Office and eligible for foreign filing under 
35 U.S.C. 184.
    Restricted Data means all data concerning:
    (1) Design, manufacture, or utilization of atomic weapons;
    (2) The production of special nuclear material; or
    (3) The use of special nuclear material in the production of 
energy, but shall not include data declassified or removed from the 
Restricted Data category pursuant to section 142 of the Atomic Energy 
Act.
    Secretary means the Secretary of Energy.
    Sensitive nuclear technology means any information (including 
information incorporated in a production or utilization facility or 
important component part thereof) which is not available to the public 
(see definition of ``publicly available information'') and which is 
important to the design, construction, fabrication, operation, or 
maintenance of a uranium enrichment or nuclear fuel reprocessing 
facility or a facility for the production of heavy water, but shall not 
include Restricted Data controlled pursuant to chapter 12 of the Atomic 
Energy Act. The information may take a tangible form such as a model, 
prototype, blueprint, or

[[Page 9377]]

operation manual or an intangible form such as assistance.
    Source material means:
    (1) Uranium or thorium, other than special nuclear material; or
    (2) Ores that contain by weight 0.05 percent or more of uranium or 
thorium, or any combination of these materials.
    Special nuclear material means:
    (1) Plutonium,
    (2) Uranium-233, or
    (3) Uranium enriched above 0.711 percent by weight in the isotope 
uranium-235.
    Specific authorization means an authorization granted by the 
Secretary under section 57b.(2) of the Atomic Energy Act, in response 
to an application filed under this part, to engage in specifically 
authorized nuclear activities subject to this part.
    Technical data means data in such forms as blueprints, plans, 
diagrams, models, formulae, engineering designs, specifications, 
manuals, and instructions written or recorded on other media or devices 
such as disks, tapes, read-only memories, and computational 
methodologies, algorithms, and computer codes that can directly or 
indirectly affect the production of special nuclear material.
    Technology means assistance or technical data required for the 
development, production or use of any plant, facility, or especially 
designed or prepared equipment for the activities described in Sec.  
810.2(b).
    Use means operation, installation (including on-site installation), 
maintenance (checking), repair, overhaul, or refurbishing.
    United States, when used in a geographical sense, includes Puerto 
Rico and all territories and possessions of the United States.


Sec.  810.4  Communications.

    (a) All communications concerning the regulations in this part 
should be addressed to: U.S. Department of Energy, Washington, DC 
20585. Attention: Senior Policy Advisor, National Nuclear Security 
Administration/Office of Nonproliferation and Arms Control (NPAC), 
Telephone (202) 586-1007.
    (b) Communications also may be delivered to DOE's headquarters at 
1000 Independence Avenue SW., Washington, DC 20585. All clearly marked 
proprietary information will be given the maximum protection allowed by 
law.
    (c) Communications may also be delivered by email to: 
<a href="/cdn-cgi/l/email-protection#07576675733f363747696974662963686229606871"><span class="__cf_email__" data-cfemail="77271605034f464737191904165913181259101801">[email protected]</span></a>. For ``fast track'' activities described in 
Sec. Sec.  810.6(c)(1) and (c)(2) emails should be sent to: <a href="/cdn-cgi/l/email-protection#56063724226e67667b1926332437223f3938373a05373033222f16383825377832393378313920"><span class="__cf_email__" data-cfemail="3c6c5d4e48040d0c11734c594e5d485553525d506f5d5a5948457c52524f5d12585359125b534a">[email protected]</span></a>. Notifications regarding activity in the 
Ukraine should be delivered by email to: <a href="/cdn-cgi/l/email-protection#1d4d7c6f69252c2d3048766f7c7473785d73736e7c33797278337a726b"><span class="__cf_email__" data-cfemail="b9e9d8cbcd81888994ecd2cbd8d0d7dcf9d7d7cad897ddd6dc97ded6cf">[email protected]</span></a>.


Sec.  810.5  Interpretations.

    (a) The advice of the DOE Office of Nonproliferation and Arms 
Control may be requested on whether a proposed activity falls outside 
the scope of this part, is generally authorized under Sec.  810.6, or 
requires a specific authorization under Sec.  810.7. However, unless 
authorized by the Secretary in writing, no interpretation of the 
regulations in this part other than a written interpretation by the DOE 
General Counsel is binding upon DOE.
    (b) When advice is requested from the DOE Office of 
Nonproliferation and Arms Control, or a binding, written determination 
is requested from the DOE General Counsel, a response normally will be 
made within 30 calendar days and, if this is not feasible, an interim 
response will explain the reason for the delay.
    (c) The DOE Office of Nonproliferation and Arms Control may 
periodically publish abstracts of general or specific authorizations 
that may be of general interest, exclusive of proprietary business-
confidential data submitted to DOE or other information protected by 
law from unauthorized disclosure.


Sec.  810.6  Generally authorized activities.

    The Secretary has determined that the following activities are 
generally authorized, provided that no sensitive nuclear technology or 
assistance described in Sec.  810.7 is involved:
    (a) Engaging directly or indirectly in the production of special 
nuclear material at facilities in countries or with entities listed in 
the Appendix to this part;
    (b) Transfer of technology to a citizen or national of a country 
other than the United States not listed in the Appendix to this part 
and working at an NRC-licensed facility, provided:
    (1) The foreign national is lawfully employed by or contracted to 
work for a U.S. employer in the United States;
    (2) The foreign national executes a confidentiality agreement with 
the U.S. employer to safeguard the technology from unauthorized use or 
disclosure;
    (3) The foreign national has been granted unescorted access in 
accordance with NRC regulations at an NRC-licensed facility; and
    (4) The foreign national's U.S. employer authorizing access to the 
technology complies with the reporting requirements in Sec.  810.12(g).
    (c) Activities at any safeguarded or NRC-licensed facility to:
    (1) Prevent or correct a current or imminent radiological emergency 
posing a significant danger to the health and safety of the off-site 
population, which emergency in DOE's assessment cannot be met by other 
means, provided DOE is notified in writing in advance and does not 
object within 48 hours of receipt of the advance notification;
    (2) Furnish operational safety information or assistance to 
existing safeguarded civilian nuclear reactors outside the United 
States in countries with safeguards agreements with the IAEA or an 
equivalent voluntary offer, provided DOE is notified in writing and 
approves the activity in writing within 45 calendar days of the notice. 
The applicant should provide all the information required under Sec.  
810.11 and specific references to the national or international safety 
standards or requirements for operational safety for nuclear reactors 
that will be addressed by the assistance; or
    (3) Furnish operational safety information or assistance to 
existing, proposed, or new-build civilian nuclear facilities in the 
United States, provided DOE is notified by certified mail return 
receipt requested and approves the activity in writing within 45 
calendar days of the notice. The applicant should provide all the 
information required under Sec.  810.11.
    (d) Participation in exchange programs approved by the Department 
of State in consultation with DOE;
    (e) Activities carried out in the course of implementation of the 
``Agreement between the United States of America and the IAEA for the 
Application of Safeguards in the United States,'' done on December 9, 
1980;
    (f) Activities carried out by persons who are full-time employees 
of the IAEA or whose employment by or work for the IAEA is sponsored or 
approved by the Department of State or DOE; or
    (g) Extraction of Molybdenum-99 for medical use from irradiated 
targets of enriched uranium, provided that the activity does not also 
involve purification and recovery of enriched uranium materials, and 
provided further, that the technology used does not involve significant 
components relevant for reprocessing spent nuclear reactor fuel (e.g., 
high-speed centrifugal contactors, pulsed columns).


Sec.  810.7  Activities requiring specific authorization.

    Any person requires a specific authorization by the Secretary 
before:
    (a) Engaging in any of the activities listed in Sec.  810.2(b) with 
any foreign country or entity not specified in the Appendix to this 
part;

[[Page 9378]]

    (b) Providing or transferring sensitive nuclear technology to any 
foreign country or entity; or
    (c) Engaging in or providing technology (including assistance) for 
any of the following activities with respect to any foreign country or 
entity (or a citizen or national of that country other than U.S. lawful 
permanent residents or protected individuals under the Immigration and 
Naturalization Act (8 U.S.C. 1324b(a)(3)):
    (1) Uranium isotope separation (uranium enrichment), plutonium 
isotope separation, or isotope separation of any other elements 
(including stable isotope separation) when the technology or process 
can be applied directly or indirectly to uranium or plutonium;
    (2) Fabrication of nuclear fuel containing plutonium, including 
preparation of fuel elements, fuel assemblies, and cladding thereof;
    (3) Heavy water production, and hydrogen isotope separation, when 
the technology or process has reasonable potential for large-scale 
separation of deuterium (\2\H) from protium (\1\H);
    (4) Development, production or use of a production accelerator-
driven subcritical assembly system;
    (5) Development, production or use of a production reactor; or
    (6) Reprocessing of irradiated nuclear fuel or targets containing 
special nuclear material.


Sec.  810.8  Restrictions on general and specific authorization.

    A general or specific authorization granted by the Secretary under 
this part:
    (a) Is limited to activities involving only unclassified 
information and does not permit furnishing classified information;
    (b) Does not relieve a person from complying with the relevant laws 
or the regulations of other U.S. Government agencies applicable to 
exports; and
    (c) Does not authorize a person to engage in any activity when the 
person knows or has reason to know that the activity is intended to 
provide assistance in designing, developing, fabricating, or testing a 
nuclear explosive device.


Sec.  810.9  Grant of specific authorization.

    (a) An application for authorization to engage in activities for 
which specific authorization is required under Sec.  810.7 should be 
made to the U.S. Department of Energy, National Nuclear Security 
Administration, Washington, DC 20585, Attention: Senior Policy Advisor, 
Office of Nonproliferation and Arms Control (NPAC).
    (b) The Secretary will approve an application for specific 
authorization if it is determined, with the concurrence of the 
Department of State and after consultation with the Nuclear Regulatory 
Commission, Department of Commerce, and Department of Defense, that the 
activity will not be inimical to the interest of the United States. In 
making such a determination, the Secretary will take into account the 
following factors:
    (1) Whether the United States has an agreement for cooperation in 
force covering exports to the country or entity involved;
    (2) Whether the country is a party to, or has otherwise adhered to, 
the NPT;
    (3) Whether the country is in good standing with its acknowledged 
nonproliferation commitments;
    (4) Whether the country is in full compliance with its obligations 
under the NPT;
    (5) Whether the country has accepted IAEA safeguards obligations on 
all nuclear materials used for peaceful purposes and has them in force;
    (6) Whether other nonproliferation controls or conditions exist on 
the proposed activity, including that the recipient is duly authorized 
by the country to receive and use the technology sought to be 
transferred;
    (7) Significance of the assistance or transferred technology 
relative to the existing nuclear capabilities of the country;
    (8) Whether the transferred technology is part of an existing 
cooperative enrichment enterprise or the supply chain of such an 
enterprise;
    (9) The availability of comparable assistance or technology from 
other sources; and
    (10) Any other factors that may bear upon the political, economic, 
competitiveness, or security interests of the United States, including 
the obligations of the United States under treaties or other 
international agreements, and the obligations of the country under 
treaties or other international agreements.
    (c) If the proposed activity involves the export of sensitive 
nuclear technology, the requirements of sections 127 and 128 of the 
Atomic Energy Act and of any applicable United States international 
commitments must also be met. For the export of sensitive nuclear 
technology, in addition to the factors in paragraph (b) of this 
section, the Secretary will take into account:
    (1) Whether the country has signed, ratified, and is implementing a 
comprehensive safeguards agreement with the IAEA and has in force an 
Additional Protocol based on the Model Additional Protocol, or, pending 
this, in the case of a regional accounting and control arrangement for 
nuclear materials, is implementing, in cooperation with the IAEA, a 
safeguards agreement approved by the IAEA Board of Governors prior to 
the publication of INFCIRC/540 (September 1997); or alternatively 
whether comprehensive safeguards, including the measures of the Model 
Additional Protocol, are being applied in the country;
    (2) Whether the country has not been identified in a report by the 
IAEA Secretariat that is under consideration by the IAEA Board of 
Governors, as being in breach of obligations to comply with the 
applicable safeguards agreement, nor continues to be the subject of 
Board of Governors decisions calling upon it to take additional steps 
to comply with its safeguards obligations or to build confidence in the 
peaceful nature of its nuclear program, nor as to which the IAEA 
Secretariat has reported that it is unable to implement the applicable 
safeguards agreement. This criterion would not apply in cases where the 
IAEA Board of Governors or the United Nations Security Council 
subsequently decides that adequate assurances exist as to the peaceful 
purposes of the country's nuclear program and its compliance with the 
applicable safeguards agreements. For the purposes of this paragraph, 
``breach'' refers only to serious breaches of proliferation concern;
    (3) Whether the country is adhering to the Nuclear Suppliers Group 
Guidelines and, where applicable, has reported to the Security Council 
of the United Nations that it is implementing effective export controls 
as identified by Security Council Resolution 1540; and
    (4) Whether the country adheres to international safety conventions 
relating to nuclear or other radioactive materials or facilities.
    (d) Unless otherwise prohibited by U.S. law, the Secretary may 
grant an application for specific authorization for activities related 
to the enrichment of source material and special nuclear material, 
provided that:
    (1) The U.S. Government has received written nonproliferation 
assurances from the government of the country;
    (2) That it/they accept(s) the sensitive enrichment equipment and 
enabling technologies or an operable enrichment facility under 
conditions that do not permit or enable unauthorized replication of the 
facilities;
    (3) That the subject enrichment activity will not result in the 
production of uranium enriched to greater than 20% in the isotope 
uranium-235; and
    (4) That there are in place appropriate security arrangements to 
protect the

[[Page 9379]]

activity from use or transfer inconsistent with the country's national 
laws.
    (e) Approximately 30 calendar days after the Secretary's grant of a 
specific authorization, a copy of the Secretary's determination may be 
provided to any person requesting it at DOE's Public Reading Room, 
unless the applicant submits information demonstrating that public 
disclosure will cause substantial harm to its competitive position. 
This provision does not affect any other authority provided by law for 
the non-disclosure of information.


Sec.  810.10  Revocation, suspension, or modification of authorization.

    The Secretary may revoke, suspend, or modify a general or specific 
authorization:
    (a) For any material false statement in an application for specific 
authorization or in any additional information submitted in its 
support;
    (b) For failing to provide a report or for any material false 
statement in a report submitted pursuant to Sec.  810.12;
    (c) If any authorization governed by this part is subsequently 
determined by the Secretary to be inimical to the interest of the 
United States or otherwise no longer meets the legal criteria for 
approval; or
    (d) Pursuant to section 129 of the Atomic Energy Act.


Sec.  810.11  Information required in an application for specific 
authorization.

    (a) An application letter must include the following information:
    (1) The name, address, and citizenship of the applicant, and 
complete disclosure of all real parties in interest; if the applicant 
is a corporation or other legal entity, where it is incorporated or 
organized; the location of its principal office; and the degree of any 
control or ownership by any foreign individual, corporation, 
partnership, firm, association, trust, estate, public or private 
institution or government agency;
    (2) The country or entity to receive the assistance or technology; 
the name and location of any facility or project involved; and the name 
and address of the person for which or whom the activity is to be 
performed;
    (3) A description of the assistance or technology to be provided, 
including a complete description of the proposed activity, its 
approximate monetary value, and a detailed description of any specific 
project to which the activity relates as specified in Sec. Sec.  
810.9(b)(7), (8), and (9); and
    (4) The designation of any information that if publicly disclosed 
would cause substantial harm to the competitive position of the 
applicant.
    (b) Except as provided in Sec.  810.6(b), an applicant seeking to 
employ a citizen or national of a country not listed in the Appendix in 
a position that could result in the transfer of technology subject to 
Sec.  810.2, or seeking to employ any foreign national in the United 
States or in a foreign country that could result in the export of 
assistance or transfer of technology subject to Sec.  810.7 must 
request a specific authorization. The applicant must provide, with 
respect to each foreign national to whom access to technology will be 
granted, the following:
    (1) A description of the technology that would be made available to 
the foreign national;
    (2) The purpose of the proposed transfer, a description of the 
applicant's technology control program, and any Nuclear Regulatory 
Commission standards applicable to the employer's grant of access to 
the technology;
    (3) A copy of any confidentiality agreement to safeguard the 
technology from unauthorized use or disclosure between the applicant 
and the foreign national;
    (4) Background information about the foreign national, including 
the individual's citizenship, all countries where the individual has 
resided for more than six months, the training or educational 
background of the individual, all work experience, any other known 
affiliations with persons engaged in activities subject to this part, 
and any current immigration or visa status in the United States; and
    (5) A statement signed by the foreign national that he/she will 
comply with the regulations under this part; will not disclose the 
applicant's technology without DOE's prior written authorization; and 
will not, at any time during or after his/her employment with the 
applicant, use the applicant's technology for any nuclear explosive 
device, for research on or development of any nuclear explosive device, 
or in furtherance of any military purpose.
    (c) An applicant for a specific authorization related to the 
enrichment of fissile material must submit information that 
demonstrates that the proposed transfer will avoid, so far as 
practicable, the transfer of enabling design or manufacturing 
technology associated with such items; and that the applicant will 
share with the recipient only information required for the regulatory 
purposes of the recipient country or to ensure the safe installation 
and operation of a resulting enrichment facility, without divulging 
enabling technology.


Sec.  810.12  Reports.

    (a) Each person who has received a specific authorization shall, 
within 30 calendar days after beginning the authorized activity, 
provide to DOE a written report containing the following information:
    (1) The name, address, and citizenship of the person submitting the 
report;
    (2) The name, address, and citizenship of the person for whom or 
which the activity is being performed;
    (3) A description of the activity, the date it began, its location, 
status, and anticipated date of completion; and
    (4) A copy of the DOE letter authorizing the activity.
    (b) Each person carrying out a specifically authorized activity 
shall inform DOE, in writing within 30 calendar days, of completion of 
the activity or of its termination before completion.
    (c) Each person granted a specific authorization shall inform DOE, 
in writing within 30 calendar days, when it is known that the proposed 
activity will not be undertaken and the granted authorization will not 
be used.
    (d) DOE may require reports to include such additional information 
that may be required by applicable U.S. law, regulation, or policy with 
respect to the specific nuclear activity or country for which specific 
authorization is required.
    (e) Each person, within 30 calendar days after beginning any 
generally authorized activity under Sec.  810.6, shall provide to DOE:
    (1) The name, address, and citizenship of the person submitting the 
report;
    (2) The name, address, and citizenship of the person for whom or 
which the activity is being performed;
    (3) A description of the activity, the date it began, its location, 
status, and anticipated date of completion; and
    (4) A written assurance that the applicant has an agreement with 
the recipient ensuring that any subsequent transfer of materials, 
equipment, or technology transferred under general authorization under 
circumstances in which the conditions in Sec.  810.6 would not be met 
will take place only if the applicant obtains DOE's prior written 
approval.
    (f) Individuals engaging in generally authorized activities as 
employees of persons required to report are not themselves required to 
submit the reports described in paragraph (e) of this section.
    (g) Persons engaging in generally authorized activities under Sec.  
810.6(b) are required to notify DOE that a citizen

[[Page 9380]]

or national of a country not listed in the Appendix to this part has 
been granted access to information subject to Sec.  810.2 in accordance 
with Nuclear Regulatory Commission access requirements. The report 
should contain the information required in Sec.  810.11(b).
    (h) All reports should be sent to: U.S. Department of Energy, 
National Nuclear Security Administration, Washington, DC 20585, 
Attention: Senior Policy Advisor, Office of Nonproliferation and Arms 
Control (NPAC).


Sec.  810.13  Additional information.

    DOE may at any time require a person engaging in any generally or 
specifically authorized activity to submit additional information.


Sec.  810.14  Special provisions regarding Ukraine.

    (a) Pre-activity notification requirements. Any person beginning 
any generally authorized activity involving Ukraine shall provide to 
DOE at least ten days prior to beginning that activity a report 
containing the following information:
    (1) The name, address, and citizenship of the person submitting the 
notification;
    (2) The name, address, and citizenship of the person for which the 
activity is to be performed;
    (3) A description of the activity, the date it is proposed to 
begin, its location, status, and anticipated date of completion; and
    (4) A written assurance that the person that is to perform the 
activity has an agreement with the recipient that any subsequent 
transfer of technology or information transferred under general 
authorization will not be transferred to a country that is not listed 
in the Appendix to this part without the prior written approval of DOE.
    (b) Post-activity reporting requirements. Every person completing a 
generally authorized activity in Ukraine shall provide to DOE within 
ten days following the original transfer of technology or information 
written confirmation that such transfer was completed in accordance 
with the description of the activity provided as required by paragraph 
(a) of this section.


Sec.  810.15  Violations.

    (a) The Atomic Energy Act provides that:
    (1) In accordance with section 232 of the AEA, permanent or 
temporary injunctions, restraining or other orders may be granted to 
prevent a violation of any provision of the Atomic Energy Act or any 
regulation or order issued thereunder.
    (2) In accordance with section 222 of the AEA, whoever willfully 
violates, attempts to violate, or conspires to violate any provision of 
section 57 of the Atomic Energy Act may be fined up to $10,000 or 
imprisoned up to 10 years, or both. If the offense is committed with 
intent to injure the United States or to aid any foreign nation, the 
penalty could be up to life imprisonment or a $20,000 fine, or both.
    (b) In accordance with Title 18 of the United States Code, section 
1001, whoever knowingly and willfully falsifies, conceals, or covers up 
a material fact or makes or uses false, fictitious or fraudulent 
statements or representations shall be fined under that title or 
imprisoned up to five or eight years depending on the crime, or both.


Sec.  810.16  Effective date and savings clause.

    (a) The regulations in this part are effective March 25, 2015.
    (b) Except for actions that may be taken by DOE pursuant to Sec.  
810.10, the regulations in this part do not affect the validity or 
terms of any specific authorizations granted under regulations in 
effect before March 25, 2015 or generally authorized activities under 
those regulations for which the contracts, purchase orders, or 
licensing arrangements were already in effect. Persons engaging in 
activities that were generally authorized under regulations in effect 
before March 25, 2015, but that require specific authorization under 
the regulations in this part, must request specific authorization by 
August 24, 2015 and may continue their activities until DOE acts on the 
request.

Appendix A to Part 810--Generally Authorized Destinations

Argentina
Australia
Austria
Belgium
Brazil
Bulgaria
Canada
Chile (For all activities related to INFCIRC/834 only)
Colombia
Croatia
Cyprus
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Hungary
Indonesia
International Atomic Energy Agency
Ireland
Italy
Japan
Kazakhstan
Korea, Republic of
Latvia
Lithuania
Luxembourg
Malta
Mexico (For all activities related to INFCIRC/203 Parts 1 and 2 and 
INFCIRC/825 only)
Morocco
Netherlands
Norway
Poland
Portugal
Romania
Slovakia
Slovenia
South Africa
Spain
Sweden
Switzerland
Taiwan
Turkey
Ukraine (Refer to Sec.  810.14 for specific information and 
requirements)
United Arab Emirates
United Kingdom
Vietnam

[FR Doc. 2015-03479 Filed 2-20-15; 8:45 am]
BILLING CODE 6450-01-P


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