This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

9359 

Vol. 80, No. 35 

Monday, February 23, 2015 

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. § 810.1 

2. § 810.3 Technical Services 

3. § 810.3 Technical Assistance vs. 

Assistance 

4. § 810.6(f) 

5. §§ 810.6(c)(2) and 810.11(b) 

6. § 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, 


emcdonald on DSK67QTVN1PROD with RULES
9360 Federal Register / Vol. 80, No. 35 / Monday, February 23, 2015 / Rules and Regulations 

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 reopened 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 § 810.1 ‘‘Purpose’’ 

states the statutory basis and purpose of 

the part 810 regulation, eliminating the 

need for the 1986 version of § 810.6. 

‘‘U.S. persons’’ has been replaced with 

‘‘persons.’’ 

2. The change to paragraph (a) in 

§ 810.2 ‘‘Scope’’ states DOE’s 

jurisdiction under § 57b.(2) of the 

Atomic Energy Act. Paragraph (b) in 

§ 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 § 810.2 

identifies exempt activities, some 

retained from the 1986 version of the 

rule. A person directly or indirectly 

engaging or participating in the 

development or production of special 

nuclear material outside the United 

States may be, for example, a U.S. 

citizen, a foreign national or a 

subsidiary of a U.S. company located 

abroad. The activity may take place in 

the United States, in a country listed in 

the Appendix or in a country not listed 

in the Appendix. Part 810 does not 

apply to transfers of nuclear technology 

or assistance within the United States 

between or among U.S. citizens, citizens 

or nationals of foreign countries who are 

U.S. lawful permanent residents, or 

protected individuals under the 

Immigration and Naturalization Act (8 

U.S.C. 1324b(a)(3)), because such 

transfers would not constitute engaging 

or participating, directly or indirectly, 

in the development or production of 

special nuclear material outside the 

United States. 

3. The following exempt activities are 

added: 

• Exports authorized by the 

Department of State (DOS) or 

Department of Commerce (DOC), or the 

Nuclear Regulatory Commission (NRC); 

• Transfer of ‘‘publicly available 

information,’’ ‘‘publicly available 

technology,’’ and the results of 

‘‘fundamental research’’; 

• Assistance for certain mining and 

milling activities, and certain fusion 

reactors because these activities do not 

involve the production or use of special 

nuclear material; 

• Production or extraction of 

radiopharmaceutical isotopes when the 

process does not involve special nuclear 

material; and 

• Transfers to lawful permanent 

residents of the United States or 

protected individuals under the 

Immigration and Naturalization Act (8 

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

4. In § 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 § 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 § 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 § 810.6 

‘‘Authorization requirement,’’ which 

quotes § 57 b. of the Atomic Energy Act, 

is deleted and replaced by § 810.1 

‘‘Purpose.’’ 

7. The 1986 version of § 810.7 

‘‘Generally authorized activities’’ is renumbered as § 810.6. It identifies 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 80, No. 35 / Monday, February 23, 2015 / Rules and Regulations 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 § 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 

§ 810.8(a) uses the opposite 

classification approach. It lists 

destinations for which a specific 

authorization is required. 

(ii) The 1986 version of § 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 

§ 810.2(c)(2) of the final rule, ‘‘publicly 

available information,’’ ‘‘publicly 

available technology,’’ and the results of 

‘‘fundamental research’’ (all as defined 

in § 810.3 of this final rule) are exempt 

from the scope of part 810. 

(iii) In a new approach to deemed 

exports, § 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 

§ 810.12(g). 

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

authorization in the 1986 version of 

§ 810.7(b) for emergency activities at 

any safeguarded facility and operational 

safety assistance to existing foreign 

safeguarded reactors has been retained 

in §§ 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 

§ 810.6(c)(2). In § 810.6(c)(2) the SNOPR 

proposed to include an option to 

provide information cited in § 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 § 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 fulltime 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 § 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 § 810.6’’ 

proposed in the SNOPR has been 

removed as unnecessary. 

9. Section 810.8 ‘‘Restrictions on 

general and specific authorization’’ 

remains unchanged from § 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, § 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 

§ 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 § 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 § 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 § 810.11, makes an 

editorial revision, changing ‘‘authorized 

assistance’’ in paragraph (c) to 

‘‘authorization governed by this part.’’ 

12. The 1986 version of § 810.12, 

renumbered in the final rule as § 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 (§ 810.12(a)). 

The 1986 version of § 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 § 810.12(a)), DOE 

proposed in the SNOPR to revise 

proposed § 810.11(a) without reference 

to ‘‘foreign person’’. To avoid any 

possible confusion between usages of 


emcdonald on DSK67QTVN1PROD with RULES
9362 Federal Register / Vol. 80, No. 35 / Monday, February 23, 2015 / Rules and Regulations 

‘‘person’’ and ‘‘foreign national’’, the 

final rule adopts this change and 

§ 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 §§ 810.9(b) and (c). 

However, this proposal has not been 

adopted. Instead, specific required 

applicant information has been added to 

§ 810.11(a)(3) of the final rule. 

Therefore, proposed § 810.11(c) of the 

SNOPR is renumbered § 810.11(b) in 

this final rule. Likewise, proposed 

§ 810.11(d) of the SNOPR is numbered 

§ 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 §§ 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, § 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 § 810.6(b)(2), and reduce crossreferencing in the document. 

Finally, § 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 § 810.13 is 

renumbered as § 810.12 in the final rule 

and changes reporting obligations. An 

addition in § 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 § 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 § 810.14 is 

renumbered in the final rule as § 810.13, 

‘‘Additional information.’’ The section 

is otherwise unchanged. 

15. In the final rule, a new § 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 § 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 § 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 

§§ 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 § 810.14(a) of the final rule. 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 80, No. 35 / Monday, February 23, 2015 / Rules and Regulations 9363 

B. Current Generally Authorized 

Activities 

As stated in § 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 § 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 § 810.5— 

Interpretations. 

This final rule implements the 

important goals of part 810: 

• Effective nuclear proliferation 

threat reduction, 

• Effective civil nuclear trade 

support, and 

• Efficient regulation. 

DOE has reviewed the public 

comments received in response to the 

SNOPR. The final rule adopts most of 

the regulatory revisions proposed in the 

SNOPR, and incorporates some further 

changes based on careful consideration 

of public comments. The public 

comments were analyzed and placed 

into three categories: 

• Process Issues 

• Classification of Foreign 

Destinations 

• Activities Requiring Part 810 

Authorization 

A. Process Issues 

1. Compliance With Administrative 

Procedure Act Rulemaking 

Requirements 

NEI in part claimed the SNOPR 

violated the Administrative Procedure 

Act (APA) by providing inadequate 

explanation of the proposed changes, 

particularly the proposed general vs. 

specific authorization destination 

classifications. NEI included China, 

Russia, and India in this discussion, 

although these three countries have 

been, and remain, destinations requiring 

specific authorization. NEI, in 80 pages 

of comments on the destination 

classification issue, called for DOE to 

‘‘withdraw and re-publish the rule with 

enough information regarding its 

factual, legal and policy rationales to 

allow stakeholders to comment 

meaningfully.’’ AREVA stated ‘‘DOE has 

not put forth a sufficient rationale for 

the change in designation of these 

countries.’’ AUECO ‘‘join[ed] the U.S. 

Chamber of Commerce in calling upon 

DOE to withdraw the rule.’’ In response 

to these concerns and comments, and 

the desire to hear from as many 

commenters as possible, DOE re-opened 

the comment period to allow for more 

public comments. 

The SNOPR preamble adequately and 

reasonably explained the reasons for 

DOE’s proposed reclassification of 

foreign destinations, as well as other 

proposed changes to the part 810 

regulation. It also explained the reasons 

why DOE proposed the Secretary could 

not generally authorize nuclear 

technology transfers to China, Russia, 

and India. Adequate notice was 

provided for meaningful comments from 

the public on the SNOPR as evidenced 

by 26 separate letters of comments 

submitted to DOE, including lengthy 

and detailed comments from NEI and 

AREVA. DOE’s new approach in the 

final rule to classifying general and 

specific authorization destinations is a 

reasonable policy decision, made in 

compliance with the requirements of the 

APA and as authorized by the AEA. 


emcdonald on DSK67QTVN1PROD with RULES
9364 Federal Register / Vol. 80, No. 35 / Monday, February 23, 2015 / Rules and Regulations 

2. Part 810 Process Improvements 

As noted in the SNOPR, many NOPR 

commenters were concerned that the 

part 810 specific authorization process 

is unduly protracted, and that 

processing delays put U.S. suppliers at 

a competitive disadvantage with 

companies in other countries. It 

appeared that many concerns with the 

NOPR and SNOPR proposals indicated 

less dissatisfaction with the merits of 

the proposed regulatory changes than 

the commenters’ belief that the 

proposed rule revisions would continue 

or worsen delays in receiving specific 

authorizations. 

AHUG, ANS, AREVA, B&W, CSIS, 

EnergySolutions, Exelon, Fluor, GC 

Rudy/IST, NEI, NIC, and Westinghouse 

all made suggestions and comments 

related to improving the processing of 

specific authorization requests. In many 

cases these comments reiterated those 

received during the NOPR comment 

period. As these comments are not 

directed to the content of the proposed 

rule, they will not be addressed here but 

rather in the PIP that is ongoing 

currently. 

Similarly, commenters’ concerns 

about process ‘‘burdens’’ appeared to 

drive their comments about the 

substance of the proposed regulatory 

changes. As noted, DOE proposed and 

has underway a PIP separate from the 

rulemaking to make the part 810 

authorization process more transparent, 

orderly, and efficient in order to address 

specific authorization time in process. 

The part 810 PIP is part of a larger 

NNSA plan to be ISO 9001 compliant. 

The PIP team will focus on improving 

performance as measured by these 

critical to quality characteristics: 

• Effective nuclear proliferation 

threat reduction in a changing world, 

• Openness, predictability, and 

clarity of regulation, and 

• Efficiency: Performing the mission 

of preventing proliferation without 

wasting time, money, or placing 

unnecessary burdens on U.S. companies 

competing in global markets. 

The PIP team also will: 

• Measure process performance by 

listening to applicant ‘‘customers’’ and 

process implementers. Receiving these 

inputs will be key to realistic problem 

definition and development of effective 

process improvements. 

• Analyze causes of delays in DOE 

processing time for an application. 

• Recommend actions to sustain 

improved performance in processing 

part 810 applications for specific 

authorization. 

Anticipated improvements in the 

processing time of part 810 applications 

that may come from the PIP include 

these recommended actions from 

commenters: 

• Digitize the 810 authorization 

process (e810)—Digitization of the 

authorization process will make the 

applications easier to complete; 

streamline the review process, increase 

transparency by enabling applicant 

tracking; provide a searchable archive of 

past decisions; and facilitate audits 

required for ISO compliance. In this 

rule, DOE has added explicit email 

communication options, including 

applications, fast-track requests, and 

Ukraine notifications in § 810.4(c). 

• Reduce application processing 

time—This effort will begin by DOE 

analyzing the authorization case 

database to determine causes of 

processing time variation and undue 

delay. The PIP team will conduct 

benchmark studies to identify best 

practices and methods to improve 

efficiency. The team will work with the 

DOS to find ways to request and secure 

foreign governments’ nonproliferation 

assurances more promptly, and make 

internal DOE and inter-agency reviews 

of part 810 specific authorization 

applications more efficient by reducing 

unnecessary reviews and approvals. 

• Develop a guidance document— 

Many SNOPR commenters sought 

guidance or clarification on specific 

issues and recommended DOE prepare a 

guidance document or Web site to 

improve transparency. As noted above, 

DOE intends to develop a document or 

Web site that may include responses to 

requests made under § 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 NonProliferation 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 

§ 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 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 80, No. 35 / Monday, February 23, 2015 / Rules and Regulations 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 noninimicality. 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 (§ 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, § 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 § 810.14, the Secretary may invoke 

the authority in § 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 §§ 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 


emcdonald on DSK67QTVN1PROD with RULES
9366 Federal Register / Vol. 80, No. 35 / Monday, February 23, 2015 / Rules and Regulations 

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 § 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 § 810.3 and to apply the 

concept to the application of the scope 

of § 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 § 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 § 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 § 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 § 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 § 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 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 80, No. 35 / Monday, February 23, 2015 / Rules and Regulations 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 

§ 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-inprocess 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 § 810.10(b)(7) 

expressly states that in making the noninimicality 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 §§ 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 § 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 § 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 § 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 


emcdonald on DSK67QTVN1PROD with RULES
9368 Federal Register / Vol. 80, No. 35 / Monday, February 23, 2015 / Rules and Regulations 

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 § 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 ReExports 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 

§ 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 NRClicensed 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 § 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 NRClicensed 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 

§ 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, 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 80, No. 35 / Monday, February 23, 2015 / Rules and Regulations 9369 

the final rule makes all employees 

granted unescorted access to an NRClicensed 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 § 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 § 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 § 810.11(c) as 

proposed in the SNOPR (§ 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 § 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 § 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. companyapplicant 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 § 810.6(b)(1, 2 and 

4) . . .)’’ This recommendation 

indicates a misreading of § 810.6. 

Proposed § 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 

§ 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 factspecific 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 § 810.6(c) (adopted as 

§ 810.6(b) in the final rule). AHUG and 

EPRI provided comments and a red line 

text of the general authorization 

provisions at proposed § 810.6(c)(2) and 

(3) as well as the definition of 

‘‘operational safety’’ contained in 

proposed § 810.3 to further expand the 

provisions. AHUG, NEI, and EPRI 

recommended that DOE consolidate 

proposed §§ 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 § 810.6(c)(2) would be 

applicable only to existing plants 

overseas, while proposed § 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 


emcdonald on DSK67QTVN1PROD with RULES
9370 Federal Register / Vol. 80, No. 35 / Monday, February 23, 2015 / Rules and Regulations 

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 § 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 

§ 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 § 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 

§ 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 

§ 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 § 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 § 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 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 80, No. 35 / Monday, February 23, 2015 / Rules and Regulations 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. § 810.1 

NEI recommended adding a clause to 

proposed § 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 § 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. § 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 § 810.3. 

3. § 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 

§ 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 § 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. § 810.6(f) 

NEI commented that DOE should 

delete the ‘‘and’’ at the end of § 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. §§ 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 § 810.11(b), 

which provided applicants the option of 

providing information concerning the 

factors listed in §§ 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 § 810.11(b) as proposed in the 

SNOPR has been eliminated and 

§ 810.11(c) as proposed in the SNOPR 

has been renumbered as § 810.11(b). 

In the final rule, the phrase ‘‘and may 

provide information cited in 

§ 810.11(b)’’ is eliminated from 

§ 810.6(c)(2). The elimination of 

§ 810.11(b) and subsequent renumbering 

also requires changes to § 810.11(a) that 

referenced § 810.11(b). This clause now 

references §§ 810.9(b)(7), (8), and (9). 

6. § 810.16 Savings Clause 

NEI and B&W both commented that 

the time frames in proposed § 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 


emcdonald on DSK67QTVN1PROD with RULES
9372 Federal Register / Vol. 80, No. 35 / Monday, February 23, 2015 / Rules and Regulations 

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: 

Changes 

Annual 

impact 

(million/yr) 

Impacts 

through 

2030 

(millions) 

NEI ........................................................................................................................................ Base ............................. $10 160 

DOE Changes for Croatia’s status as GA ............................................................................ $0.7 .............................. 9.3 148.8 

DOE Changes for Deemed export impact ............................................................................ $2.5 .............................. 6.8 108.7 

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. 

Primary Low estimate High estimate Year dollars 

Discount 

rate 

(%) 

Period 

covered 

Annualized Monetized Costs 

($Millions/Year) ............................... $22,690,617 

23,674,479 

$10,084,718 

10,521,991 

$60,508,311 

63,131,945 

2010 

2010 

7 

3 

2013–2030 

2013–2030 

Annualized Monetized Benefits 

($Millions/Year) ............................... 42,586,759 

42,927,555 

18,927,448 

19,078,913 

113,564,690 

114,473,479 

2010 

2010 

7 

3 

2013–2030 

2013–2030 

Annualized Monetized Net Benefits 

($Millions/Year) ............................... 19,896,142 

19,253,076 

8,842,730 

8,556,922 

53,056,379 

51,341,534 

2010 

2010 

7 

3 

2013–2030 

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 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 80, No. 35 / Monday, February 23, 2015 / Rules and Regulations 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-considerationsmall-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 § 810.8(a) contained 

73 counties that required case-by-case 

review for the Secretary to make a noninimicality finding specifically 

authorizing the transfer of any 

technology or assistance except where 

generally authorized in § 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 


emcdonald on DSK67QTVN1PROD with RULES
9374 Federal Register / Vol. 80, No. 35 / Monday, February 23, 2015 / Rules and Regulations 

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 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 80, No. 35 / Monday, February 23, 2015 / Rules and Regulations 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. 

§ 810.1 Purpose. 

The regulations in this part 

implement section 57 b.(2) of the 

Atomic Energy Act, which empowers 

the Secretary, with the concurrence of 

the Department of State, and after 

consultation with the Nuclear 

Regulatory Commission, the Department 

of Commerce, and the Department of 

Defense, to authorize persons to directly 

or indirectly engage or participate in the 

development or production of special 

nuclear material outside the United 

States. The purpose of the regulations in 

this part is to: 

(a) Identify activities that are 

generally authorized by the Secretary 

and thus require no other authorization 

under this part; 

(b) Identify activities that require 

specific authorization by the Secretary 

and explain how to request 

authorization; and 

(c) Specify reporting requirements for 

authorized activities. 

§ 810.2 Scope. 

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

(1) All persons subject to the 

jurisdiction of the United States who 

directly or indirectly engage or 

participate in the development or 

production of any special nuclear 

material outside the United States; and 

(2) The transfer of technology that 

involves any of the activities listed in 

paragraph (b) of this section either in 

the United States or abroad by such 

persons or by licensees, contractors or 

subsidiaries under their direction, 

supervision, responsibility, or control. 

(b) The activities referred to in 

paragraph (a) of this section are: 

(1) Chemical conversion and 

purification of uranium and thorium 

from milling plant concentrates and in 

all subsequent steps in the nuclear fuel 

cycle; 

(2) Chemical conversion and 

purification of plutonium and 

neptunium; 

(3) Nuclear fuel fabrication, including 

preparation of fuel elements, fuel 

assemblies and cladding thereof; 

(4) Uranium isotope separation 

(uranium enrichment), plutonium 

isotope separation, and isotope 

separation of any other elements 

(including stable isotope separation) 

when the technology or process can be 

applied directly or indirectly to 

uranium or plutonium; 

(5) Nuclear reactor development, 

production or use of the components 

within or attached directly to the reactor 

vessel, the equipment that controls the 

level of power in the core, and the 

equipment or components that normally 

contain or come in direct contact with 

or control the primary coolant of the 

reactor core; 

(6) Development, production or use of 

production accelerator-driven 

subcritical assembly systems; 

(7) Heavy water production and 

hydrogen isotope separation when the 

technology or process has reasonable 

potential for large-scale separation of 

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

(8) Reprocessing of irradiated nuclear 

fuel or targets containing special nuclear 

material, and post-irradiation 

examination of fuel elements, fuel 

assemblies and cladding thereof, if it is 

part of a reprocessing program; and 

(9) The transfer of technology for the 

development, production, or use of 

equipment or material especially 

designed or prepared for any of the 

above listed activities. (See Nuclear 

Regulatory Commission regulations at 

10 CFR part 110, Appendices A through 

K, and O, for an illustrative list of items 

considered to be especially designed or 

prepared for certain listed nuclear 

activities.) 

(c) This part does not apply to: 

(1) Exports authorized by the Nuclear 

Regulatory Commission, Department of 

State, or Department of Commerce; 

(2) Transfer of publicly available 

information, publicly available 

technology, or the results of 

fundamental research; 

(3) Uranium and thorium mining and 

milling (e.g., production of impure 

source material concentrates such as 

uranium yellowcake and all activities 

prior to that production step); 

(4) Nuclear fusion reactors per se, 

except for supporting systems involving 

hydrogen isotope separation 

technologies within the scope defined 

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

§ 810.7(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, 


emcdonald on DSK67QTVN1PROD with RULES
9376 Federal Register / Vol. 80, No. 35 / Monday, February 23, 2015 / Rules and Regulations 

contractors, or subsidiaries to the extent 

that the former have control over the 

activities of the latter. 

§ 810.3 Definitions. 

As used in this part 810: 

Agreement for cooperation means an 

agreement with another nation or group 

of nations concluded under sections 123 

or 124 of the Atomic Energy Act. 

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 multicompany (where at least two of the 

companies are incorporated in different 

countries) joint development or 

production effort. The term includes a 

consortium of countries or companies or 

a 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, uranium233, plutonium-239, and plutonium241. 

Foreign national means an individual 

who is not a citizen or national of the 

United States, but excludes U.S. lawful 

permanent residents and protected 

individuals under the Immigration and 

Naturalization Act (8 U.S.C. 

1324b(a)(3)). 

Fundamental research means basic 

and applied research in science and 

engineering, the results of which 

ordinarily are published and shared 

broadly within the scientific 

community, as distinguished from 

proprietary research and from industrial 

development, design, production, and 

product utilization, the results of which 

ordinarily are restricted for proprietary 

or national security reasons. 

General authorization means an 

authorization granted by the Secretary 

under section 57 b.(2) of the Atomic 

Energy Act to provide assistance or 

technology to foreign atomic energy 

activities subject to this part and which 

does not require a request for, or the 

Secretary’s issuance of, a specific 

authorization. 

IAEA means the International Atomic 

Energy Agency. 

NNPA means the Nuclear NonProliferation Act of 1978, 22 U.S.C. 3201 

et seq. 

NPT means the Treaty on the NonProliferation of Nuclear Weapons, done 

on July 1, 1968. 

Nuclear reactor means an apparatus, 

other than a nuclear explosive device, 

designed or used to sustain nuclear 

fission in a self-sustaining chain 

reaction. 

Operational safety means the 

capability of a reactor to be operated in 

a manner that complies with national 

standards or requirements or widelyaccepted international standards and 

recommendations to prevent 

uncontrolled or inadvertent criticality, 

prevent or mitigate uncontrolled release 

of radioactivity to the environment, 

monitor and limit staff exposure to 

radiation and radioactivity, and protect 

off-site population from exposure to 

radiation or radioactivity. Operational 

safety may be enhanced by providing 

expert advice, equipment, 

instrumentation, technology, software, 

services, analyses, procedures, training, 

or other assistance that improves the 

capability of the reactor to be operated 

in compliance with such standards, 

requirements or recommendations. 

Person means: 

(1) Any individual, corporation, 

partnership, firm, association, trust, 

estate, public or private institution; 

(2) Any group, government agency 

other than DOE, or any State or political 

entity within a State; and 

(3) Any legal successor, 

representative, agent, or agency of the 

foregoing. 

Production means all production 

phases such as: Construction, 

production engineering, manufacture, 

integration, assembly or mounting, 

inspection, testing, and quality 

assurance. 

Production accelerator means a 

particle accelerator especially designed, 

used, or intended for use with a 

production subcritical assembly. 

Production accelerator-driven 

subcritical assembly system means a 

system comprised of a production 

subcritical assembly and a production 

accelerator and which is especially 

designed, used, or intended for the 

production of plutonium or uranium233. In such a system, the production 

accelerator target provides a source of 

neutrons used to effect special nuclear 

material production in the production 

subcritical assembly. 

Production reactor means a nuclear 

reactor especially designed or used 

primarily for the production of 

plutonium or uranium-233. 

Production subcritical assembly 

means an apparatus that contains source 

material or special nuclear material to 

produce a nuclear fission chain reaction 

that is not self-sustaining and that is 

especially designed, used, or intended 

for the production of plutonium or 

uranium-233. 

Publicly available information means 

information in any form that is generally 

accessible, without restriction, to the 

public. 

Publicly available technology means 

technology that is already published or 

has been prepared for publication; arises 

during, or results from, fundamental 

research; or is included in an 

application filed with the U.S. Patent 

Office and eligible for foreign filing 

under 35 U.S.C. 184. 

Restricted Data means all data 

concerning: 

(1) Design, manufacture, or utilization 

of atomic weapons; 

(2) The production of special nuclear 

material; or 

(3) The use of special nuclear material 

in the production of energy, but shall 

not include data declassified or 

removed from the Restricted Data 

category pursuant to section 142 of the 

Atomic Energy Act. 

Secretary means the Secretary of 

Energy. 

Sensitive nuclear technology means 

any information (including information 

incorporated in a production or 

utilization facility or important 

component part thereof) which is not 

available to the public (see definition of 

‘‘publicly available information’’) and 

which is important to the design, 

construction, fabrication, operation, or 

maintenance of a uranium enrichment 

or nuclear fuel reprocessing facility or a 

facility for the production of heavy 

water, but shall not include Restricted 

Data controlled pursuant to chapter 12 

of the Atomic Energy Act. The 

information may take a tangible form 

such as a model, prototype, blueprint, or 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 80, No. 35 / Monday, February 23, 2015 / Rules and Regulations 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 § 810.2(b). 

Use means operation, installation 

(including on-site installation), 

maintenance (checking), repair, 

overhaul, or refurbishing. 

United States, when used in a 

geographical sense, includes Puerto 

Rico and all territories and possessions 

of the United States. 

§ 810.4 Communications. 

(a) All communications concerning 

the regulations in this part should be 

addressed to: U.S. Department of 

Energy, Washington, DC 20585. 

Attention: Senior Policy Advisor, 

National Nuclear Security 

Administration/Office of 

Nonproliferation and 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: Part810@

nnsa.doe.gov. For ‘‘fast track’’ activities 

described in §§ 810.6(c)(1) and (c)(2) 

emails should be sent to: Part810- 

OperationalSafety@nnsa.doe.gov. 

Notifications regarding activity in the 

Ukraine should be delivered by email 

to: Part810-Ukraine@nnsa.doe.gov. 

§ 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 

§ 810.6, or requires a specific 

authorization under § 810.7. However, 

unless authorized by the Secretary in 

writing, no interpretation of the 

regulations in this part other than a 

written interpretation by the DOE 

General Counsel is binding upon DOE. 

(b) When advice is requested from the 

DOE Office of Nonproliferation and 

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. 

§ 810.6 Generally authorized activities. 

The Secretary has determined that the 

following activities are generally 

authorized, provided that no sensitive 

nuclear technology or assistance 

described in § 810.7 is involved: 

(a) Engaging directly or indirectly in 

the production of special nuclear 

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 NRClicensed facility, provided: 

(1) The foreign national is lawfully 

employed by or contracted to work for 

a U.S. employer in the United States; 

(2) The foreign national executes a 

confidentiality agreement with the U.S. 

employer to safeguard the technology 

from unauthorized use or disclosure; 

(3) The foreign national has been 

granted unescorted access in accordance 

with NRC regulations at an NRClicensed facility; and 

(4) The foreign national’s U.S. 

employer authorizing access to the 

technology complies with the reporting 

requirements in § 810.12(g). 

(c) Activities at any safeguarded 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 § 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 § 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). 

§ 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 § 810.2(b) with any foreign 

country or entity not specified in the 

Appendix to this part; 


emcdonald on DSK67QTVN1PROD with RULES
9378 Federal Register / Vol. 80, No. 35 / Monday, February 23, 2015 / Rules and Regulations 

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

(4) Development, production or use of 

a production accelerator-driven 

subcritical assembly system; 

(5) Development, production or use of 

a production reactor; or 

(6) Reprocessing of irradiated nuclear 

fuel or targets containing special nuclear 

material. 

§ 810.8 Restrictions on general and 

specific authorization. 

A general or specific authorization 

granted by the Secretary under this part: 

(a) Is limited to activities involving 

only unclassified information and does 

not permit furnishing classified 

information; 

(b) Does not relieve a person from 

complying with the relevant laws or the 

regulations of other U.S. Government 

agencies applicable to exports; and 

(c) Does not authorize a person to 

engage in any activity when the person 

knows or has reason to know that the 

activity is intended to provide 

assistance in designing, developing, 

fabricating, or testing a nuclear 

explosive device. 

§ 810.9 Grant of specific authorization. 

(a) An application for authorization to 

engage in activities for which specific 

authorization is required under § 810.7 

should be made to the U.S. Department 

of Energy, National Nuclear Security 

Administration, Washington, DC 20585, 

Attention: Senior Policy Advisor, Office 

of Nonproliferation and 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 


emcdonald on DSK67QTVN1PROD with RULES
Federal Register / Vol. 80, No. 35 / Monday, February 23, 2015 / Rules and Regulations 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 nondisclosure of information. 

§ 810.10 Revocation, suspension, or 

modification of authorization. 

The Secretary may revoke, suspend, 

or modify a general or specific 

authorization: 

(a) For any material false statement in 

an application for specific authorization 

or in any additional information 

submitted in its support; 

(b) For failing to provide a report or 

for any material false statement in a 

report submitted pursuant to § 810.12; 

(c) If any authorization governed by 

this part is subsequently determined by 

the Secretary to be inimical to the 

interest of the United States or 

otherwise no longer meets the legal 

criteria for approval; or 

(d) Pursuant to section 129 of the 

Atomic Energy Act. 

§ 810.11 Information required in an 

application for specific authorization. 

(a) An application letter must include 

the following information: 

(1) The name, address, and 

citizenship of the applicant, and 

complete disclosure of all real parties in 

interest; if the applicant is a corporation 

or other legal entity, where it is 

incorporated or organized; the location 

of its principal office; and the degree of 

any control or ownership by any foreign 

individual, corporation, partnership, 

firm, association, trust, estate, public or 

private institution or government 

agency; 

(2) The country or entity to receive 

the assistance or technology; the name 

and location of any facility or project 

involved; and the name and address of 

the person for which or whom the 

activity is to be performed; 

(3) A description of the assistance or 

technology to be provided, including a 

complete description of the proposed 

activity, its approximate monetary 

value, and a detailed description of any 

specific project to which the activity 

relates as specified in §§ 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 § 810.6(b), 

an applicant seeking to employ a citizen 

or national of a country not listed in the 

Appendix in a position that could result 

in the transfer of technology subject to 

§ 810.2, or seeking to employ any 

foreign national in the United States or 

in a foreign country that could result in 

the export of assistance or transfer of 

technology subject to § 810.7 must 

request a specific authorization. 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. 

§ 810.12 Reports. 

(a) Each person who has received a 

specific authorization shall, within 30 

calendar days after beginning the 

authorized activity, provide to DOE a 

written report containing the following 

information: 

(1) The name, address, and 

citizenship of the person submitting the 

report; 

(2) The name, address, and 

citizenship of the person for whom or 

which the activity is being performed; 

(3) A description of the activity, the 

date it began, its location, status, and 

anticipated date of completion; and 

(4) A copy of the DOE letter 

authorizing the activity. 

(b) Each person carrying out a 

specifically authorized activity shall 

inform DOE, in writing within 30 

calendar days, of completion of the 

activity or of its termination before 

completion. 

(c) Each person granted a specific 

authorization shall inform DOE, in 

writing within 30 calendar days, when 

it is known that the proposed activity 

will not be undertaken and the granted 

authorization will not be used. 

(d) DOE may require reports to 

include such additional information 

that may be required by applicable U.S. 

law, regulation, or policy with respect to 

the specific nuclear activity or country 

for which specific authorization is 

required. 

(e) Each person, within 30 calendar 

days after beginning any generally 

authorized activity under § 810.6, shall 

provide to DOE: 

(1) The name, address, and 

citizenship of the person submitting the 

report; 

(2) The name, address, and 

citizenship of the person for whom or 

which the activity is being performed; 

(3) A description of the activity, the 

date it began, its location, status, and 

anticipated date of completion; and 

(4) A written assurance that the 

applicant has an agreement with the 

recipient ensuring that any subsequent 

transfer of materials, equipment, or 

technology transferred under general 

authorization under circumstances in 

which the conditions in § 810.6 would 

not be met will take place only if the 

applicant obtains DOE’s prior written 

approval. 

(f) Individuals engaging in generally 

authorized activities as employees of 

persons required to report are not 

themselves required to submit the 

reports described in paragraph (e) of this 

section. 

(g) Persons engaging in generally 

authorized activities under § 810.6(b) 

are required to notify DOE that a citizen 


emcdonald on DSK67QTVN1PROD with RULES
9380 Federal Register / Vol. 80, No. 35 / Monday, February 23, 2015 / Rules and Regulations 

or national of a country not listed in the 

Appendix to this part has been granted 

access to information subject to § 810.2 

in accordance with Nuclear Regulatory 

Commission access requirements. The 

report should contain the information 

required in § 810.11(b). 

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

Department of Energy, National Nuclear 

Security Administration, Washington, 

DC 20585, Attention: Senior Policy 

Advisor, Office of Nonproliferation and 

Arms Control (NPAC). 

§ 810.13 Additional information. 

DOE may at any time require a person 

engaging in any generally or specifically 

authorized activity to submit additional 

information. 

§ 810.14 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. 

§ 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. 

§ 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 § 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 § 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 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2014–0561; Directorate 

Identifier 2014–NE–12–AD; Amendment 39– 

18105; AD 2015–04–03] 

RIN 2120–AA64 

Airworthiness Directives; Rolls-Royce 

plc Turbofan Engines 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: We are adopting a new 

airworthiness directive (AD) for certain 

Rolls-Royce plc (RR) RB211 Trent 768– 

60, 772–60, and 772B–60 turbofan 

engines. This AD requires inspection of 

the oil feed tube sealing sleeve and 

removal of those oil feed tube sealing 

sleeves that are affected by this AD. This 

AD was prompted by fractures of the 

high-pressure/intermediate-pressure 

(HP/IP) turbine support internal oil feed 

tube. We are issuing this AD to prevent 

failure of the HP/IP turbine support 

internal oil feed tube, which could 

result in uncontained engine failure and 

damage to the airplane. 

DATES: This AD becomes effective 

March 30, 2015. 

ADDRESSES: See the FOR FURTHER

INFORMATION CONTACT section. 


emcdonald on DSK67QTVN1PROD with RULES