Assistance to Foreign Atomic Energy Activities, 55278-55288 [2011-22679]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 76, Number 173 (Wednesday, September 7, 2011)]
[Proposed Rules]
[Pages 55278-55288]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-22679]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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

[[Page 55278]]



DEPARTMENT OF ENERGY

10 CFR Part 810

RIN 1994-AA02


Assistance to Foreign Atomic Energy Activities

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

ACTION: Notice of proposed rulemaking.

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

SUMMARY: DOE proposes to amend its regulation concerning unclassified 
assistance to foreign atomic energy activities. This regulation 
provides that persons subject to the jurisdiction of the United States 
who engage directly or indirectly in the production of special nuclear 
material outside the United States must be authorized to do so by the 
Secretary of Energy (Secretary). The proposed revisions update and 
clarify several provisions in the current regulation, and identify 
information applicants are required to submit in support of 
applications for an authorization under this part. The revisions are 
intended to reduce uncertainties for industry users concerning which 
foreign nuclear-related activities by U.S. persons are ``generally 
authorized'' under the regulation and which activities require a 
``specific authorization'' from the Secretary. In this regard, one 
proposed organizational change is the listing of countries and 
territories for which a general authorization for foreign atomic energy 
activities is available. This proposed change contrasts with the 
current regulation, which lists those countries for which a specific 
authorization to conduct such activities is required. Unclassified 
nuclear activities are generally authorized with respect to these 
listed countries if they do not involve ``sensitive nuclear 
technology'' as defined in the regulation. Conversely, the proposed 
revised regulation specifically identifies those assistance activities 
and technologies under DOE's jurisdiction, the export of which requires 
a specific authorization from the Secretary. Additionally, DOE is 
proposing to add regulations to address ``deemed exports.'' Companies 
seeking to employ foreign nationals in positions involving a proposed 
transfer of technology are provided information on the documentation 
required to be submitted to request specific authorization for those 
transfers. Finally, DOE proposes to update its regulations in this area 
to reflect terminological and other changes in nuclear technology since 
the last major update in 1986. Finally, points of contact references 
have been updated to reflect the current DOE organizational structure.

DATES: Written comments must be postmarked on or before November 7, 
2011 to ensure consideration.

ADDRESSES: You may submit comments, identified by RIN 1994-AA02, by any 
of the following methods:
    1. Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the instructions for submitting comments.
    2. E-mail: Part810.NOPR@hq.doe.gov Include RIN 1994-AA02 in the 
subject line of the message.
    3. Mail: Richard Goorevich, Senior Policy Advisor, Office of 
Nonproliferation and International Security, NA 24, National Nuclear 
Security Administration, Department of Energy, 1000 Independence 
Avenue, SW., Washington, DC 20585.
    Due to potential delays in DOE's receipt and processing of mail 
sent through the U.S. Postal Service, DOE encourages responders to 
submit comments electronically to ensure timely receipt.
    All submissions must include the RIN for this rulemaking, RIN 1994-
AA02. For detailed instructions on submitting comments and additional 
information on the rulemaking process, see the ``Public Comment 
Procedures'' heading of the SUPPLEMENTARY INFORMATION section of this 
document.

FOR FURTHER INFORMATION CONTACT: Richard Goorevich, Senior Policy 
Advisor, Office of Nonproliferation and International Security, NA 24, 
National Nuclear Security Administration, Department of Energy, 1000 
Independence Avenue, SW., Washington, DC 20585, telephone 202-586-0589; 
Janet Barsy or Elliot Oxman, Office of the General Counsel, GC-53, 
Department of Energy, 1000 Independence Avenue, SW., Washington, DC 
20585, telephone 202-586-3429 (Ms. Barsy) or 202-586-1755 (Mr. Oxman); 
or Katie Strangis, National Nuclear Security Administration, Office of 
the General Counsel, 1000 Independence Avenue, SW., Washington, DC 
20585, telephone 202-586-8623.

SUPPLEMENTARY INFORMATION: 

I. Background
II. Description of Proposed Changes
III. Public Comment Procedures
IV. Regulatory Review
    A. Executive Order 12866
    B. National Environmental Policy Act
    C. Regulatory Flexibility Act
    D. Paperwork Reduction Act
    E. Unfunded Mandates Reform Act of 1995
    F. Treasury and Government Appropriations Act, 1999
    G. Executive Order 13132
    H. Executive Order 12988
    I. Treasury and General Government Appropriations Act, 2001
    J. Executive Order 13211
V. Approval by the Office of the Secretary

I. Background

    DOE's regulation in 10 CFR part 810 implements section 57b. of the 
Atomic Energy Act of 1954, as amended by section 302 of the Nuclear 
Non-Proliferation Act of 1978 (NNPA) (42 U.S.C 2077(b)). The statute 
provides that it ``shall be unlawful for any person to directly or 
indirectly engage or participate in the development or production of 
any special nuclear material outside of the United States except (1) As 
specifically authorized under an agreement for cooperation made 
pursuant to section 123 * * * or (2) upon authorization by the 
Secretary of Energy after a determination that such activity will not 
be inimical to the interest of the United States. * * *''
    Part 810 regulates the export of unclassified nuclear technology 
and assistance, to facilitate international commerce while at the same 
time protecting against the spread of nuclear technologies and material 
that would be contrary to the nonproliferation and other national 
security interests of the United States. More specifically, the 
purposes of the part 810 regulation are: (1) To enable DOE to control 
the export of nuclear technologies and services while protecting the 
interest of, and advancing, U.S. nonproliferation and other national 
security objectives; (2) to facilitate such exports by identifying 
nuclear technology and related

[[Page 55279]]

assistance activities that can be ``generally authorized'' by the 
Secretary and thus require no further authorization under part 810; (3) 
to identify the specific transfers of assistance and technology which 
require specific authorization by the Secretary; (4) to explain how to 
request a specific authorization from the Secretary; and (5) to 
identify the reporting requirements for activities subject to part 810.
    The part 810 regulation has not been comprehensively updated since 
1986. Some of the terminology contained in the current regulation has 
become inconsistent with guidelines issued by the Nuclear Suppliers 
Group (NSG), an international group of nuclear supplier countries, 
including the United States, which seeks to promote the 
nonproliferation of nuclear weapons through the implementation of 
guidelines for nuclear exports. The existing part 810 regulation also 
contains certain technical references and definitions that do not 
reflect current science, and other terms and references whose inclusion 
in the regulation is no longer necessary.

II. Description of Proposed Changes

    DOE is publishing this notice of proposed rulemaking (NOPR) to 
clarify the regulatory restrictions and requirements pertaining to 
unclassified atomic energy assistance, and nuclear technology 
transfers, to foreign destinations. The proposed changes would update 
some of the definitions used in the regulation; identify countries and 
territories as to which a ``general authorization'' applies; and 
identify the activities subject to a ``specific authorization''. 
Additionally, the proposed rule would: (1) Make clear what types of 
technology transfers, which can include either technical data or 
technical assistance, fall within the scope of the regulation; (2) 
provide for added technical clarity of certain terms and technology; 
(3) revise, delete, and add definitions for certain terms contained in 
the regulation; (4) identify the information required to be provided by 
applicants for a part 810 authorization, including requests for 
authorization of ``deemed exports''; and (5) update points of contact 
information to reflect current Departmental organizational structure 
and office designations.
    The proposed changes to part 810 are summarized below in the order 
in which they appear:
    1. The proposed changes to Sec.  810.1 ``Purpose'' would state the 
statutory basis for the regulation and clarify the purpose and 
authorization requirements.
    2. The proposed changes to paragraghs (a) and (b) in Sec.  810.2 
``Scope'' are intended to state explicitly DOE's jurisdiction under 
section 57 b. of the Atomic Energy Act with regard to unclassified 
nuclear export activities by U.S. persons that include assistance and 
transfer of technology abroad and to foreign nationals employed by U.S. 
companies, whether the subject activities are conducted in the United 
States or abroad by U.S. persons or by licensees, contractors or 
subsidiaries under their direction, supervision, responsibility, or 
control. Proposed Sec.  810.2(c) would retain the exemptions for all 
exports licensed by the Nuclear Regulatory Commission; and would exempt 
``public information'' and ``basic scientific research'' as those terms 
are proposed to be defined in Sec.  810.3. Additionally, proposed Sec.  
810.2(c) would make clear the exclusion from the scope of the part 810 
regulation of uranium and thorium mining and milling and nuclear fusion 
reactors when not used in support of systems involving hydrogen isotope 
separation. The proposed addition of these two exemptions is intended 
to clarify that activities related to uranium and thorium mining and 
milling and nuclear fusion reactors, per se, are not within the scope 
of part 810.
    3. In proposed Sec.  810.3 ``Definitions'', a number of new 
definitions are proposed to reflect terminological changes and 
technological developments since the part 810 regulation was last 
updated (in 1986), and to provide additional clarity to certain terms 
currently defined and used in the regulation. For example, the 
definition of ``accelerator-driven subcritical assembly'' would be 
replaced with ``production accelerator-driven subcritical assembly 
system''; the terms ``non-nuclear-weapon state'', ``operational 
safety'' and ``subcritical assembly'' are proposed to be deleted from 
the current definitions. The proposed rule would also add new and 
revised definitions: ``basic scientific research,'' ``cooperative 
enrichment enterprise'', ``enrichment,'' ``fissile material'', 
``production accelerator'', ``production accelerator-driven subcritical 
assembly system'', ``production subcritical assembly'', 
``reprocessing'', ``specific authorization'', ``specifically authorized 
nuclear activities'', ``technology'' (including ``development'' and 
``production''), ``technical assistance'', ``technical data'', and 
``use''. Definitions are also proposed to be added for ``DOE'' and 
``Secretary''.
    4. Proposed Sec. Sec.  810.4 ``Communications'' and 810.5 
``Interpretations'' would be changed to identify the responsible office 
under the current Departmental organizational structure to which 
applications, questions, or requests should be addressed. This proposed 
revision is intended to ensure that part 810-related correspondence 
will be directed appropriately and help facilitate prompt responses to 
those applications, questions, or other requests.
    5. The current Sec.  810.6 ``Authorization requirement'' quotes 
section 57 b. of the Atomic Energy Act. This notice proposes to delete 
the quotation, and to address the statutory basis instead in the 
``Authority'' section of the preamble and proposed Sec.  810.1 
``Purpose''.
    6. Proposed Sec.  810.6 ``Generally Authorized Activities''--
currently Sec.  810.7, re-numbered Sec.  810.6 in the proposed rule--
would identify activities that are generally authorized by the 
Secretary, and the countries and territories to which general 
authorizations apply. Section 810.6(a) would identify generally 
authorized activities. Section 810.6(b) would identify the countries 
and territories, and facilities therein, that would qualify for a 
general authorization. The current Sec.  810.7 (b) ``furnishing public 
information'' would be deleted from the list of generally authorized 
activities and would be included in proposed Sec.  810.2, as exempt 
from the scope of this part. Current Sec.  810.7(c) would be deleted. 
The ``fast track'' safety general authorization has rarely been used, 
and has proved confusing to applicants. In summary, the proposed Sec.  
810.6 would identify the activities, countries, territories, 
destinations, and facilities to which the general authorization is 
applicable.
    7. Proposed Sec.  810.7 Activities requiring specific 
authorization. This proposed section, renumbered from Sec.  810.8, 
would be modified to indicate that, unless an activity is generally 
authorized under proposed Sec.  810.6, a specific authorization from 
the Secretary would be required before engaging directly or indirectly 
in the production of special nuclear material outside the United 
States. The current regulation in Sec.  810.2 (a) provides a broad 
general authorization for all activities not requiring a specific 
authorization as described in Sec.  810.8.
    8. Proposed Sec.  810.8 Restrictions on general and specific 
authorization. The present restrictions, currently in Sec.  810.9, 
would remain unchanged.
    9. Proposed Sec.  810.9 ``Grant of specific authorization''--
currently Sec.  810.10-- would add a new paragraph (b) to establish a 
time limit on all specific authorizations. Each specific

[[Page 55280]]

authorization approved by the Secretary is proposed to be limited to a 
period of up to five years. This proposal is intended to ensure that 
U.S. persons granted specific authorizations from the Secretary keep 
DOE informed of their activities and planned nuclear technology 
transfers, and to facilitate DOE's ability to confirm the adherence of 
those activities to U.S. nonproliferation policy. Additionally, 
language would be included in proposed Sec.  810.9(b) identifying the 
factors, consonant with U.S. international nonproliferation 
commitments, considered by the Secretary in granting a specific 
authorization. Proposed Sec.  810.9(c) would be expanded to provide 
clarity to applicants that request a specific authorization to transfer 
sensitive nuclear technology as defined in proposed Sec.  810.3. In 
addition to the current requirements of sections 127 and 128 of the 
Atomic Energy Act, the proposed regulation lists criteria, relevant to 
U.S. nonproliferation policy and international commitments, that would 
be considered in determining whether to authorize an export involving 
sensitive nuclear technology. A new paragraph (d) is proposed to be 
added, concerning requests to engage in foreign atomic energy 
assistance activities related to the enrichment of fissile material (as 
defined in proposed Sec.  810.3). The proposed provision is designed to 
facilitate U.S. conformity to the Nuclear Suppliers Group Guidelines.
    10. The current Sec.  810.11 is proposed as Sec.  810.10 
Revocation, suspension, or modification of authorization. Proposed 
Sec.  810.10(c) would add the phrase ``or technology transfer'' after 
the words ``authorized assistance.''
    11. The current Sec.  810.12 is proposed as Sec.  810.11, 
Information required in an application for specific authorization, and 
would be expanded to add more detail about the information required for 
DOE to process a specific authorization request, including applications 
for ``deemed export'' authorization. Section 810.11(a) would require 
the submission of the same information required by the current 
regulation (Sec.  810.12(a)). Proposed paragraph (b) would solicit any 
information the applicant wishes to provide concerning the factors 
listed in proposed Sec.  810.9(b). Proposed paragraph (c) would address 
the required content for applications filed by U.S. companies seeking 
to employ, and to accord access to nuclear technology subject to this 
part by, foreign nationals with temporary, student, or immigrant visa 
status in the United States. This proposed section is intended to 
address situations comparable to those covered by the ``deemed export'' 
rule in 15 CFR 734.2(b)(2) of the Commerce Department's Export 
Administration Regulations. Under this proposal, no part 810 specific 
authorization would be required if the foreign national employee (or 
prospective employee) is lawfully admitted for permanent residence in 
the United States, or is a protected individual under the Immigration 
and Nationalization Act (8 U.S.C. 1324b(a)(3)). As proposed, the part 
810 regulation would make explicit DOE's current practice of requiring 
an applicant to provide detailed information concerning the 
nationality, visa status, educational background, and employment 
history of each foreign national to whom the applicant seeks to grant 
access to technology subject to the part 810 regulation. In addition, 
the applicant must provide a description of the subject technology, a 
copy of any confidentiality agreement between the U.S. company employer 
and the foreign national, and written nonproliferation assurances by 
the foreign national. Finally, proposed paragragh (d) would identify 
the information required to be submitted by an applicant seeking a 
specific authorization to engage in foreign atomic energy assistance 
activities related to the enrichment of fissile material.
    12. The current Sec. Sec.  810.13, 810.14, and 810.15 would be 
renumbered as proposed Sec.  810.12 Reports, proposed Sec.  810.13 
Additional information, and proposed Sec.  810.14 Violations. A 
proposed addition in Sec.  810.12(g) would allow DOE to require 
companies granted authorizations under part 810 to submit certain 
reports to DOE, to include information required by U.S. law concerning 
specific nuclear activities or specific countries exports to which 
require a specific authorization.
    Because DOE is making changes to most sections of part 810, it is 
publishing the entire part 810 for public comment.

III. Public Comment Procedures

    Interested persons are invited to participate by submitting data, 
views, or arguments. Written comments should be submitted to the 
address indicated in the ADDRESSES section of this notice. All comments 
submitted in writing or in electronic form may be made available to the 
public in their entirety. Personal information such as your name, 
address, telephone number, e-mail address, etc., will not be removed 
from your submission. Comments will be available for public inspection 
in the DOE Freedom of Information Act Reading Room (1E-190), 1000 
Independence Avenue, SW., Washington, DC 20585, between the hours of 9 
a.m. and 4 p.m., Monday through Friday, except Federal holidays. 
Members of the public who wish to review the comments submitted should 
contact Alexander Morris, FOIA Officer, at (202) 586-3159. Comments 
made on this rulemaking will also be posted on https://www.regulations.gov. Written comments received by the date indicated in 
the DATES section of this notice of proposed rulemaking will be 
addressed and considered prior to publication of the final rule. Any 
information that a commenter considers to be confidential must be so 
identified and submitted in writing, one copy only. DOE reserves the 
right to determine the appropriateness of confidential status for the 
information and to treat it in accordance with its determination. See 
10 CFR 1004.11.

IV. Regulatory Review

A. Executive Order 12866

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

B. National Environmental Policy Act

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

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published

[[Page 55281]]

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: https://www.gc.doe.gov.
    DOE has reviewed this proposed rule under the provisions of the 
Regulatory Flexibility Act and the procedures and policies published on 
February 19, 2003. The proposed rule offers clarity on regulatory 
restrictions and requirements pertaining to unclassified assistance to 
foreign atomic energy activities; it does not expand the scope of 
activities currently regulated under 10 CFR part 810.
    The proposed changes to the preamble of part 810 and Sec.  810.1 
reposition (to the ``Authority'' section, above) and update statutory 
citations, and clarify the purpose statement. There is no change that 
will impact small businesses or the review time necessary to prepare or 
submit requests for authorization.
    Section 810.2 is proposed to be expanded to provide further detail 
on the scope of activities that are subject to part 810. As a 
consequence, more information will be available to small businesses as 
they formulate their business strategies. These changes should assist 
small businesses to determine which nuclear export activities 
undertaken with foreign parties require authorization under this part. 
This additional information should reduce the time required to identify 
activities that are controlled by part 810, and also lessen the costs 
associated with developing documentation to support applications for 
authorization.
    Section 810.3, Definitions, is proposed to be updated to reflect 
changes in technology and to provide additional clarity. Specifically, 
for example, the definition of ``accelerator-driven subcritical 
assembly'' would be replaced with ``production accelerator-driven 
subcritical assembly system''; and the terms ``non-nuclear-weapon 
state'' and ``operational safety and subcritical assembly'' would be 
deleted from the regulation. New and revised definitions would be 
added: ``basic scientific research'', ``cooperative enrichment 
enterprise'', ``DOE'', ``enrichment'', ``fissile material'', 
``production accelerator-driven subcritical assembly system'', 
``production subcritical assembly'', ``reprocessing'', ``Secretary'', 
``specific authorization'', ``specifically authorized nuclear 
activities'', ``technology'', ``technical assistance'', ``technical 
data'', and ``use''. These definitional updates and additions would not 
change the scope of the activities controlled under this part. Rather, 
the new and revised definitions should provide greater clarity to small 
businesses, decrease the time for small businesses to evaluate 
activities for implications of this regulation, and also lessen the 
costs associated with developing documentation to support their 
applications for authorization.
    Section 810.4 and Sec.  810.5 are proposed to be changed to reflect 
the current organizational structure of the DOE office responsible for 
administering part 810, and should not impact small businesses. The 
proposed revision will help ensure that correspondence is directed 
appropriately and expedite application processing time. Section 810.6 
would be deleted. It quotes the provisions of section 57 b. of the 
Atomic Energy Act of 1954 and is not required for the text of the 
regulation. Its deletion would require an applicant to consult a source 
outside part 810 to locate the statutory text of section 57 b.
    Sections 810.7, Generally authorized activities, and 810.8, 
Activities requiring specific authorization, would be revised and 
renumbered as Sec. Sec.  810.6 and 810.7, respectively. The revised 
text of Sec.  810.6 would provide more detail concerning activities 
that are generally authorized by the Secretary, and identify countries 
and territories, and facilities therein, to which general 
authorizations apply. The proposed change should only impact small 
businesses positively. Providing this clarification concerning 
activities that are generally authorized would assist small businesses 
to determine when they need to submit a request for specific 
authorization, as stated in proposed Sec.  810.7. Paragraghs (a) and 
(g) of current Sec.  810.7 would be deleted because the regulation does 
not control public information; therefore a general authorization is 
not necessary. The substance of paragragh (b) of the current Sec.  
810.7 would be retained and renumbered as Sec.  810.6(b)(2). The 
current Sec.  810.7(c) would be deleted from the text. This ``fast 
track'' safety general authorization has been used only once, by a 
large corporation, to address an imminent threat to the public after an 
earthquake.
    New Sec.  810.8, Restrictions on general and specific 
authorizations, would continue the same restrictions as are contained 
in the current part 810, and therefore would not add any new burdens on 
small businesses. New Sec.  810.9, grant of specific authorization, is 
proposed to outline the process for applying for a specific 
authorization. Paragragh (a) would provide updated information on the 
current DOE organizational structure. Paragragh (b) would retain 
identification of the other U.S. departments and agencies (the 
Departments of State, Defense, and Commerce, and the Nuclear Regulatory 
Commission) that review part 810 authorization requests; it would also 
include a time limit on specific authorizations, and revise and add 
factors DOE would consider in making an authorization determination. 
The five-year maximum period has been a matter of DOE practice for a 
number of years; it is now being proposed to be added to the regulation 
to provide clarity to companies applying for a specific authorization. 
Paragragh (b) would be expanded to provide additional information to 
U.S. companies that request a specific authorization to transfer 
sensitive nuclear technology. This change should provide useful 
information to applicants, but not create additional requirements or 
negatively impact a small business applying for a specific 
authorization. A new paragragh (c) is proposed, concerning activities 
related to the enrichment of fissile material; and has been added to 
facilitate U.S. conformity to the Nuclear Suppliers Group Guidelines. 
Although satisfaction of the requirements of this proposal would 
require more effort by an applicant, it is unlikely that a small 
business would engage in foreign atomic energy activities involving the 
enrichment of fissile material.
    New Sec.  810.10, Revocation, suspension, or modification of 
authorizations, has minimal proposed updates, and is intended to 
provide greater clarity. New Sec.  810.11, Information required in an 
application for specific authorization, would be expanded to add more 
detail about the information required to process an authorization, 
including a ``deemed export'' authorization. The revisions to this 
section would provide additional, and more specific, information 
concerning the matters required to be addressed in an application, thus 
making the application process clearer to small businesses. Adoption of 
this proposed revision should positively impact the amount of time and 
resources a small business would have to devote to the application 
process, without adding any new requirements for small businesses and 
also decreasing the processing time for the application within the 
Department. New Sec.  810.11 would also require an applicant to provide 
information concerning

[[Page 55282]]

activities related to the enrichment of fissile materials. As noted, it 
is unlikely that a small business would engage in foreign atomic energy 
assistance activities of this nature.
    New Sec.  810.12, Reports, would be updated with the correct DOE 
organizational structure, with no adverse impact on small businesses. 
The proposed changes to Sec. Sec.  810.13 and 810.14 are minimal, and 
should impose no increased burden on applicants.
    In practice, the requirements for small businesses exporting 
nuclear technology would not substantively change because the proposed 
revisions to this rule do not impact sections of the rule containing 
those requirements or add new burdens or duties to small businesses. 
The obligations of any person subject to the jurisdiction of the United 
States who engages directly or indirectly in the production of special 
nuclear material outside the United States would not change in a manner 
that would have any impact on small businesses.
    Furthermore, DOE has conducted a review of the potential small 
businesses that may be impacted by this proposed rule. This review 
consisted of an analysis of the number of businesses impacted generally 
since 2007-2008, and a determination of which of those are considered 
``small businesses'' by the Small Business Administration. 
Approximately 90% of the businesses impacted by this rule are not 
considered small businesses (out of 56 businesses examined, 5 qualify 
as small businesses). Additionally, the number of requests for 
authorization or reports of generally authorized activities from each 
small business on average was one or fewer per year, while larger 
companies had as many as 100 requests for authorization or reports of 
generally authorized activities per year. The latter businesses fall 
within two North American Industry Classification System codes, for 
engineering services and computer systems designs services. Often, 
their requests for authorization include the transfer of computer codes 
or other similar products. The proposed changes to this rule would not 
alter whether these businesses do or do not receive authorization under 
part 810, thus not adversely affecting their ability to conduct 
business in the same manner they do at present. Moreover, they will 
benefit from a clarified request process. Generally, small businesses 
reported that their initial filing of a part 810 request for 
authorization required up to 40 hours of legal assistance, but follow-
on reporting and requests required significantly less such assistance.
    On the basis of the foregoing, DOE certifies that this proposed 
rule would not have a significant economic impact on a substantial 
number of small entities. Accordingly, DOE has not prepared a 
regulatory flexibility analysis for this rulemaking. DOE's 
certification and supporting statement of factual basis will be 
provided to the Chief Counsel for Advocacy of the Small Business 
Administration pursuant to 5 U.S.C. 605(b).

D. Paperwork Reduction Act

    The proposed rule would not impose a collection of information 
requirement subject to the Paperwork Reduction Act (44 U.S.C. 3501 et 
seq.).

E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires Federal agencies to examine closely the impacts of regulatory 
actions on State, local, and tribal governments. Section 101(5) of 
title I of that law defines a Federal intergovernmental mandate to 
include any regulation that would impose upon State, local, or tribal 
governments an enforceable duty, except a condition of Federal 
assistance or a duty arising from participating in a voluntary federal 
program. Title II of that law requires each Federal agency to assess 
the effects of Federal regulatory actions on State, local, and tribal 
governments, in the aggregate, or to the private sector, other than to 
the extent such actions merely incorporate requirements specifically 
set forth in a statute. Section 202 of that title requires a Federal 
agency to perform a detailed assessment of the anticipated costs and 
benefits of any rule that includes a Federal mandate which may result 
in costs to State, local, or tribal governments, or to the private 
sector, of $100 million or more in any one year (adjusted annually for 
inflation). 2 U.S.C. 1532(a) and (b). Section 204 of that title 
requires each agency that proposes a rule containing a significant 
Federal intergovernmental mandate to develop an effective process for 
obtaining meaningful and timely input from elected officers of State, 
local, and tribal governments. 2 U.S.C. 1534.
    This proposed rule would not impose a Federal mandate on State, 
local, or tribal governments or on the private sector. Accordingly, no 
assessment or analysis is required under the Unfunded Mandates Reform 
Act of 1995.

F. Treasury and General Government Appropriations Act, 1999

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

G. Executive Order 13132

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

H. Executive Order 12988

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

[[Page 55283]]

Executive agencies to review regulations in light of applicable 
standards in section 3(a) and section 3(b) to determine whether they 
are met or it is unreasonable to meet one or more of them. DOE has 
completed the required review and determined that, to the extent 
permitted by law, the proposed rule meets the relevant standards of 
Executive Order 12988.

I. Treasury and General Government Appropriations Act, 2001

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

J. Executive Order 13211

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

V. Approval by the Office of the Secretary

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

List of Subjects in 10 CFR Part 810

    Foreign relations, Nuclear energy, Reporting and recordkeeping 
requirements.

    Issued in Washington, DC, on August 17, 2011.
Steven Chu,
 Secretary of Energy.

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

PART 810--ASSISTANCE TO FOREIGN ATOMIC ENERGY ACTIVITIES

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

    Authority: Secs. 57, 127, 128, 129, 161, and 223, Atomic Energy 
Act of 1954, as amended by the Nuclear Non-Proliferation Act of 
1978, Pub. L. 95-242, 68 Stat. 932, 948, 950, 958, 92 Stat. 126, 
136, 137, 138 (42 U.S.C. 2077, 2156, 2157, 2158, 2201, 2273); sec. 
104 of the Energy Reorganization Act of 1974, Pub. L. 93-438; sec. 
301, Department of Energy Organization Act, Pub. L. 95-91; National 
Nuclear Security Administration Act, Pub. L. 106-65, 50 U.S.C. 2401 
et seq., as amended.


Sec.  810.1  Purpose.

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


Sec.  810.2   Scope.

    (a) This part applies to:
    (1) All persons subject to the jurisdiction of the United States 
(hereinafter ``U.S. persons'') who or that engage directly or 
indirectly in the production of special nuclear material outside the 
United States, by transferring to foreign persons technology that is 
related to the production of special nuclear material; and
    (2) Assistance and the transfer of technology by U.S. persons to 
foreign persons, conducted either in the United States or abroad by 
U.S. persons or by licensees, contractors or subsidiaries under their 
direction, supervision, responsibility, or control.
    (b) The activities referred to in paragraph (a) of this section 
involve the following:
    (1) Chemical conversion and purification of uranium and thorium 
from milling plant concentrates and in all subsequent steps in the 
nuclear fuel cycle;
    (2) Chemical conversion and purification of plutonium and 
neptunium;
    (3) Nuclear fuel fabrication, including preparation of fuel 
elements, fuel assemblies and cladding thereof;
    (4) Uranium isotope separation (uranium enrichment), plutonium 
isotope separation, and isotope separation of any other elements 
(including stable isotope separation) when the technology or process 
can be applied directly or indirectly to uranium or plutonium;
    (5) Nuclear reactors;
    (6) Accelerator-driven subcritical assembly systems, specially 
designed or intended for plutonium or uranium-233 production;
    (7) Hydrogen isotope separation and heavy water production;
    (8) Reprocessing of irradiated nuclear materials or targets 
containing special nuclear material;
    (9) Changes in form or content of irradiated nuclear materials 
containing special nuclear material, and hot cell facilities;
    (10) Storage of irradiated nuclear materials;
    (11) Processing of high level radioactive waste;

[[Page 55284]]

    (12) Movement of irradiated nuclear materials, including specially 
designed containers therefor;
    (13) The transfer of technology for the development, production, or 
use of equipment or material specially designed or prepared for any of 
the above listed activities. (See NRC regulations under 10 CFR part 
110, Appendix A through Appendix K) for an illustrative list of items 
considered to be specially designed or prepared for certain listed 
nuclear activities.); and
    (14) Other activities related to the production of special nuclear 
material outside the United States as the Secretary may determine, 
notice of which shall be published in the Federal Register.
    (c) This part does not apply to:
    (1) Exports licensed by the NRC;
    (2) Public information or basic scientific research;
    (3) Uranium and thorium mining and milling; and
    (4) Nuclear fusion reactors per se, except for supporting systems 
involving hydrogen isotope separation.


Sec.  810.3  Definitions.

    As used in this part 810:
    Agreement for cooperation means an agreement with another nation or 
group of nations concluded under sections 123 or 124 of the Atomic 
Energy Act.
    Atomic Energy Act means the Atomic Energy Act of 1954, as amended.
    Basic scientific research means experimental or theoretical work 
undertaken principally to acquire new knowledge of the fundamental 
principles of phenomena and observable facts, not primarily directed 
towards a specific practical aim or objective.
    Classified information means national security information 
classified under Executive Order 13526 or any predecessor or 
superseding order, or Restricted Data classified under the Atomic 
Energy Act.
    Cooperative enrichment enterprise means a multi-country or multi-
company (where at least two of the companies are incorporated in 
different countries) joint development or production effort. The term 
includes a consortium of countries or companies or a multi-national 
corporation.
    DOE means the U.S. Department of Energy.
    Enrichment means isotope separation of uranium or isotope 
separation of plutonium, regardless of the type of process or 
separation mechanism used.
    Fissile material means isotopes that readily fission after 
absorbing a neutron of any energy, either fast or slow. Fissile 
materials are uranium-235, uranium-233, plutonium-239, and plutonium-
241.
    Foreign national means an individual who is not a citizen or 
national of the United States.
    Foreign person means a person other than a U.S. person.
    General authorization means an authorization granted by the 
Secretary under section 57 b.(2) of the Atomic Energy Act to provide 
assistance to foreign atomic energy activities subject to this part 810 
and which does not require a request for, or the Secretary's issuance 
of, a specific authorization.
    IAEA means the International Atomic Energy Agency.
    NNPA means the Nuclear Non-Proliferation Act of 1978, Pub. L. 95-
242, 22 U.S.C. 3201 et seq.
    NPT means the Treaty on the Non-Proliferation of Nuclear Weapons, 
done on July 1, 1968.
    Nuclear reactor means an apparatus, other than a nuclear explosive 
device, designed or used to sustain nuclear fission in a self-
supporting chain reaction.
    Open meeting means a conference, seminar, trade show, or other 
gathering that all technically qualified members of the public may 
attend and at which they may make written or other personal record of 
the proceedings, notwithstanding that--
    (1) A reasonable registration fee may be charged; or
    (2) A reasonable numerical limit exists on actual attendance.
    Person means--
    (1)(i) Any individual, corporation, partnership, firm, association, 
trust, estate, public or private institution, group, Government agency 
other than DOE, or any State or political entity within a State; and
    (ii) Any legal successor, representative, agent, or agency of the 
foregoing.
    (2) Persons under U.S. jurisdiction are responsible for their 
foreign licensees, contractors, or subsidiaries to the extent that the 
former have control over the activities of the latter.
    Production accelerator means a particle accelerator specially 
designed, used, or intended for use with a production subcritical 
assembly.
    Production accelerator-driven subcritical assembly system means a 
system comprised of a production subcritical assembly and a production 
accelerator and which is specially designed, used, or intended for the 
production of plutonium or uranium-233. In such a system, the 
production accelerator target provides a source of neutrons used to 
effect special nuclear material production in the production 
subcritical assembly.
    Production reactor means a nuclear reactor specially designed or 
used primarily for the production of plutonium or uranium-233.
    Production subcritical assembly means an apparatus that contains 
source material or special nuclear material to produce a nuclear 
fission chain reaction that is not self-sustaining and that is 
specially designed, used, or intended for the production of plutonium 
or uranium-233.
    Public information means:
    (1)(i) Information available in periodicals, books, or other print 
or electronic media for distribution to any member of the public, or to 
a community of persons such as those in a scientific, engineering, or 
educational discipline or in a particular commercial activity who are 
interested in a subject matter;
    (ii) Information available in public libraries, public reading 
rooms, public document rooms, public archives, or public data banks, or 
in university courses;
    (iii) Information that has been presented at an open meeting (see 
definition of ``open meeting'');
    (iv) Information that has been made available internationally 
without restriction on its further dissemination; or
    (v) Information contained in an application that has been filed 
with the U.S. Patent Office and eligible for foreign filing under 35 
U.S.C. 184 or that has been made available under 5 U.S.C. 552, the 
Freedom of Information Act.
    (2) Public information must be available to the public prior to, or 
at the same time as, it is transmitted to a foreign recipient. It does 
not include any technical embellishment, enhancement, explanation or 
interpretation that in itself is not public information, or information 
subject to sections 147 and 148 of the Atomic Energy Act.
    Reprocessing means a process or operation, the purpose of which is 
to extract radioactive isotopes from irradiated source and special 
nuclear materials for further use.
    Restricted Data means all data concerning:
    (1) Design, manufacture, or utilization of atomic weapons;
    (2) The production of special nuclear material; or
    (3) The use of special nuclear material in the production of 
energy, but shall not include data declassified or removed from the 
Restricted Data category pursuant to section 142 of the Atomic Energy 
Act.
    Secretary means the Secretary of Energy.

[[Page 55285]]

    Sensitive nuclear technology means any information (including 
information incorporated in a production or utilization facility or 
important component part thereof) that is not available to the public 
(see definition of ``public information'') which is important to the 
design, construction, fabrication, operation, or maintenance of a 
uranium enrichment or nuclear fuel reprocessing facility or a facility 
for the production of heavy water, but shall not include Restricted 
Data controlled pursuant to chapter 12 of the Atomic Energy Act. The 
information may take a tangible form such as a model, prototype, 
blueprint, or operation manual or an intangible form such as technical 
services.
    Source material means:
    (1) Uranium or thorium, other than special nuclear material; or
    (2) Ores that contain by weight 0.05 percent or more of uranium or 
thorium, or any combination of these materials.
    Special nuclear material means:
    (1) Plutonium;
    (2) Uranium-233; or
    (3) Uranium enriched above 0.711 percent by weight in the isotope 
uranium-235.
    Specific authorization means an authorization granted by the 
Secretary under section 57 b.(2) of the Atomic Energy Act, in response 
to an application filed under this part, to engage in specifically 
authorized nuclear activities subject to this part.
    Specifically authorized nuclear activities means the provision of 
assistance, including the transfer of technology, to foreign persons 
related to:
    (1) Uranium isotope separation (uranium enrichment), plutonium 
isotope separation, or isotope separation of any other elements 
(including stable isotope separation) when the technology or process 
can be applied directly or indirectly to uranium or plutonium;
    (2) Fabrication of nuclear fuel containing plutonium, including 
preparation of fuel elements, fuel assemblies, and cladding thereof;
    (3) Hydrogen isotope separation and heavy water production;
    (4) Production accelerator-driven subcritical assembly systems;
    (5) Production reactors; and
    (6) Reprocessing of irradiated nuclear fuel or targets containing 
special nuclear material.
    Technology means specific information required for the development, 
production, or use of any facility or activity listed in Sec.  
810.2(c). This information may take the form of technical data or 
technical assistance.
    (1) Development is related to all phases before production such as:
    (i) Design;
    (ii) Design research;
    (iii) Design analysis;
    (iv) Design concepts;
    (v) Assembly and testing of prototypes;
    (vi) Pilot production schemes;
    (vii) Design data;
    (viii) Process of transforming design data into a product;
    (ix) Configuration design;
    (x) Integration design; and
    (xi) Layouts.
    (2) Production means all production phases such as:
    (i) Construction;
    (ii) Production engineering;
    (iii) Manufacture;
    (iv) Integration;
    (v) Assembly or mounting;
    (vi) Inspection;
    (vii) Testing; and
    (viii) Quality assurance.
    Technical assistance means assistance in such forms as instruction, 
skills, training, working knowledge, consulting services, or any other 
assistance as determined by the Secretary. Technical assistance may 
involve transfer of technical data.
    Technical data means data in such forms as blueprints, plans, 
diagrams, models, formulae, engineering designs, specifications, 
manuals, and instructions written or recorded on other media or devices 
such as disks, tapes, read-only memories, and computational 
methodologies, algorithms, and computer codes that can directly or 
indirectly affect the production of special nuclear material.
    Use means operation, installation (including on-site installation), 
and maintenance (checking), repair, overhaul, and refurbishing.
    United States, when used in a geographical sense, includes all 
territories and possessions of the United States.


Sec.  810.4  Communications.

    (a) All communications concerning the regulations in this part 
should be addressed to: U.S. Department of Energy, Washington, DC 
20585. Attention: Senior Policy Advisor, National Nuclear Security 
Administration/Office of Nonproliferation and International Security 
(NA 24), Telephone (202) 586-0589.
    (b) Communications also may be delivered to DOE's headquarters at 
1000 Independence Avenue, SW., Washington, DC. All clearly marked 
proprietary information will be given the maximum protection allowed by 
law.


Sec.  810.5  Interpretations.

    (a) The advice of the DOE Office of Nonproliferation and 
International Security may be requested on whether a proposed activity 
falls outside the scope of this part, is generally authorized under 
Sec.  810.6, or requires specific authorization under Sec.  810.7. 
However, unless authorized by the Secretary in writing, no 
interpretation of the regulations in this part other than a written 
interpretation by the DOE General Counsel is binding upon DOE.
    (b) When advice is requested from the DOE Office of 
Nonproliferation and International Security, or a binding, written 
determination is requested from the DOE General Counsel, a response 
normally will be made within 30 days and, if this is not feasible, an 
interim response will explain the reason for the delay.


Sec.  810.6  Generally authorized activities.

    (a) In accordance with section 57 b.(2) of the Atomic Energy Act, 
the Secretary has determined that activities by U.S. persons that 
involve engaging directly or indirectly in the production of nuclear 
material outside the United States, including by providing assistance 
or transferring technology in ways that do not involve specifically 
authorized nuclear activities, are generally authorized to be 
undertaken with respect to the IAEA and the countries and territories, 
and facilities therein, identified in paragraphs (b)(1) through (5) of 
this section, provided that no sensitive nuclear technology is 
transferred.
    (b) The activities described in paragraph (a) of this section are 
generally authorized with respect to the IAEA and:
    (1) The following countries and territories, and the facilities in 
such countries or territories:

Argentina,
Australia,
Austria,
Bangladesh,
Belgium,
Brazil,
Bulgaria,
Canada,
Colombia,
Cyprus,
Czech Republic,
Denmark,
Egypt,
Estonia,
Finland,
France,
Germany,
Greece,
Hungary,
Indonesia,
Ireland,
Italy,
Japan,

[[Page 55286]]

Kazakhstan,
Latvia,
Lithuania,
Luxembourg,
Malta,
Morocco,
Netherlands,
Norway,
Peru,
Poland,
Portugal,
Korea, Republic of
Romania,
Slovakia,
Slovenia,
South Africa,
Spain,
Sweden,
Switzerland,
Taiwan,
Thailand,
Turkey,
Ukraine,
United Arab Emirates,
United Kingdom.

    (2) Any safeguarded facility in order to prevent or correct a 
current or imminent radiological emergency posing a significant danger 
to the health and safety of the off-site population and that cannot be 
met by other means, provided DOE is notified in writing in advance and 
does not object;
    (3) Any country or territory, if carried out in the course of 
implementation of the Agreement between the United States of America 
and the IAEA for the Application of Safeguards in the United States;
    (4) Any country or territory, if carried out in the course of 
participation in exchange programs approved by the Department of State 
in consultation with DOE;
    (5) Any country or territory, if carried out by persons, other than 
experts and consultants who are full-time employees of the IAEA, whose 
employment is sponsored by the U.S. Government.


Sec.  810.7  Activities requiring specific authorization.

    Unless generally authorized by Sec.  810.6, a U.S. person requires 
specific authorization by the Secretary before engaging directly or 
indirectly in the production of special nuclear material outside the 
United States.


Sec.  810.8  Restrictions on general and specific authorization.

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


Sec.  810.9  Grant of specific authorization.

    (a) An application for authorization to provide assistance or 
transfer technology for which specific authorization is required under 
Sec.  810.7 should be made to the U.S. Department of Energy, National 
Nuclear Security Administration, Washington, DC 20585, Attention: 
Senior Policy Advisor, Office of Nonproliferation and International 
Security (NA 24).
    (b) The Secretary will approve an application for specific 
authorization if it is determined, with the concurrence of the 
Department of State and after consultation with the Nuclear Regulatory 
Commission, the Department of Commerce, and the Department of Defense, 
that the activity will not be inimical to the interest of the United 
States. Each application approved for specific authorization generally 
will be for a period up to five years. In making an authorization 
determination, the Secretary will take into account the following 
factors:
    (1) Whether the United States has an agreement for peaceful nuclear 
cooperation in force covering exports to the country, territory, or 
international organization involved;
    (2) Whether the country or the authorities of the territory 
involved is/are a party to, or has/have otherwise adhered to, the NPT;
    (3) Whether the country or the authorities of the territory 
involved is/are in good standing with its/their acknowledged 
nonproliferation commitments;
    (4) Whether the country or the authorities of the territory 
involved has/have accepted IAEA safeguards obligations on all nuclear 
materials used for peaceful purposes and has/have them in force;
    (5) Whether there exist other nonproliferation controls or 
conditions on the proposed activity, including that the recipient is 
duly authorized by the country's government or the authorities of the 
territory involved to receive and operate the technology sought to be 
transferred;
    (6) Significance of the assistance or technology transfer relative 
to the existing nuclear capabilities of the recipient country or 
territory;
    (7) Whether the transfer is part of an existing cooperative 
enrichment enterprise or the supply chain of such an enterprise;
    (8) The availability of comparable assistance or technology from 
other sources; and
    (9) Any other factors that may bear upon the political, economic, 
or security interests of the United States, including the obligations 
of the United States under treaties or other international agreements, 
and the obligations of the recipient country or the authorities of the 
territory involved under treaties or other international agreements.
    (c) If the proposed assistance or technology transfer involves the 
export of sensitive nuclear technology as defined in Sec.  810.3, the 
requirements of sections 127 and 128 of the Atomic Energy Act and of 
any applicable United States international commitments must also be 
met. For the export of sensitive nuclear technology, in addition to the 
factors in subparagraph (b), the Secretary will take into account:
    (1) Whether the recipient country or the authorities of the 
recipient territory is/are a party to, or has/have adhered to, the NPT 
and is/are in full compliance with its/their obligations under the NPT;
    (2) Whether the recipient country has signed, ratified, and is 
implementing a comprehensive safeguards agreement with the IAEA and has 
in force an Additional Protocol based on the model Additional Protocol, 
or, pending this, in the case of a regional accounting and control 
arrangement for nuclear materials, is implementing, in cooperation with 
the IAEA, a safeguards agreement approved by the IAEA Board of 
Governors prior to the publication of INFCIRC/540 (September 1997); or 
alternatively whether comprehensive safeguards, including the measures 
of the Model Additional Protocol are being applied in the recipient 
country or territory;
    (3) Whether the recipient country or the authorities of the 
territory has/have not been identified in a report by the IAEA 
Secretariat that is under consideration by the IAEA Board of Governors, 
as being in breach of obligations to comply with the applicable 
safeguards agreement, nor continues/continue to be the subject of Board 
of Governors decisions calling upon it/them to take additional steps to 
comply with its/their safeguards obligations or to build confidence in 
the peaceful nature of its/their nuclear program, nor as to which the 
IAEA Secretariat has reported that it is unable to implement the 
applicable safeguards agreement. This criterion would not apply in 
cases where the IAEA Board of Governors or the United Nations

[[Page 55287]]

Security Council subsequently decides that adequate assurances exist as 
to the peaceful purposes of the recipient's nuclear program and its 
compliance with the applicable safeguards agreements. For the purposes 
of this paragraph, ``breach'' refers only to serious breaches of 
proliferation concern;
    (4) Whether the recipient country or territory is adhering to the 
Nuclear Suppliers Group Guidelines and, where applicable, has reported 
to the Security Council of the United Nations that it is implementing 
effective export controls as identified by Security Council Resolution 
1540; and
    (5) Whether the recipient country or terr