Assistance to Foreign Atomic Energy Activities, 46829-46850 [2013-18691]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 78, Number 149 (Friday, August 2, 2013)]
[Proposed Rules]
[Pages 46829-46850]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-18691]


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DEPARTMENT OF ENERGY

10 CFR Part 810

RIN 1994-AA02


Assistance to Foreign Atomic Energy Activities

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

ACTION: Supplemental notice of proposed rulemaking and public meetings.

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SUMMARY: On September 7, 2011, DOE issued a notice of proposed 
rulemaking (NOPR) to propose the first comprehensive updating of 
regulations concerning Assistance to Foreign Atomic Energy Activities 
since 1986. The NOPR reflected a need to make the regulations 
consistent with current global civil nuclear trade practices and 
nonproliferation norms, and to update the activities and technologies 
subject to the Secretary of Energy's specific authorization and DOE 
reporting requirements. It also identified destinations with respect to 
which most assistance would be generally authorized and destinations 
that would require a specific authorization by the Secretary of Energy. 
After careful consideration of all comments received, DOE today is 
issuing this supplemental notice of proposed rulemaking (SNOPR) to 
respond to those comments, propose new or revised rule changes, and 
afford interested parties a second opportunity to comment.

DATES: Written comments must be postmarked on or before October 31, 
2013 to ensure consideration. DOE will hold two public meetings. The 
first public meeting will be held in the Large Auditorium at the U.S. 
Department of Energy, Forrestal Building, on August 5, 2013, from 1 to 
4 p.m. DOE has also arranged a call-in line for this first meeting. 
Interested persons should inform DOE of their intent to participate by 
phone or attend in-person, as there are a limited number of lines for 
the call and there is limited room capacity in the auditorium. DOE asks 
that interested persons send their requests to participate in this 
meeting via email at Part810.SNOPR@nnsa.doe.gov, by 4:30 p.m. on August 
2, 2013. To ensure in-person participation, email the request by 10 
a.m., August 2, 2013. DOE will confirm its receipt of requests and, at 
that time, provide further logistical information, including the call-
in number for those participating by phone. DOE will hold a second 
public meeting in September. The announcement of the second public 
meeting will be provided in a future Federal Register notice.

ADDRESSES: You may submit comments, identified by RIN 1994-AA02, by any 
of the following methods:
    1. Federal Rulemaking Portal: https://www.regulations.gov/#!docketDetail;D=DOE-HQ-2011-0035. Follow the instructions for 
submitting comments.
    2. Email: Part810.SNOPR@hq.doe.gov. Include RIN 1994-AA02 in the 
subject line of the message.
    3. Mail: Richard Goorevich, Senior Policy Advisor, Office of 
Nonproliferation and International Security, NA-24, National Nuclear 
Security Administration, Department of Energy, 1000 Independence Avenue 
SW., Washington, DC 20585.
    Due to potential delays in DOE's receipt and processing of mail 
sent through the U.S. Postal Service, DOE encourages responders to 
submit comments electronically to ensure timely receipt.
    All submissions must include the RIN for this rulemaking, RIN 1994-
AA02. For detailed instructions on submitting comments and additional 
information on the rulemaking process, see the ``Public Comment 
Procedures'' heading of the SUPPLEMENTARY INFORMATION section of this 
document.
    The first public meeting for this SNOPR will be held at the U.S. 
Department of Energy, Forrestal Building, Large Auditorium, 1000 
Independence Avenue SW., Washington, DC 20585.

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

SUPPLEMENTARY INFORMATION:

I. Background
II. Description of Proposed Changes
III. Public Comment Procedures
IV. Discussion of Comments Received on the September 2011 NOPR
    A. Process Issues
    1. Compliance With APA Rulemaking Requirements
    2. Part 810 Process Improvements
    B. Classification of Foreign Destinations
    1. Generally Authorized Destinations Proposed To Require 
Specific Authorization
    2. Continued Specific Authorization Destinations
    3. Former Generally Authorized Destinations
    4. Emerging Civil Nuclear Trading Partner Countries
    C. Activities Requiring Part 810 Authorization
    1. Special Nuclear Material Nexus Requirement
    2. Activities Supporting Commercial Power Reactors
    3. ``Deemed Exports'' and ``Deemed Re-Exports''
    4. Technology Transfers To Individuals With Dual Citizenship or 
Permanent Residency
    5. Operational Safety Activities
    6. Offshore Activities: ``Control-in-Fact''
    7. Back-end Activities
    8. Nuclear Regulatory Commission and Departments of Commerce and 
State Approved Activities
    9. Medical Isotope Production
    10. Activities Carried Out by International Atomic Energy Agency 
Personnel

[[Page 46830]]

    11. Transfer of Public Information and Research Results
    12. Transfer of Sales, Marketing, and Sourcing Information
    13. Transfer of ``Americanized'' Technology
    D. Explanation of Proposed Changes to Part 810 Terms
V. Regulatory Review
    A. Executive Order 12866
    B. National Environmental Policy Act
    C. Regulatory Flexibility Act
    D. Paperwork Reduction Act
    E. Unfunded Mandates Reform Act of 1995
    F. Treasury and General Government Appropriations Act, 1999
    G. Executive Order 13132
    H Executive Order 12988
    I. Treasury and General Government Appropriations Act, 2001
    J. Executive Order 13211
    K. Executive Order 13609
VI. Approval by the Office of the Secretary

I. Background

    The Department of Energy's (DOE) part 810 regulation implements 
section 57 b.(2) of the Atomic Energy Act (AEA) of 1954, as amended by 
section 302 of the Nuclear Nonproliferation Act of 1978 (NNPA). Part 
810 controls the export of unclassified nuclear technology and 
assistance. It enables peaceful nuclear trade by helping to assure that 
nuclear technologies exported from the United States will not be used 
for non-peaceful purposes. Part 810 controls the export of nuclear 
technology and assistance by identifying activities that can be 
``generally authorized'' by the Secretary, thereby requiring no further 
authorization under part 810. It also controls those activities that 
require ``specific authorization'' by the Secretary. Part 810 also 
delineates the process for applying for specific authorization from the 
Secretary and identifies the reporting requirements for activities 
subject to part 810.
    Part 810 has not been comprehensively updated since 1986. Since 
then, the global civil nuclear market has expanded, particularly in 
China, the Middle East, and Eastern Europe, with vendors from France, 
Japan, the Republic of Korea, Russia, and Canada having emerged to 
serve customers in these emerging markets. DOE believes the regulation 
should be updated to ensure that the part 810 nuclear export controls 
remain effective and efficient as the commercial nuclear market 
expands. This means carefully determining destinations and activities 
that are generally authorized or subject to a specific authorization, 
and assuring that the determinations are consistent with current U.S. 
national security, diplomatic, and trade policy.
    On September 7, 2011, DOE issued a NOPR to propose the updating of 
part 810 (76 FR 55278). The NOPR listed destinations for which most 
assistance to foreign atomic energy activities would be generally 
authorized, and activities that would require a specific authorization 
by the Secretary of Energy. Activities requiring specific authorization 
are set forth in proposed Sec.  810.7. Additionally, the NOPR 
identified types of technology transfers subject to the regulation. DOE 
received numerous comments on the NOPR. After careful consideration of 
all comments received, DOE today is issuing this SNOPR to respond to 
those comments and afford interested parties a second opportunity to 
comment.
    As described below and in response to comments received from the 
public on the NOPR, this SNOPR proposes a number of substantial changes 
to the current rule that are different than those contained in the 
NOPR. Additionally, certain changes to the current rule proposed in the 
NOPR are re-proposed for consideration in this SNOPR. Details of the 
proposed changes to the current part 810 and the NOPR contained in this 
SNOPR are summarized in Section II and discussed in greater detail in 
Section IV.

II. Description of Proposed Changes

    In response to the NOPR, the Department received written comments 
from over 30 entities, and over 3,000 form letters coordinated by the 
Consumer Energy Alliance. Two commenters, the Nuclear Energy Institute 
and a law firm on behalf of the Ad Hoc Utility Group (a number of 
companies that operate 56 nuclear reactors at 35 sites), offered 
specific text revisions to the entirety of part 810; other commenters 
focused more narrowly on one or more specific provisions of particular 
interest to the submitter. All of the comments are available for review 
on line at: https://www.regulations.gov/#!docketDetail;D=DOE-HQ-2011-
0035. Docket ID: DOE-HQ-2011-0035.
    This SNOPR responds to the comments received in response to the 
NOPR and proposes changes to the current part 810. Today's proposed 
changes, summarized by section, are as follows:
    1. The proposed change to Sec.  810.1 ``Purpose'' states the 
statutory basis and purpose for the part 810 regulation, eliminating 
the need for current Sec.  810.6. Unlike the NOPR, which proposed to 
retain unchanged the phrase ``U.S. persons'' in the current Sec.  
810.1, today's proposal would replace ``U.S. persons'' with 
``persons.'' \*\
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    \*\ Prior to 1986, Sec.  810.1 and its predecessors referred to 
``persons'' who engage in activities subject to part 810. 48 FR 2518 
(Feb. 4, 1983); 40 FR 44846 (Sep. 30, 1975); 21 FR 418 (Jan. 20, 
1956). In 1986, DOE amended Sec.  810.1 to add ``U.S.'' before 
``persons'' (51 FR 44570, Dec. 10, 1986), but did not employ that 
phrase anywhere else in part 810; all other provisions of the 
regulation in effect from 1986 to the present utilize simply 
``persons.'' The solitary reference to ``U.S. persons'' in Sec.  
810.1 was unnecessary in 1986, and continued usage of ``U.S.'' is 
also unnecessary now. Today, DOE proposes to revert to the use of 
``persons'' in proposed Sec.  810.1.
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    2. The proposed change to paragraph (a) in Sec.  810.2 ``Scope'' 
states DOE's jurisdiction under section 57 b.(2) of the Atomic Energy 
Act. Proposed Sec.  810.2(b) would identify activities governed by the 
regulation when those activities, whether conducted in the United 
States or abroad, directly or indirectly result in the development or 
production of special nuclear material (SNM). Proposed Sec.  810.2(c) 
would identify exempt activities, some retained from the current part 
810 regulation, and the following are proposed to be added:
     Exports authorized by the Departments of State or 
Commerce, or the Nuclear Regulatory Commission;
     Transfer of ``publicly available information,'' ``publicly 
available technology,'' and the results of ``fundamental research'';
     Assistance for certain mining and milling activities, and 
certain fusion reactors because these activities do not involve the 
production or use of special nuclear material;
     Production or extraction of radiopharmaceutical isotopes 
when the process does not involve special nuclear material; and
     Transfers to lawful permanent residents of the United 
States or protected individuals under the Immigration and 
Naturalization Act (8 U.S.C. 1324b(a)(3)).
    3. In proposed Sec.  810.3 ``Definitions,'' a number of new or 
revised definitions are proposed, to reflect terminological changes and 
technological developments since the part 810 regulation was last 
updated and to provide additional clarity to certain terms currently 
defined and used in the regulation. They are described in Section IV. 
D. of this Preamble.
    4. Proposed Sec.  810.4 ``Communications'' and Sec.  810.5 
``Interpretations'' update points of contact information to reflect 
current Departmental organizational structure and office designations 
for applications, questions, or requests. The SNOPR adds a proposed new 
paragraph (c) to Sec.  810.5 that reflects DOE's intent to periodically 
publish abstracts of general or specific

[[Page 46831]]

authorizations, excluding applicants' proprietary data and other 
information protected by law from public disclosure, that may be of 
general interest.
    5. Current Sec.  810.6 ``Authorization requirement,'' which quotes 
section 57 b. of the Atomic Energy Act, is proposed to be deleted and 
replaced, as it was in the NOPR, by proposed Sec.  810.1 ``Purpose.''
    6. The current Sec.  810.7 ``Generally authorized activities'' is 
today, as in the NOPR, proposed to be re-numbered as Sec.  810.6. It 
would identify activities the Secretary has found to be not inimical to 
the interest of the United States and which may be generally 
authorized.
    (1) Proposed paragraph (a) would generally authorize assistance or 
transfers of technology to destinations listed in the proposed 
Appendix. The current Sec.  810.8(a) uses the opposite classification 
approach. It lists destinations for which a specific authorization is 
required.
    (2) The current Sec.  810.7(a) ``furnishing public information'' 
would be deleted from the list of generally authorized activities. In 
the NOPR, ``public information'' was proposed to be exempt from part 
810. In proposed Sec.  810.2(c)(2) of the SNOPR, ``publicly available 
information,'' ``publicly available technology,'' and the results of 
``fundamental research'' (all as defined in proposed Sec.  810.3) would 
be exempt from the scope of part 810.
    (3) In a new approach to deemed exports in the SNOPR, proposed 
Sec.  810.6(b) would generally authorize technology transfers to 
citizens or nationals of specific authorization destinations who are 
lawfully employed by or contracted to work for nuclear industry 
employers in the United States, subject to the individual meeting 
Nuclear Regulatory Commission access requirements and executing a 
confidentiality agreement to prevent unauthorized disclosure of nuclear 
technology to which those individuals are afforded access. Deemed 
export reporting requirements with respect to these individuals are set 
forth in proposed Sec.  810.12(g).
    (4) The existing ``fast track'' general authorization in current 
Sec.  810.7(b) for emergency activities at any safeguarded facility and 
operational safety assistance to existing foreign safeguarded reactors 
was not included in the NOPR. In the SNOPR, the authorization in the 
current regulation is proposed to be retained, in paragraphs (c)(1) and 
(c)(2), respectively, but with a revised definition of ``operational 
safety.'' Furnishing operational safety information or assistance to 
existing, proposed, or new-build nuclear power plants in the United 
States would be authorized in proposed Sec.  810.6(c)(3).
    (5) Proposed paragraph (d) would generally authorize exchange 
programs approved by the Department of State with DOE concurrence, 
similar to the provision in Sec.  810.6(b)(4) of the NOPR.
    (6) Proposed paragraphs (e) and (f) would authorize certain 
cooperative activities with the International Atomic Energy Agency 
(IAEA), namely, activities carried out in the course of implementation 
of the ``Agreement between the United States of America and the [IAEA] 
for the Application of Safeguards in the United States''; and those 
carried out by full-time employees of the IAEA, or by individuals whose 
employment or work is sponsored or approved by the Department of State 
or DOE. Similar provisions were set forth in Sec. Sec.  810.6(b)(3) and 
(5) of the NOPR.
    (7) Proposed paragraph (g) would authorize transfers of technology 
and assistance for the extraction of Molybdenum-99 from spent nuclear 
fuel in certain circumstances. This provision is not in the current 
rule, nor was it proposed in the NOPR.
    7. Proposed Sec.  810.7--renumbered from the current Sec.  810.8--
``Activities requiring specific authorization'' would continue to list 
activities that would require a specific authorization for all foreign 
destinations. The NOPR proposed to eliminate the list and require a 
specific authorization for engaging in the production of special 
nuclear material.
    8. Proposed Sec.  810.8 ``Restrictions on general and specific 
authorization'' would remain unchanged from Sec.  810.9 in the current 
rule and the NOPR, except for the following editorial revisions: 
replacing ``these regulations'' with ``this part'' in the introductory 
phrase; replacing ``Restricted Data and other classified information'' 
with ``classified information'' in proposed paragraph (a), and 
replacing ``Government agencies'' with ``U.S. Government agencies'' in 
paragraph (b).
    9. Proposed Sec.  810.9 ``Grant of specific authorization,'' 
currently Sec.  810.10 and proposed Sec.  810.9 in the NOPR, would 
identify the factors, consonant with U.S. international 
nonproliferation commitments, that would be considered by the Secretary 
in granting a specific authorization. Proposed paragraph (b) would add 
as factors to be considered: whether the government of the country 
concerned is in good standing with respect to its nonproliferation 
commitments (proposed paragraph (b)(3)); and whether, under proposed 
paragraph (b)(8), the transfer is part of an existing ``cooperative 
enrichment enterprise'' (as defined in proposed Sec.  810.3) or the 
supply chain of such an enterprise. Proposed Sec.  810.9(c) addresses 
the export of sensitive nuclear technology as defined in Sec.  810.3, 
and would be expanded to describe additional factors, which include 
compliance with the U.S.'s Nuclear Suppliers Group (NSG) commitments, 
the Secretary would take into account when considering a specific 
authorization request for the transfer of sensitive nuclear technology. 
The United States adheres to the NSG Guidelines for Nuclear Transfers 
(IAEA Information Circular [INFCIRC] 254/Part1) and Guidelines for 
Transfers of Nuclear-related Dual-Use Equipment, Materials, Software 
and Related Technology (IAEA INFCIRC/254/Part 2). The current versions 
of both sets of Guidelines can be found at 
www.nuclearsuppliersgroup.org. As in the NOPR, a new paragraph (d) is 
proposed to be added, concerning requests to engage in authorized 
foreign atomic energy assistance activities related to the enrichment 
of source material and special nuclear material. Approval of such 
requests would be conditioned upon the receipt of written 
nonproliferation assurances from the government of the country 
concerned, a proposal designed to facilitate U.S. conformity to the 
Nuclear Supplier Group Guidelines.
    10. Proposed Sec.  810.10 ``Revocation, suspension, or modification 
of authorization,'' currently Sec.  810.11, would (as in the NOPR) make 
an editorial revision, changing ``authorized assistance'' in paragraph 
(c) to ``authorization governed by this part.''
    11. The current Sec.  810.12, renumbered as proposed Sec.  810.11 
``Information required in an application for specific authorization,'' 
would (as in the NOPR) be expanded to add more detail about the 
information required for DOE to process a specific authorization 
request, including applications for ``deemed export'' and ``deemed re-
export'' authorizations. Section 810.11(a) would require the submission 
of the same information required by the current regulation (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) and (c).
    Current Sec.  810.12(a) requires that an application for specific 
authorization include information regarding ``the degree of any control 
or ownership by any foreign person or entity''. The NOPR proposed to 
add a definition of the undefined term ``foreign person'' to state: 
``Foreign person means a person other than a U.S. person''. For the 
reasons explained in the footnote in

[[Page 46832]]

Section II, Description of Proposed Changes, the SNOPR proposes to 
delete the term ``U.S. person'' from the first paragraph in Sec.  810.1 
of the current regulation. Since the term ``foreign person'' is used 
only once in the current regulation (in Sec.  810.12(a)), and was used 
only once in the NOPR (proposed Sec.  810.11(a)--unchanged from current 
Sec.  810.12(a))--DOE has determined that to avoid any possible 
confusion between usages of ``person'' and ``foreign national'', the 
SNOPR proposes to revise the formulation of proposed Sec.  810.11(a) 
without reference to ``foreign person''. Instead, proposed Sec.  
810.11(a)(1) would request information concerning an applicant's 
foreign ownership or control by asking about ``the degree of any 
control or ownership by any foreign individual, corporation, 
partnership, firm, association, trust, estate, public or private 
institution or government agency''.
    Proposed paragraph (c) has been modified from proposed language in 
the NOPR but would continue to address the required content for 
applications filed by U.S. companies seeking to employ in the United 
States citizens or nationals of specific authorization countries that 
would result in the transfer of technology subject to proposed 
Sec. Sec.  810.2 or 810.7 (deemed exports). Submission of the same 
information would also be required with respect to any such citizen or 
national whom the part 810 applicant seeks to employ abroad in either a 
general or specific authorization country (a deemed re-export). Under 
today's proposal, no part 810 authorization would be required for an 
individual who is lawfully admitted for permanent residence in the 
United States or is a protected individual under the Immigration and 
Naturalization Act (8 U.S.C. 1324b(a)(3)).
    The SNOPR proposes that Sec.  810.11(c) would make explicit DOE's 
current practice of requiring an applicant for a specific authorization 
to provide detailed information concerning the citizenship, visa 
status, educational background, and employment history of each foreign 
national to whom the applicant seeks to grant access to technology 
subject to the part 810 regulation. In addition, the applicant would be 
required to provide a description of the subject technology, a copy of 
any confidentiality agreement between the U.S. employer and the 
employee concerning the protection of the employer's proprietary 
business data from unauthorized disclosure, and written 
nonproliferation assurances by the individual. Finally, proposed 
paragraph (d) would identify the information required to be submitted 
by an applicant seeking a specific authorization to engage in foreign 
atomic energy assistance activities related to the enrichment of 
fissile material.
    12. The current Sec.  810.13, renumbered as proposed Sec.  810.12, 
would be changed by proposed changes in reporting obligations. A 
proposed addition in Sec.  810.12(d) would require companies to submit 
reports to DOE, to include information required by U.S. law concerning 
specific civil nuclear activities or exports to countries for which a 
specific authorization is required. Under proposed Sec.  810.12(e)(4), 
the reference to reporting on materials and equipment would be retained 
to ensure that any technical data that is transferred as part of dual-
use equipment is reported. Proposed paragraph (g) is new and describes 
the reporting requirements of U.S. employers with respect to their 
deemed export and deemed re-export employees.
    13. The current Sec.  810.14, Sec.  810.15 and Sec.  810.16 would, 
as in the NOPR, be renumbered as proposed Sec.  810.13 ``Additional 
information,'' proposed Sec.  810.14 ``Violations,'' and proposed Sec.  
810.15 ``Effective date and savings clause.''

III. Public Comment Procedures

    Interested persons are invited to submit comments on this 
regulatory proposal. Written comments should be submitted to the 
address indicated in the ADDRESSES section of this notice. All comments 
submitted in writing or in electronic form may be made available to the 
public in their entirety. Personal information such as your name, 
address, telephone number, email address, etc., will not be removed 
from your submission. Comments will be available for public inspection 
in the DOE Freedom of Information Act Reading Room, and on the Internet 
at: https://www.regulations.gov/#!docketDetail;D=DOE-HQ-2011-0035.
    If you submit information that you believe to be exempt by law from 
public disclosure, you should submit one complete copy, as well as one 
copy from which the information claimed to be exempt by law from public 
disclosure has been deleted. DOE is responsible for the final 
determination with regard to disclosure or nondisclosure of the 
information and for treating it accordingly under the DOE Freedom of 
Information regulations at 10 CFR 1004.11.

Public Meeting

    The first public meeting will be held at the time, date, and place 
indicated in the DATES and ADDRESSES sections of this SNOPR. Any person 
who is interested in attending in-person, participating by phone, or 
making an oral presentation in-person or through the call-in line 
should email a request to the email address in the DATES section by the 
date and time specified for making such requests. As noted in the DATES 
section, the number of lines available to call into the meeting is 
limited. For all oral presentations, the person should provide a 
daytime phone number where he or she can be reached. Each oral 
presentation may be limited and may in no instance be longer than 20 
minutes. Persons making an oral presentation in-person are requested to 
bring 3 copies of their prepared statement to the public meeting and 
submit it to the registration desk. Persons making an oral presentation 
through the call-in line are requested to email their statement either 
before or after the public meeting to the email address in the DATES 
section. DOE reserves the right to select the persons who will speak. 
DOE also reserves the right to schedule speakers' presentations and to 
establish the procedures for conducting the meeting. A DOE official 
will be designated to preside at the meeting. The meeting will not be a 
judicial or evidentiary-type hearing. Any further procedural rules for 
the conduct of the meeting will be announced by the presiding official. 
After the public meeting, interested persons may submit further 
comments until the end of the comment period. A transcript of the 
meeting will be made, and the entire record of this rulemaking will be 
retained by DOE and posted at regulations.gov.

IV. Discussion of Comments Received on the September 2011 NOPR

Overview

    As noted above in Section II, Description of Proposed Changes, DOE 
received written comments on the NOPR from over 30 individual entities 
and over 3,000 form letters from entities coordinated by the Consumer 
Energy Alliance.
    The commenters represented diverse interests and raised concerns 
about different sections of the proposed rule, but they acknowledged 
the important goals of part 810:
     Effective threat reduction. Part 810 should be updated to 
more effectively address proliferation challenges, as there have been 
significant changes in geopolitics, economics, technologies

[[Page 46833]]

and relationships between the United States and its nuclear trading 
partners since the regulation last underwent comprehensive revision in 
1986.
     Effective nuclear trade support. Part 810 should support 
U.S. companies competing to provide nuclear technology for peaceful 
purposes in global civil nuclear reactor markets.
     Efficient regulation. The part 810 licensing process 
should be efficient, transparent, timely, and predictable. The cost of 
regulation to the government and industry should not exceed the 
benefits. Duplicative or unnecessary regulatory requirements should be 
avoided.

DOE has reviewed the comments and now proposes in this SNOPR to further 
revise part 810 based on considerations of those comments. The comments 
were analyzed and placed into three categories:
A. Process Issues
B. Classification of Foreign Destinations
C. Activities Requiring Part 810 Authorization

A. Process Issues

1. Compliance With Administrative Procedure Act Rulemaking Requirements
    Multiple commenters claimed the NOPR contravened various 
requirements of the Administrative Procedure Act (APA) and various 
Executive Orders. The alleged defects were:
     Inadequate notice and opportunity to comment--failure to 
explain DOE's rationale for proposed changes sufficient to permit 
meaningful comment by interested parties.
     Inadequate impact analysis--failure to consider the 
economic and paperwork impacts of the proposed rule changes and their 
consistency with other U.S. export control regulatory regimes and U.S. 
trade policies, including the National Export Initiative and Export 
Control Reform Initiative.
     Unreasonable effective date--failure to give exporters 
enough time to comply before the rule becomes effective.
    The issuance of this SNOPR, which includes explanatory rationales 
of the revisions proposed, provides another opportunity for the public 
to comment on changes DOE is considering with regard to part 810. 
Additionally, working together with the Department of Commerce, DOE 
completed an economic analysis that considers the potential impacts of 
the amendments contained in this SNOPR.
    With respect to the effective date of the final rule, on December 
2, 2011, DOE posted at https://www.regulations.gov/#!docketDetail;D=DOE-
HQ-2011-0035 in Docket DOE-HQ-2011-0035 a clarification, in response to 
commenters' request, of the dates stated in the NOPR's proposed Sec.  
810.15 ``Effective date and savings clause.'' DOE explained that the 
references to ``October 7, 2011'' and ``December 6, 2011'' were 
placeholders calculated in the publication process for the NOPR. The 
effective date and savings clause of any final part 810 rule would be 
calculated from the publication date of the final rule and would 
provide sufficient time for exporters to comply with the rule as 
adopted.
2. Part 810 Process Improvements
    Many commenters maintained that the part 810 approval process is 
unduly protracted, and that processing delays put U.S. suppliers at a 
competitive disadvantage with companies in other countries. Many 
concerns with the NOPR indicated less a problem with the merits of the 
proposed changes than with the commenters' belief that the proposed 
rule revisions would impermissibly broaden the scope of part 810. Given 
the reduced number of destinations proposed to be generally authorized, 
commenters expressed concern that the overall proposed changes to part 
810 would mean even longer application preparation and DOE processing 
times for specific authorizations, resulting in lost business 
opportunities for U.S. companies during the authorization process. 
These commenters asked for changes to make the part 810 application 
processes more orderly and expeditious. Among the recommendations 
received were:
a. Make Part 810 Processes More Transparent, Orderly, and Efficient
    The Department acknowledges commenters' concerns that the time 
frame for issuance of specific authorizations can impose business risks 
for companies seeking to make nuclear exports requiring specific 
authorization. The process can also be made more open and 
understandable. Accordingly, the Department has initiated a process 
improvement program with the goal of making the authorization process 
International Standards Organization (ISO) 9001 compliant. The 
Department is interested in receiving public comments on the process 
changes discussed in this notice as well as other suggestions and ideas 
on how to make the Department's authorization process more transparent, 
efficient and comprehensible. As an initial step to improve 
understanding of the new part 810 application process, DOE is offering 
Figure 1, a simplified graphic decision tree, and Figure 2, a 
simplified process map.
BILLING CODE 6450-01-P

[[Page 46834]]

[GRAPHIC] [TIFF OMITTED] TP02AU13.027

BILLING CODE 6450-01-C
    The following process changes to make the licensing process more 
open and efficient are under consideration:
     Awaiting receipt of foreign government nonproliferation 
assurances frequently delays the grant of part 810 specific 
authorizations. Sovereign foreign governments can be asked to respond 
promptly, but they cannot be mandated to do so. However, in concert 
with the Department of State, DOE is considering measures to improve 
the timeliness of foreign government response times.
     Reduce timeframes for internal DOE and interagency 
reviews.
     Develop and implement an e-licensing system to provide 
more

[[Page 46835]]

uniform and transparent authorization standards and practices.
     Publish periodically, as appropriate, abstracts of general 
or specific authorizations that may be of general interest, redacting 
company-identifying and proprietary business information, to increase 
transparency.
     Publicly report on the number of specific authorizations 
sought, approved and rejected, and the average authorization processing 
time, to enhance transparency and accountability.
     Create expedited procedures for authorization of 
activities that present the lowest proliferation risk, as determined by 
the criteria proposed in Sec.  810.9(b).
    Many of these actions were proposed by commenters and have merit: 
as noted, DOE is initiating a process quality improvement program to 
make the processing of part 810 applications more orderly, expeditious, 
effective, and transparent. These internal process changes can be made 
independently of the rulemaking process. Consequently, conclusion of 
this part 810 rulemaking should not be delayed during the time internal 
Departmental process changes are developed and implemented. In the 
interim, DOE will continue to adhere to current interagency procedures 
for processing, reviewing and approving specific authorizations as set 
forth in the ``Amendment to Procedures Established Pursuant to the 
Nuclear Nonproliferation Act of 1978.'' 49 FR 20780 (May 16, 1984).
b. Specific Authorization Practices
    The NOPR proposed that specific authorizations ``generally will be 
for a period up to five years.'' Commenters noted that the proposal was 
cast as a generalization about an authorization whose term should 
depend on specific circumstances. Upon consideration, the rule proposed 
today omits any reference to a time period for part 810 authorizations, 
leaving the term of specific authorizations to be established, as at 
present, on a case-by-case basis. There were no adverse comments on the 
proposed Sec.  810.9 in the NOPR, which identifies the factors that 
would be considered by the Secretary in granting a specific 
authorization.
    One commenter recommended that, prior to revoking a specific 
authorization before its expiration, DOE should be required to consult 
with the same agencies with which it consults before approving the 
specific authorization in the first instance. Today's supplemental 
proposed rule would not adopt specific regulatory language to require 
such a procedure because expeditious action may be required; however, 
interagency collaboration would be the norm in these circumstances.
c. Reports on Authorized Activities
    Commenters noted that proposed Sec.  810.12(d) of the NOPR referred 
to reporting requirements for any activity under proposed Sec.  810.6, 
but subsection (f) stated that persons engaging in activities generally 
authorized under proposed Sec.  810.6(b) would not be subject to 
reporting requirements under this section. The inconsistency was a 
drafting error, which has been corrected. Today's proposal continues 
the current requirement; reports would be required for generally 
authorized activities. New requirements have been proposed in today's 
SNOPR for reporting by U.S. companies with respect to their deemed 
export and deemed re-export employees.

B. Classification of Foreign Destinations

    Under the authority of section 57 b.(2) of the AEA, the Secretary 
may authorize the export of assistance or the transfer of technology 
for the development or production of special nuclear material by 
persons subject to U.S. jurisdiction upon a determination that the 
activity will not be ``inimical'' to the interest of the United States. 
Classification of activities and foreign destinations as ``generally 
authorized'' or, conversely, the determination that other activities 
and destinations merit a specific authorization, is a matter committed 
to agency discretion. The Secretary's decision that a specific 
authorization is or is not required for a particular proposed export is 
based on U.S. nuclear and national security policies. Consonant with 
those policies, the Secretary therefore may determine that a country or 
entity is either generally authorized or requires a specific 
authorization. Under the AEA, the Department is to promote widespread 
participation in the development and utilization of atomic energy for 
peaceful purposes. The AEA, however, makes national security the 
paramount concern. Consequently, assistance to, participation in, or 
technology transfer for, the development or production of special 
nuclear material outside the United States may be authorized only upon 
a determination by the Secretary that such activities will not be 
``inimical to the interest of the United States,'' such determination 
to be made only with the concurrence of the Department of State and 
after consultation with the Nuclear Regulatory Commission, the 
Department of Defense, and the Department of Commerce.
    Multiple commenters objected that exports to some countries that do 
not require a specific authorization under the current part 810 
classification approach would require a specific authorization under 
the NOPR that DOE proposed on September 7, 2011. Classification of 
activities by destination as ``generally authorized'' is an 
administrative tool to avoid unnecessary reviews of foreign atomic 
energy assistance activities in countries that present little or no 
proliferation risk, and are known nuclear trading partners. General 
authorizations reflect the assessment that the Secretary can make a 
non-inimicality finding regarding the provision of assistance and 
technology to particular countries on an advance programmatic basis, 
without performing a transaction-specific analysis or obtaining 
specific nonproliferation assurances from the government of the 
intended foreign recipient.
    Historically, the Department's approach has been to identify those 
countries that pose inimicality concerns and to require exporters to 
obtain specific authorizations for assistance to those countries. Over 
time, the part 810 list of countries for which specific authorizations 
are required has become outdated. One country on the list no longer 
exists (Yugoslavia). Kazakhstan, Ukraine and the United Arab Emirates 
have become civil nuclear trading partners of the United States 
pursuant to an Agreement for Cooperation under section 123 of the AEA 
(``123 Agreement''). For example, in 2009 the United Arab Emirates 
entered into a 123 Agreement with the United States.
    In recognition of the fact that global markets for peaceful nuclear 
energy and nuclear fuel cycle trading relationships have become more 
dynamic in recent years, the NOPR proposed to change the approach of 
classifying foreign destinations, from listing destinations for which a 
specific authorization is required to establishing a list of generally 
authorized destinations for which a specific authorization would not be 
required. The SNOPR continues the NOPR's proposed approach. The SNOPR 
includes a proposed Appendix that lists destinations to which 
unclassified nuclear assistance or technology transfers would be 
generally authorized. The Appendix would be maintained, revised, and 
updated in accordance with the requirements of the Administrative 
Procedure Act (5 U.S.C. Sec.  553).
    A destination is included on the proposed generally authorized list 
based on the Secretary's ``not inimical'' determination required by 
section 57 b. (2) of the AEA. Examples of types of

[[Page 46836]]

considerations taken into account include the existence of a 123 
Agreement with the United States, a full scope safeguards agreement 
with the IAEA, satisfactory experience as a civil nuclear trading 
partner, and compliance with international nonproliferation regimes. 
The proposed affirmative approach of listing the generally authorized 
destinations rather than the destinations requiring a specific 
authorization would be more consistent with the U.S. Government's 
national security obligations and nuclear nonproliferation policies.
    Multiple companies and industry groups commented that under the 
proposed destination classification approach in the NOPR, there would 
be 77 current destinations for which specific authorization is not now 
required, but under the NOPR approach would be required. These 
commenters feared such reclassification would create an undue burden on 
nuclear commerce, and an administrative burden on U.S. companies and 
the Department, as more activities would require specific 
authorization.
    DOE's analysis of civil nuclear trade with the countries whose 
general or specific authorization classification would be changed 
indicates that the predicted burdens of the proposed change would be 
less substantial, and more manageable, than commenters claimed. 
Confidential reports companies file with DOE regarding generally 
authorized activities show minimal current civil nuclear commerce with 
countries that are ``generally authorized'' destinations under the 
current rule but that would not be generally authorized under the 
SNOPR. This confirms the conclusion of the Economic Impact Analysis DOE 
performed and which is summarized in Section V.A. That analysis 
indicates that potential trade volumes in countries proposed to be 
changed from generally authorized status, and where U.S. trade may be 
adversely affected by the proposed change, are a very small part of the 
global nuclear market, and they are about half the size of the markets 
in the three countries proposed to move to generally authorized status, 
and where U.S. trade would be favorably affected by the change. Many of 
those reports concern foreign nationals working at U.S. nuclear 
installations, not nuclear trade activity. Most importantly, any 
anticipated additional burdens do not overcome the sound national 
security reasons for the Department's proposed approach to 
classification of foreign destinations.
1. Generally Authorized Destinations
    There were no objections from the NOPR commenters about the 47 
destinations proposed to be placed on the generally authorized 
destinations list. Those destinations are listed in the proposed 
Appendix of this SNOPR. The Secretary has determined that the provision 
of assistance or transfer of technology related to the development or 
production of special nuclear material to these countries and the 
International Atomic Energy Agency as described in proposed Sec.  
810.2(b) is not inimical to the interest of the United States. Each 
country and the IAEA has in force a 123 Agreement with the United 
States, the country has an acceptable IAEA safeguards regime, or there 
is a Project and Supply Agreement among the country, the United States, 
and the IAEA. Many general authorization destinations are well 
established, long-term U.S. civil nuclear trading partners, such as 
Japan, Australia, Canada, the Republic of Korea, and the EURATOM member 
countries. Others, like Poland, South Africa, Turkey, and Thailand, are 
less active in civil nuclear commerce, but have demonstrated interest 
in U.S. technical assistance by entering into discussions with U.S. 
companies for development of civil nuclear programs. As in the NOPR, 
three countries on the current specific authorization destination list 
are now proposed to be generally authorized destinations: Ukraine, the 
United Arab Emirates, and Kazakhstan. Each has entered into a 123 
Agreement with the United States and actively is engaged in peaceful 
civil nuclear activities.
    Several NOPR commenters noted that the United States has had a 
long, peaceful nuclear trading relationship with Mexico, even though 
the two countries do not have a 123 Agreement. Commenters claimed the 
proposed rule would disrupt the provision of technical assistance to 
the existing Laguna Verde nuclear power station, a U.S.-designed 
nuclear power plant that continues to rely on U.S.-supplied equipment 
and assistance. Commenters pointed out that this assistance has taken 
place under a Project and Supply Agreement among the United States, 
Mexico, and the IAEA. Similarly, Chile recently signed a Project and 
Supply Agreement with the United States and the IAEA concerning the 
supply of fuel to two research reactors in Chile. In addition, Mexico 
and Chile are parties to the Treaty on the Nonproliferation of Nuclear 
Weapons (NPT) and have safeguards agreements with the IAEA, including 
Additional Protocols. These facts are sufficient for the Secretary to 
make a non-inimicality determination. The Department has considered the 
comments in light of the Mexico Project and Supply Agreement and has 
determined that certain specified transfers will not be inimical to 
U.S. interests. The Department proposes in this SNOPR to include in the 
Appendix to this part those activities in Mexico related to IAEA 
INFCIRC/203 Parts 1 and 2 and INFCIRC/825, and activities in Chile 
related to IAEA INFCIRC/834. If the public has any comments regarding 
other agreements equivalent to 123 Agreements, as a basis to designate 
additional countries as generally authorized, DOE would welcome them.
2. Continued Specific Authorization Destinations
    Assistance or the transfer of technology related to the development 
or production of special nuclear material to 73 destinations that are 
on the current Sec.  810.8(a) list of specific authorization 
destinations would continue to require specific authorization under 
today's proposed rule. Historically, most of the specific authorization 
destinations did not have 123 Agreements, comprehensive safeguards, or 
similar agreements with the IAEA, so any proposed assistance presented 
actual or potential proliferation risks that merited close scrutiny. 
Countries in this group include Afghanistan, Belarus, Iran, Iraq, 
Israel, Democratic People's Republic of Korea, and Pakistan. Some 
countries are in volatile or unstable regions. No NOPR commenters 
objected to retaining the specific authorization requirements for 
countries that currently require specific authorization, except with 
respect to China, India and Russia.
    Multiple commenters advocated moving China, India, and Russia from 
the specific authorization list to the general authorization list. They 
stressed the fact that the United States has entered into 123 
Agreements with each country, and that each country already has nuclear 
weapons and the technology to produce fissile material in support of 
such programs. They asserted that requiring applicants to secure a 
specific authorization for transfers to those countries hampers the 
ability of U.S. companies to compete effectively in global civil 
nuclear commerce.
    After duly considering the comments and consulting with the 
Departments of State, Commerce and Defense, and the Nuclear Regulatory 
Commission, DOE remains of the view that it is not appropriate to 
change the part 810 specific authorization status of these

[[Page 46837]]

three countries at this time. Continuing their current status is 
justified for diplomatic and national security reasons, and in the case 
of India, for legal considerations. For India, the end-user 
accountability requirements Congress enacted in the Henry J. Hyde 
United States-India Peaceful Atomic Energy Cooperation Act of 2006 (22 
U.S.C. 8001) make it infeasible to classify India as a generally 
authorized destination. The information required to be submitted in an 
application for a specific authorization for part 810 exports to India 
is needed to provide information for the project-by-project and end-
user review accountability and reporting with respect to India as 
required by that statute. China and Russia are nuclear weapons states 
that have not provided the level of transparency regarding the division 
between their respective civilian and military nuclear programs to 
warrant general authorization of transfers of technology and assistance 
for peaceful use. DOE has granted numerous nuclear technology export 
authorizations to both China and Russia over the years. DOE would 
expect to continue making such authorizations in the future, based upon 
consideration of the specific facts of each proposed transaction.
    DOE recognizes that increasing the number of destinations for which 
specific authorization is required has the potential to increase the 
time required to process a larger number of part 810 applications. If 
the SNOPR as proposed today is adopted, DOE will closely monitor 
application processing times as it works to improve the part 810 
approval process consonant with maintaining the ability of U.S. 
companies to compete effectively in global markets.
3. Generally Authorized Destinations Proposed To Require Specific 
Authorization
    DOE received many comments about the number of current generally 
authorized destinations that are proposed to be specifically authorized 
destinations. Most of these countries have no civil nuclear programs, 
are unlikely to have nuclear programs in the foreseeable future, have 
not signed a 123 Agreement with the United States, or are not parties 
to the NPT. Countries in this group include Belize, Ethiopia, Lebanon, 
Liechtenstein, and Nepal. There is no reason to place countries that 
have not expressed interest in civil nuclear trade on the proposed 
generally authorized list. Without such interest, there is little 
reason or basis for the Secretary to make a non-inimicality finding. 
Since the NOPR's publication, the 123 Agreements of Peru and Bangladesh 
have expired. Accordingly, Peru and Bangladesh have been removed from 
the proposed generally authorized destinations set forth in the 
proposed Appendix in today's SNOPR.
    Some commenters suggested that U.S. nuclear companies may want to 
hire citizens from what would be former generally authorized 
destinations, presenting a ``deemed export'' issue for the employer. 
Similarly, commenters asserted that some U.S. companies are interested 
in marketing to, or sourcing nuclear goods and services from, these 
countries for use in the United States. Concerns related to deemed 
exports, marketing and supply chain activities are more appropriately 
addressed in Section IV.C. 3. as an activity issue, rather than as a 
destination issue. There is no need to add destinations to the proposed 
generally authorized list to resolve activity issues.
4. Emerging Civil Nuclear Trading Partner Countries
    Some commenters objected to DOE's proposed classification of 
emerging civil nuclear countries such as Saudi Arabia, Jordan, 
Philippines, and Malaysia as requiring specific authorization. 
Commenters noted these countries are planning to develop indigenous 
nuclear power programs but have not yet concluded 123 Agreements with 
the United States. DOE supports growing civil nuclear trade for 
peaceful purposes with these countries. However, granting them 
generally authorized status at the present time would be premature, 
since there is little basis for a non-inimical determination. 
Information needed for such a determination normally is provided 
through a Nuclear Proliferation Assessment Statement which is required 
for Section 123 Agreements. The first step for consideration as a 
candidate for classification as a generally authorized destination 
generally would be a country's conclusion of a 123 Agreement with the 
United States. After that, DOE would consider factors such as 
compliance with international nonproliferation regimes prior to 
designation of the country as a generally authorized destination. DOE 
would also consider adding to the Appendix other countries that are 
party to a Project and Supply Agreement with the United States and the 
IAEA, even if they do not have a 123 Agreement. Special effort will be 
made to work with such countries to engage with their governments to 
develop swift processes for obtaining nonproliferation assurances until 
such time as they can be added to the general authorization list.
Conclusion:
    DOE proposes in today's SNOPR to retain the destination 
classifications proposed in the NOPR unchanged, except for the addition 
of Mexico and Chile (with respect to specific activities under the 
applicable IAEA Information Circulars) to the list of generally 
authorized destinations, the addition of the IAEA as a generally 
authorized destination, and the deletion of Bangladesh and Peru as 
generally authorized destinations.

C. Activities Requiring Part 810 Authorization

1. Special Nuclear Material Nexus Requirement
    Part 810 implements provision (2) of AEA section 57 b. for 
activities:
    (1) By any person;
    (2) Directly or indirectly engaging or participating in the 
development or production of special nuclear material; and
    (3) Outside the United States.
    Multiple commenters claimed the proposed regulation in the NOPR 
would extend the scope of part 810 to activities that do not assist or 
participate in the development or production of special nuclear 
material. Because the AEA prohibits (subject to stated statutory 
conditions) indirect participation in the development or production of 
special nuclear material, the Secretary has broad discretion to 
determine which activities, in addition to those which directly involve 
engagement or participation in the development or production of special 
nuclear material outside the United States, indirectly constitute such 
engagement or participation and consequently are within the scope of 
part 810 and need to be specifically authorized. This discretion is 
balanced against the declared policy of the AEA in section 1 b. that 
the ``development, use, and control of atomic energy shall be directed 
so as to promote world peace, improve the general welfare, increase the 
standard of living, and strengthen free competition in private 
enterprise.'' Whether an activity should be generally authorized or 
specifically authorized is a policy matter.
2. Activities Supporting Commercial Power Reactors
    Multiple parties commented that the scope of ``nuclear reactor'' 
activities in Sec.  810.2 should be limited to reactor technologies 
that produce special nuclear material and are of significant 
proliferation concern. Commenters

[[Page 46838]]

recognized that assistance to foreign production reactors should be 
subject to specific authorization but maintained that some forms of 
assistance to foreign power reactors have little or no relationship to 
the production of special nuclear material. Commenters noted that the 
low-enriched uranium in fuel is subject to material accountability and 
control programs from the enrichment facility to the reactor. They 
pointed out that power reactor production of spent nuclear fuel is not 
a particularly proliferation-sensitive activity because spent nuclear 
fuel is not useful without reprocessing, an activity that directly 
produces special nuclear material, and requires specific authorization.
    Assistance to foreign power reactors historically has been within 
the scope of part 810, and DOE believes it should remain so because the 
reactors use special nuclear material as fuel and produce special 
nuclear material (the plutonium contained in spent nuclear fuel). 
Historically, part 810 has generally authorized assistance to 
commercial power reactors in most nations and safety-related assistance 
even to reactors in specific authorization countries. Upon 
consideration of the comments, the Department believes that the 
interest in an orderly and expeditious part 810 application review 
process would be advanced by requiring a specific authorization only 
for assistance relating to the items within or attached directly to the 
reactor vessel, the equipment that controls the level of power in the 
core, and the equipment or components that normally contain or come in 
direct contact with or control the primary coolant of the reactor core. 
Today's proposed definition of ``nuclear reactor'' in Sec.  810.3 and 
the scope of part 810 in proposed Sec.  810.2 are consistent with the 
NRC's definition in 10 CFR 110.2 and list of NRC-regulated components 
at Appendix A to Part 110-Illustrative List of Nuclear Reactor 
Equipment Under NRC Export Licensing Authority, and items within what 
is commonly considered to comprise the nuclear steam supply system. 
These proposed changes to Sec.  810.3 and Sec.  810.2 are responsive to 
commenter requests for a clear description of reactor technology 
subject to part 810 and consistency with other regulatory programs.
3. ``Deemed Exports'' and ``Deemed Re-exports''
    Many commenters claimed that requiring U.S. employers to obtain 
specific authorization for their foreign employees working in the 
United States, combined with the reduced number of generally authorized 
countries under the proposed approach to destination classification, 
could prevent U.S. nuclear employers from hiring the best available 
qualified people and adversely impact the operation of U.S. nuclear 
facilities and the ability of vendors to compete globally. It is well 
established that any transfer of part 810-controlled nuclear technology 
to a foreign national is ``deemed'' to be an export to the country of 
citizenship or lawful permanent residence of the individual, whether 
the transfer takes place in the United States (a ``deemed export'') or 
abroad (a ``deemed re-export''). Commenters contended that providing 
nuclear technology to foreign employees so they can work at nuclear 
companies in the United States cannot lead to even the indirect 
production of special nuclear material in foreign facilities, and any 
risk of unauthorized exports by these employees would be mitigated if 
the U.S. employer: (1) follows the NRC access authorization standards 
for facility access or access to information such as those found in 10 
CFR part 10 (Criteria and Procedures for Determining Eligibility for 
Access), part 26 (Fitness for Duty) or part 73 (Physical protection of 
plants and materials) for the foreign employee; and (2) enters into a 
confidentiality agreement with the employee. Commenters recommended 
that DOE rely upon employer compliance with NRC access requirements for 
non-U.S. citizens working in U.S. nuclear facilities and employee 
confidentiality agreements to prevent wrongful use or disclosure of the 
employer's sensitive nuclear technology. The commenters asserted that 
compliance with this procedure would suffice to protect the technology, 
obviating the need to require duplicative access authorization under 
part 810.
    DOE considered these comments and, after consultation with the NRC, 
proposes to accept the commenters' recommendation. Under today's SNOPR, 
Sec.  810.6 would generally authorize technology access to citizens and 
nationals from specific authorization countries working for U.S. 
employers in the United States at an NRC-licensed facility provided 
that the employee:
     Is lawfully employed by or contracted to work for a U.S. 
employer in the United States;
     Executes a confidentiality agreement with the U.S. 
employer that safeguards the technology from unauthorized use or 
disclosure; and
     Has been granted unescorted access in accordance with NRC 
10 CFR part 10, part 26 or part 73 at an NRC-licensed facility.
The employer authorizing access to the technology would be required to 
report the access as proposed in Sec.  810.12(g).
    This approach would recognize authorization under established NRC 
standards and the employer's interest in protecting its confidential 
information as sufficient control of technology transferred to foreign 
employees working in the United States. This approach is intended to 
address situations comparable to those covered by the Department of 
Commerce's deemed export rule in 15 CFR 734.2(b)(2) of the Export 
Administration Regulations. U.S. employers seeking to employ foreign 
nationals to engage in activities requiring specific authorization as 
described in proposed Sec.  810.7 would continue to require a specific 
authorization under part 810 in all circumstances.
    The SNOPR amends the definition of ``foreign national'' as proposed 
in the NOPR; the current regulation does not utilize the term ``foreign 
national''. This term was included, and defined, in the NOPR to 
describe the category of individuals with respect to whom citizenship, 
employment background, and other information is required before 
specific authorization for technology transfers as described in Sec.  
810.11(c) of the NOPR may be approved; i.e., deemed exports or deemed 
re-exports. In the SNOPR, the proposed definition of ``foreign 
national'' has been revised to add the phrase ``but excludes U.S. 
lawful permanent residents and protected individuals under the 
Immigration and Naturalization Act (8 U.S.C. 1324b(a)(3)''. This 
proposed addition clarifies the definition of ``foreign national'' by 
stating in one place who is and is not considered to be a foreign 
national; in the NOPR this matter was set forth in proposed Sec.  
810.11(c).
    Proposed Sec. Sec.  810.11 and 810.12, as in the NOPR, would make 
explicit DOE's current practice of requiring the employer to provide 
detailed information on the foreign national employee's background, a 
description of the subject assistance or technology, a copy of the 
confidentiality agreement with the employee, and written 
nonproliferation assurances by the foreign national employee. Proposed 
Sec.  810.12, similar to the requirements of the NOPR, would delineate 
the reporting requirements for U.S. companies giving foreign national 
employees access to part 810-controlled technology.
    Finally, it has been DOE's practice to consider nuclear technology 
transfers to

[[Page 46839]]

individuals who are lawfully admitted for permanent residence in the 
United States or who are protected individuals under the Immigration 
and Naturalization Act (8 U.S.C. 1324b(a)(3)) the same as transfers to 
U.S. citizens, and therefore not exports. This practice is reflected in 
proposed Sec.  810.2(c)(6) as an exemption from part 810.
4. Technology Transfers to Individuals With Dual Citizenship or 
Permanent Residency
    Several companies and industry groups commented that the provisions 
in proposed Sec.  810.11(c) of the NOPR did not provide clarity on the 
application of the rule to individuals with dual citizenship or 
citizens of specific authorization countries with lawful permanent 
residence in a generally authorized country.
    Commenters recommended that citizenship for part 810 purposes be 
determined by the country of the individual's most recent citizenship 
or permanent residence--rather than the country with the more 
restrictive authorization status. Use of the most recent country of 
citizenship or permanent residence would mean, for example, that a 
transfer of nuclear technology to an individual who is a citizen of a 
special authorization country and who later obtained lawful permanent 
residence in a generally authorized country would be generally 
authorized since the transfer of nuclear technology would be to a 
generally authorized destination. Commenters represented that adoption 
of this approach would enable nuclear partner countries in the European 
Union to comply with European Union non-discrimination laws.
    The SNOPR does not resolve the dual nationality/lawful permanent 
residence issue. After due consideration, DOE has decided that it is 
not appropriate to address this matter by rule. Unlike exports subject 
to the Department of Commerce's Export Administration Regulations, 
nuclear technology transfers administered by DOE under part 810 require 
further scrutiny of the end use, in order to ensure adherence to United 
States nonproliferation commitments as a member of the Nuclear 
Suppliers Group. The authorization decisions in these situations are 
fact-specific, and DOE will continue to deal with them on a case-by-
case basis.
5. Operational Safety Activities
    In 1993, part 810 was revised to establish a new general 
authorization for assistance that would enhance the operational safety 
of existing civilian nuclear power reactors in specific authorization 
countries. The 1993 general authorization built on the prior general 
authorization for assistance to prevent or correct an existing or 
imminent radiological emergency posing a significant danger to public 
health and safety. Unlike for other generally authorized activities, 
the operational safety authorization was not automatic. It required 
DOE's written approval within 30 days, rather than the longer review 
and approval process required for specific authorizations. To assist 
applicants in determining whether the assistance they proposed 
qualified for ``fast track'' treatment, a definition of ``operational 
safety'' was added to Sec.  810.3 ``Definitions.''
    The NOPR proposed to eliminate the 1993 fast track general 
authorization for operational safety, but to retain the general 
authorization to address current or imminent radiological emergencies 
when no other means to address the emergency is available. The NOPR 
also proposed to delete the definition of ``operational safety.'' 
Multiple commenters objected that the NOPR changes would restrict U.S. 
public and private entities from participating in cooperative efforts 
to promote nuclear safety. They favored retaining the fast track 
general authorization.
    The 1993 revision to part 810 was necessary to authorize expedited 
assistance to civilian nuclear reactors in specific authorization 
countries. Commenters on the NOPR pointed out that with DOE's proposed 
destination classification approach, there would be no specific 
authorization country list. Operational safety assistance from U.S. 
companies therefore would need specific authorization in many countries 
that are currently generally authorized destinations.
    A primary purpose of the 1993 amendments was to recognize the 
public interest in civilian reactor safety and the U.S. Government's 
interest in international cooperation to improve the safety of reactors 
worldwide. Commenters pointed out that assessments and benchmarking of 
U.S. and foreign reactor practices performed by international teams 
supported by the Institute of Nuclear Power Operators and the World 
Association of Nuclear Operators and U.S. nuclear companies serve the 
U.S. national interest in global reactor safety. The Department has 
determined that activities approved or carried out by the Nuclear 
Regulatory Commission or the Department of State may be either exempt 
under Sec.  810.2(c)(1) or generally authorized under Sec.  810.6(d) of 
today's proposed regulations.
    A second purpose of the 1993 amendments was to ``enable U.S. firms 
to compete more effectively with foreign competitors for safety-related 
nuclear business.'' This objective is consistent with the policy 
statement in section 1 b. of the AEA supporting the development, use, 
and control of peaceful nuclear energy and strengthening free 
competition in private enterprise. Commenters asserted that eliminating 
the fast track authorization would reduce the ability of U.S. firms to 
compete effectively for safety-related nuclear business. Commenters 
explained that U.S. companies are not the exclusive source of services 
for operating reactors, and if U.S. regulations inhibit U.S. companies 
from doing work on a foreign reactor, non-U.S. companies will provide 
the service. Commenters maintained that eliminating the ``fast track'' 
would reduce U.S. competitiveness in global markets and U.S. Government 
influence on foreign nuclear programs.
    A third purpose of the 1993 amendments was to ``eliminate 
unnecessary paperwork and time-consuming bureaucratic delays'' when 
public safety was at stake. The current ``fast track'' procedure 
combines a prior notification and approval requirement with a 
requirement that DOE review and act on the request on an expedited 
basis. The Department's experience with fast track requests has not 
been entirely satisfactory. The ``fast track'' has been used very 
seldom in the years since 1993, and many requests have not tied 
proposed assistance to established safety standards. Unsupported 
assertions that a service is safety-related to obtain expedited 
consideration and approval for an activity that merits a full-scale 
review do not serve the interests of industry or national security. 
However, the system worked as intended during the 2011 Fukushima 
Daiichi disaster, and DOE promptly used the existing emergency 
authority to permit rapid U.S. industry response to Japan's request for 
assistance.
    Based on these considerations, DOE today proposes to retain the 
fast track procedure for safety-related requests, with some 
modifications as follows:
     Proposed Sec.  810.6(c)(1) would generally authorize 
assistance to prevent or correct a current or imminent radiological 
emergency with 48 hour prior notice to DOE;
     Proposed Sec.  810.6(c)(2) would continue the fast track 
general authorization for safety-related assistance to existing 
safeguarded foreign commercial reactors. The assistance must support 
the reactor operator's compliance with national or

[[Page 46840]]

international safety requirements or standards. To obtain fast track 
approval, the applicant would be required to provide DOE notice at 
least 45 days before the start of the activity, and could proceed only 
after receiving DOE's approval in writing;
     Proposed Sec.  810.6(c)(3) would generally authorize 
safety-related assistance to nuclear power plants in the United States; 
and
     Proposed Sec.  810.6(d) would generally authorize 
assistance pursuant to exchange programs approved by the Department of 
State in consultation with DOE, in addition to the exemption in 
proposed Sec.  810.2(c)(1) for activities authorized by other agencies.
6. Offshore Activities: ``Control-in-Fact''
    Some companies and industry groups commented on the NOPR that the 
existing Sec.  810.2(b) provision that makes part 810 controls 
applicable to activities conducted abroad by foreign licensees, 
contractors and subsidiaries subject to control by persons under U.S. 
jurisdiction is overly broad and confusing. One commenter recommended 
that applicability be limited to foreign-controlled subsidiaries, with 
control determined by reference to corporate governance arrangements. 
The applicability determination depends on the degree of control that 
the person subject to U.S. jurisdiction has over the assistance 
transaction, not the legal status of its subsidiary or other affiliate. 
The inquiry to determine whether there exists sufficient control to 
make part 810 applicable to a given proposed transfer of nuclear 
assistance depends on the specific circumstances of the transaction, 
not merely corporate governance provisions. DOE has considered the 
comments and today proposes to retain proposed Sec.  810.2(a)(2) 
substantially as proposed in the NOPR and not to include a mechanistic 
formula to determine when control-in-fact exists.
7. Back-end Activities
    The proposed regulations in the NOPR expressly added certain back-
end of the fuel cycle activities that were not explicit in prior 
versions of the regulations: post-irradiation examination of spent 
nuclear fuel; storage of irradiated nuclear materials; movement of 
irradiated nuclear materials; and processing of spent irradiated 
nuclear materials for disposal (e.g., processing for burial or 
vitrification). Multiple commenters maintained that these activities 
have no connection to the development or production of special nuclear 
material and pose an insignificant proliferation risk. They maintained 
DOE should not regulate these activities under part 810.
    Separation and reprocessing of special nuclear material are back-
end activities that have always been covered by part 810 but were not 
explicitly identified in the regulations. The NOPR proposed to 
specifically identify the back-end activities because they can be a 
part of a separation and reprocessing program. Today's SNOPR would make 
no change to the current status of back-end activities. Back-end 
activities related to special nuclear material reprocessing would 
continue to require specific authorization. Otherwise, back-end 
activities would not be subject to part 810.
8. NRC, Commerce, and State Approved Activities
    Existing provisions of Sec.  810.2 ``Scope'' exclude activities 
authorized by the NRC from the scope of part 810. Commenters 
recommended that the proposed regulations extend that exclusion to 
activities licensed by the Departments of Commerce and State, to avoid 
duplicative regulation. The rule proposed today adopts that 
recommendation. In cases where a request for an export license involves 
multiple agency jurisdictions, the responsible agencies would consult 
and determine which agency would exercise jurisdictional control over 
the application.
9. Medical Isotope Production
    Various commenters said the proposed definition of ``reprocessing'' 
in the NOPR was too broad because it could have the unintended 
consequence of making medical isotope production subject to part 810. 
DOE considered the comments and has deleted the definition of 
reprocessing in today's SNOPR. The SNOPR adds a proposed exemption in 
Sec.  810.2(c)(5) for the production or extraction of 
radiopharmaceutical isotopes when the process does not involve use of 
special nuclear material. Extraction of Molybdenum-99 from irradiated 
targets for medical use is proposed to be generally authorized in this 
SNOPR, in proposed Sec.  810.6(g).
10. Activities Carried Out by IAEA Personnel
    Some commenters criticized as unduly restrictive the NOPR's 
proposal to restrict the general authorization for IAEA activities to 
personnel ``whose employment is sponsored by the U.S. Government.'' The 
purpose of proposed Sec.  810.6(e) is to enable full U.S. cooperation 
with IAEA personnel who are not citizens or nationals of generally 
authorized countries or with individuals working for the IAEA in 
specific authorization destinations. The IAEA therefore has been added 
to the list of generally authorized destinations in the proposed 
Appendix. The SNOPR proposes to generally authorize activities carried 
out by individuals who are full-time employees of the IAEA, or whose 
employment or work is sponsored or approved by the Department of State 
or Department of Energy. Under the SNOPR, engagement by IAEA employees 
in activities covered by proposed Sec.  810.7 would still require 
specific authorization.
11. Transfer of Public Information and Research Results
    Under the current rule, the transfer of ``public information'' is 
generally authorized. The NOPR proposed to exempt ``public 
information'' from the scope of part 810. Commenters did not object to 
that change. However, commenters claimed that DOE's application of the 
term ``public information'' had on occasion been unduly restrictive and 
burdensome. Multiple companies and industry groups commented that 
adoption of the NOPR's proposed definitions of ``technology'' and 
``technical data'' would unduly restrict the information that could be 
transferred without a specific authorization. They also alleged 
inconsistencies in the way various types of information are defined in 
part 810 compared to other U.S. export control programs. Similarly, 
multiple academic institutions and organizations commented that the 
NOPR's definition of ``basic scientific research'' was too narrow and 
was inconsistent with Presidential Decision Directive 189 and the 
Department of Commerce controls that use the term ``fundamental 
research.''
    DOE considered the comments and proposes today to replace the term 
``public information'' with the terms ``publicly available 
information'' and ``publicly available technology,'' and to replace the 
term ``basic scientific research'' with ``fundamental research.'' The 
proposed definitions of these terms are intended to comport with usages 
in other export control programs, be consistent with regulatory 
exclusions in those programs, and generally to reduce the burden of 
regulatory compliance for industry and academic institutions.
12. Transfer of Sales, Marketing, and Sourcing Information
    Multiple commenters observed that the distinction between publicly 
available information, which can be

[[Page 46841]]

disclosed or transferred without restriction, and technical information 
relating to proliferation-sensitive enrichment and reprocessing 
activities, which must always be specifically authorized, is not well 
delineated with respect to activities important to U.S. industry's 
competition for civil nuclear trade in global markets. Commenters noted 
that there is a body of proprietary information that U.S. nuclear 
energy companies need to share with foreign customers or vendors that 
is not useful to develop or produce special nuclear material. The 
commenters identified several types of reactor information transfers 
they believed should be generally authorized:
     Commercial information--(e.g., prices, warranties, and 
representations) is normally included in marketing proposals or bids. 
Such information is proprietary, but not technical.
     General technical information--(e.g., general design 
information, service offerings, and performance capabilities) is 
normally included in bids and proposals. The commenters stated that the 
information is not sufficiently detailed to assist in the production of 
SNM.
     Sourcing requirements information--(e.g., detailed 
component drawings and specifications) is normally provided to foreign 
vendors in order to permit them to bid for business from U.S. 
companies. The covered sourcing information would be for specific 
components and services to be used by customers of U.S. vendors, not 
for production of SNM outside the United States.
     Due diligence information--Commercial and financial 
information normally provided to a potential foreign investor 
fulfilling its legal due diligence obligation to owners.
     Trade mission information--Exchanges of general commercial 
and technical information with foreign entities in the course of 
government- or industry-sponsored events designed to promote 
international commerce.
     Plant tour information--Information obtained visually 
during U.S. facility visits by foreign business or government officials 
for commercial or regulatory purposes.
    Commenters claimed that a general authorization for disclosure of 
these types of information is appropriate because it is not useful for 
the production of special nuclear material and is conveyed subject to 
agreements that place restrictions on the recipient's use. It is in the 
technology owner's interest to be sure the recipient only receives the 
information it needs to evaluate a proposed transaction and can only 
use the information for limited specified purposes. The commenters also 
were concerned that requiring a specific authorization for sales and 
sourcing activities would impose regulatory compliance costs and delays 
that could restrict U.S. company participation in growing global 
nuclear markets.
    Commenters recommended that information conveyed for marketing and 
sourcing purposes be generally authorized if it is an established 
business practice for the information to be disclosed to support sales 
and sourcing programs, and if neither the export nor the re-export of 
the information would include detailed design, production, or 
manufacturing technology sufficient to permit the production of special 
nuclear material. They pointed to the License Exception ``TSU'' in the 
Department of Commerce's Export Administration Regulations, EAR section 
740.13(b), and the Department of State's 2010 decision to drop prior 
International Traffic in Arms Regulations (ITAR) notice and approval 
requirements for certain proposals for military equipment (75 FR 52622) 
as reasonable approaches to this issue.
    The Department recognizes that competition for nuclear business is 
fierce, and many foreign competitors of U.S. nuclear companies are 
state-sponsored enterprises, thus offering foreign customers and 
vendors attractive alternatives to U.S. companies as trading partners. 
Part 810 is meant to enable U.S. companies to compete effectively to 
garner sales, and secure components and services that may not be 
available in the United States. However, the purpose of part 810 is 
different from the purposes of the ITAR and EAR. Part 810 does not 
regulate marketing or sourcing activities as such, only the provision 
of assistance and the transfer of technology. Marketing or sourcing 
activities are regulated under this part or exempt based on the 
technical data transferred, not the use of the data. If controlled 
technical data is transferred in a bid, proposal, solicitation, trade 
show, or plant tour, the activity would be subject to part 810. If no 
technical data were transferred, the transaction would not be within 
the scope of part 810 as proposed in Sec.  810.2. If a company was 
uncertain whether a transfer was exempt or requires authorization, it 
could contact DOE. Companies have sought and received guidance from DOE 
before investing marketing resources in order to determine that its 
services could be authorized if it won a contract. Accordingly, the 
SNOPR does not propose a blanket exemption for marketing and sourcing 
activities.
    The benefit of a blanket general authorization would be limited for 
several reasons. First, most marketing and sourcing transfers are to 
generally authorized countries. Second, most proposals and marketing 
communications do not contain technical data that would enable the 
recipient to develop or produce special nuclear material. Third, under 
the current part 810 and the SNOPR, companies can request guidance or 
interpretations to inform their proposals and solicitations. In the 
absence of any information from interested parties quantifying expected 
sales and sourcing activity that would be burdened by a specific 
authorization requirement, there is no general authorization proposed 
today for this activity.
13. Transfer of ``Americanized'' Technology
    Two commenters asserted that the purpose and intent of the NOPR's 
proposed definition of ``cooperative enrichment enterprise'' were 
unclear. They said that to build and operate their U.S. enrichment 
facility, it was necessary to ``Americanize'' foreign technology, 
adapting it to meet U.S. regulatory and industry standards. The 
Americanization process requires collaboration with foreign personnel. 
They acknowledged that the transfer of U.S. technology to a foreign 
recipient is subject to a specific authorization and U.S. consent 
rights, and did not object to the conditions imposed by proposed Sec.  
810.9(d). They were concerned, however, that proposed Sec.  810.9(d) 
would unreasonably limit the foreign supplier from using or 
retransferring Americanized technology even when the retransfer was 
done in accordance with Nuclear Suppliers Group (NSG) guidelines.
    Other commenters raised the same issue with respect to determining 
when any software commingling U.S. and foreign technology would be 
considered ``U.S.-based'' for export control purposes. They claimed 
uncertainty about ``contamination'' of foreign-origin technology with 
U.S. technology would discourage nuclear cooperation and incorporation 
of U.S. technology in foreign reactors. They recommended that DOE adopt 
a de minimis standard, exempting re-exports if the U.S. content is less 
than 25% of the total value of the software or technology.
    The purpose of the proposed change regarding cooperative enrichment 
enterprises in the NOPR was to enable multinational entities to 
function effectively, while maintaining DOE

[[Page 46842]]

oversight and consistency with NSG guidelines. As proposed today, part 
810 would not limit the ability of a cooperative enrichment enterprise 
that receives a specific authorization from using and retransferring 
foreign technology in accordance with the authorization. The proposed 
new rule should not affect cooperative enrichment enterprises either 
positively or negatively. Authorizations for cooperative enrichment 
enterprises and other technology transfers by collaborative enterprises 
would only be made on a case-by-case basis, considering all the 
relevant facts and circumstances relevant to proliferation. There may 
be circumstances when a transfer is de minimis, but the determination 
should be made on the case specific facts. A blanket exception based on 
an arbitrary monetary value would not be appropriate. No change to the 
proposal contained in the NOPR is warranted.

D. Explanation of Proposed Changes to Part 810 Terms

    The existing regulation has 24 defined terms. The SNOPR proposes to 
add or substantially revise 22 terms, delete 2 terms, and leave 14 
terms essentially unchanged, for a total of 36 defined terms in the 
proposed regulation.
    The following terms would be added by the SNOPR to update the terms 
used in Part 810 to make them consistent with terms used in U.S. export 
control programs and NSG guidelines: Development, Cooperative 
enrichment enterprise, Enrichment, Fundamental research, Fissile 
material, Production, Technical assistance, Technical data, Technology, 
and Use. The following terms would be added or revised in line with the 
proposed changes in the approach to authorized destinations and 
authorized activities: Specific authorization, Production accelerator, 
Production accelerator-driven subcritical assembly system, Operational 
safety, General authorization, Production subcritical assembly, 
Publicly available information, Publicly available technology, and 
Foreign national. The term ``Country'' was proposed to be added to 
clarify that Taiwan would be covered under this proposed rule, 
consistent with section 4 of the Taiwan Relations Act, 22 U.S.C. Sec.  
3303, and the United States' one-China policy, under which the United 
States maintains unofficial relations with Taiwan. These terms were 
proposed to define administrative terms: Secretary, Country, and DOE. 
The following terms are proposed to be retained with no change except 
technical edits or format changes: Agreement for cooperation, Atomic 
Energy Act, IAEA, Sensitive nuclear technology, Source material, 
Special nuclear material, Person, Classified information, Nuclear 
reactor, NNPA, Production reactor, Restricted Data, NPT, and United 
States. The following terms would be deleted as obsolete or unused: 
Non-nuclear-weapon state and Open meeting.

V. Regulatory Review

A. Executive Order 12866

    Today's proposed rule has been determined to be an economically 
significant regulatory action under Executive Order 12866, ``Regulatory 
Planning and Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this 
action was subject to review under that Executive Order by the Office 
of Information and Regulatory Affairs of the Office of Management and 
Budget. The required economic impact analysis has been prepared by the 
Department of Energy. The analysis examined the size of the nuclear 
markets affected by the proposed changes and forecasted that the 
technology export markets that should be positively affected by the 
change in export destination classification are likely to be larger 
than those which could be adversely affected. The expected range of 
trade volume differences between the positively and adversely affected 
market segments is in the range of $32 million per year to $75 million 
per year over the period 2013 to 2030. In addition to this calculation, 
DOE presents in the economic impact analysis theoretical annualized 
costs and benefits at 3% and 7% discount rates based on one industry-
generated forecast. It should be noted that the discounted numbers, 
approximately $23 million in costs and $43 million in benefits, reflect 
one hypothetical analysis that, as discussed in the economic analysis, 
is based on nuclear capacity forecasts. The analysis concluded that the 
greatest potential for impact resulting from the changes proposed in 
this rulemaking could occur in connection with transactions occurring 
in destinations that would be moved from general to specific 
authorization. Because significant trade can and does occur with 
countries for which specific authorization would be required, the 
actual impact would be much smaller than the total volume of trade. The 
actual effect of the change in annual U.S. technology export trade 
volumes is likely to be in the range of $5 to $50 million per year over 
this same period. The analysis also noted that it assumed that all 
destinations that are not on the Appendix's generally authorized list 
will remain off the list. It is likely, however, that some countries 
that are developing indigenous civil nuclear programs will enter into 
Agreements for Cooperation and would be added to the Appendix of 
generally authorized destinations, thereby obviating any impacts 
related to the specific authorization process. The analysis is publicly 
available at the DOE Web site https://nnsa.energy.gov/nonproliferation/nis/10CFRPart810, the Department of Commerce Web site https://www.trade.gov/mas/ian/industryregulationmasinput/index.asp and at 
https://www.regulations.gov/#!docketDetail;D=DOE-HQ-2011-0035 under 
``Assistance to Foreign Atomic Energy Activities''.

B. National Environmental Policy Act

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

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process (68 FR 7990). DOE has made its 
procedures and policies available on the Office of the General 
Counsel's Web site: https://www.gc.doe.gov.
    Today's proposed changes to part 810 are summarized in Section II 
of the Preamble. DOE has reviewed the changes under the provisions of 
the Regulatory Flexibility Act and the procedures and policies 
published on February 19, 2003. The proposed changes clarify the 
authorization requirements pertaining to the provision of assistance to 
foreign atomic energy

[[Page 46843]]

activities and make changes in response to the comments received in 
response to the NOPR. They do not expand the scope of activities 
currently regulated under 10 CFR part 810.
    The requirements for small businesses exporting nuclear technology 
abroad would not substantively change because the proposed revisions to 
this rule do not add new burdens or duties to small businesses. The 
obligations of any person subject to the jurisdiction of the United 
States who engages directly or indirectly in the production of special 
nuclear material outside the United States have not changed in a manner 
that would provide any impact on small businesses. Furthermore, DOE has 
conducted a review of the potential small businesses that may be 
impacted by this proposed rule. This review consisted of an analysis of 
the number of businesses impacted generally since 2007-2008, and a 
determination of which of those are considered ``small businesses'' by 
the Small Business Administration. Out of 56 businesses impacted by 
part 810, only 5 qualify as small businesses. The number of requests 
for authorization or reports of generally authorized activities from 
each small business on average was one or less per year, while the 
larger businesses can have as many as 100 requests for authorization or 
reports of generally authorized activities per year. The small 
businesses fall within two North American Industry Classification 
System codes, for engineering services and computer systems designs 
services. Often, their requests for authorization include the transfer 
of computer codes or other similar products. The proposed changes to 
this rule would not alter what these businesses need to do to receive a 
part 810 authorization. So, there would be no impact on their ability 
to move forward and conduct business in the same manner they have 
previously, except that the changes might make it easier by clarifying 
some terms used to define regulated activities. Generally speaking, 
small businesses reported that their initial filing of a part 810 
request for authorization required up to 40 hours of legal assistance, 
but follow-on reporting and requests required significantly less 
assistance.
    On the basis of the foregoing, DOE certifies the SNOPR would not 
have a significant economic impact on a substantial number of small 
entities. Accordingly, DOE has not prepared a regulatory flexibility 
analysis for this rulemaking. DOE's certification and supporting 
statement of factual basis will be provided to the Chief Counsel for 
Advocacy of the Small Business Administration pursuant to 5 U.S.C. 
605(b).

D. Paperwork Reduction Act

    The collection of information under this supplemental proposed rule 
was previously approved under Office of Management and Budget Control 
Number 1901-0263.

E. Unfunded Mandates Reform Act of 1995

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

F. Treasury and General Government Appropriations Act, 1999

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

G. Executive Order 13132

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

H. Executive Order 12988

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

[[Page 46844]]

supplemental proposed rule meets the relevant standards of Executive 
Order 12988.

I. Treasury and General Government Appropriations Act, 2001

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

J. Executive Order 13211

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

K. Executive Order 13609

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

DOE has reviewed this supplemental proposed rule under the provisions 
of Executive Order 13609 and determined that the rule complies with all 
requirements set forth in the order.

VI. Approval by the Office of the Secretary

    The Office of the Secretary of Energy has approved the publication 
of today's supplemental proposed rule.

List of Subjects in 10 CFR Part 810

    Foreign relations, Nuclear energy, Reporting and recordkeeping 
requirements.

    Issued in Washington, DC, on July 30, 2013.
Ernest J. Moniz,
Secretary of Energy.

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

PART 810--ASSISTANCE TO FOREIGN ATOMIC ENERGY ACTIVITIES

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

Appendix A to Part 810--Generally Authorized Destinations

    Authority: Secs. 57, 127, 128, 129, 161, and 223, Atomic Energy 
Act of 1954, as amended by the Nuclear Nonproliferation Act of 1978, 
Pub. L. 95-242, 68 Stat. 932, 948, 950, 958, 92 Stat. 126, 136, 137, 
138 (42 U.S.C. 2077, 2156, 2157, 2158, 2201, 2273), and the 
Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. 
108-458, 118 Stat. 3768; Sec. 104 of the Energy Reorganization Act 
of 1974, Pub. L. 93-438; Sec. 301, Department of Energy Organization 
Act, Pub. L. 95-91; National Nuclear Security Administration Act, 
Pub. L. 106-65, 50 U.S.C. 2401 et seq., as amended.


Sec.  810.1  Purpose.

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


Sec.  810.2  Scope.

    (a) Part 810 (this part) applies to:
    (1) All persons subject to the jurisdiction of the United States 
who directly or indirectly engage or participate in the development or

[[Page 46845]]

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


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.
    Classified information means national security information 
classified under Executive Order 13526 or any predecessor or 
superseding order, and Restricted Data classified under the Atomic 
Energy Act.
    Cooperative enrichment enterprise means a multi-country or multi-
company (where at least two of the companies are incorporated in 
different countries) joint development or production effort. The term 
includes a consortium of countries or companies or a multi-national 
corporation.
    Country, as well as government, nation, state, and all related 
terms, shall be read to include Taiwan, consistent with section 4 of 
the Taiwan Relations Act, 22 U.S.C. 3303, and the United States' one-
China policy, under which the United States maintains unofficial 
relations with Taiwan.
    Development means any activity related to all phases before 
production such as: design, design research, design analysis, design 
concepts, assembly and testing of prototypes, pilot production schemes, 
design data, process of transforming design data into a product, 
configuration design, integration design, and layouts.
    DOE means the U.S. Department of Energy.
    Enrichment means isotope separation of uranium or isotope 
separation of plutonium, regardless of the type of process or 
separation mechanism used.
    Fissile material means isotopes that readily fission after 
absorbing a neutron of any energy, either fast or slow. Fissile 
materials are uranium-235, uranium-233, plutonium-239, and plutonium-
241.
    Foreign national means an individual who is not a citizen or 
national of the United States, but excludes U.S. lawful permanent 
residents and protected individuals under the Immigration and 
Naturalization Act (8 U.S.C. 1324b(a)(3)).
    Fundamental research means basic and applied research in science 
and engineering, the results of which ordinarily are published and 
shared broadly within the scientific community, as distinguished from 
proprietary research and from industrial development, design, 
production, and product utilization, the results of which ordinarily 
are restricted for proprietary or national security reasons.
    General authorization means an authorization granted by the 
Secretary under section 57 b.(2) of the Atomic Energy Act to provide 
assistance or technology to foreign atomic energy activities subject to 
this part and which does not require a request for, or the Secretary's 
issuance of, a specific authorization.
    IAEA means the International Atomic Energy Agency.
    NNPA means the Nuclear Nonproliferation Act of 1978, Public Law 95-
242, 22 U.S.C. 3201 et seq.
    NPT means the Treaty on the Nonproliferation of Nuclear Weapons, 
done on July 1, 1968.
    Nuclear reactor means an apparatus, other than a nuclear explosive 
device, designed or used to sustain nuclear fission in a self-
sustaining chain reaction.
    Operational safety means the capability of a reactor to be operated 
in a manner that complies with national standards or requirements or 
widely-accepted international standards and recommendations to prevent 
uncontrolled or inadvertent criticality, prevent or mitigate 
uncontrolled release of radioactivity to the environment, monitor and 
limit staff exposure to radiation and radioactivity, and protect off-
site population from exposure to radiation or radioactivity. 
Operational safety may be enhanced by providing expert advice, 
equipment,

[[Page 46846]]

instrumentation, technology, software, services, analyses, procedures, 
training, or other assistance that improves the capability of the 
reactor to be operated in compliance with such standards, requirements 
or recommendations.
    Person means:
    (1) Any individual, corporation, partnership, firm, association, 
trust, estate, public or private institution,
    (2) Any group, government agency other than DOE, or any State or 
political entity within a State; and
    (3) Any legal successor, representative, agent, or agency of the 
foregoing.
    Production means all production phases such as: construction, 
production engineering, manufacture, integration, assembly or mounting, 
inspection, testing, and quality assurance.
    Production accelerator means a particle accelerator especially 
designed, used, or intended for use with a production subcritical 
assembly.
    Production accelerator-driven subcritical assembly system means a 
system comprised of a production subcritical assembly and a production 
accelerator and which is especially designed, used, or intended for the 
production of plutonium or uranium-233. In such a system, the 
production accelerator target provides a source of neutrons used to 
effect special nuclear material production in the production 
subcritical assembly.
    Production reactor means a nuclear reactor especially designed or 
used primarily for the production of plutonium or uranium-233.
    Production subcritical assembly means an apparatus that contains 
source material or special nuclear material to produce a nuclear 
fission chain reaction that is not self-sustaining and that is 
especially designed, used, or intended for the production of plutonium 
or uranium-233.
    Publicly available information means information in any form that 
is generally accessible, without restriction, to the public.
    Publicly available technology means technology that is already 
published or has been prepared for publication; arises during, or 
results from, fundamental research; or is included in an application 
filed with the U.S. Patent Office and eligible for foreign filing under 
35 U.S.C. 184.
    Restricted Data means all data concerning:
    (1) Design, manufacture, or utilization of atomic weapons;
    (2) The production of special nuclear material; or
    (3) The use of special nuclear material in the production of 
energy, but shall not include data declassified or removed from the 
Restricted Data category pursuant to section 142 of the Atomic Energy 
Act.
    Secretary means the Secretary of Energy.
    Sensitive nuclear technology means any information (including 
information incorporated in a production or utilization facility or 
important component part thereof) which is not available to the public 
(see definition of ``publicly available information'') and which is 
important to the design, construction, fabrication, operation, or 
maintenance of a uranium enrichment or nuclear fuel reprocessing 
facility or a facility for the production of heavy water, but shall not 
include Restricted Data controlled pursuant to chapter 12 of the Atomic 
Energy Act. The information may take a tangible form such as a model, 
prototype, blueprint, or operation manual or an intangible form such as 
technical services.
    Source material means:
    (1) Uranium or thorium, other than special nuclear material; or
    (2) Ores that contain by weight 0.05 percent or more of uranium or 
thorium, or any combination of these materials.
    Special nuclear material means:
    (1) Plutonium,
    (2) Uranium-233, or
    (3) Uranium enriched above 0.711 percent by weight in the isotope 
uranium-235.
    Specific authorization means an authorization granted by the 
Secretary under section 57 b.(2) of the Atomic Energy Act, in response 
to an application filed under this part, to engage in specifically 
authorized nuclear activities subject to this part.
    Technical assistance means assistance in such forms as instruction, 
skills, training, working knowledge, consulting services, or any other 
assistance as determined by the Secretary. Technical assistance may 
involve the transfer of technical data.
    Technical data means data in such forms as blueprints, plans, 
diagrams, models, formulae, engineering designs, specifications, 
manuals, and instructions written or recorded on other media or devices 
such as disks, tapes, read-only memories, and computational 
methodologies, algorithms, and computer codes that can directly or 
indirectly affect the production of special nuclear material.
    Technology means technical assistance or technical data required 
for the development, production or use of any plant, facility, or 
especially designed or prepared equipment for the activities described 
in Sec.  810.2(b).
    Use means operation, installation (including on-site installation), 
maintenance (checking), repair, overhaul, or refurbishing.
    United States, when used in a geographical sense, includes Puerto 
Rico and all territories and possessions of the United States.


Sec.  810.4  Communications.

    (a) All communications concerning the regulations in this part 
should be addressed to: U.S. Department of Energy, Washington, DC 
20585. Attention: Senior Policy Advisor, National Nuclear Security 
Administration/Office of Nonproliferation and International Security 
(NA-24), Telephone (202) 586-7924.
    (b) Communications also may be delivered to DOE's headquarters at 
1000 Independence Avenue SW., Washington, DC 20585. All clearly marked 
proprietary information will be given the maximum protection allowed by 
law.


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


Sec.  810.6  Generally authorized activities.

    The Secretary has determined that the following activities are 
generally authorized, provided that no sensitive nuclear technology or 
assistance described in Sec.  810.7 is involved:
    (a) Engaging directly or indirectly in the production of special 
nuclear

[[Page 46847]]

material at facilities in countries or with entities listed in the 
Appendix to this part;
    (b) Transfer of technology to a citizen or national of a country 
not listed in the Appendix to this part and working at an NRC-licensed 
facility, provided:
    (1) The foreign national is lawfully employed by or contracted to 
work for a U.S. employer in the United States;
    (2) The foreign national executes a confidentiality agreement with 
the U.S. employer to safeguard the technology from unauthorized use or 
disclosure;
    (3) The foreign national has been granted unescorted access in 
accordance with NRC regulations at an NRC-licensed facility; and
    (4) The foreign national's U.S. employer authorizing access to the 
technology complies with the reporting requirements in Sec.  810.12(g).
    (c) Activities at any safeguarded facility to:
    (1) Prevent or correct a current or imminent radiological emergency 
posing a significant danger to the health and safety of the off-site 
population, which emergency cannot be met by other means, provided DOE 
is notified in writing in advance and does not object within 48 hours 
of receipt of the advance notification;
    (2) Furnish operational safety information or assistance to 
existing safeguarded civilian nuclear reactors outside the United 
States in countries with safeguards agreements with the IAEA or an 
equivalent voluntary offer, provided DOE is notified in writing and 
approves the activity in writing within45 calendar days of the notice. 
The applicant should provide all the information required under Sec.  
810.11 and specific references to the national or international safety 
standards or requirements for operational safety for nuclear reactors 
that will be addressed by the assistance, and may provide information 
cited in Sec.  810.11(b); or
    (3) Furnish operational safety information or assistance to 
existing, proposed, or new-build civilian nuclear power plants in the 
United States, provided DOE is notified by certified mail return 
receipt requested and approves the activity in writing within45 
calendar days of the notice. The applicant should provide all the 
information required under Sec.  810.11.
    (d) Participation in exchange programs approved by the Department 
of State in consultation with DOE;
    (e) Activities carried out in the course of implementation of the 
``Agreement between the United States of America and the [IAEA] for the 
Application of Safeguards in the United States,'' done on December 9, 
1980;
    (f) Activities carried out by persons who are full-time employees 
of the IAEA or whose employment by or work for the IAEA is sponsored or 
approved by the Department of State or DOE; and
    (g) Extraction of Molybdenum-99 for medical use from irradiated 
targets of enriched uranium, provided that the activity does not also 
involve purification and recovery of enriched uranium materials, and 
provided further, that the technology used does not involve significant 
components relevant for reprocessing spent nuclear reactor fuel (e.g., 
high-speed centrifugal contactors, pulsed columns).


Sec.  810.7  Activities requiring specific authorization.

    Unless generally authorized by Sec.  810.6, any person requires a 
specific authorization by the Secretary before:
    (a) Engaging in any of the activities listed in Sec.  810.2(b), 
with any foreign country or entity not specified in the Appendix to 
this part;
    (b) Providing or transferring sensitive nuclear technology to any 
foreign country; or
    (c) Engaging in or providing technology (including technical 
assistance) for any of the following activities with respect to any 
foreign country (or a citizen or national of that country other than 
U.S. lawful permanent residents or protected individuals under the 
Immigration and Naturalization Act (8 U.S.C. 1324b(a)(3)):
    (1) Uranium isotope separation (uranium enrichment), plutonium 
isotope separation, or isotope separation of any other elements 
(including stable isotope separation) when the technology or process 
can be applied directly or indirectly to uranium or plutonium;
    (2) Fabrication of nuclear fuel containing plutonium, including 
preparation of fuel elements, fuel assemblies, and cladding thereof;
    (3) Heavy water production, and hydrogen isotope separation, when 
the technology or process has reasonable potential for large-scale 
separation of deuterium (\2\H) from protium (\1\H);
    (4) Development, production or use of a production accelerator-
driven subcritical assembly system;
    (5) Development, production or use of a production reactor; or
    (6) Reprocessing of irradiated nuclear fuel or targets containing 
special nuclear material.


Sec.  810.8  Restrictions on general and specific authorization.

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


Sec.  810.9  Grant of specific authorization.

    (a) An application for authorization to engage in activities for 
which specific authorization is required under Sec.  810.7 should be 
made to the U.S. Department of Energy, National Nuclear Security 
Administration, Washington, DC 20585, Attention: Senior Policy Advisor, 
Office of Nonproliferation and International Security (NA-24).
    (b) The Secretary will approve an application for specific 
authorization if it is determined, with the concurrence of the 
Department of State and after consultation with the Nuclear Regulatory 
Commission, Department of Commerce, and Department of Defense, that the 
activity will not be inimical to the interest of the United States. In 
making such a determination, the Secretary will take into account the 
following factors:
    (1) Whether the United States has an agreement for cooperation in 
force covering exports to the country or entity involved;
    (2) Whether the country is a party to, or has otherwise adhered to, 
the NPT;
    (3) Whether the country is in good standing with its acknowledged 
nonproliferation commitments;
    (4) Whether the recipient country is in full compliance with its 
obligations under the NPT;
    (5) Whether the country has accepted IAEA safeguards obligations on 
all nuclear materials used for peaceful purposes and has them in force;
    (6) Whether other nonproliferation controls or conditions exist on 
the proposed activity, including that the recipient is duly authorized 
by the country to receive and use the technology sought to be 
transferred;
    (7) Significance of the assistance or transferred technology 
relative to the existing nuclear capabilities of the recipient country;
    (8) Whether the transferred technology is part of an existing 
cooperative enrichment enterprise or the supply chain of such an 
enterprise;
    (9) The availability of comparable assistance or technology from 
other sources; and

[[Page 46848]]

    (10) Any other factors that may bear upon the political, economic, 
competitiveness, or security interests of the United States, including 
the obligations of the United States under treaties or other 
international agreements, and the obligations of the recipient country 
under treaties or other international agreements.
    (c) If the proposed activity involves the export of sensitive 
nuclear technology, the requirements of sections 127 and 128 of the 
Atomic Energy Act and of any applicable United States international 
commitments must also be met. For the export of sensitive nuclear 
technology, in addition to the factors in paragraph (b) of this 
section, the Secretary will take into account:
    (1) Whether the recipient country has signed, ratified, and is 
implementing a comprehensive safeguards agreement with the IAEA and has 
in force an Additional Protocol based on the model Additional Protocol, 
or, pending this, in the case of a regional accounting and control 
arrangement for nuclear materials, is implementing, in cooperation with 
the IAEA, a safeguards agreement approved by the IAEA Board of 
Governors prior to the publication of INFCIRC/540 (September 1997); or 
alternatively whether comprehensive safeguards, including the measures 
of the Model Additional Protocol, are being applied in the recipient 
country;
    (2) Whether the recipient country has not been identified in a 
report by the IAEA Secretariat that is under consideration by the IAEA 
Board of Governors, as being in breach of obligations to comply with 
the applicable safeguards agreement, nor continues to be the subject of 
Board of Governors decisions calling upon it to take additional steps 
to comply with its safeguards obligations or to build confidence in the 
peaceful nature of its nuclear program, nor as to which the IAEA 
Secretariat has reported that it is unable to implement the applicable 
safeguards agreement. This criterion would not apply in cases where the 
IAEA Board of Governors or the United Nations Security Council 
subsequently decides that adequate assurances exist as to the peaceful 
purposes of the recipient's nuclear program and its compliance with the 
applicable safeguards agreements. For the purposes of this paragraph, 
``breach'' refers only to serious breaches of proliferation concern;
    (3) Whether the recipient country is adhering to the Nuclear 
Suppliers Group Guidelines and, where applicable, has reported to the 
Security Council of the United Nations that it is implementing 
effective export controls as identified by Security Council Resolution 
1540; and
    (4) Whether the recipient country adheres to international safety 
conventions relating to nuclear or other radioactive materials or 
facilities.
    (d) Unless otherwise prohibited by U.S. law, the Secretary may 
grant an application for specific authorization for activities related 
to the enrichment of source material and special nuclear material, 
provided that:
    (1) The U.S. Government has received written nonproliferation 
assurances from the government of the country;
    (2) That it/they accept(s) the sensitive enrichment equipment and 
enabling technologies or an operable enrichment facility under 
conditions that do not permit or enable unauthorized replication of the 
facilities;
    (3) That the subject enrichment activity will not result in the 
production of uranium enriched to greater than 20% in the isotope 
uranium-235; and
    (4) That there are in place appropriate security arrangements to 
protect the activity from use or transfer inconsistent with the 
country's national laws.
    (e) Approximately 30 calendar days after the Secretary's grant of a 
specific authorization, a copy of the Secretary's determination may be 
provided to any person requesting it at the Department's Public Reading 
Room, unless the applicant submits information demonstrating that 
public disclosure will cause substantial harm to its competitive 
position. This provision does not affect any other authority provided 
by law for the non-disclosure of information.


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

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


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

    (a) An application letter must include the following information:
    (1) The name, address, and citizenship of the applicant, and 
complete disclosure of all real parties in interest; if the applicant 
is a corporation or other legal entity; where it is incorporated or 
organized; the location of its principal office; and the degree of any 
control or ownership by any foreign individual, corporation, 
partnership, firm, association, trust, estate, public or private 
institution or government agency;
    (2) The country or entity to receive the assistance or technology; 
the name and location of any facility or project involved; and the name 
and address of the person for which or whom the activity is to be 
performed;
    (3) A description of the assistance or technology to be provided, 
including a complete description of the proposed activity, its 
approximate monetary value, and a detailed description of any specific 
project to which the activity relates; and
    (4) The designation of any information that if publicly disclosed 
would cause substantial harm to the competitive position of the 
applicant.
    (b) The applicant should also include, as an attachment to the 
application letter, any information the applicant wishes to provide 
concerning the factors listed in Sec.  810.9(b) and (c).
    (c) Except as provided in Sec.  810.6(b), an applicant seeking to 
employ a citizen or national of a country not listed in the Appendix in 
a position that could result in the transfer of technology subject to 
Sec.  810.2, or seeking to employ any foreign national in the United 
States or in a foreign country that could result in the export of 
assistance or transfer of technology subject to Sec.  810.7, must 
request a specific authorization for the employment. The applicant must 
provide, with respect to each foreign national to whom access to 
technology will be granted, the following:
    (1) A description of the technology that would be made available to 
the foreign national;
    (2) The purpose of the proposed transfer, a description of the 
applicant's technology control program, and the Nuclear Regulatory 
Commission standards applicable to the employer's grant of access to 
the technology;
    (3) A copy of any confidentiality agreement between the applicant 
and the foreign national as required by Sec.  810.6(b)(2);
    (4) Background information about the foreign national, including 
the individual's citizenship, all countries where the individual has 
resided for more than six months, the training or educational 
background of the individual, all work experience, any other known 
affiliations with persons engaged in activities subject to this part,

[[Page 46849]]

and current immigration or visa status in the United States; and
    (5) A statement signed by the foreign national that he/she will 
comply with the regulations under this part; will not disclose the 
applicant's technology without DOE's prior written authorization; and 
will not, at any time during or after his/her employment with the 
applicant, use the applicant's technology for any nuclear explosive 
device, for research on or development of any nuclear explosive device, 
or in furtherance of any military purpose.
    (d) An applicant for a specific authorization related to the 
enrichment of fissile material must submit information that 
demonstrates that the proposed transfer will avoid, so far as 
practicable, the transfer of enabling design or manufacturing 
technology associated with such items; and that the applicant will 
share with the recipient only information required for the regulatory 
purposes of the recipient country or to ensure the safe installation 
and operation of a resulting enrichment facility, without divulging 
enabling technology.


Sec.  810.12  Reports.

    (a) Each person who has received a specific authorization shall, 
within 30 calendar days after beginning the authorized activity, 
provide to DOE a written report containing the following information:
    (1) The name, address, and citizenship of the person submitting the 
report;
    (2) The name, address, and citizenship of the person for whom or 
which the activity is being performed;
    (3) A description of the activity, the date it began, its location, 
status, and anticipated date of completion; and
    (4) A copy of the DOE letter authorizing the activity.
    (b) Each person carrying out a specifically authorized activity 
shall inform DOE, in writing within 30 calendar days, of completion of 
the activity or of its termination before completion.
    (c) Each person granted a specific authorization shall inform DOE, 
in writing within 30 calendar days, when it is known that the proposed 
activity will not be undertaken and the granted authorization will not 
be used.
    (d) DOE may require reports to include such additional information 
that may be required by applicable U.S. law, regulation, or policy with 
respect to the specific nuclear activity or country for which specific 
authorization is required.
    (e) Each person, within 30 calendar days after beginning any 
generally authorized activity under Sec.  810.6, shall provide to DOE:
    (1) The name, address, and citizenship of the person submitting the 
report;
    (2) The name, address, and citizenship of the person for whom or 
which the activity is being performed;
    (3) A description of the activity, the date it began, its location, 
status, and anticipated date of completion; and
    (4) A written assurance that the applicant has an agreement with 
the recipient ensuring that any subsequent transfer of materials, 
equipment, or technology transferred under general authorization under 
circumstances in which the conditions in Sec.  810.6 would not be met 
will take place only if the applicant obtains DOE's prior written 
approval.
    (f) Individuals engaging in generally authorized activities as 
employees of persons required to report are not themselves required to 
submit the reports described in paragraph (e) of this section.
    (g) Persons engaging in generally authorized activities under Sec.  
810.6(b) are required to notify the Department that a citizen or 
national of a country not listed in the Appendix to this part has been 
granted access to information subject to Sec.  810.2 in accordance with 
Nuclear Regulatory Commission access requirements. The report should 
contain the information required in Sec.  810.11(b).
    (h) All reports should be sent to: U.S. Department of Energy, 
National Nuclear Security Administration, Washington, DC 20585, 
Attention: Senior Policy Advisor, Office of Nonproliferation and 
International Security (NA-24).


Sec.  810.13  Additional information.

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


Sec.  810.14  Violations.

    (a) The Atomic Energy Act provides that:
    (1) Permanent or temporary injunctions or restraining orders may be 
granted to prevent any person from violating any provision of the 
Atomic Energy Act or its implementing regulations.
    (2) Any person convicted of violating or conspiring or attempting 
to violate any provision of section 57 of the Atomic Energy Act may be 
fined up to $10,000 or imprisoned up to 10 years, or both. If the 
offense is committed with intent to injure the United States or to aid 
any foreign nation, the penalty could be up to life imprisonment and a 
$20,000 fine, or both.
    (b) Title 18 of the United States Code, section 1001, provides that 
persons convicted of willfully falsifying, concealing, or covering up a 
material fact or making false, fictitious or fraudulent statements or 
representations may be fined up to $10,000 or imprisoned up to five 
years, or both.


Sec.  810.15  Effective date and savings clause.

    Except for actions that may be taken by DOE pursuant to Sec.  
810.10, the regulations in this part do not affect the validity or 
terms of any specific authorizations granted under regulations in 
effect before [date 30 days after date of publication of final rule] or 
generally authorized activities under those regulations for which the 
contracts, purchase orders, or licensing arrangements were already in 
effect. Persons engaging in activities that were generally authorized 
under regulations in effect before [date 30 days after date of 
publication of final rule], but that require specific authorization 
under the regulations in this part, must request specific authorization 
by [date 90 days after date of publication of final rule] and may 
continue their activities until DOE acts on the request.

Appendix A to Part 810--Generally Authorized Destinations

Argentina
Australia
Austria
Belgium
Brazil
Bulgaria
Canada
Chile (For all activities related to INFCIRC/834 only)
Colombia
Cyprus
Czech Republic
Denmark
Egypt
Estonia
Finland
France
Germany
Greece
Hungary
Indonesia
International Atomic Energy Agency
Ireland
Italy
Japan
Kazakhstan
Korea, Republic of
Latvia
Lithuania
Luxembourg
Malta
Mexico (For all activities related to INFCIRC/203 Parts 1 and 2 and 
INFCIRC/825 only)
Morocco
Netherlands
Norway
Poland
Portugal
Romania

[[Page 46850]]

Slovakia
Slovenia
South Africa
Spain
Sweden
Switzerland
Taiwan
Thailand
Turkey
Ukraine
United Arab Emirates
United Kingdom
[FR Doc. 2013-18691 Filed 8-1-13; 8:45 am]
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