[Federal Register Volume 76, Number 173 (Wednesday, September 7, 2011)]
[Proposed Rules]
[Pages 55278-55288]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-22679]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 76, No. 173 / Wednesday, September 7, 2011 /
Proposed Rules
[[Page 55278]]
DEPARTMENT OF ENERGY
10 CFR Part 810
RIN 1994-AA02
Assistance to Foreign Atomic Energy Activities
AGENCY: National Nuclear Security Administration, Department of Energy
(DOE).
ACTION: Notice of proposed rulemaking.
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SUMMARY: DOE proposes to amend its regulation concerning unclassified
assistance to foreign atomic energy activities. This regulation
provides that persons subject to the jurisdiction of the United States
who engage directly or indirectly in the production of special nuclear
material outside the United States must be authorized to do so by the
Secretary of Energy (Secretary). The proposed revisions update and
clarify several provisions in the current regulation, and identify
information applicants are required to submit in support of
applications for an authorization under this part. The revisions are
intended to reduce uncertainties for industry users concerning which
foreign nuclear-related activities by U.S. persons are ``generally
authorized'' under the regulation and which activities require a
``specific authorization'' from the Secretary. In this regard, one
proposed organizational change is the listing of countries and
territories for which a general authorization for foreign atomic energy
activities is available. This proposed change contrasts with the
current regulation, which lists those countries for which a specific
authorization to conduct such activities is required. Unclassified
nuclear activities are generally authorized with respect to these
listed countries if they do not involve ``sensitive nuclear
technology'' as defined in the regulation. Conversely, the proposed
revised regulation specifically identifies those assistance activities
and technologies under DOE's jurisdiction, the export of which requires
a specific authorization from the Secretary. Additionally, DOE is
proposing to add regulations to address ``deemed exports.'' Companies
seeking to employ foreign nationals in positions involving a proposed
transfer of technology are provided information on the documentation
required to be submitted to request specific authorization for those
transfers. Finally, DOE proposes to update its regulations in this area
to reflect terminological and other changes in nuclear technology since
the last major update in 1986. Finally, points of contact references
have been updated to reflect the current DOE organizational structure.
DATES: Written comments must be postmarked on or before November 7,
2011 to ensure consideration.
ADDRESSES: You may submit comments, identified by RIN 1994-AA02, by any
of the following methods:
1. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the instructions for submitting comments.
2. E-mail: [email protected] Include RIN 1994-AA02 in the
subject line of the message.
3. Mail: Richard Goorevich, Senior Policy Advisor, Office of
Nonproliferation and International Security, NA 24, National Nuclear
Security Administration, Department of Energy, 1000 Independence
Avenue, SW., Washington, DC 20585.
Due to potential delays in DOE's receipt and processing of mail
sent through the U.S. Postal Service, DOE encourages responders to
submit comments electronically to ensure timely receipt.
All submissions must include the RIN for this rulemaking, RIN 1994-
AA02. For detailed instructions on submitting comments and additional
information on the rulemaking process, see the ``Public Comment
Procedures'' heading of the SUPPLEMENTARY INFORMATION section of this
document.
FOR FURTHER INFORMATION CONTACT: Richard Goorevich, Senior Policy
Advisor, Office of Nonproliferation and International Security, NA 24,
National Nuclear Security Administration, Department of Energy, 1000
Independence Avenue, SW., Washington, DC 20585, telephone 202-586-0589;
Janet Barsy or Elliot Oxman, Office of the General Counsel, GC-53,
Department of Energy, 1000 Independence Avenue, SW., Washington, DC
20585, telephone 202-586-3429 (Ms. Barsy) or 202-586-1755 (Mr. Oxman);
or Katie Strangis, National Nuclear Security Administration, Office of
the General Counsel, 1000 Independence Avenue, SW., Washington, DC
20585, telephone 202-586-8623.
SUPPLEMENTARY INFORMATION:
I. Background
II. Description of Proposed Changes
III. Public Comment Procedures
IV. Regulatory Review
A. Executive Order 12866
B. National Environmental Policy Act
C. Regulatory Flexibility Act
D. Paperwork Reduction Act
E. Unfunded Mandates Reform Act of 1995
F. Treasury and Government Appropriations Act, 1999
G. Executive Order 13132
H. Executive Order 12988
I. Treasury and General Government Appropriations Act, 2001
J. Executive Order 13211
V. Approval by the Office of the Secretary
I. Background
DOE's regulation in 10 CFR part 810 implements section 57b. of the
Atomic Energy Act of 1954, as amended by section 302 of the Nuclear
Non-Proliferation Act of 1978 (NNPA) (42 U.S.C 2077(b)). The statute
provides that it ``shall be unlawful for any person to directly or
indirectly engage or participate in the development or production of
any special nuclear material outside of the United States except (1) As
specifically authorized under an agreement for cooperation made
pursuant to section 123 * * * or (2) upon authorization by the
Secretary of Energy after a determination that such activity will not
be inimical to the interest of the United States. * * *''
Part 810 regulates the export of unclassified nuclear technology
and assistance, to facilitate international commerce while at the same
time protecting against the spread of nuclear technologies and material
that would be contrary to the nonproliferation and other national
security interests of the United States. More specifically, the
purposes of the part 810 regulation are: (1) To enable DOE to control
the export of nuclear technologies and services while protecting the
interest of, and advancing, U.S. nonproliferation and other national
security objectives; (2) to facilitate such exports by identifying
nuclear technology and related
[[Page 55279]]
assistance activities that can be ``generally authorized'' by the
Secretary and thus require no further authorization under part 810; (3)
to identify the specific transfers of assistance and technology which
require specific authorization by the Secretary; (4) to explain how to
request a specific authorization from the Secretary; and (5) to
identify the reporting requirements for activities subject to part 810.
The part 810 regulation has not been comprehensively updated since
1986. Some of the terminology contained in the current regulation has
become inconsistent with guidelines issued by the Nuclear Suppliers
Group (NSG), an international group of nuclear supplier countries,
including the United States, which seeks to promote the
nonproliferation of nuclear weapons through the implementation of
guidelines for nuclear exports. The existing part 810 regulation also
contains certain technical references and definitions that do not
reflect current science, and other terms and references whose inclusion
in the regulation is no longer necessary.
II. Description of Proposed Changes
DOE is publishing this notice of proposed rulemaking (NOPR) to
clarify the regulatory restrictions and requirements pertaining to
unclassified atomic energy assistance, and nuclear technology
transfers, to foreign destinations. The proposed changes would update
some of the definitions used in the regulation; identify countries and
territories as to which a ``general authorization'' applies; and
identify the activities subject to a ``specific authorization''.
Additionally, the proposed rule would: (1) Make clear what types of
technology transfers, which can include either technical data or
technical assistance, fall within the scope of the regulation; (2)
provide for added technical clarity of certain terms and technology;
(3) revise, delete, and add definitions for certain terms contained in
the regulation; (4) identify the information required to be provided by
applicants for a part 810 authorization, including requests for
authorization of ``deemed exports''; and (5) update points of contact
information to reflect current Departmental organizational structure
and office designations.
The proposed changes to part 810 are summarized below in the order
in which they appear:
1. The proposed changes to Sec. 810.1 ``Purpose'' would state the
statutory basis for the regulation and clarify the purpose and
authorization requirements.
2. The proposed changes to paragraghs (a) and (b) in Sec. 810.2
``Scope'' are intended to state explicitly DOE's jurisdiction under
section 57 b. of the Atomic Energy Act with regard to unclassified
nuclear export activities by U.S. persons that include assistance and
transfer of technology abroad and to foreign nationals employed by U.S.
companies, whether the subject activities are conducted in the United
States or abroad by U.S. persons or by licensees, contractors or
subsidiaries under their direction, supervision, responsibility, or
control. Proposed Sec. 810.2(c) would retain the exemptions for all
exports licensed by the Nuclear Regulatory Commission; and would exempt
``public information'' and ``basic scientific research'' as those terms
are proposed to be defined in Sec. 810.3. Additionally, proposed Sec.
810.2(c) would make clear the exclusion from the scope of the part 810
regulation of uranium and thorium mining and milling and nuclear fusion
reactors when not used in support of systems involving hydrogen isotope
separation. The proposed addition of these two exemptions is intended
to clarify that activities related to uranium and thorium mining and
milling and nuclear fusion reactors, per se, are not within the scope
of part 810.
3. In proposed Sec. 810.3 ``Definitions'', a number of new
definitions are proposed to reflect terminological changes and
technological developments since the part 810 regulation was last
updated (in 1986), and to provide additional clarity to certain terms
currently defined and used in the regulation. For example, the
definition of ``accelerator-driven subcritical assembly'' would be
replaced with ``production accelerator-driven subcritical assembly
system''; the terms ``non-nuclear-weapon state'', ``operational
safety'' and ``subcritical assembly'' are proposed to be deleted from
the current definitions. The proposed rule would also add new and
revised definitions: ``basic scientific research,'' ``cooperative
enrichment enterprise'', ``enrichment,'' ``fissile material'',
``production accelerator'', ``production accelerator-driven subcritical
assembly system'', ``production subcritical assembly'',
``reprocessing'', ``specific authorization'', ``specifically authorized
nuclear activities'', ``technology'' (including ``development'' and
``production''), ``technical assistance'', ``technical data'', and
``use''. Definitions are also proposed to be added for ``DOE'' and
``Secretary''.
4. Proposed Sec. Sec. 810.4 ``Communications'' and 810.5
``Interpretations'' would be changed to identify the responsible office
under the current Departmental organizational structure to which
applications, questions, or requests should be addressed. This proposed
revision is intended to ensure that part 810-related correspondence
will be directed appropriately and help facilitate prompt responses to
those applications, questions, or other requests.
5. The current Sec. 810.6 ``Authorization requirement'' quotes
section 57 b. of the Atomic Energy Act. This notice proposes to delete
the quotation, and to address the statutory basis instead in the
``Authority'' section of the preamble and proposed Sec. 810.1
``Purpose''.
6. Proposed Sec. 810.6 ``Generally Authorized Activities''--
currently Sec. 810.7, re-numbered Sec. 810.6 in the proposed rule--
would identify activities that are generally authorized by the
Secretary, and the countries and territories to which general
authorizations apply. Section 810.6(a) would identify generally
authorized activities. Section 810.6(b) would identify the countries
and territories, and facilities therein, that would qualify for a
general authorization. The current Sec. 810.7 (b) ``furnishing public
information'' would be deleted from the list of generally authorized
activities and would be included in proposed Sec. 810.2, as exempt
from the scope of this part. Current Sec. 810.7(c) would be deleted.
The ``fast track'' safety general authorization has rarely been used,
and has proved confusing to applicants. In summary, the proposed Sec.
810.6 would identify the activities, countries, territories,
destinations, and facilities to which the general authorization is
applicable.
7. Proposed Sec. 810.7 Activities requiring specific
authorization. This proposed section, renumbered from Sec. 810.8,
would be modified to indicate that, unless an activity is generally
authorized under proposed Sec. 810.6, a specific authorization from
the Secretary would be required before engaging directly or indirectly
in the production of special nuclear material outside the United
States. The current regulation in Sec. 810.2 (a) provides a broad
general authorization for all activities not requiring a specific
authorization as described in Sec. 810.8.
8. Proposed Sec. 810.8 Restrictions on general and specific
authorization. The present restrictions, currently in Sec. 810.9,
would remain unchanged.
9. Proposed Sec. 810.9 ``Grant of specific authorization''--
currently Sec. 810.10-- would add a new paragraph (b) to establish a
time limit on all specific authorizations. Each specific
[[Page 55280]]
authorization approved by the Secretary is proposed to be limited to a
period of up to five years. This proposal is intended to ensure that
U.S. persons granted specific authorizations from the Secretary keep
DOE informed of their activities and planned nuclear technology
transfers, and to facilitate DOE's ability to confirm the adherence of
those activities to U.S. nonproliferation policy. Additionally,
language would be included in proposed Sec. 810.9(b) identifying the
factors, consonant with U.S. international nonproliferation
commitments, considered by the Secretary in granting a specific
authorization. Proposed Sec. 810.9(c) would be expanded to provide
clarity to applicants that request a specific authorization to transfer
sensitive nuclear technology as defined in proposed Sec. 810.3. In
addition to the current requirements of sections 127 and 128 of the
Atomic Energy Act, the proposed regulation lists criteria, relevant to
U.S. nonproliferation policy and international commitments, that would
be considered in determining whether to authorize an export involving
sensitive nuclear technology. A new paragraph (d) is proposed to be
added, concerning requests to engage in foreign atomic energy
assistance activities related to the enrichment of fissile material (as
defined in proposed Sec. 810.3). The proposed provision is designed to
facilitate U.S. conformity to the Nuclear Suppliers Group Guidelines.
10. The current Sec. 810.11 is proposed as Sec. 810.10
Revocation, suspension, or modification of authorization. Proposed
Sec. 810.10(c) would add the phrase ``or technology transfer'' after
the words ``authorized assistance.''
11. The current Sec. 810.12 is proposed as Sec. 810.11,
Information required in an application for specific authorization, and
would be expanded to add more detail about the information required for
DOE to process a specific authorization request, including applications
for ``deemed export'' authorization. Section 810.11(a) would require
the submission of the same information required by the current
regulation (Sec. 810.12(a)). Proposed paragraph (b) would solicit any
information the applicant wishes to provide concerning the factors
listed in proposed Sec. 810.9(b). Proposed paragraph (c) would address
the required content for applications filed by U.S. companies seeking
to employ, and to accord access to nuclear technology subject to this
part by, foreign nationals with temporary, student, or immigrant visa
status in the United States. This proposed section is intended to
address situations comparable to those covered by the ``deemed export''
rule in 15 CFR 734.2(b)(2) of the Commerce Department's Export
Administration Regulations. Under this proposal, no part 810 specific
authorization would be required if the foreign national employee (or
prospective employee) is lawfully admitted for permanent residence in
the United States, or is a protected individual under the Immigration
and Nationalization Act (8 U.S.C. 1324b(a)(3)). As proposed, the part
810 regulation would make explicit DOE's current practice of requiring
an applicant to provide detailed information concerning the
nationality, visa status, educational background, and employment
history of each foreign national to whom the applicant seeks to grant
access to technology subject to the part 810 regulation. In addition,
the applicant must provide a description of the subject technology, a
copy of any confidentiality agreement between the U.S. company employer
and the foreign national, and written nonproliferation assurances by
the foreign national. Finally, proposed paragragh (d) would identify
the information required to be submitted by an applicant seeking a
specific authorization to engage in foreign atomic energy assistance
activities related to the enrichment of fissile material.
12. The current Sec. Sec. 810.13, 810.14, and 810.15 would be
renumbered as proposed Sec. 810.12 Reports, proposed Sec. 810.13
Additional information, and proposed Sec. 810.14 Violations. A
proposed addition in Sec. 810.12(g) would allow DOE to require
companies granted authorizations under part 810 to submit certain
reports to DOE, to include information required by U.S. law concerning
specific nuclear activities or specific countries exports to which
require a specific authorization.
Because DOE is making changes to most sections of part 810, it is
publishing the entire part 810 for public comment.
III. Public Comment Procedures
Interested persons are invited to participate by submitting data,
views, or arguments. Written comments should be submitted to the
address indicated in the ADDRESSES section of this notice. All comments
submitted in writing or in electronic form may be made available to the
public in their entirety. Personal information such as your name,
address, telephone number, e-mail address, etc., will not be removed
from your submission. Comments will be available for public inspection
in the DOE Freedom of Information Act Reading Room (1E-190), 1000
Independence Avenue, SW., Washington, DC 20585, between the hours of 9
a.m. and 4 p.m., Monday through Friday, except Federal holidays.
Members of the public who wish to review the comments submitted should
contact Alexander Morris, FOIA Officer, at (202) 586-3159. Comments
made on this rulemaking will also be posted on http://www.regulations.gov. Written comments received by the date indicated in
the DATES section of this notice of proposed rulemaking will be
addressed and considered prior to publication of the final rule. Any
information that a commenter considers to be confidential must be so
identified and submitted in writing, one copy only. DOE reserves the
right to determine the appropriateness of confidential status for the
information and to treat it in accordance with its determination. See
10 CFR 1004.11.
IV. Regulatory Review
A. Executive Order 12866
This proposed rule has been determined to not be a significant
regulatory action under Executive Order 12866, ``Regulatory Planning
and Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this action
was not subject to review under that Executive Order by the Office of
Information and Regulatory Affairs of the Office of Management and
Budget.
B. National Environmental Policy Act
DOE has determined that this proposed rule is covered under the
Categorical Exclusion found in DOE's National Environmental Policy Act
regulations at paragraph A5 of Appendix A to subpart D, 10 CFR part
1021, categorical exclusion A5, which applies to a rule or regulation
that interprets or amends an ``existing rule or regulation that does
not change the environmental effect of the rule or regulation being
amended.'' Accordingly, neither an environmental assessment nor an
environmental impact statement is required.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of an initial regulatory flexibility analysis for any rule
that by law must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. As required
by Executive Order 13272, ``Proper Consideration of Small Entities in
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published
[[Page 55281]]
procedures and policies on February 19, 2003, to ensure that the
potential impacts of its rules on small entities are properly
considered during the rulemaking process (68 FR 7990). DOE has made its
procedures and policies available on the Office of the General
Counsel's Web site: http://www.gc.doe.gov.
DOE has reviewed this proposed rule under the provisions of the
Regulatory Flexibility Act and the procedures and policies published on
February 19, 2003. The proposed rule offers clarity on regulatory
restrictions and requirements pertaining to unclassified assistance to
foreign atomic energy activities; it does not expand the scope of
activities currently regulated under 10 CFR part 810.
The proposed changes to the preamble of part 810 and Sec. 810.1
reposition (to the ``Authority'' section, above) and update statutory
citations, and clarify the purpose statement. There is no change that
will impact small businesses or the review time necessary to prepare or
submit requests for authorization.
Section 810.2 is proposed to be expanded to provide further detail
on the scope of activities that are subject to part 810. As a
consequence, more information will be available to small businesses as
they formulate their business strategies. These changes should assist
small businesses to determine which nuclear export activities
undertaken with foreign parties require authorization under this part.
This additional information should reduce the time required to identify
activities that are controlled by part 810, and also lessen the costs
associated with developing documentation to support applications for
authorization.
Section 810.3, Definitions, is proposed to be updated to reflect
changes in technology and to provide additional clarity. Specifically,
for example, the definition of ``accelerator-driven subcritical
assembly'' would be replaced with ``production accelerator-driven
subcritical assembly system''; and the terms ``non-nuclear-weapon
state'' and ``operational safety and subcritical assembly'' would be
deleted from the regulation. New and revised definitions would be
added: ``basic scientific research'', ``cooperative enrichment
enterprise'', ``DOE'', ``enrichment'', ``fissile material'',
``production accelerator-driven subcritical assembly system'',
``production subcritical assembly'', ``reprocessing'', ``Secretary'',
``specific authorization'', ``specifically authorized nuclear
activities'', ``technology'', ``technical assistance'', ``technical
data'', and ``use''. These definitional updates and additions would not
change the scope of the activities controlled under this part. Rather,
the new and revised definitions should provide greater clarity to small
businesses, decrease the time for small businesses to evaluate
activities for implications of this regulation, and also lessen the
costs associated with developing documentation to support their
applications for authorization.
Section 810.4 and Sec. 810.5 are proposed to be changed to reflect
the current organizational structure of the DOE office responsible for
administering part 810, and should not impact small businesses. The
proposed revision will help ensure that correspondence is directed
appropriately and expedite application processing time. Section 810.6
would be deleted. It quotes the provisions of section 57 b. of the
Atomic Energy Act of 1954 and is not required for the text of the
regulation. Its deletion would require an applicant to consult a source
outside part 810 to locate the statutory text of section 57 b.
Sections 810.7, Generally authorized activities, and 810.8,
Activities requiring specific authorization, would be revised and
renumbered as Sec. Sec. 810.6 and 810.7, respectively. The revised
text of Sec. 810.6 would provide more detail concerning activities
that are generally authorized by the Secretary, and identify countries
and territories, and facilities therein, to which general
authorizations apply. The proposed change should only impact small
businesses positively. Providing this clarification concerning
activities that are generally authorized would assist small businesses
to determine when they need to submit a request for specific
authorization, as stated in proposed Sec. 810.7. Paragraghs (a) and
(g) of current Sec. 810.7 would be deleted because the regulation does
not control public information; therefore a general authorization is
not necessary. The substance of paragragh (b) of the current Sec.
810.7 would be retained and renumbered as Sec. 810.6(b)(2). The
current Sec. 810.7(c) would be deleted from the text. This ``fast
track'' safety general authorization has been used only once, by a
large corporation, to address an imminent threat to the public after an
earthquake.
New Sec. 810.8, Restrictions on general and specific
authorizations, would continue the same restrictions as are contained
in the current part 810, and therefore would not add any new burdens on
small businesses. New Sec. 810.9, grant of specific authorization, is
proposed to outline the process for applying for a specific
authorization. Paragragh (a) would provide updated information on the
current DOE organizational structure. Paragragh (b) would retain
identification of the other U.S. departments and agencies (the
Departments of State, Defense, and Commerce, and the Nuclear Regulatory
Commission) that review part 810 authorization requests; it would also
include a time limit on specific authorizations, and revise and add
factors DOE would consider in making an authorization determination.
The five-year maximum period has been a matter of DOE practice for a
number of years; it is now being proposed to be added to the regulation
to provide clarity to companies applying for a specific authorization.
Paragragh (b) would be expanded to provide additional information to
U.S. companies that request a specific authorization to transfer
sensitive nuclear technology. This change should provide useful
information to applicants, but not create additional requirements or
negatively impact a small business applying for a specific
authorization. A new paragragh (c) is proposed, concerning activities
related to the enrichment of fissile material; and has been added to
facilitate U.S. conformity to the Nuclear Suppliers Group Guidelines.
Although satisfaction of the requirements of this proposal would
require more effort by an applicant, it is unlikely that a small
business would engage in foreign atomic energy activities involving the
enrichment of fissile material.
New Sec. 810.10, Revocation, suspension, or modification of
authorizations, has minimal proposed updates, and is intended to
provide greater clarity. New Sec. 810.11, Information required in an
application for specific authorization, would be expanded to add more
detail about the information required to process an authorization,
including a ``deemed export'' authorization. The revisions to this
section would provide additional, and more specific, information
concerning the matters required to be addressed in an application, thus
making the application process clearer to small businesses. Adoption of
this proposed revision should positively impact the amount of time and
resources a small business would have to devote to the application
process, without adding any new requirements for small businesses and
also decreasing the processing time for the application within the
Department. New Sec. 810.11 would also require an applicant to provide
information concerning
[[Page 55282]]
activities related to the enrichment of fissile materials. As noted, it
is unlikely that a small business would engage in foreign atomic energy
assistance activities of this nature.
New Sec. 810.12, Reports, would be updated with the correct DOE
organizational structure, with no adverse impact on small businesses.
The proposed changes to Sec. Sec. 810.13 and 810.14 are minimal, and
should impose no increased burden on applicants.
In practice, the requirements for small businesses exporting
nuclear technology would not substantively change because the proposed
revisions to this rule do not impact sections of the rule containing
those requirements or add new burdens or duties to small businesses.
The obligations of any person subject to the jurisdiction of the United
States who engages directly or indirectly in the production of special
nuclear material outside the United States would not change in a manner
that would have any impact on small businesses.
Furthermore, DOE has conducted a review of the potential small
businesses that may be impacted by this proposed rule. This review
consisted of an analysis of the number of businesses impacted generally
since 2007-2008, and a determination of which of those are considered
``small businesses'' by the Small Business Administration.
Approximately 90% of the businesses impacted by this rule are not
considered small businesses (out of 56 businesses examined, 5 qualify
as small businesses). Additionally, the number of requests for
authorization or reports of generally authorized activities from each
small business on average was one or fewer per year, while larger
companies had as many as 100 requests for authorization or reports of
generally authorized activities per year. The latter businesses fall
within two North American Industry Classification System codes, for
engineering services and computer systems designs services. Often,
their requests for authorization include the transfer of computer codes
or other similar products. The proposed changes to this rule would not
alter whether these businesses do or do not receive authorization under
part 810, thus not adversely affecting their ability to conduct
business in the same manner they do at present. Moreover, they will
benefit from a clarified request process. Generally, small businesses
reported that their initial filing of a part 810 request for
authorization required up to 40 hours of legal assistance, but follow-
on reporting and requests required significantly less such assistance.
On the basis of the foregoing, DOE certifies that this proposed
rule would not have a significant economic impact on a substantial
number of small entities. Accordingly, DOE has not prepared a
regulatory flexibility analysis for this rulemaking. DOE's
certification and supporting statement of factual basis will be
provided to the Chief Counsel for Advocacy of the Small Business
Administration pursuant to 5 U.S.C. 605(b).
D. Paperwork Reduction Act
The proposed rule would not impose a collection of information
requirement subject to the Paperwork Reduction Act (44 U.S.C. 3501 et
seq.).
E. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally
requires Federal agencies to examine closely the impacts of regulatory
actions on State, local, and tribal governments. Section 101(5) of
title I of that law defines a Federal intergovernmental mandate to
include any regulation that would impose upon State, local, or tribal
governments an enforceable duty, except a condition of Federal
assistance or a duty arising from participating in a voluntary federal
program. Title II of that law requires each Federal agency to assess
the effects of Federal regulatory actions on State, local, and tribal
governments, in the aggregate, or to the private sector, other than to
the extent such actions merely incorporate requirements specifically
set forth in a statute. Section 202 of that title requires a Federal
agency to perform a detailed assessment of the anticipated costs and
benefits of any rule that includes a Federal mandate which may result
in costs to State, local, or tribal governments, or to the private
sector, of $100 million or more in any one year (adjusted annually for
inflation). 2 U.S.C. 1532(a) and (b). Section 204 of that title
requires each agency that proposes a rule containing a significant
Federal intergovernmental mandate to develop an effective process for
obtaining meaningful and timely input from elected officers of State,
local, and tribal governments. 2 U.S.C. 1534.
This proposed rule would not impose a Federal mandate on State,
local, or tribal governments or on the private sector. Accordingly, no
assessment or analysis is required under the Unfunded Mandates Reform
Act of 1995.
F. Treasury and General Government Appropriations Act, 1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any proposed rule that may affect family
well being. The proposed rule would not have any impact on the autonomy
or integrity of the family as an institution. Accordingly, DOE has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
G. Executive Order 13132
Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4,
1999), imposes certain requirements on agencies formulating and
implementing policies or regulations that preempt State law or that
have federalism implications. Agencies are required to examine the
constitutional and statutory authority supporting any action that would
limit the policymaking discretion of the States and carefully assess
the necessity for such actions. DOE has examined this proposed rule and
has determined that it would not preempt State law and would not have a
substantial direct effect on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government. No further
action is required by Executive Order 13132.
H. Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by section 3(a), section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) Clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct while promoting simplification and burden reduction;
(4) specifies the retroactive effect, if any; (5) adequately defines
key terms; and (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires
[[Page 55283]]
Executive agencies to review regulations in light of applicable
standards in section 3(a) and section 3(b) to determine whether they
are met or it is unreasonable to meet one or more of them. DOE has
completed the required review and determined that, to the extent
permitted by law, the proposed rule meets the relevant standards of
Executive Order 12988.
I. Treasury and General Government Appropriations Act, 2001
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516 note), provides for agencies to review most disseminations
of information to the public under guidelines established by each
agency pursuant to general guidelines issued by OMB.
OMB's guidelines were published at 67 FR 8452 (February 22, 2002),
and DOE's guidelines were published at 67 FR 62446 (October 7, 2002).
DOE has reviewed this proposed rule under the OMB and DOE guidelines
and has concluded that it is consistent with applicable policies in
those guidelines.
J. Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355
(May 22, 2001), requires Federal agencies to prepare and submit to OMB
a Statement of Energy Effects for any proposed significant energy
action. A ``significant energy action'' is defined as any action by an
agency that promulgated or is expected to lead to promulgation of a
final rule, and that: (1) Is a significant regulatory action under
Executive Order 12866, or any successor order; and (2) is likely to
have a significant adverse effect on the supply, distribution, or use
of energy, or (3) is designated by the Administrator of OIRA as a
significant energy action. For any proposed significant energy action,
the agency must give a detailed statement of any adverse effects on
energy supply, distribution, or use should the proposal be implemented,
and of reasonable alternatives to the action and their expected
benefits on energy supply, distribution, and use. This regulatory
action would not have a significant adverse effect on the supply,
distribution, or use of energy and is therefore not a significant
energy action. Accordingly, DOE has not prepared a Statement of Energy
Effects.
V. Approval by the Office of the Secretary
The Office of the Secretary of Energy has approved the publication
of this proposed rule.
List of Subjects in 10 CFR Part 810
Foreign relations, Nuclear energy, Reporting and recordkeeping
requirements.
Issued in Washington, DC, on August 17, 2011.
Steven Chu,
Secretary of Energy.
For the reasons stated in the preamble, DOE proposes to amend title
10 of the Code of Federal Regulations by revising part 810 to read as
follows:
PART 810--ASSISTANCE TO FOREIGN ATOMIC ENERGY ACTIVITIES
Sec.
810.1 Purpose.
810.2 Scope.
810.3 Definitions.
810.4 Communications.
810.5 Interpretations.
810.6 Generally authorized activities.
810.7 Activities requiring specific authorization.
810.8 Restrictions on general and specific authorization.
810.9 Grant of specific authorization.
810.10 Revocation, suspension, or modification of authorization.
810.11 Information required in an application for specific
authorization.
810.12 Reports.
810.13 Additional information.
810.14 Violations.
810.15 Effective date and savings clause.
Authority: Secs. 57, 127, 128, 129, 161, and 223, Atomic Energy
Act of 1954, as amended by the Nuclear Non-Proliferation Act of
1978, Pub. L. 95-242, 68 Stat. 932, 948, 950, 958, 92 Stat. 126,
136, 137, 138 (42 U.S.C. 2077, 2156, 2157, 2158, 2201, 2273); sec.
104 of the Energy Reorganization Act of 1974, Pub. L. 93-438; sec.
301, Department of Energy Organization Act, Pub. L. 95-91; National
Nuclear Security Administration Act, Pub. L. 106-65, 50 U.S.C. 2401
et seq., as amended.
Sec. 810.1 Purpose.
These regulations implement section 57 b. of the Atomic Energy Act,
which empowers the Secretary, with the concurrence of the Department of
State and after consultation with the Nuclear Regulatory Commission
(NRC), the Department of Commerce, and the Department of Defense, to
authorize persons subject to the jurisdiction of the United States to
engage directly or indirectly in the production of special nuclear
material outside the United States. The purpose of the regulations in
this part is to:
(a) Identify activities that are generally authorized by the
Secretary and thus require no other authorization under this part;
(b) Identify activities that require specific authorization by the
Secretary and explain how to request authorization; and
(c) Specify reporting requirements for activities subject to this
part.
Sec. 810.2 Scope.
(a) This part applies to:
(1) All persons subject to the jurisdiction of the United States
(hereinafter ``U.S. persons'') who or that engage directly or
indirectly in the production of special nuclear material outside the
United States, by transferring to foreign persons technology that is
related to the production of special nuclear material; and
(2) Assistance and the transfer of technology by U.S. persons to
foreign persons, conducted either in the United States or abroad by
U.S. persons or by licensees, contractors or subsidiaries under their
direction, supervision, responsibility, or control.
(b) The activities referred to in paragraph (a) of this section
involve the following:
(1) Chemical conversion and purification of uranium and thorium
from milling plant concentrates and in all subsequent steps in the
nuclear fuel cycle;
(2) Chemical conversion and purification of plutonium and
neptunium;
(3) Nuclear fuel fabrication, including preparation of fuel
elements, fuel assemblies and cladding thereof;
(4) Uranium isotope separation (uranium enrichment), plutonium
isotope separation, and isotope separation of any other elements
(including stable isotope separation) when the technology or process
can be applied directly or indirectly to uranium or plutonium;
(5) Nuclear reactors;
(6) Accelerator-driven subcritical assembly systems, specially
designed or intended for plutonium or uranium-233 production;
(7) Hydrogen isotope separation and heavy water production;
(8) Reprocessing of irradiated nuclear materials or targets
containing special nuclear material;
(9) Changes in form or content of irradiated nuclear materials
containing special nuclear material, and hot cell facilities;
(10) Storage of irradiated nuclear materials;
(11) Processing of high level radioactive waste;
[[Page 55284]]
(12) Movement of irradiated nuclear materials, including specially
designed containers therefor;
(13) The transfer of technology for the development, production, or
use of equipment or material specially designed or prepared for any of
the above listed activities. (See NRC regulations under 10 CFR part
110, Appendix A through Appendix K) for an illustrative list of items
considered to be specially designed or prepared for certain listed
nuclear activities.); and
(14) Other activities related to the production of special nuclear
material outside the United States as the Secretary may determine,
notice of which shall be published in the Federal Register.
(c) This part does not apply to:
(1) Exports licensed by the NRC;
(2) Public information or basic scientific research;
(3) Uranium and thorium mining and milling; and
(4) Nuclear fusion reactors per se, except for supporting systems
involving hydrogen isotope separation.
Sec. 810.3 Definitions.
As used in this part 810:
Agreement for cooperation means an agreement with another nation or
group of nations concluded under sections 123 or 124 of the Atomic
Energy Act.
Atomic Energy Act means the Atomic Energy Act of 1954, as amended.
Basic scientific research means experimental or theoretical work
undertaken principally to acquire new knowledge of the fundamental
principles of phenomena and observable facts, not primarily directed
towards a specific practical aim or objective.
Classified information means national security information
classified under Executive Order 13526 or any predecessor or
superseding order, or Restricted Data classified under the Atomic
Energy Act.
Cooperative enrichment enterprise means a multi-country or multi-
company (where at least two of the companies are incorporated in
different countries) joint development or production effort. The term
includes a consortium of countries or companies or a multi-national
corporation.
DOE means the U.S. Department of Energy.
Enrichment means isotope separation of uranium or isotope
separation of plutonium, regardless of the type of process or
separation mechanism used.
Fissile material means isotopes that readily fission after
absorbing a neutron of any energy, either fast or slow. Fissile
materials are uranium-235, uranium-233, plutonium-239, and plutonium-
241.
Foreign national means an individual who is not a citizen or
national of the United States.
Foreign person means a person other than a U.S. person.
General authorization means an authorization granted by the
Secretary under section 57 b.(2) of the Atomic Energy Act to provide
assistance to foreign atomic energy activities subject to this part 810
and which does not require a request for, or the Secretary's issuance
of, a specific authorization.
IAEA means the International Atomic Energy Agency.
NNPA means the Nuclear Non-Proliferation Act of 1978, Pub. L. 95-
242, 22 U.S.C. 3201 et seq.
NPT means the Treaty on the Non-Proliferation of Nuclear Weapons,
done on July 1, 1968.
Nuclear reactor means an apparatus, other than a nuclear explosive
device, designed or used to sustain nuclear fission in a self-
supporting chain reaction.
Open meeting means a conference, seminar, trade show, or other
gathering that all technically qualified members of the public may
attend and at which they may make written or other personal record of
the proceedings, notwithstanding that--
(1) A reasonable registration fee may be charged; or
(2) A reasonable numerical limit exists on actual attendance.
Person means--
(1)(i) Any individual, corporation, partnership, firm, association,
trust, estate, public or private institution, group, Government agency
other than DOE, or any State or political entity within a State; and
(ii) Any legal successor, representative, agent, or agency of the
foregoing.
(2) Persons under U.S. jurisdiction are responsible for their
foreign licensees, contractors, or subsidiaries to the extent that the
former have control over the activities of the latter.
Production accelerator means a particle accelerator specially
designed, used, or intended for use with a production subcritical
assembly.
Production accelerator-driven subcritical assembly system means a
system comprised of a production subcritical assembly and a production
accelerator and which is specially designed, used, or intended for the
production of plutonium or uranium-233. In such a system, the
production accelerator target provides a source of neutrons used to
effect special nuclear material production in the production
subcritical assembly.
Production reactor means a nuclear reactor specially designed or
used primarily for the production of plutonium or uranium-233.
Production subcritical assembly means an apparatus that contains
source material or special nuclear material to produce a nuclear
fission chain reaction that is not self-sustaining and that is
specially designed, used, or intended for the production of plutonium
or uranium-233.
Public information means:
(1)(i) Information available in periodicals, books, or other print
or electronic media for distribution to any member of the public, or to
a community of persons such as those in a scientific, engineering, or
educational discipline or in a particular commercial activity who are
interested in a subject matter;
(ii) Information available in public libraries, public reading
rooms, public document rooms, public archives, or public data banks, or
in university courses;
(iii) Information that has been presented at an open meeting (see
definition of ``open meeting'');
(iv) Information that has been made available internationally
without restriction on its further dissemination; or
(v) Information contained in an application that has been filed
with the U.S. Patent Office and eligible for foreign filing under 35
U.S.C. 184 or that has been made available under 5 U.S.C. 552, the
Freedom of Information Act.
(2) Public information must be available to the public prior to, or
at the same time as, it is transmitted to a foreign recipient. It does
not include any technical embellishment, enhancement, explanation or
interpretation that in itself is not public information, or information
subject to sections 147 and 148 of the Atomic Energy Act.
Reprocessing means a process or operation, the purpose of which is
to extract radioactive isotopes from irradiated source and special
nuclear materials for further use.
Restricted Data means all data concerning:
(1) Design, manufacture, or utilization of atomic weapons;
(2) The production of special nuclear material; or
(3) The use of special nuclear material in the production of
energy, but shall not include data declassified or removed from the
Restricted Data category pursuant to section 142 of the Atomic Energy
Act.
Secretary means the Secretary of Energy.
[[Page 55285]]
Sensitive nuclear technology means any information (including
information incorporated in a production or utilization facility or
important component part thereof) that is not available to the public
(see definition of ``public information'') which is important to the
design, construction, fabrication, operation, or maintenance of a
uranium enrichment or nuclear fuel reprocessing facility or a facility
for the production of heavy water, but shall not include Restricted
Data controlled pursuant to chapter 12 of the Atomic Energy Act. The
information may take a tangible form such as a model, prototype,
blueprint, or operation manual or an intangible form such as technical
services.
Source material means:
(1) Uranium or thorium, other than special nuclear material; or
(2) Ores that contain by weight 0.05 percent or more of uranium or
thorium, or any combination of these materials.
Special nuclear material means:
(1) Plutonium;
(2) Uranium-233; or
(3) Uranium enriched above 0.711 percent by weight in the isotope
uranium-235.
Specific authorization means an authorization granted by the
Secretary under section 57 b.(2) of the Atomic Energy Act, in response
to an application filed under this part, to engage in specifically
authorized nuclear activities subject to this part.
Specifically authorized nuclear activities means the provision of
assistance, including the transfer of technology, to foreign persons
related to:
(1) Uranium isotope separation (uranium enrichment), plutonium
isotope separation, or isotope separation of any other elements
(including stable isotope separation) when the technology or process
can be applied directly or indirectly to uranium or plutonium;
(2) Fabrication of nuclear fuel containing plutonium, including
preparation of fuel elements, fuel assemblies, and cladding thereof;
(3) Hydrogen isotope separation and heavy water production;
(4) Production accelerator-driven subcritical assembly systems;
(5) Production reactors; and
(6) Reprocessing of irradiated nuclear fuel or targets containing
special nuclear material.
Technology means specific information required for the development,
production, or use of any facility or activity listed in Sec.
810.2(c). This information may take the form of technical data or
technical assistance.
(1) Development is related to all phases before production such as:
(i) Design;
(ii) Design research;
(iii) Design analysis;
(iv) Design concepts;
(v) Assembly and testing of prototypes;
(vi) Pilot production schemes;
(vii) Design data;
(viii) Process of transforming design data into a product;
(ix) Configuration design;
(x) Integration design; and
(xi) Layouts.
(2) Production means all production phases such as:
(i) Construction;
(ii) Production engineering;
(iii) Manufacture;
(iv) Integration;
(v) Assembly or mounting;
(vi) Inspection;
(vii) Testing; and
(viii) Quality assurance.
Technical assistance means assistance in such forms as instruction,
skills, training, working knowledge, consulting services, or any other
assistance as determined by the Secretary. Technical assistance may
involve transfer of technical data.
Technical data means data in such forms as blueprints, plans,
diagrams, models, formulae, engineering designs, specifications,
manuals, and instructions written or recorded on other media or devices
such as disks, tapes, read-only memories, and computational
methodologies, algorithms, and computer codes that can directly or
indirectly affect the production of special nuclear material.
Use means operation, installation (including on-site installation),
and maintenance (checking), repair, overhaul, and refurbishing.
United States, when used in a geographical sense, includes all
territories and possessions of the United States.
Sec. 810.4 Communications.
(a) All communications concerning the regulations in this part
should be addressed to: U.S. Department of Energy, Washington, DC
20585. Attention: Senior Policy Advisor, National Nuclear Security
Administration/Office of Nonproliferation and International Security
(NA 24), Telephone (202) 586-0589.
(b) Communications also may be delivered to DOE's headquarters at
1000 Independence Avenue, SW., Washington, DC. All clearly marked
proprietary information will be given the maximum protection allowed by
law.
Sec. 810.5 Interpretations.
(a) The advice of the DOE Office of Nonproliferation and
International Security may be requested on whether a proposed activity
falls outside the scope of this part, is generally authorized under
Sec. 810.6, or requires specific authorization under Sec. 810.7.
However, unless authorized by the Secretary in writing, no
interpretation of the regulations in this part other than a written
interpretation by the DOE General Counsel is binding upon DOE.
(b) When advice is requested from the DOE Office of
Nonproliferation and International Security, or a binding, written
determination is requested from the DOE General Counsel, a response
normally will be made within 30 days and, if this is not feasible, an
interim response will explain the reason for the delay.
Sec. 810.6 Generally authorized activities.
(a) In accordance with section 57 b.(2) of the Atomic Energy Act,
the Secretary has determined that activities by U.S. persons that
involve engaging directly or indirectly in the production of nuclear
material outside the United States, including by providing assistance
or transferring technology in ways that do not involve specifically
authorized nuclear activities, are generally authorized to be
undertaken with respect to the IAEA and the countries and territories,
and facilities therein, identified in paragraphs (b)(1) through (5) of
this section, provided that no sensitive nuclear technology is
transferred.
(b) The activities described in paragraph (a) of this section are
generally authorized with respect to the IAEA and:
(1) The following countries and territories, and the facilities in
such countries or territories:
Argentina,
Australia,
Austria,
Bangladesh,
Belgium,
Brazil,
Bulgaria,
Canada,
Colombia,
Cyprus,
Czech Republic,
Denmark,
Egypt,
Estonia,
Finland,
France,
Germany,
Greece,
Hungary,
Indonesia,
Ireland,
Italy,
Japan,
[[Page 55286]]
Kazakhstan,
Latvia,
Lithuania,
Luxembourg,
Malta,
Morocco,
Netherlands,
Norway,
Peru,
Poland,
Portugal,
Korea, Republic of
Romania,
Slovakia,
Slovenia,
South Africa,
Spain,
Sweden,
Switzerland,
Taiwan,
Thailand,
Turkey,
Ukraine,
United Arab Emirates,
United Kingdom.
(2) Any safeguarded facility in order to prevent or correct a
current or imminent radiological emergency posing a significant danger
to the health and safety of the off-site population and that cannot be
met by other means, provided DOE is notified in writing in advance and
does not object;
(3) Any country or territory, if carried out in the course of
implementation of the Agreement between the United States of America
and the IAEA for the Application of Safeguards in the United States;
(4) Any country or territory, if carried out in the course of
participation in exchange programs approved by the Department of State
in consultation with DOE;
(5) Any country or territory, if carried out by persons, other than
experts and consultants who are full-time employees of the IAEA, whose
employment is sponsored by the U.S. Government.
Sec. 810.7 Activities requiring specific authorization.
Unless generally authorized by Sec. 810.6, a U.S. person requires
specific authorization by the Secretary before engaging directly or
indirectly in the production of special nuclear material outside the
United States.
Sec. 810.8 Restrictions on general and specific authorization.
A general or specific authorization granted by the Secretary under
this part:
(a) Is limited to activities involving only unclassified
information and does not permit furnishing Restricted Data or other
classified information;
(b) Does not relieve a person from complying with relevant laws or
the regulations of other Government agencies applicable to exports;
(c) Does not authorize a person to engage in any activity when the
person knows or has reason to know that the activity is intended to
provide assistance in designing, developing, fabricating, or testing a
nuclear explosive device.
Sec. 810.9 Grant of specific authorization.
(a) An application for authorization to provide assistance or
transfer technology for which specific authorization is required under
Sec. 810.7 should be made to the U.S. Department of Energy, National
Nuclear Security Administration, Washington, DC 20585, Attention:
Senior Policy Advisor, Office of Nonproliferation and International
Security (NA 24).
(b) The Secretary will approve an application for specific
authorization if it is determined, with the concurrence of the
Department of State and after consultation with the Nuclear Regulatory
Commission, the Department of Commerce, and the Department of Defense,
that the activity will not be inimical to the interest of the United
States. Each application approved for specific authorization generally
will be for a period up to five years. In making an authorization
determination, the Secretary will take into account the following
factors:
(1) Whether the United States has an agreement for peaceful nuclear
cooperation in force covering exports to the country, territory, or
international organization involved;
(2) Whether the country or the authorities of the territory
involved is/are a party to, or has/have otherwise adhered to, the NPT;
(3) Whether the country or the authorities of the territory
involved is/are in good standing with its/their acknowledged
nonproliferation commitments;
(4) Whether the country or the authorities of the territory
involved has/have accepted IAEA safeguards obligations on all nuclear
materials used for peaceful purposes and has/have them in force;
(5) Whether there exist other nonproliferation controls or
conditions on the proposed activity, including that the recipient is
duly authorized by the country's government or the authorities of the
territory involved to receive and operate the technology sought to be
transferred;
(6) Significance of the assistance or technology transfer relative
to the existing nuclear capabilities of the recipient country or
territory;
(7) Whether the transfer is part of an existing cooperative
enrichment enterprise or the supply chain of such an enterprise;
(8) The availability of comparable assistance or technology from
other sources; and
(9) Any other factors that may bear upon the political, economic,
or security interests of the United States, including the obligations
of the United States under treaties or other international agreements,
and the obligations of the recipient country or the authorities of the
territory involved under treaties or other international agreements.
(c) If the proposed assistance or technology transfer involves the
export of sensitive nuclear technology as defined in Sec. 810.3, the
requirements of sections 127 and 128 of the Atomic Energy Act and of
any applicable United States international commitments must also be
met. For the export of sensitive nuclear technology, in addition to the
factors in subparagraph (b), the Secretary will take into account:
(1) Whether the recipient country or the authorities of the
recipient territory is/are a party to, or has/have adhered to, the NPT
and is/are in full compliance with its/their obligations under the NPT;
(2) Whether the recipient country has signed, ratified, and is
implementing a comprehensive safeguards agreement with the IAEA and has
in force an Additional Protocol based on the model Additional Protocol,
or, pending this, in the case of a regional accounting and control
arrangement for nuclear materials, is implementing, in cooperation with
the IAEA, a safeguards agreement approved by the IAEA Board of
Governors prior to the publication of INFCIRC/540 (September 1997); or
alternatively whether comprehensive safeguards, including the measures
of the Model Additional Protocol are being applied in the recipient
country or territory;
(3) Whether the recipient country or the authorities of the
territory has/have not been identified in a report by the IAEA
Secretariat that is under consideration by the IAEA Board of Governors,
as being in breach of obligations to comply with the applicable
safeguards agreement, nor continues/continue to be the subject of Board
of Governors decisions calling upon it/them to take additional steps to
comply with its/their safeguards obligations or to build confidence in
the peaceful nature of its/their nuclear program, nor as to which the
IAEA Secretariat has reported that it is unable to implement the
applicable safeguards agreement. This criterion would not apply in
cases where the IAEA Board of Governors or the United Nations
[[Page 55287]]
Security Council subsequently decides that adequate assurances exist as
to the peaceful purposes of the recipient's nuclear program and its
compliance with the applicable safeguards agreements. For the purposes
of this paragraph, ``breach'' refers only to serious breaches of
proliferation concern;
(4) Whether the recipient country or territory is adhering to the
Nuclear Suppliers Group Guidelines and, where applicable, has reported
to the Security Council of the United Nations that it is implementing
effective export controls as identified by Security Council Resolution
1540; and
(5) Whether the recipient country or territory 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: the United States Government has received written
assurances from the government of the country or the authorities of the
territory involved--
(1) That it/they accepts/accept the sensitive enrichment equipment
and enabling technologies, or an operable enrichment facility under
conditions that do not permit or enable replication of the facilities;
(2) That the subject enrichment activity will not result in the
production of uranium enriched to greater than 20% in the isotope
uranium-235; and
(3) That there are in place appropriate security arrangements to
protect the activity from use or transfer inconsistent with the
country's national laws or the law applicable in the territory
involved.
(e) Approximately 30 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 authorized assistance or technology transfer is
subsequently determined 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 person;
(2) The country or territory, or the international organization, 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 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) U.S. persons seeking to employ a foreign national of a country
not listed in Sec. 810.6(b) in a position that could result in the
transfer or technology subject to Sec. 810.6(a), or seeking to employ
any foreign national in a position that could result in the transfer of
technology subject to Sec. 810.7, must request a specific
authorization. No application for specific authorization is required if
the foreign national 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 applicant must
provide, with respect to each foreign national to whom the applicant
seeks to release technology subject to this part:
(1) A description of the technology that will be made available to
the foreign national;
(2) The purpose of the proposed release, and a description of the
applicant's technology control program;
(3) A copy of any confidentiality agreement between the applicant
and the foreign national;
(4) Background information about the foreign national, including
the individual's citizenship, all countries or territories where the
individual has resided for more than six months, the training or
educational background of the individual, all work experience, any
other known affiliations with persons engaged in activities subject to
this part, and current immigration or visa status in the United States;
and
(5) A signed undertaking 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 territory 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 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 days,
[[Page 55288]]
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 days, when it is known that the proposed activity
will not be undertaken and the granted authorization will not be used.
(d) Each person, within 30 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) An assurance that the applicant has an agreement with the
recipient ensuring that any subsequent transfer of materials,
equipment, or technology transferred under general authorization to a
country or territory with respect to which the conditions in Sec.
810.6 are not met will take place only if the applicant obtains DOE
approval.
(e) Persons engaging in generally authorized activities as
employees of persons required to report are not themselves required to
report.
(f) Persons engaging in activities generally authorized under Sec.
810.6(b) are not subject to reporting requirements under this section.
(g) 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.
(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.
(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 October 7, 2011 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 October 7, 2011, but that require specific authorization under
the regulations in this part, must request specific authorization by
December 6, 2011 but may continue their activities until DOE acts on
the request.
[FR Doc. 2011-22679 Filed 9-6-11; 8:45 am]
BILLING CODE 6450-01-P