Nuclear
Technology
Exports
Regulation
By Alex Polonsky an Grant Eskelsen,
Morgan Lewis & Bockius, LLP.
Alex Polonsky
Alex Polonsky is a partner in Morgan
Lewis’s Energy Practice, focusing
on energy and
environmental
law. His practice
includes advising
on NRC licensing
matters, and on
NRC and DOE
nuclear export
controls. He
is co-author of
Fundamentals of
Nuclear Regulation
in the U.S. He
received his
Bachelor of Arts
from Wesleyan
University and
his Juris Doctor
from Vermont Law
School.
After almost three and a half years,
the US Department of Energy’s (DOE’s)
new “Part 810” regulations are finally
here. The lack of a grandfather provision
in the new rule means that many
companies will need to take action—in
the form of written export applications
and/or written notices—to maintain
compliance with their technology export
obligations. And if you were expecting
the revised regulations to level the playing
field between US suppliers as compared
to suppliers in other countries, then you
will be disappointed.
For more than 50 years, the DOE
has regulated the export of certain non-
public nuclear technology. DOE’s rules,
which implement the Atomic Energy Act
(AEA) and are codified in 10 C.F.R. Part
810, restrict the transfer of certain nuclear
technology
and
assistance to foreign
persons
whether
they are located
inside or outside the
United States. The
last time the DOE
significantly revised
Part 810 was in
1986. The new rules
are effective as of
March 25, 2015.
Through
its
rulemaking,
the
DOE
expressed
an intent to update
export “destinations
and activities” to
comport
“with
current US national security, diplomatic,
and trade policy.” The DOE received a
significant number of pointed comments
on its rulemaking. The DOE rejected,
however, a large number of the comments,
with the result that the national security
interests appear to have outweighed
diplomatic and trade policy interests.
Part 810 applies to “all persons
subject to the jurisdiction of the United
States who directly or indirectly engage
or participate in the development or
production of any special nuclear material
outside the United States, and the transfer
of technology that involves any of” a
specific list of activities “either in the
United States or abroad by such persons
. . .” This rule now makes explicit
something that the DOE has regulated for
decades—namely, that Part 810 applies
to exports within the United States, also
referred to as “deemed exports” (because,
for example, the technology is deemed to
be exported to the home country of the
foreign national who currently is inside
the United States).
Part 810 separates activities into three
general categories: those that are exempt,
those that are “generally authorized,” and
those that are “specifically authorized.”
A general authorization is granted by
regulation and typically requires only that
an exporter file a report with the DOE
within 30 days after export activity begins,
although there are new exceptions. A
specific authorization requires the DOE’s
prior approval before an export can occur.
In a change from the existing rule,
the DOE is recognizing that transfer of
information that is already in the public
domain is entirely exempt from Part
810. The DOE is also expressly avoiding
dual regulation by exempting exports
approved by the US Nuclear Regulatory
Commission (NRC), the Department of
State, or the Department of Commerce.
Other exempt activities include uranium
mining, spent nuclear fuel storage, and
transportation; certain activities that
involve nuclear fusion (as opposed to
fission) reactors; and certain activities
that produce radiopharmaceuticals. The
rule also now codifies DOE’s practice that
transfers of technology to US permanent
residents (i.e., holders of a “Green Card”)
and to those whom the US government
has granted asylum or refugee status, are
exempt from Part 810.
An important change that will
affect U.S. domestic activities is the
new general authorization for transfer of
technology to a national of a specifically
authorized country who is employed by
or contracted to work at a US nuclear
facility. This general authorization is
granted so long as the foreign citizen or
national is working at an NRC-licensed
facility as an employee of a US company,
the employee signs a confidentiality
agreement, the employee has been
granted unescorted access in accordance
with NRC standards, and the employer
reports the authorized access to the DOE.
Importantly, the foreign employee does
not have to be an employee of the NRC
licensee.
38
NuclearPlantJournal.com Nuclear Plant Journal, March-April 2015
