Nuclear Plant Journal, March-April 2015 NuclearPlantJournal.com
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Grant Eskelsen
Grant Eskelsen is an associate in
Morgan Lewis’s Energy Practice.
His work includes a wide variety
of regulatory
matters, including
counseling clients
on compliance
with nuclear export
controls, nuclear
plant investigations,
and licensing
matters before the
NRC. He obtained
his Juris Doctor
from Wake Forest
University School
of Law and his
Bachelor of Arts
from Williams
College, where he
majored in physics
and history.
DOE also has added a new quasi-
general authorization intended to speed
up the authorization for U.S. persons
to support certain foreign commercial
reactor activities in countries that
otherwise would require a specific
authorization. We refer to it as a quasi-
general authorization because it requires
the U.S. person to provide prior notice
to the DOE and it gives the DOE a veto
option over the proposed support. The
revised Part 810 will grant a general
authorization for furnishing “operational
safety” information or assistance to an
existing foreign commercial reactor that
is under International Atomic Energy
Agency (IAEA) or equivalent safeguards,
provided that DOE is notified in writing
and approves the activity in writing within
45 days of the notice. “Operational
safety” is narrowly defined in the
regulations to include assistance related
to, among other things, compliance with
standards and limiting worker exposure
to radiation. This new provision will
not make it easier for vendors to support
new reactor construction in specifically-
authorized countries.
The most visible change to the
new rules is the replacement of a list of
specifically authorized countries with
those of generally authorized countries
for purposes of evaluating exports
or assistance to foreign commercial
nuclear power plants. The old rules
listed those countries that require a
specific authorization. In the new rules,
however, a list of generally authorized
countries is provided in an appendix, and
all countries not listed are specifically
authorized. As a result of this change,
which seems innocuous on its face,
dozens of countries that were generally
authorized under the current rules will
become specifically authorized under
the new rules. Although commenters on
the proposed rule requested that Russia,
China and India be generally authorized,
because they already have international
nuclear cooperation agreements with
the United States, the DOE declined to
make that change. Accordingly, those
countries remain specifically authorized.
Moreover, the DOE has clarified that the
designation of a country under Part 810
as generally or specifically authorized is a
“matter committed to agency discretion,”
which leaves little room for the public to
sway the agency’s views.
Many countries have no change in
their status, including 44 major nuclear
trading partners, such as the United King-
dom, France, Japan,
Spain, the Republic
of Korea, Canada,
and Argentina. And
on the bright side,
Kazakhstan, Croa-
tia, Vietnam, and the
United Arab Emir-
ates have switched
from specifically au-
thorized to generally
authorized, based,
among other things,
on their entry into
the European Union
or their execution of
international nuclear
cooperation agree-
ments with the Unit-
ed States. Mexico and Chile remain gen-
erally authorized, but only for projects
that are identified in IAEA information
circulars that are mentioned in the appen-
dix. Last, recognizing the current geo-
political situation involving Ukraine, the
DOE has added a new subsection, section
810.14, that prescribes reporting require-
ments for exports to Ukraine, which has
been added to the generally authorized
list. Under the new section, a written re-
port is due to the DOE ten days before be-
ginning any generally authorized activity
in Ukraine, and a separate report is due
ten days after completing the activity.
Unfortunately, the new rule does
not grandfather technology exports
covered by Part 810 to the dozens of
countries that were previously generally
authorized but now are specifically
authorized. The new rule does, however,
provide for a transition process. First,
for any applications for a specific
authorization that are pending with the
DOE for countries that are generally
authorized under the new rule (i.e., for
Croatia, Kazakhstan, Ukraine, United
Arab Emirates, and Vietnam), the DOE is
requiring that the applicant withdraw the
application after March 25, 2015. For
activities that were generally authorized
prior to the new rule, the exporter must
apply for a specific authorization by
August 24, 2015.However, those activities
that switch from generally authorized
to specifically authorized may continue
until the DOE acts on the application.
Similarly, companies that continue to
make deemed exports to employees who
were generally authorized but are now
specifically authorized, must file reports
by August 24, 2015.
Finally, the DOE is also giving the
nuclear industry an opportunity to report
previously unreported deemed exports.
“DOE recognizes that many companies
with employees who are citizens or
nationals of countries now subject to
specific authorization requirements
under the final rule announced February
23, 2015 may not have previously
reported the transfer of part 810 covered
technology to such individuals to DOE”
under the old rules.” The DOE is
requesting that all such reports be made
by August 24, 2015. This presents an
opportunity for the nuclear industry to
perform export compliance audits, to
determine if there are any unreported
Part 810 activities and, if there are, to
voluntarily disclose them now.
Contact: Alex S. Polonsky, Morgan,
Lewis & Bockius LLP, 1111 Pennsylvania
Avenue, NW, Washington, DC 20004;
telephone: (202) 739-3000, email:
