The Department of Energy (DOE) recently published its revised Part 810 Guidance on compliance with the amended Part 810 Regulations on nuclear export controls (10 C.F.R. Part 810). The 2015 amendments to the Part 810 Regulations represented the first comprehensive updating of DOE nuclear export control policy since 1986. Our previous review of the amended regulations can be found here. The revised Part 810 Guidance is useful to those interested in providing nuclear technology or assistance to foreign nations, as well as to those who work with foreign nationals in the United States that require access to nuclear technology.
DOE published the revised Part 810 Guidance following interactions with stakeholders earlier this year. Some of the most notable new items in the revised Part 810 Guidance concern the following:
- The revised guidance addresses the application of key terms such as “foreign national,” “production,” and “technology.” For example, it adds a statement that dual citizens of the United States and another country are considered U.S. citizens and not foreign nationals. It also clarifies that for “foreign nationals who have dual or multiple foreign citizenships, DOE addresses nationality on a case-by-case basis, considering all countries in which an individual holds citizenship.” In addition, DOE clarifies previously-provided examples as to what types of activities are exempt from the Part 810 regime, in particular fundamental research, publicly available information, and publicly available technology.
- The revised guidance makes certain revisions to the section concerning generally authorized activities. For instance, it delineates in more detail when “operational safety” information and assistance can be provided under a general authorization regardless of destination country, and specifically adds that safety-related benchmarking visits to U.S. plants by the World Association of Nuclear Operators are an example of operational safety activities.
- It clarifies that the “scope of technology covered by Part 810 is based on NRC regulations at 10 CFR Part 110, Appendices A through K, and O”; that is, Part 810 applies only to the “nuclear steam supply system” of a nuclear power plant and not the “Balance of Plant” (those components generic to a power plant regardless of its fuel source).
- It adds cautionary reminders that (1) entities seeking to take advantage of an already-granted specific authorization must themselves verify that the authorization is applicable to them; and (2) persons who identify a violation of the Part 810 Regulations should promptly report the violation to DOE.
- It clarifies that for specific authorizations involving “deemed exports,” that is, foreign individuals accessing Part 810-controlled information in the U.S., no foreign government non-proliferation assurances are required. This issue had previously caused delays in obtaining specific authorizations for deemed exports, and the change represents a significant process improvement for U.S. employers of foreign nationals.
Nonetheless, the revised Part 810 Guidance still leaves open certain questions that companies seeking to export nuclear technologies may need to grapple with. For example:
- “Americanization” or when do foreign technologies imported in the United States become subject to Part 810: The revised guidance deleted reference to “Americanization” of technology, a concept in which an imported technology becomes subject to Part 810 if altered or improved upon in the United States, e.g., to conform to U.S. standards. However, DOE stated during the public workshop with stakeholders in January 2016 that this deletion does not necessarily reflect a change of policy or practice. As reflected in the revised guidance, DOE still does not consent to any de minimis threshold to a technology transfer, and so any export of U.S.-modified foreign nuclear technology may be subject to Part 810. It is therefore important for any United States company to thoroughly consider Part 810 before exporting any nuclear technology, even if it was originally foreign-origin.
- Practical issues with the new general authorization for foreign nationals with “unescorted access” at NRC facilities: The revised Part 810 includes a new “deemed export” provision set forth in 10 C.F.R. § 810.6(b) that generally authorizes transfers of Part 810-controlled technology to a foreign national of a country not listed in Part 810 as a generally authorized country if: 1) the foreign national is lawfully employed or contracted to work for a U.S. employer in the United States; 2) the foreign national has executed 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 U.S. employer authorizing access to the technology complies with the reporting requirements in 10 C.F.R. § 810.12(g). All four criteria must be met in order for this general authorization to apply. This provision has resulted in some practical issues for vendors and NRC license holders since its implementation. For example, even if a contractor’s work may not concern Part 810-controlled technology, if a foreign national contractor employee would be granted unescorted access authorization, the NRC licensee may nonetheless prefer to notify DOE pursuant to this new deemed export provision. The revised guidance provides only limited clarification in this area, and so this may remain an aspect of the amended rule that is a source of some confusion.
- Interaction of Part 810 with other agency reviews: Generally, component or material exports approved by the NRC under its 10 C.F.R. Part 110 program come with approvals to export related technologies. Although the amended rule indicates that an NRC export license would eliminate the need for Part 810 authorization for related technologies, the revised guidance states only that “an export license from [other] agencies may include a license to provide certain technology ancillary to the component or material being exported.” (Emphasis added). Therefore, companies possessing a Part 110 export license from the NRC should still confirm that it covers any related nuclear technology exports that would be involved with the project.