The US Department of Energy’s National Nuclear Security Administration (NNSA) recently posted new guidance “to highlight and explain continuing obligations relating to [10 CFR] Part 810, especially as they relate to post-employment activities such as independent consulting or employment by a nuclear related company.” Based on prior NNSA statements, this guidance is a direct response to recent criminal cases, which highlighted for NNSA that retirees from US nuclear companies might not be aware of their continuing obligations to protect Part 810-controlled information. The training does a good job of summarizing Part 810’s requirements, and is a good step towards protecting US national security and non-proliferations interests, but the slide deck contains a few statements that require clarification.
NNSA’s guidance takes the form of a slide presentation and a template certification for employees to sign after they take the training.
By way of background, Part 810 restricts the sharing of certain non-public nuclear “technology” with foreign nationals, both within and outside of the United States. As defined in Part 810, technology “means 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 Part 810. The activities referenced in Part 810 include most of the nuclear fuel cycle, including fuel fabrication and nuclear reactors.
Before sharing Part 810-controlled information with a foreign national, a company or an individual must ensure that their activities are covered by an authorization issued by NNSA. NNSA issues two types of authorizations: a “general” authorization that is issued by regulation, and a “specific” authorization that requires the Department of Energy’s prior written approval.
After summarizing the scope of Part 810, NNSA’s training takes a Q&A format to address “Common Misunderstandings” about Part 810. These responses provide helpful reminders about how to comply with Part 810, such as: “Pay particular attention to questions that are not ‘on topic’ during conferences or training sessions.”
However, the slide deck contains a few statements that require clarification. First, the slide deck states that “NNSA also does not consider information available only through search engines or Wikipedia to be ‘public’ for the purposes of Part 810. Few people would base any significant work on information from unknown sources.” This is inconsistent with Part 810, because Section 810.2(c)(3) explicitly exempts “publicly available information” from the scope of Part 810. Information that is available from public search engines would, by definition, be publicly available and, therefore, not be covered by Part 810. The intent of the slide is to point out that, to the extent a consultant is doing anything more than providing a foreign national with a document directly from a publicly available website—such as providing technical embellishment—the consultant should consider whether Part 810 applies to their work. But the statement about search engines needs clarification.
Second, the slides state that “Consultants are responsible for ensuring that any technology or assistance they provide to a U.S. company is not ultimately being passed to a foreign end user, unless the foreign end user is duly authorized to receive it under Part 810.” This statement also goes too far. For example, transfers of Part 810-controlled information from a US consultant in Ohio to a US company in Texas are not covered by Part 810. If the US company in Texas includes the consultant’s advice into reactor-related software for export to Saudi Arabia, it is the company in Texas that must acquire the Part 810 authorization. NNSA is correct to point out in the training that if you are working “through” a US company, which involves a consultant directly communicating or visiting the ultimate foreign customer that results in providing technical assistance under Part 810, then the consultant needs his or her own Part 810 authorization, or needs to confirm that he or she is covered by one applicable to the US company that hired them.
Morgan Lewis will continue to monitor NNSA’s implementation and interpretation of Part 810.