Up & Atom

Good news for Mexico—and a potential farewell to Egypt and South Africa: It’s time to look out for the Department of Energy National Nuclear Security Administration’s (NNSA) changes to the list of generally authorized countries that appear in Appendix A to 10 CFR Part 810 (Appendix A).

Appendix A lists countries to which US persons can transfer non-public technology about commercial nuclear reactors, uranium fuel fabrication, and other nuclear fuel cycle facilities without acquiring NNSA’s prior written approval. These “generally authorized” destinations are limited to countries that have peaceful nuclear cooperation agreements with the United States, and for whom the US government has no other policy or security concerns. For example, China and Russia have peaceful nuclear cooperation agreements with the United States, but they are not included in Appendix A because of policy or security concerns. Egypt and South Africa currently are both listed in Appendix A, and transfers to Egyptian and South African citizens— whether those transfers take place in the United States, in their home country, or elsewhere— are generally authorized by NNSA.

Let’s start with Mexico. Mexico currently is listed in Appendix A, but with limitations. It is only a generally-authorized destination for nuclear technology assistance to Laguna Verde Nuclear Power Plant, Units 1 and 2 and certain research reactor activities within Mexico. That status, for example, precludes transfers of advanced reactor technology to Mexico without NNSA’s prior written approval; the same approval would be needed for Mexican citizens working at US nuclear engineering companies. And although NNSA’s prior written approval is not needed for Mexican citizens granted unescorted access at nuclear facilities licensed by the NRC, the limitations in Appendix A on Mexico require special reporting to NNSA. See 10 CFR § 810.6(b).

So what is expected to change? On November 3, 2022, the US State Department announced that the peaceful nuclear cooperation agreement with Mexico went into effect. The US government had signed the agreement in 2018, but the Mexican government did not sign it until this year. Therefore, we expect the NNSA to issue a Federal Register notice modifying Appendix A to remove any restrictions on Mexico as a generally authorized country.

As for Egypt, its peaceful nuclear cooperation agreement with the US expired without renewal in December 2021. If there is no intent to enter into a new agreement, then NNSA may remove Egypt from Appendix A when it issues the Federal Register modifying Mexico’s status.

Finally, the peaceful cooperation agreement between the US and South Africa lapsed on December 4, 2022. The US government signed the agreement, but the South African government apparently did not. The US State Department already has removed South Africa from its website listing the in-effect peaceful nuclear cooperation agreements. If there is no intent to enter into a new agreement, then NNSA may also remove South Africa from Appendix A when it issues the Federal Register modifying Mexico’s status.

Removing any country from Appendix A makes that country and their citizens unable to receive Part 810-controlled commercial reactor technology without NNSA’s prior written approval or a hybrid general authorization (such as the NRC facility unescorted access exception mentioned above).

So what do you need to do when the NNSA publishes its Federal Register changing the list of countries in Appendix A? First, we hope the NNSA will grandfather existing generally-authorized activities between US companies and any countries it removes from Appendix A. This grandfathering should last until the industry has an opportunity to apply for NNSA’s written approval for those activities, and the NNSA actually rules on those applications. This is an approach that NNSA took as part of its 2015 Part 810 rulemaking.

Second, consider how the changes in the Federal Notice affect your export compliance program. Below are some suggestions.

1. If your compliance documents contain a copy of Appendix A, then update those compliance documents to contain a current copy of Appendix A to reflect the Federal Register Notice changes.
2. If your compliance documents explicitly carved out Mexico and other countries with limitations listed in Appendix A (e.g., Mexico, Chile, and Ukraine), then reinsert Mexico into your list of generally authorized countries.
3. Update job postings or interview questions for vetting export control compliance at the time of hiring or onboarding (or transferring personnel within corporate affiliates) to reflect the Federal Register Notice changes.
4. Update any information technology access protocols to now allow a citizen of Mexico to acquire access under a general authorization.
5. Communicate with appropriate personnel about the changes to the regulations and your compliance documents.
6. For any ongoing activities that transfer technology controlled under Part 810 to countries removed from Appendix A (or foreign nationals from those countries) determine whether you need to apply for a specific authorization.
7. Evaluate what compliance activities need to be taken for transfers (or exports) transitioning from generally authorized (or licensed) to specifically authorized (or licensed) or vice versa, and ensure that you have a plan in place to address the transition during any NNSA authorized transition period.

If you would like advice on your export compliance program, then please contact us.