Executive Order 13920, “Securing the United States Bulk-Power System,” issued on May 1 limits the US use of bulk-power system equipment produced by “foreign adversaries.”
We analyzed the implications of the executive order in this recent LawFlash.
The US Department of Energy’s National Nuclear Security Administration (NNSA) submitted its annual report on Transfers of Civil Nuclear Technology to Congress for fiscal year (FY) 2019. The report fulfills the agency’s obligation under Section 3136(e) of the National Defense Authorization Act for Fiscal Year 2016 to submit an annual report covering its review of applications to transfer US civil nuclear technology to foreign persons.
A final rule issued by the US Department of Commerce’s Bureau of Industry and Security (BIS) on April 28 broadens license requirements in Part 744 of the Export Administration Regulations (EAR) to include military end users in China. A license was previously only necessary to export items for military end use in China—not to military end users. The rule also broadens the definition of “military end use” and expands Electronic Export Information (EEI) filing requirements, among other things.
The US Department of Energy’s National Nuclear Security Administration (NNSA) recently posted guidelines on its continued operations during the coronavirus (COVID-19) pandemic. While NNSA personnel are mostly working remotely, the agency is otherwise operating business-as-usual. This means that certain essential personnel remain “on call” to return to their offices if needed, and that industry needs to continue to file reports for Part 810 activities as detailed in the regulations and as required in specific authorizations.
The guidelines also confirmed that the pandemic has not affected the agency’s ability to process Part 810 applications and requests for determination:
The US Department of Energy (DOE) is requesting comments on whether there is a sufficient supply of molybdenum-99 (Mo‑99) to meet medical needs without the export of highly enriched uranium (HEU) from the United States. Comments are due by December 27, 2019. The comments will support a certification that the secretary of Energy must submit in early 2020 pursuant to the American Medical Isotopes Production Act of 2012, Pub. L. 112-239, 126 Stat. 2211 (the Act). The content of this certification will determine whether the US Nuclear Regulatory Commission (NRC) will have authority to issue HEU export licenses for Mo-99 production in foreign research and test reactors.
According to the notice in the November 27 Federal Register, “Historically, the United States has not had the capability to produce Mo-99 domestically and, until 2018, imported 100 percent of its supply from international producers, some of which was produced using targets fabricated with proliferation sensitive HEU.” Congress passed the Act as part of a decades-long effort to ensure domestic availability of Mo‑99, which is used in medical diagnostic and therapeutic procedures. According to the notice, approximately 80% of all of these procedures depend on the use of technetium-99, a decay product of Mo-99. Importantly, Section 3174 of the Act amended the Atomic Energy Act to prohibit the NRC from issuing licenses to export HEU from the United States for purposes of medical isotope production, effective seven years from the date of enactment of the Act. The Act became law on January 2, 2013, and thus the ban on NRC export licenses is scheduled to go into effect in early 2020, unless it is extended through a certification from the Energy secretary.
The US Department of Energy (DOE) published a notice of proposed rulemaking (NOPR) in the October 3 Federal Register to establish procedures for imposing civil monetary penalties for violations of 10 CFR Part 810 (Part 810). Notably, DOE also proposes a maximum penalty, per violation, of $102,522. If DOE views a violation as a continuing one, then each day from when the violating activity began to when it stopped would constitute a separate violation for purposes of computing the penalty. Comments on the NOPR are due by November 4, 2019.
A bipartisan group of four senators has introduced a bill that would amend the Atomic Energy Act to require the US Department of Energy (DOE) to submit to Congress quarterly reports providing information about industry’s and DOE’s activities under 10 CFR Part 810. The first part of the bill suggests that DOE would only report to Congress on “each authorization issued” under Part 810, which suggests that DOE could limit its reporting to specific authorizations that DOE actually granted in the prior 90 days.
However, the remainder of the bill states that DOE would provide Congress with a summary of each application for a Part 810 specific authorization and an annex that contains: 1) a copy of the specific authorization application; and 2) a copy of each report received in the previous 90 days for any general or specific authorization. The bill also would require that the initial quarterly report include all specific authorizations granted and all generally—and specifically—authorized activities reported from March 25, 2015, through the date of enactment. (March 25, 2015, is the date that the most recent wholesale revisions to Part 810 went into effect.) Subsequent reports to Congress would be due every 90 days thereafter and cover the activities during those 90 days.
The NRC recently took the somewhat unusual step of issuing a Regulatory Issue Summary (RIS) to clarify reporting requirements for certain exports. Issued on March 15, the RIS explains that its issuance was prompted by recent confusion among nuclear exporters regarding potentially overlapping reporting obligations. The RIS requires no action or written response from the nuclear industry.
The US government is continuing to find ways to help our nuclear industry compete in the global market. In a speech on February 26, the assistant secretary of the US State Department’s Bureau of International Security and Nonproliferation, Dr. Christopher Ford, announced a new policy: the US government would seek to negotiate and enter into “nuclear cooperation memoranda of understanding,” or NCMOUs, with foreign countries who do not yet have 123 Agreements with the United States, as a tool to develop new opportunities to “advance U.S. strategic competitiveness.” While Dr. Ford’s speech lacks details of what the terms of an NCMOU will be or which countries the United States will seek to partner with, the creative focus on supporting US nuclear trade is a welcome development.
On October 11, the US government issued its long-awaited US Policy Framework on Civil Nuclear Cooperation with China. Those hoping that the policy announcement would revive stalled applications for exports of technology or equipment to China or open a pathway for future exports were mostly disappointed. While the announcement effectively revived stalled applications, the new policy framework “presumptively denies” all applications to transfer new technology to China, including any exports of technology or equipment for small modular reactors (SMRs) and non–light-water advanced reactors.