Nuclear Cooperation: Part 810 Authorizations
April 18, 2019
Nuclear Cooperation: Part 810 Authorizations
Secretary of Energy Rick Perry told Congress in late March
engaging in specified safety and emergency response
that he had approved Part 810 authorizations for Saudi
activities at International Atomic Energy Agency (IAEA)-
Arabia. Under U.S. law, nuclear-related exports require an
safeguarded or NRC-licensed nuclear facilities;
export license or other authorization. The Atomic Energy
Act (AEA) of 1954, as amended (P.L. 83-703; 42 U.S.C.
participating in State Department-approved exchange
§2153 et seq.), requires a peaceful nuclear cooperation
programs “in consultation with DOE”;
agreement (known as a “123” agreement after the relevant
implementing the U.S.-IAEA safeguards agreement;
section of the AEA) for the export of commodities under
extracting, under certain conditions, Molybdenum-99 for
Nuclear Regulatory Commission (NRC) export licensing
medical use.
authority (10 C.F.R. 110). These include nuclear reactors
and U.S.-origin special nuclear material, which the
Part 810 authorizations are not required for NRC-licensed
regulation defines as plutonium, uranium-233, or enriched
exports of components and materials and do not require the
uranium. The AEA also requires a 123 agreement for
United States to have a 123 agreement with the recipient’s
exports involving “restricted data,” defined as “all data
government. However, 10 C.F.R. Part 810.9 includes the
concerning (1) design, manufacture, or utilization of atomic
existence of a 123 agreement as a factor for the Secretary of
weapons; (2) the production of special nuclear material; or
Energy to consider when determining that a specifically
(3) the use of special nuclear material in the production of
authorized activity “will not be inimical to the interest [sic]
energy.” (For more information about 123 agreements, see
of the United States.” Moreover, the list of “generally
CRS Report RS22937, Nuclear Cooperation with Other
authorized destinations” is “based principally on the United
Countries: A Primer.)
States agreements for civil nuclear cooperation,” according
Part 810 Authorizations
to guidance from the National Nuclear Security
Administration (NNSA).
Section 57.b.(2) of the AEA allows for limited forms of
nuclear cooperation related to the “development or
production of any special nuclear material outside of the
Activities Requiring Specific Authorization
United States” if that activity has been authorized by the
The fol owing activities require specific authorization:
Secretary of Energy following a determination that it “will
activities listed in 10 C.F.R. Part 810.2(b) with any foreign
not be inimical to the interest of the United States.” Such
entity that is not a generally authorized destination;
authorizations are known as “Part 810 authorizations” after
10 C.F.R. Part 810, which describes “generally authorized”
providing “sensitive nuclear technology to any foreign
activities and activities that require the Secretary of
country or entity”; or
Energy’s “specific authorization.” Some activities are
engaging in or assisting with a subset of the activities
“generally authorized” only for certain “generally
listed in Part 810.2(b) if such engagement or assistance
authorized destinations.” “Generally authorized activities”
involves a foreign country or certain foreign nationals.
are not to involve sensitive nuclear technology, which 10
C.F.R. Part 810.3 defines as any information unavailable to
the public “which is important to the design, construction,
Content
fabrication, operation, or maintenance” of certain
Part 810 authorizations cover transfers of technology,
proliferation-sensitive facilities.
defined by 10 C.F.R. Part 810.3 as “assistance or technical
data required for the development, production or use of any
plant, facility, or especially designed or prepared
Generally Authorized Activities
equipment” for a number of nuclear activities related to
In addition to activities by persons conducting work for the
development or production of any special nuclear material;
IAEA, 10 C.F.R. Part 810.6 generally authorizes the fol owing
these activities are listed in 10 C.F.R Part 810.2(b). Part 810
activities:
regulations define assistance to include “instruction, skills,
training, working knowledge, [and] consulting services,” all
“engaging directly or indirectly in the production of special
nuclear material at facilities in countries or with entities”
of which “may involve the transfer of technical data.”
that are generally authorized destinations;
According to the regulations, technical data may be
transferring, under certain conditions, technology to foreign
in such forms as blueprints, plans, diagrams,
nationals of countries that are not generally authorized
models,
formulae,
engineering
designs,
destinations if such nationals are working at an NRC-
specifications, manuals, and instructions written or
licensed facility;
recorded on other media or devices such as disks,
tapes, read-only memories, and computational
methodologies, algorithms, and computer codes
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Nuclear Cooperation: Part 810 Authorizations
that can directly or indirectly affect the production
according to NNSA, “prepares the final package for
of special nuclear material.
approval by DOE/NNSA staff and the Secretary of
Energy.”
No Part 810 authorizations may permit “any activity …
intended to provide assistance in designing, developing,
Congressional Role
fabricating, or testing a nuclear explosive device.”
Congress does not review Part 810 authorizations, but U.S.
law contains several congressional notification
Specific Part 810 Authorization Factors
requirements. Section 3136(e) of the National Defense
Authorization Act for Fiscal Year 2016 (2016 NDAA; P.L.
According to 10 C.F.R. Part 810.9, the Secretary of Energy, in
114-92) requires the Secretary of Energy to submit an
the course of determining if a specific authorization wil be
annual report of DOE’s review of applications for Part 810
inimical to the U.S. interest, must “take into account” several
authorizations. The report is to include the number of
factors, including whether the recipient country has a 123
applications and granted authorizations during the previous
agreement with the United States and is a party to the nuclear
year, the length of time for reviewing each application, and
Nonproliferation Treaty (NPT) in compliance with its
a “description of efforts to streamline the review of such
attendant obligations.
applications.” Section 3136 of the 2016 NDAA also
The Secretary of Energy must also take into account
contains a number of reporting requirements that apply only
whether “other nonproliferation controls or conditions
to Part 810 authorizations with China and Russia. On April
exist on the proposed activity”;
10, 2019, Senator Edward Markey introduced S. 1127,
which would amend the AEA to require the Secretary of
the significance of the transfer “relative to” the country’s
“nuclear capabilities”;
Energy to submit periodic reports to Congress describing
Part 810 authorizations issued by the Secretary.
whether the “transferred technology is part of an existing
cooperative enrichment enterprise or the supply chain of
Section 123e of the AEA requires the President to keep the
such an enterprise”;
Senate Committee on Foreign Relations and the House
the “availability of comparable assistance or technology
Committee on Foreign Affairs “fully and currently
from other sources”; and
informed of any initiative or negotiations relating to a new
“other factors that may bear upon” U.S. “political,
or amended agreement for peaceful nuclear cooperation.”
economic, competitiveness, or security interests.”
Section 303a of the same law requires the Secretary of
The Secretary of Energy may authorize activities “related to
Energy and the NRC to keep the Senate and the House
committees of jurisdiction “fully and currently informed
the enrichment of source material and special nuclear
material” if the recipient’s government provides written
with respect to the activities of the Secretary and the
Commission.”
nonproliferation assurances and the recipient agrees to
specific security and nonproliferation measures. For Part 810
authorizations involving sensitive nuclear technology, the
Part 810.9 provides that DOE may give a copy of a specific
Part 810 authorization “to any person requesting it at
Secretary of Energy must also take into account a number of
other nonproliferation, nuclear safety, and nuclear security
DOE’s Public Reading Room.” However, DOE does not
make public an authorization if “the appl
factors concerning the recipient country’s government.
icant submits
information demonstrating that public disclosure will cause
substantial harm to its competitive position.” Some
Process
information about seven Part 810 authorizations issued by
The Secretary may issue the AEA-mandated determination
Secretary Perry for exports to Saudi Arabia has “not been
that a proposed activity “will not be inimical” to U.S.
made public because the companies determined that the
interests only after the Secretary receives the Department of
authorizations contain proprietary business information,” a
State’s concurrence and after consulting with the NRC and
March 28, 2019, Department of Energy press statement
the Departments of Commerce and Defense. NNSA assigns
explained. Section 57b of the AEA states that
applications for Part 810 authorizations to an Export
[a]ny trade secrets or proprietary information
Control Action Officer, who analyzes the application’s
submitted by any person seeking an authorization
information and then, according to NNSA,
under this subsection shall be afforded the
obtains an independent DOE laboratory technical
maximum degree of protection allowable by law.
review of the proposed transfer; prepares a
AEA Section 303b requires any government agency to
technical analysis recommending approval or
“furnish any information requested” by the Senate and the
denial; and obtains DOE/NNSA internal legal and
House committees of jurisdiction “with respect to the
policy approval of the preliminary analysis.
activities or responsibilities of such agency in the field of
Following this process, the officer “transmits the relevant
nuclear energy” within their jurisdiction.
information,” as well as DOE’s recommendation, to the
relevant agencies for consultation and concurrence. As part
Paul K. Kerr, Specialist in Nonproliferation
of its review and approval process, the State Department
Mary Beth D. Nikitin, Specialist in Nonproliferation
obtains, if necessary, “written nuclear nonproliferation
assurances” from the relevant foreign government.
IF11183
After
receiving the State Department’s concurrence and input
from the other agencies as described above, the officer,
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Nuclear Cooperation: Part 810 Authorizations
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