2023-02456. Assistance to Foreign Atomic Energy Activities

AGENCY:

National Nuclear Security Administration (NNSA), Department of Energy (DOE).

ACTION:

Final rule.

SUMMARY:

On December 29, 2022, the Secretary of Energy (“Secretary”) issued determinations modifying the generally authorized destination status of Mexico and revoking the general authorizations for exports of controlled nuclear technology and assistance to Colombia and Egypt under DOE's regulation on Assistance to Foreign Atomic Energy Activities. Accordingly, DOE is issuing this final rule to remove the restriction on the general authorization previously applicable to Mexico and to remove Colombia and Egypt from the generally authorized destinations list in appendix A.

DATES:

This rule is effective on February 8, 2023.

FOR FURTHER INFORMATION CONTACT:

Ms. Katie Strangis, Deputy Director, Office of Nonproliferation and Arms Control (NPAC), National Nuclear Security Administration, Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585, telephone [phone]; Mr. Thomas Reilly, Office of the General Counsel, GC-53, Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585, telephone [phone]; or Mr. Zachary Stern, Office of the General Counsel, National Nuclear Security Administration, Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585, telephone [phone].

SUPPLEMENTARY INFORMATION:

I. Background and Discussion of Final Rule

II. Good Cause for Dispensing With Notice and Comment

III. Regulatory Review

IV. Approval of the Office of the Secretary

I. Background and Discussion of Final Rule

On December 29, 2022, the Secretary issued two determinations, (1) “determination and authorization pursuant to section 57 b.(2) of the Atomic Energy Act of 1954, as amended, regarding exports of nuclear technology and assistance to Mexico” and (2) “determination and revocation of general authorizations pursuant to Department of Energy regulations at 10 CFR part 810 regarding exports of nuclear technology and assistance to Colombia and Egypt,” modifying the generally authorized destination status of Mexico and revoking the general authorizations for exports to Colombia and Egypt of controlled nuclear technology and assistance, which were published in the Federal Register on January 31, 2023 (88 FR 6243-6244); (88 FR 6247). The Atomic Energy Act of 1954, as amended (42 U.S.C. 2077) (AEA), enables peaceful nuclear trade by helping to assure that nuclear technologies exported from the United States will not be used for non-peaceful purposes.

Part 810 of title 10, Code of Federal Regulations (part 810) implements section 57 b.(2) of the AEA, pursuant to which the Secretary has granted a general authorization for certain categories of activities which the Secretary has found to be non-inimical to the interest of the United States—including assistance or transfers of technology to the generally authorized destinations listed in appendix A to part 810. The Appendix A list currently includes Colombia, Egypt, and Mexico, with Mexico currently listed as a generally authorized destination only for activities related to INFCIRC/203 Parts 1 and 2 and INFCIRC/825. In light of the Secretary's Determinations to expand Mexico's generally authorized status to cover the full scope of exports of part 810-controlled nuclear technology and assistance, and to revoke the general authorizations for exports of part 810-controlled nuclear technology and assistance to Colombia and Egypt, DOE is amending the generally authorized destinations list in appendix A by removing the restrictive language after Mexico and removing Colombia and Egypt from Appendix A.

II. Good Cause for Dispensing With Notice and Comment

In accordance with the Administrative Procedure Act (APA), an agency may waive the notice and comment procedure if it finds, for good cause, that it is “impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b). Additionally, 5 U.S.C. 553(d) provides that an agency may waive the 30-day delayed effective date upon finding of good cause.

DOE finds good cause that notice and comment for this rule is unnecessary due to the nature of the revisions. This final rule simply makes ministerial changes to appendix A by removing the restriction on the general authorization previously applicable to Mexico and by removing Colombia and Egypt from the generally authorized destinations list. Comments cannot alter the regulation given that the modification of Mexico's generally authorized destination status and the revocation of the general authorizations for Colombia and Egypt have already been made effective through the Secretarial Determinations issued on December 29, 2022, and published on January 31, 2023, at 88 FR 6243-6244 and 88 FR 6247.

Accordingly, DOE has concluded that there is good cause to publish this rule without prior opportunity for public comment because the action merely aligns appendix A with the Secretarial Determinations. A delay in effective date is unnecessary for these same reasons. Therefore, these amendments are published as final and are effective February 8, 2023.

III. Regulatory Review

A. Executive Order 12866

This final rule has been determined not to be a significant regulatory action under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action was not subject to review under that Executive order by the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB).

B. National Environmental Policy Act

DOE has determined that this rule is covered under the Categorical Exclusion found in DOE's National Environmental Policy Act regulations at paragraph A5 of appendix A to subpart D, 10 CFR part 1021, which applies to a rulemaking that amends an existing rule or regulation and that does not change the environmental effect of the rule or regulation being amended. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As discussed previously, DOE has determined that providing notice and opportunity for public comment on this final rule are unnecessary. Therefore, no regulatory flexibility analysis has been prepared for this final rule.

The changes to appendix A are summarized in Section I of this document. DOE has reviewed the changes under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. The changes update the list of generally authorized destinations. They do not expand the scope of activities currently regulated under 10 CFR part 810.

DOE estimates that approximately 10 percent of the entities impacted by the part 810 regulation are small businesses. Small businesses impacted by the part 810 regulation generally fall within two North American Industry Classification System codes: engineering services (541330) and computer systems designs services (541512). Often, their requests for authorization include the transfer of computer codes or other similar products. Generally speaking, small businesses reported that their initial filing of a part 810 request for authorization required up to 40 hours of legal assistance, but follow-on reporting and requests required significantly less assistance.

The requirements for small businesses exporting nuclear technology abroad would not substantively change because the revisions to this rule do not add new burdens or duties to small businesses. The obligations of any person subject to the jurisdiction of the United States who engages directly or indirectly in the production of special nuclear material outside the United States have not changed in a manner that would provide any significant economic impact on small businesses. This rulemaking change requires such persons to obtain specific authorization before making such transfers to Colombia and Egypt, but this change is not expected to have any significant impact. Conversely, this rulemaking no longer requires such persons to obtain specific authorization before making such transfers to Mexico, which is expected to ease the burden on small businesses.

On the basis of the foregoing, DOE certifies this rule would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking.

D. Paperwork Reduction Act

This final rule imposes no information collection or recordkeeping requirements under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

E. Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments, and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For regulatory actions likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy (2 U.S.C. 1532(a),(b)). DOE examined this final rule according to UMRA and its statement of policy and has determined that the rule contains neither an intergovernmental mandate, nor a mandate that may result in the expenditure by State, local, and Tribal government, in the aggregate, or by the private sector, of $100 million or more in any year. Accordingly, no further assessment or analysis is required under UMRA.

F. Executive Order 13132

Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined this rule and has determined that it would not preempt State law and would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132.

G. Treasury and General Government Appropriations Act, 1999

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rulemaking that may affect family well-being. This rule would have no impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

H. Executive Order 13211

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy, Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare and submit to OMB a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. This regulatory action would not have a significant adverse effect on the supply, distribution, or use of energy and is therefore not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

I. Treasury and General Government Appropriations Act, 2001

The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

J. Congressional Notification

As required by 5 U.S.C. 801, DOE will submit to Congress a report regarding the issuance of this final rule prior to the effective date set forth at the outset of this rulemaking. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 801(2).

IV. Approval of the Office of the Secretary

The Secretary of Energy has approved publication of this final rule.

List of Subjects in 10 CFR Part 810

• Foreign relations
• Nuclear energy
• Reporting and recordkeeping requirements

Signing Authority

This document of the Department of Energy was signed on December 29, 2022, by Jennifer Granholm, Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

Signed in Washington, DC, on February 1, 2023.

Treena V. Garrett,

Federal Register Liaison Officer, U.S. Department of Energy.

For the reasons set forth in the preamble, the Department of Energy amends part 810 of chapter III of title 10 of the Code of Federal Regulations as set forth below.

PART 810—ASSISTANCE TO FOREIGN ATOMIC ENERGY ACTIVITIES

1. The authority citation for part 810 continues to read as follows:

Authority: Secs. 57, 127, 128, 129, 161, 222, and 232 Atomic Energy Act of 1954, as amended by the Nuclear Nonproliferation Act of 1978, Pub. L. 95-242, 68 Stat. 932, 948, 950, 958, 92 Stat. 126, 136, 137, 138 (42 U.S.C. 2077, 2156, 2157, 2158, 2201, 2272, 2280), and the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. 108-458, 118 Stat. 3768; Sec. 104 of the Energy Reorganization Act of 1974, Pub. L. 93-438; Sec. 301, Department of Energy Organization Act, Pub. L. 95-91; National Nuclear Security Administration Act, Pub. L. 106-65, 50 U.S.C. 2401 et seq., as amended.

Appendix A to Part 810 [Amended]

2. Appendix A to part 810 is amended by:

a. Removing “Colombia” and “Egypt”; and

b. Removing the text “(For all activities related to INFCIRC/203 Parts 1 and 2 and INFCIRC/825 only)” after “Mexico”.