The Department of Energy (DOE) has statutory responsibility for authorizing the transfer of unclassified nuclear technology and assistance to foreign atomic energy activities within the United States or abroad.
For questions, contact the Part 810 program at Part810@nnsa.doe.gov.
In accordance with § 57 b.(2) of the Atomic Energy Act of 1954 (AEA), persons may engage, directly or indirectly, in the production or development of special nuclear material outside the United States only upon authorization by the Secretary of Energy, with the concurrence of the Department of State (DOS) and after consulting with the Departments of Defense (DoD) and Commerce (DOC), and the Nuclear Regulatory Commission (NRC).1 This requirement, as implemented by DOE, applies to technology transfers and assistance related to certain nuclear fuel-cycle activities, commercial nuclear power plants, and research and test reactors. Covered transfers may include the transfer of physical documents or electronic media, electronic transfers or the transfer of knowledge and expertise.
Part 810 of Title 10, Code of Federal Regulations (Part 810) implements AEA § 57 b.(2), 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. Other activities within the scope of Part 810 -- including transfers of technology or provision of assistance to destinations not listed in Appendix A (“specifically authorized” destinations) – require a case-by-case specific authorization from the Secretary. A specific authorization also is required for any assistance involving sensitive nuclear technologies (enrichment, reprocessing, plutonium fuel, and heavy water production, regardless of the destination’s status under the regulation. Whether a destination is determined to be generally or specifically authorized depends on a number of factors including the existence of a bilateral “123 Agreement” with the United States, the country’s nonproliferation credentials, and the significance and scope of its nuclear trade relationship with the United States.
On February 7, 2015, DOE issued its final rule revising Part 810, the first comprehensive update of the regulation since 1986. The regulation has been modernized to: (1) articulate clearly the activities and technologies that are within the scope of Part 810; (2) provide expanded general authorizations for operational safety activities, the separation of medical isotopes from spent nuclear fuel, and for transfers to foreign nationals working at NRC-licensed facilities and granted Unescorted Access in accordance with NRC regulations; and (3) provide an affirmative list of destinations that are generally authorized to receive transfers of non-sensitive nuclear technology. The Federal Register published the final rule on February 23, 2015. The rule was in effect as of March 25, 2015.
On December 23, 2022, the Secretary of Energy signed a Final Rule establishing procedures for the imposition of civil penalties for violations of section 57 b. provisions of the Atomic Energy Act of 1954, as amended, and as implemented by 10 CFR Part 810. This Final Rule provides procedures to implement a statutory amendment contained within the John S. McCain National Defense Authorization Act for Fiscal Year 2019. The Final Rule also reflects the review and consideration of comments received from the public in response to the Notice of Proposed Rulemaking that DOE issued on October 3, 2019. Questions and answers about the penalties are below.
1 Pursuant to section 57 b.(1) of the AEA, such activities may alternatively be specifically authorized under an agreement for cooperation for peaceful uses of nuclear energy pursuant to section 123 of the AEA, or under a subsequent arrangement pursuant to section 131 of the AEA.
Q&A about Civil penalties
Background on the Civil Penalties Final Rule
Does this Federal Register Notice (FRN) mean that DOE is introducing new regulatory restrictions on the activities of the U.S. civil nuclear industry?
No. The Final Rule does not alter U.S. persons’ obligations under 10 CFR Part 810 (Part 810). Rather, the Final Rule establishes procedures for DOE to impose monetary civil penalties on U.S. persons (including organizations) that violate the regulation.
Why is DOE issuing this Final Rule now? Is it a response to any recent event?
DOE issues this Final Rule in order to implement an amendment to the Atomic Energy Act of 1954, as amended (AEA), which Congress enacted as part of the Fiscal Year 2019 National Defense Authorization Act. DOE began developing the rule shortly after the passage of that bill and issued a Notice of Proposed Rulemaking on October 3, 2019.
Is it unusual for the U.S. Government to impose monetary civil penalties for violations of export control regulations?
No. Other major U.S. export control regulations already include provisions that allow the regulating agency to impose monetary civil penalties. This Final Rule makes DOE’s regulatory authority over nuclear technology exports consistent with those of other U.S. Government export control regimes and allows DOE to ensure that a penalty is proportionate to the facts and circumstances of a violation.
Does DOE have experience imposing monetary civil penalties?
Yes. DOE is already responsible for imposing monetary civil penalties in response to other kinds of regulatory violations, such as violations of energy and water conservation standards by manufacturers of consumer products and industrial equipment.
If DOE imposes monetary civil penalties on U.S. civil nuclear companies for violations of Part 810, could that result in U.S. companies being put out of business?
Under the Final Rule, DOE will consider a number of factors when assessing a monetary civil penalty, including ability to pay and the effect of the civil penalty on the organization’s ability to do business. DOE will ensure that any penalty is appropriate to the violation.
Understanding the Civil Penalties Process
Will Civil Penalties be imposed for violations that occurred prior to the enactment of the Final Rule?
No. DOE will assess civil penalties, as appropriate, for violations that occur after the effective date of the final rule on Part 810 civil penalties. If DOE learns of a continuing violation that began prior to this rule’s effective date and is still on-going, DOE may impose a civil penalty only for the period of the continuing violation that followed the effective date of the rule.
Can companies self-disclose possible violations to DOE? Will such disclosures affect the imposition of a Civil Penalty?
Companies that discover a potential violation of Part 810 are highly encouraged to report violations through voluntary self-disclosure to DOE. Each violation of existing regulations is unique and will be evaluated on the totality of circumstances.
DOE/NNSA guidance regarding self-disclosures of violations of Part 810 is set forth on the Part 810 website (/nnsa/10-cfr-part-810), under “Part 810 Frequently Asked Questions,” and specifies that self-disclosures should be made within 30 days of becoming aware of a violation or potential violation of Part 810. In cases where self-disclosures are made more than 30 days after the exporter becomes aware of the violation, DOE/NNSA may take the timeliness of the self-disclosure into account in exercising discretion as to whether and how to mitigate a proposed penalty.
The mitigating effect of a self-disclosure depends on the completeness of the disclosure as well as other relevant circumstances. Key elements of a complete self-disclosure include:
- Date (or dates) of the violation;
- Description of any technology transferred without authorization;
- Names of any foreign persons or entities who received Part 810-controlled technology without authorization;
- Explanation of organizational or human factors that caused the violation (e.g., information was not labeled correctly, persons involved did not understand their regulatory obligations, etc.);
- Near-term steps that the violator took or is taking in order to terminate the unauthorized transfer of technology (e.g., removing facility access for a foreign national who previously had unauthorized access to Part 810-controlled technology);
- Longer-term steps that the violator took or is taking to ensure that a similar violation does not recur in the future (e.g., improving processes for identifying foreign national visitors to a facility).
Will DOE offer companies a pre-decisional meeting before issuing a formal notice of violation?
When DOE determines there is a violation of Part 810 for which a civil penalty action may be warranted, DOE may consider providing the exporter an opportunity to attend a pre-decisional meeting in advance of issuing a notice of violation, where appropriate. In evaluating the appropriateness of a pre-decisional meeting, DOE may consider, among other factors, whether DOE has sufficient information to make an informed enforcement decision.
What is the maximum monetary civil penalty that DOE can impose?
DOE may respond to violations of Part 810 by imposing a civil penalty not to exceed the maximum amount, which by law is adjusted annually for inflation. The adjusted maximum penalty in 2022 was $112,131.
A number of factors will be considered in the course of assessing a civil penalty (§810.15(c)(5)(i-viii)), including (but not limited to):
- The nature, circumstances, and gravity of the violation or violations;
- The violator’s ability to pay;
- The effect of the civil penalty on the person’s ability to do business;
- Any history of prior violations;
- The degree of culpability;
- Whether the violator self-disclosed the violation;
- The economic significance of the violation; and
- Such other factors as justice may require.
Will U.S. companies have an opportunity to appeal or contest monetary civil penalties imposed by DOE?
Yes. The Final Rule establishes procedures for companies to respond to a Notice of Violation by providing additional information, extenuating circumstances, or other reasons why a proposed penalty should not be imposed, or why the proposed penalty should be reduced. This information will be taken into consideration prior to DOE issuing a Final Notice of Violation. The Final Rule also establishes a process for companies to appeal a Final Notice of Violation through a hearing before an Administrative Judge in the DOE Office of Hearings & Appeals. The Administrative Judge’s findings are subject to a final decision by the Under Secretary of Energy for Nuclear Security and Administrator of the National Nuclear Security Administration, who is authorized to uphold or decrease, but not increase, a civil penalty.
- 10 CFR Part 810
- 42 USC §2077 (b) Unauthorized dealings in special nuclear material (Atomic Energy Act Sec. 57.b.)
- Part 810 Guidance
- Part 810 Frequently Asked Questions
- Part 810 Introduction Presentation
- Part 810 Final Rule and Preamble
- Part 810 SNOPR and Preamble
- Suggested Template for Certifying Training and Acknowledgment of Continuing Obligation
- Part 810 Awareness Training
- Reports on Part 810 Review Activities
- U.S. Policy Framework on Civil Nuclear Cooperation with China