The US Department of Energy (DOE) published on January 31 two secretarial determinations in the Federal Register that change the countries that are eligible for general authorizations under 10 CFR Part 810 (Part 810). The first secretarial determination changed the status of Mexico to a fully generally authorized destination, while the second removed Colombia and Egypt from the list of countries eligible for a general authorization.
While we anticipated these changes, they require action to take advantage of grandfathering provisions for generally authorized activities involving Columbia and Egypt, and to ensure that compliance programs are updated.
As background, the Atomic Energy Act gives the Secretary of Energy authority to preapprove assistance by US persons to nuclear energy activities in certain countries. This assistance includes transferring non-public commercial nuclear technology. Exercising this authority, the Secretary of Energy has determined that certain countries are “generally authorized” under Part 810 for certain technologies. The list of countries eligible for general authorization is published in Appendix A to Part 810 and generally includes countries that have peaceful nuclear cooperation agreements with the United States (also referred to as “123 Agreements” after the section of the Atomic Energy Act that authorizes such treaties) and for whom the US government has no other policy or security concerns.
Prior to January 31, Colombia and Egypt were both listed in Appendix A to Part 810. Mexico also was listed, but only for US assistance involving the existing Laguna Verde Units 1 and 2 commercial nuclear reactors and certain research reactors. Other assistance involving Mexico or Mexican foreign nationals, including those taking place at nuclear facilities in the United States, required a specific authorization from DOE or required a US company to confirm that the assistance was otherwise generally authorized—for example, a Mexican foreign national had been granted unescorted access and maintained such access at a Nuclear Regulatory Commission–licensed facility.
The status of all three countries changed with DOE’s January 31 Federal Register Notices. For Mexico, the change was prompted by the entry into force of the US-Mexico Civil Nuclear Cooperation (123) Agreement on November 2, 2022. This makes Mexico and Mexican foreign nationals a fully generally authorized destination for purposes of Appendix A to Part 810.
Conversely, the second determination recognized the lapse of 123 agreements with Colombia and Egypt, and entirely removed those countries from Appendix A to Part 810. However, DOE recognized that US persons have been engaging in nuclear activities with Egypt and Columbia (and their citizens) while relying on the general authorization in Part 810. US persons engaging in generally authorized activities as of January 31 involving Egypt and Colombia have until March 2 to apply for specific authorizations for those activities. US persons that timely submit a specific authorization application may continue their activities involving Egypt or Columbia until DOE acts on the application.
We also were expecting a change to the status of South Africa, since its 123 Agreement lapsed on December 4, but the January 31 Federal Register Notices did not address South Africa. This suggests that US government negotiations with South Africa on renewing their 123 Agreement continue. Regardless, this means that South Africa remains a destination listed in Appendix A even though there is no 123 Agreement in place between the two countries.
Morgan Lewis will continue to follow the impact on the changes to Part 810.