The Past, Present, and Future of U.S. Export Controls for Nuclear Energy Technologies

When the first Atomic Energy Act was passed in 1946, U.S. individuals were originally prohibited from “directly or indirectly” engaging in the production of special nuclear material outside of the United States. This prohibition was later removed, and in 1956 the U.S. Atomic Energy Commission (AEC) published the first regulations for this class of activities, which included commercial nuclear energy technology transfers. After the dissolution of the AEC, the regulations were published under 10 CFR Part 810 (Part 810) in 1975. While the Treaty on the Non-proliferation of Nuclear Weapons is silent on export controls for nuclear energy technologies, the formation of the Nuclear Suppliers Group (NSG) and associated Trigger List Guidelines brought new commitments for the United States to implement through Part 810. In particular, amendments to the NSG Trigger List guidelines in the 1990s led to changes in Part 810 based on full-scope safeguards requirements and additional controls on nuclear energy technologies. These changes, along with U.S. government policy shifts, have reduced the number of countries that are generally authorized for commercial nuclear energy activity. U.S. companies must receive specific authorization from the Secretary of Energy in order to conduct business in the remaining countries. In the past decade, application processing times for specific authorizations have lengthened to the point where U.S. industry has stated that they are impacting commercial business. To improve the situation, DOE should promulgate a fast track authorization pathway for select nuclear energy technologies, such as light water reactor technologies, to a limited set of countries that have made and are keeping substantial nonproliferation commitments, such as the Additional Protocol. DOE should also return to its previous approach of processing Part 810 applications in parallel with the seeking of foreign government assurances, which was more efficient. Finally, Congress should amend the Atomic Energy Act of 1954 to allow the Secretary of Energy to delegate minor activities, consistent with nuclear export practices elsewhere in the U.S. government, including the U.S. Nuclear Regulatory Commission. These improvements will help U.S. companies to compete on a more level playing field against foreign companies and state-owned entities.