Over the past month, there have been major developments related to U.S. Nuclear Regulatory Commission (NRC) advanced reactor licensing reform and nuclear-related export controls.

Kicking Off New Advanced Reactor Rulemaking

On April 13 the NRC staff published a paper (SECY-20-0032) seeking Commission approval for a rulemaking approach that would create a voluntary framework for advanced reactor licensing applications. This comes in response to a directive from the Nuclear Energy Innovation and Modernization Act (NEIMA) that tasked the NRC with designing a new regulatory regime to support the development of advanced nuclear reactors by the end of 2027. For more information on NEIMA, please visit our previous blog post.

The NRC staff proposal would create a new Part 53 to the NRC regulations, with a focus on making a technology-inclusive and risk-informed regulatory framework that applicants could voluntarily utilize–in lieu of other regulatory frameworks–for licensing advanced reactor concepts. According to the NRC staff, the proposal aims to be flexible enough to support licensing efforts for a wide variety of potential advanced reactor technologies, including fusion reactors.

The staff’s approach seeks to:

• Continue to provide reasonable assurance of adequate protection of public health and safety and the common defense and security;
• Promote regulatory stability, predictability, and clarity;
• Reduce requests for exemptions from the current requirements in 10 CFR Part 50 and 10 CFR Part 52;
• Establish new requirements to address non-light-water reactor technologies;
• Recognize technological advancements in reactor design; and
• Credit the response of advanced nuclear reactors to postulated accidents, including slower transient response times and relatively small and slow release of fission products.

Export Control Restrictions

On April 28 the Bureau of Industry and Security (BIS) within the Department of Commerce published two final rules and one proposed rule that amend the Export Administration Regulations (EAR) to more tightly regulate certain transactions involving China, Russia, and Venezuela, among others.

One of the final rules (85 Fed. Reg. 23459) adds subcategories of nuclear-related materials processing items to the list of items subject to the military end use or end user requirements of 15 CFR § 744.21 (Supplement 2 to Part 744). These subcategories include:

• Export Control Classification Number (ECCN) 2A290: Generators and other equipment ‘‘specially designed,’’ prepared, or intended for use with nuclear plants.
• ECCN 2A291: Equipment, except items controlled by 2A290, related to nuclear material handling and processing and to nuclear reactors, and “parts,” “components” and “accessories” therefor.

Certain technologies related to the above-listed equipment may be similarly restricted.

Under § 744.21(a), there is a general prohibition on export, re-export, or in-country transfer involving China, Russia, or Venezuela, of the above equipment or any other item listed in Supplement 2 to Part 744 (which can include technology or data), if:

• The sender has knowledge that the item is intended at least in part for a military end use in China, Russia, or Venezuela, or for a military end user in Russia or Venezuela, or
• BIS informs the sender (through individual notice or notice through publication in the Federal Register) that the item is or may be intended for a military end use in China, Russia, or Venezuela, or for a military end user in Russia or Venezuela [emphasis added].

More about these export control amendments can be found in a Hogan Lovells client alert.

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