In a little less than a month, the Department of Energy will start doling out fines for the unauthorized sharing of nuclear technology and know-how overseas, the agency said last week.
On Thursday, the agency published its final rule in the Federal Register for implementing those penalties. They will go into effect Feb. 13, DOE said. The maximum penalty under the new rule will be $112,131 and that amount will be adjusted annually for inflation, according to the notice of the final rule, “Assistance to Foreign Atomic Energy Activities.”
Congress in 2018, as part of the 2019 National Defense Authorization Act, gave DOE the ability to levy civil penalties for certain illegal exports of unclassified nuclear technology, such as nuclear power technology.
Lawmakers specifically targeted exports for which an exporter needed a special authorization from DOE but did not get one. Some exports are generally authorized by DOE, essentially meaning that they are allowed without permission from the agency, so long as the exporter meets all other federal criteria.
The final rule published Thursday contains a few changes from the draft rule DOE published in 2019.
For one, the agency decided that the government should accept the burden of proving that it has enough evidence to fine accused rule-violators. Under the draft rule, the accused would have had to prove that DOE lacked the evidence to levy a fine.
However, accused violators must still “have the burden of proving any affirmative defense by a preponderance of the evidence,” under the final rule, DOE wrote last week. Contested fines go to hearings overseen by an administrative judge.
In other matters, the DOE held fast to its draft rule.
Several companies, and the Nuclear Energy Institute, wanted the agency to give accused rulebreakers an off-ramp from paying a fine and accepting culpability for violations. To do that, industry wanted DOE to rewrite the draft rule to codify — formally add — alternative dispute resolutions, pre-decisional enforcement conferences and settlement procedures in the final rule.
The DOE declined to do that but said that the amended rule does not forbid alternative dispute resolutions, pre-decisional enforcement conferences or settlements — all of which are “potentially useful tools,” according to Thursday’s Federal Register notice.
The National Nuclear Security Administration, through its office of Defense Nuclear Nonproliferation, enforces DOE’s rules about the export of unclassified nuclear technology under title 10, part 810 of the code of federal regulations.
