On January 12, 2023, the Department of Energy (“DOE”) issued the Final Rule establishing procedures for assessing civil penalties for violations for 10 CFR Part 810. The Final Rule provides for a maximum civil penalty, adjusted annually for inflation. The Final Rule is issued to comply with an amendment to the Atomic Energy Act of 1954 which the U.S. Congress enacted as part of the FY2019 National Defense Authorization Act. It is intended to bring Part 810 enforcement in line with enforcement for violation of export controls by other U.S. federal agencies.
Only violations that occur after the effective date of the Final Rule may be subject to civil penalties, with continuing violations also eligible for civil penalties. In assessing a civil penalty, the DOE will consider the following factors:
- 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.
Prior to assessing a penalty, the DOE will provide written notice to the alleged violator; the alleged violator may provide a written response before a civil penalty is imposed. If the alleged violator disagrees with DOE’s determination regarding violation of Part 810, it may request a hearing with an administrative judge.
The effective date of the Final Rule is on or about February 13, 2023. The Rule and announcement are below.
2023-00342.pdf (federalregister.gov)
Department of Energy issues final rule on Part 810 Civil Penalties | Department of Energy
Comment: Given the near ubiquity of 10 CFR 810 technology in civil nuclear supply chains, this is of particular significance for non-US companies in this industry. Civil penalties are a commonly used mechanism for penalising non-US parties in cases of breaches of US extraterritorial controls.