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Commercializing Fusion
A Legal Perspective
Amy Roma
June 14, 2018
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• “Licensing” – one part of the puzzle – Who Will Regulate Fusion?
– How Will It Be Regulated?
• Export Controls
• Other Key Considerations
Agenda
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• Atomic Energy Act
– “Utilization facility” means (1) any equipment or device . . . . . peculiarly adapted for making use of atomic energy in such quantity as to be of significance to the common defense and security, or in such manner as to affect the health and safety of the public . . .
– “Atomic energy” means “all forms of energy released in the course of nuclear fission or nuclear transformation.”
• NRC in 2009 – Claimed jurisdiction over commercial fusion energy (SRM-SECY-09-0064).
– NRC has significant discretion in interpreting the Atomic Energy Act.
– Legislative history of AEA at least considers fusion energy.
Licensing – Who?
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Licensing at the NRC is a Spectrum
Licensing – How?
Part 30 Part 70 Part 50
The NRC is willing to hear industry concerns, especially as a group.
How can the NRC’s risk-informed reform efforts impact fusion?
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• Explain your safety case
– Don’t assume the safety benefits of fusion are clear to all…
• Address LLRW concerns
• Address proliferation (e.g., neutron & tritium source)
• Cannot evaluate NRC regulations in a vacuum
Engaging with regulators & legislators—and the public
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• Why are they relevant?
– They apply to what you are doing now and what you can do moving forward
– “Deemed export” consideration
– Foreign investors, foreign partner, foreign employees working in the US
Export Controls
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Nuclear Regulatory
Commission
Structure of U.S. Nuclear Export Controls
Part 110 Regulations
Commercial and “dual use”
commodities and technology
State Department:
Directorate of Defense Trade Controls
(DTC)
International Traffic in Arms Regulations
(ITAR)
Military items, including
nuclear weapons
Nuclear technology
and technical
assistance
Nuclear reactors, fuel cycle
facilities, components and
materials
Department of Energy
Part 810 Regulations
Department of Commerce:
Bureau of Industry and Security (BIS)
Export Administration Regulations
(EAR)
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• Framework: DOE, NRC, DOC, State
• DOE--10 CFR Part 810
– Regulates the export of nuclear technology and assistance
– Deemed export
– Exempts “fusion reactor” technology exports
– But may cover supporting systems (e.g., hydrogen isotope separation technologies--specific authorization required)
• NRC—10 CFR Part 110
– Regulates the export of nuclear equipment and material
– NRC regulatory framework unclear
– Check regulations for your technology
Export Controls
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• DOC—Export Administration Regulations (EAR)
– The Commerce Department has jurisdiction over the export of “dual-use” commodities.
– Also has “deemed export” rule
– Whether a particular commodity, software or technology subject to the EAR requires an export license depends on:
– the export classification of the item,
– its reason for control, and
– the destination country or foreign person at issue
Export Controls
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• State—ITAR (International Traffic in Arms Regulations)
– The State Department’s U.S. Munitions List includes certain nuclear-related commodities and technology, including:
– Category XVI: Nuclear weapons, design and testing related items
– Category VI: Naval nuclear propulsion plants and related items
– Category XXI: Submersible vessels powered by nuclear propulsion systems
– Shared jurisdiction with DOE/DOD
– Exports subject to the ITAR generally require a license issued by the Department of State
• Watch for how key components may be regulated. E.g.:
– Department of Commerce regulates tritium product targets (ECCN 1A231).
– DOE and NRC regulate lithium isotope separation (10 CFR Pt. 110 App. N)
Export Controls
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• Working with DOE for pilot projects
• Investment & CFIUS
– Existing CFIUS
– Pending legislation: Foreign Investment Risk Review Modernization Act (“FIRRMA”)
• Crafting a coherent/consistent legislative, regulatory, and public message
• Finding first customers
Other Key Considerations
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QUESTIONS? Amy Roma
Partner
202-637-6831
Sachin Desai
Senior Associate
202-637-3671
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