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Export Control Compliance Requirements for DOE Contracts Clarified

Friday, October 23, 2015
Sandler, Travis & Rosenberg Trade Report

The Department of Energy has issued a final rule that, effective Nov. 23, will amend the DOE Acquisition Regulation to clarify requirements concerning compliance with laws and regulations governing export controls on items such as unclassified information, materials, technology, equipment or software that are applicable in the performance of DOE contracts.

DOE states that the purpose of this rule is to simplify the export process for contractors by directing them to the proper export licensing authorities. To this end, the rule requires the addition to all applicable contracts of export clauses that list applicable export laws and regulations, which may include one or more of the following.  

Atomic Energy Act of 1954 – empowers DOE to authorize persons subject to U.S. jurisdiction to engage directly or indirectly in the production of special nuclear material outside of the U.S.

Arms Export Control Act – provides the authority (designated to the secretary of State) to control the export of defense articles and services

Export Administration Act – provides legal authority to control, for reasons of national security, foreign policy and/or short supply, the export and reexport of items that are subject to the Export Administration Regulations (the EAA has expired but has been continued under the International Emergency Economic Powers Act)

Trading With the Enemy Act – restricts trade with countries hostile to the U.S. and gives the president the power to oversee or restrict any and all trade between the U.S. and its enemies in times of war

10 CFR Part 810, Assistance to Foreign Atomic Energy Activities – reflects the DOE’s jurisdictional authority over exports of unclassified nuclear technology

10 CFR Part 110, Export and Import of Nuclear Equipment and Material – reflects the Nuclear Regulatory Commission’s jurisdictional authority over exports for peaceful nuclear purposes of nuclear reactors, nuclear enrichment and reprocessing facilities, heavy water production facilities, related proprietary operation and maintenance manuals, and related equipment, as well as exports of special nuclear material, source material, byproduct material and deuterium

Export Administration Regulations – reflects the Commerce Department’s jurisdictional authority over a broad range of dual-use commodities (items that have both commercial and potentially military applications) and items not controlled by other export regimes

International Traffic in Arms Regulations – reflects the State Department’s jurisdictional authority under the AECA over munitions items, including military systems, equipment, components and services, and space-related systems, equipment, components, services and items

Foreign Assets Control Regulations – reflects the Treasury Department’s jurisdictional authority under the TWEA over all financial and tangible items destined to embargoed and terrorist sponsoring states

DOE notes that it has made the following changes in the final rule.

- all notification and reporting requirements have been removed to avoid any implication that DOE contracting officers have any export compliance responsibilities

- the requirement for contractors to comply with DOE directives in effect on the date of the contract award has been removed because individual DOE contracts specify applicable directives for each contract

- references to transfers and specific DOE orders have been removed

- the export restriction notice and the phrase “subject to export controls” have been removed from the export clauses

- all references to export-controlled items and export control of items have been removed, as this rule addresses compliance with export control laws and regulations and does not attempt to define what is and is not export controlled

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