BIS, NRC Tighten Nuclear Exports to China

Bureau of Industry and Security (BIS) is amending the Export Administration Regulations (EAR) by adding additional nuclear nonproliferation controls on China and Macau, effective August 11, 2023.

This change specifically applies to items controlled for Nuclear Nonproliferation (NP) column 2 reasons for control. These controls enhance U.S. Government efforts to monitor the export of these items and to ensure they are only being used in peaceful activities such as commercial nuclear power generation, medical developments, production of or use in medicine, and non-military industries.

Existing Nuclear Nonproliferation Export Controls

The multilateral Nuclear Suppliers Group (NSG) comprises nuclear supplier countries that seek to contribute to the nonproliferation of nuclear weapons through the implementation of two sets of guidelines for nuclear exports and nuclear-related exports.

• The first set of NSG guidelines applies to exports of nuclear material, equipment, and technology generally subject to the export licensing jurisdiction of the Nuclear Regulatory Commission (NRC) and the Department of Energy.

• The second set of NSG guidelines applies to exports of nuclear-related dual-use items, which are subject to the Export Administration Regulations (EAR) (15 CFR parts 730–774), administered by the Department of Commerce, Bureau of Industry and Security (BIS). Such items are listed on the Commerce Control List (CCL) (supplement no. 1 to part 774) and controlled for nuclear nonproliferation column 1 (NP1) reasons (see § 742.3(a)(1)). Items controlled for NP1 reasons require a license to all destinations except NSG member countries listed in Country Group A:4
• In addition to implementing the multilateral NP1 controls, BIS controls certain additional items unilaterally for nuclear nonproliferation reasons. Such items are listed on the CCL and controlled for nuclear nonproliferation column 2 (NP2) reasons.
• These items require a license when destined to Country Group D:2 (supplement no. 1 to part 738) countries, and with this rule, to the People's Republic of China (China) or Macau. (Note: Under the EAR; licensing requirements for China apply to Hong Kong).
• Items controlled for NP2 reasons are listed in Export Control Classification Numbers (ECCNs) 1A290, 1C298, 2A290, 2A291, 2D290, 2E001, 2E002, and 2E290. Items controlled under these ECCNs include, for example, depleted uranium, graphite and deuterium for non-nuclear end use, and generators and other equipment for nuclear plants.
• Prior to this rule, neither China nor Macau were subject to NP2 reasons for control.

In addition to list-based license requirements for nuclear-related dual-use items, BIS implements end use and end user controls to restrict the export, reexport, and transfer (in-country) of items to or within China and Macau for nuclear nonproliferation and certain maritime nuclear propulsion reasons.

Move tied to October 7^th Rule

On October 7, 2022, BIS implemented restrictions on the export of certain advanced computing items to China and imposed additional restrictions on certain entities on the Entity List. Four of those entities were determined to be involved with supercomputers in China that are believed to be used in nuclear explosive activities. See 87 FR 62186, at 62187.

The October 7 rule specifically noted a U.S. intelligence community assessment that China “will continue the most rapid expansion and platform diversification of its nuclear arsenal in its history, intending to at least double the size of its nuclear stockpile during the next decade and to field a nuclear triad and is building a larger and increasingly capable nuclear missile force that is more survivable, more diverse, and on higher alert than in the past, including nuclear missile systems designed to manage regional escalation and ensure an intercontinental second-strike capability.”

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Expansion of Nuclear Nonproliferation Export Controls on the People's Republic of China and Macau

BIS has determined it is necessary to enhance nuclear nonproliferation export controls, imposing a license requirement to China and Macau on items that could contribute to nuclear activities of concern.

For purposes of the EAR, this rule does not change the status of Macau; it will continue to be treated as a separate destination from China.

Part 738

This final rule applies NP2 reasons for control to China and Macau in the Commerce Country Chart (supplement no. 1 to part 738). This imposes a license requirement for NP2 controlled items destined for China or Macau.

Part 742

As a conforming change, this final rule adds China and Macau to § 742.3(a)(2) to impose the license requirements on the NP2 controlled items. License applications for items controlled for NP2 reasons to China and Macau will be reviewed in accordance with the license review policies set forth in § 742.3(b)(3) and (4) of the EAR. BIS is also using this rule to revise the language of paragraph (a)(2) to ensure its clarity

NRC Action.

Another U.S. Government agency is putting forward a nuclear export-related action as well. The NRC is publishing a separate notice of issuance of an order affecting general licenses for exports of special nuclear material, source material, and deuterium for nuclear end use to China issued under 10 CFR 110.21, 110.22, and 110.24, respectively. 

BIS Federal Register Notice:

Technical Correction posted 08/17/2023 [FR Notice]

Nuclear Regulatory Commission

Notices

Licenses; Exemptions, Applications, Amendments etc.:

Order Suspending General License Authority to Export Special Nuclear Material, Source Material, and Deuterium for Nuclear End Use to the People's Republic of China