Foreign Policy Controls - Nuclear

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Chapter 12 Nuclear Nonproliferation
(Sections 742.3 and 744.2)

Export Control Program Description and Licensing Policy

The U.S. Government maintains controls on exports of nuclear-related items under the authority of the Nuclear Nonproliferation Act of 1978 (NNPA) in order to further the country’s nuclear nonproliferation policy. Although these controls are primarily based on the NNPA, they have been included in this report because they are usually grouped with the other nonproliferation controls referenced elsewhere. Controls based on nuclear end-uses and end-users are maintained under the authority of Section 6 of the Export Administration Act (the Act), as part of the Enhanced Proliferation Control Initiative (EPCI). EPCI controls are described in detail in Chapters 6, 7, and 8 of this report.

On October 22, 2003, the Department of Commerce published an amendment to the Export Administration Regulations (EAR) that added Kazakhstan to Country Group A, Column A:4, as a result of the admission of that country to the Nuclear Suppliers’ Group (NSG).

Licensing Requirements and Licensing Policy

The Department of Commerce requires a license for the export of the following items:

Commodities, related technology, or software that could be of significance for nuclear explosive purposes (i.e., the Nuclear Referral List included in the Commerce Control List).
Any commodity, related technology, or software that the exporter knows, or has reason to
know, will be used directly or indirectly in any of the following activities:

- Nuclear explosive activities including the design, development, manufacture, or testing of nuclear weapons or nuclear explosive devices.

– Unsafeguarded nuclear activities including the design, development, or manufacture of any nuclear reactor, critical facility, facility for the fabrication of nuclear fuel, facility for the conversion of nuclear material from one chemical form to another, or separate storage installation where there is no obligation to accept International Atomic Energy Agency safeguards at the facility or installation, when it contains any source of special fissionable material, or where any such obligation is not met.

– Safeguarded and unsafeguarded nuclear activities, including the design, construction, fabrication, or operation of the following facilities, or components for such facilities: (i) facilities for the chemical processing of irradiated special nuclear or source materials; (ii) facilities for the production of heavy water; (iii) facilities for the separation of isotopes of source and special nuclear material; or (iv) facilities for the fabrication of nuclear reactor fuel containing plutonium.
The Department of Commerce may inform the exporter that a license is required for any item subject to the Export Administration Regulations when there is an unacceptable risk of use in or diversion to any of the activities described above.

Factors considered in reviewing applications for licenses include:

The stated end-use of the item.
The significance for nuclear purposes of the particular component and its availability elsewhere.
The types of nuclear nonproliferation assurances or guarantees given in a particular case.
The nonproliferation credentials of the recipient country.

Analysis of Control as Required by Law¹⁷

Section 17(d) of the Export Administration Act and Section 309(c) of the NNPA are interpreted to provide that: (1) nuclear nonproliferation controls do not expire annually and determinations to extend them are thus not required; and (2) the criteria and other factors set forth in Sections 6(b) through 6(f) of the Act are not applicable to these controls.

The Congress is, therefore, notified that these controls continue in effect. These controls further the nuclear nonproliferation policy of the United States and have made it more difficult for nations to acquire sensitive nuclear technology or equipment.

These controls support U.S. international nuclear nonproliferation obligations. The U.S. Government maintains ongoing discussions with other countries to coordinate export controls for nuclear nonproliferation purposes and is a member of the multilateral NSG. The NSG, composed of 40 members, sets forth export control guidelines applicable to a list of nuclear-related dual use items (see Appendix II for a complete list of regime members.) The United States also is a member of the Zangger Committee, a multilateral group formed in the early 1970s to establish guidelines for the export control provisions of the Nuclear Nonproliferation Treaty.

The Departments of Commerce and Energy, in consultation with the Departments of State, Defense, and the Nuclear Regulatory Commission, regularly review and revise this list of U.S. dual-use items controlled for nuclear nonproliferation reasons. Referred to as the Nuclear Referral List (NRL), this list conforms with our international commitments under the NSG.

¹⁷The analysis, required by law, differs for nuclear nonproliferation controls. It is governed by the Nuclear Nonproliferation Act of 1978 (NNPA). Therefore, the headings under this section differ from the rest of the report.

Chapter 12

Nuclear Nonproliferation (Sections 742.3 and 744.2)

Export Control Program Description and Licensing Policy

Licensing Requirements and Licensing Policy

Analysis of Control as Required by Law17

Nuclear Nonproliferation
(Sections 742.3 and 744.2)

Analysis of Control as Required by Law¹⁷