Where Industry and Security Intersect
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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 United States’ nuclear nonproliferation policy. Although these controls are primarily based on the NNPA, and, therefore, are not subject to this report, information is included here on their controls because these controls are usually grouped with other nonproliferation controls referenced in this report. 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.
The Department of Commerce requires a license for the export of the following items:
Factors considered in reviewing applications for licenses include:
Section 17(d) of the Export Administration Act and Section 309(c) of the NNPA 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 Department of Commerce is therefore notifying Congress 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 United States is a member of the multilateral Nuclear Suppliers Group (NSG). The NSG, which has 44 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 United States regularly consults with non-NSG members to coordinate export controls for nuclear nonproliferation purposes as well.
The Departments of Commerce and Energy, in consultation with the Departments of State and Defense and the Nuclear Regulatory Commission, regularly review and revise the list of U.S. dual-use items controlled for nuclear nonproliferation reasons. This list is referred to as the Nuclear Referral List (NRL), and fulfills the United States’ international commitments under the NSG.
In a September 28, 2004, Federal Register notice, the Department of Commerce solicited comments from industry on the effectiveness of U.S. foreign policy-based export controls. Comments were solicited from all six of the Department’s Technical Advisory Committees, which advise the Department, as well as from the President’s Export Council Subcommittee on Export Administration. Comments also were solicited from the public via the BIS Web page. The review period closed on November 19, and 12 comments were received.
One comment addressed multilateral control regimes including nuclear nonproliferation controls and the NSG. The commentator asserted that the language in the EAR differs significantly from that in the multilateral texts and, therefore, these are properly considered unilateral controls rather than multilateral ones. He suggested numerous changes to bring the EAR into compliance with the various multilateral texts to eliminate these unilateral controls and make sure that the U.S. controls conform with commitments made to multilateral organizations. The commentator also argued that greater compliance by members of multilateral regimes could be achieved if the United States were to demonstrate a greater commitment to work cooperatively with other countries to reduce WMD.
A second comment related to ultra high-speed scientific imaging equipment. The company commenting is the only U.S. manufacturer among the five in the world that compete for 25-40 sales per year worldwide. The company stated that U.S. export control regulations are significantly more restrictive than those faced by its competitors, and threaten this company’s ability to stay competitive.
According to the commentator, other countries have less restrictive controls on high-speed cameras. The company provided specific examples of lost sales due to export control disparities. The company noted that there is significant foreign availability for high-speed scientific imagery equipment. The technology required to make rotating mirror film cameras has been public for 50 years, and was first published in the review of Scientific Instruments in 1959. The lenses for many of the company’s systems are purchased in Beijing. Surplus film camera systems, some over 40 years old, are being sold in the global marketplace for $2,000-$5,000 by governments, labs, private companies, and universities unaware or unwilling to adhere to U.S. export controls. The company stated many customers do not wish to make the effort to obtain a U.S. export license; therefore, sales go to foreign competitors. A detailed review of all comments received can be found in Appendix I.
18 The 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.
