Nuclear Export Controls: A Brief Overview of NRC and DoE Regulations
By Mike Smiszek, Senior Trade Advisor, Braumiller Consulting Group
1. Introduction
Two bodies of export regulations typically come to mind when we think of export controls: the Export Administration Regulations (EAR) of the Commerce Department’s Bureau of Industry and Security (BIS), and the International Traffic in Arms Regulations (ITAR) of the State Department’s Directorate of Defense Trade Controls (DDTC).1 Export data recently published by BIS confirms that most AES-reportable export transactions—indeed, 99.4%—are controlled by either the EAR or the ITAR.2 However, a small yet significantly critical slice of tangible export activity falls under the jurisdiction of the Nuclear Regulatory Commission (NRC) and, although not reflected in this AES data, certain intangible technology transfers are controlled by the Department of Energy (DoE). In this article we will take a brief look at the scope of the NRC’s and DoE’s export control regulations.3
2. Determining Jurisdiction of Nuclear-related Items
Several decisions must be made when evaluating any export control scenario under U.S. law, but perhaps no decision is more crucial than determining jurisdiction—in other words, which agency (or agencies, in cases of jurisdictional overlap) has the responsibility to administer, authorize, and enforce a particular export activity. Making a mistake with this foundational decision is not an option. Get it wrong and all subsequent decisions will be based on a false premise, which almost certainly will result in violations of U.S. law.
While one doesn’t have to be a rocket scientist to understand the jurisdictional nuances between rival agencies, the regulations nonetheless can be confusing and vague. Hence for a given scenario the process of determining jurisdiction over nuclear items and services may require a thorough review of the ITAR, the EAR, and the export regulations of the NRC and DoE. One scenario may be relatively easy to evaluate, while another may require deeper research. (And to further complicate a jurisdictional review, the sanctions-related regulations of the Treasury Department’s Office of Foreign Assets Control may sometimes be relevant.) Understanding the scope and subtleties of these regulations—including whether there might be jurisdictional overlap—is essential, but understanding the regulations is only half of the process; jurisdiction can only be determined when all relevant facts about an item, service, or transaction are known and correctly evaluated against the competing regulations. Many facts may be pertinent to a jurisdictional analysis, including but not limited to:
• Physical specifications and characteristics
• Development and production information
• Design intent and actual end-use/end-user
• Operational details
• Transactional details, including all parties and countries
2.A. ITAR Jurisdiction
The ITAR controls the export, reexport, and transfer of defense articles, defense services, and related technical data as enumerated on the U.S. Munitions List (USML). As a general rule, anything captured by the USML falls under DDTC’s jurisdiction—unless it doesn’t. We see that §§ 123.20 and 125.1 of the ITAR tell us that jurisdiction for some USML nuclear-related items may in fact rest with the NRC or DoE:
123.20 Nuclear related controls.
(a) The provisions of this subchapter do not apply to articles, technical data, or services in Category VI, Category XV, Category XVI, or Category XX of § 121.1 of this subchapter to the extent that exports of such articles, technical data, or services are controlled by the Department of Energy or the Nuclear Regulatory Commission …
125.1 Exports subject to this part.
…
(e) For the export of technical data related to articles in Category VI(e), Category XVI, and Category XX(b)(1) of § 121.1 of this subchapter, please see § 123.20 of this subchapter.
2.B. EAR Jurisdiction
Moving on to the EAR, we see that § 734 broadly defines the items that are and are not subject to the EAR’s jurisdiction. Section 734.3(b) advises that the EAR does not claim jurisdiction over certain nuclear items and technology specifically controlled by the NRC or DoE:
734.3(b)
The following are not subject to the EAR:
…
(1)
…
(iii) U.S. Nuclear Regulatory Commission (NRC). Regulations administered by NRC control the export and reexport of commodities related to nuclear reactor vessels …
(iv) Department of Energy (DOE). Regulations administered by DOE control the export and reexport of technology related to the production of special nuclear materials …
The EAR also embeds helpful jurisdictional guidance in the Commerce Control List (CCL). Examples of this can be found in the related controls section of many ECCNs, such as 1A227 and 1E001:
1A227 High-density (lead glass or other) radiation shielding windows, having all of the following characteristics (see List of Items Controlled), and “specially designed” frames therefor. … Related Controls: … (2) Equipment “specially designed” or prepared for nuclear reactors and reprocessing facilities is subject to the export licensing authority of the Nuclear Regulatory Commission …
1E001 “Technology” according to the General Technology Note for the “development” or “production” of items controlled by 1A002, 1A003, 1A004, 1A005, 1A006.b, 1A007, 1A008, 1A101, 1A231, 1B (except 1B608, 1B613 or 1B999), or 1C (except 1C355, 1C608, 1C980 to 1C984, 1C988, 1C990, 1C991, 1C995 to 1C999). … Related Controls: … (4) “Technology” for lithium isotope separation (see related ECCN 1B233) and “technology” for items described in ECCN 1C012 are subject to the export licensing authority of the Department of Energy …
3. NRC Export Regulations
3.A. Scope
The NRC regulations for exporting nuclear equipment and material are found in 10 C.F.R. § 110. As a founding member of the Nuclear Suppliers Group (NSG), the U.S. has incorporated NSG guidance into § 110, along with security recommendations put forth by the International Atomic Energy Agency (IAEA). Per § 110.1, NRC regulations apply to all persons in the United States, unless the equipment or material is otherwise under the jurisdiction of the EAR or ITAR, or is on an in-bond shipment transiting the U.S.
Broad categories of equipment that fall under the NRC’s licensing authority are listed in §110.8(a) through (h):
§ 110.8 List of nuclear facilities and equipment under NRC export licensing authority.
(a) Nuclear reactors and especially designed or prepared equipment and components for nuclear reactors. (See Appendix A to this part.)
(b) Plants for the separation of isotopes of uranium (source material or special nuclear material) including gas centrifuge plants, gaseous diffusion plants, aerodynamic enrichment plants, chemical exchange or ion exchange enrichment plants, laser based enrichment plants, plasma separation enrichment plants, electromagnetic enrichment plants, and especially designed or prepared equipment, other than analytical instruments, for the separation of isotopes of uranium. (See appendices to this part for lists of: gas centrifuge equipment – Appendix B; gaseous diffusion equipment – Appendix C; aerodynamic enrichment equipment – Appendix D; chemical exchange or ion exchange enrichment equipment – Appendix E; laser based enrichment equipment – Appendix F; plasma separation enrichment equipment – Appendix G; and electromagnetic enrichment equipment – Appendix H.)
(c) Plants for the separation of the isotopes of lithium and especially designed or prepared assemblies and components for these plants. (See Appendix N to this part.)
(d) Plants for the reprocessing of irradiated nuclear reactor fuel elements and especially designed or prepared assemblies and components for these plants. (See Appendix I to this part.)
(e) Plants for the fabrication of nuclear reactor fuel elements and especially designed or prepared assemblies and components for these plants. (See Appendix O to this part.)
(f) Plants for the conversion of uranium and plutonium and especially designed or prepared assemblies and components for these plants. (See Appendix J to this part.)
(g) Plants for the production, separation, or purification of heavy water, deuterium, and deuterium compounds and especially designed or prepared assemblies and components for these plants. (See Appendix K to this part.)
(h) Plants for the production of special nuclear material using accelerator-driven subcritical assembly systems capable of continuous operation above 5 MW thermal.
Note that these categories refer to several appendices where we find much more technical detail about the characteristics of the equipment subject to NRC control. The last subparagraph of § 110.8 advises that equipment not covered in (a)–(h) reverts to BIS control. The broad categories of nuclear material under NRC control are found in § 110.9(a) through (e):
§ 110.9 List of Nuclear Material under NRC export licensing authority.
(a) Special Nuclear Material.
(b) Source Material.
(c) Byproduct Material.
(d) Deuterium.
(e) Nuclear grade graphite for nuclear end use.
Each of these five nuclear materials is defined in § 110.2.
3.B. Export Licensing
The NRC offers two types of licenses for both equipment and materials:
• A “Specific License” must be obtained from the NRC prior to export unless a “General License” can be used. As defined in § 110.2, a specific license is “issued to a named person and authorizing the export or import of specified nuclear equipment or materials based upon the review and approval of an NRC Form 7 application filed pursuant to this part and other related submittals in support of the application.” All license applications are subject to potential interagency review and approval by certain Executive Branch departments, such as Energy, Commerce, State and Defense. Compared with licensing turnaround times at BIS and DDTC that are typically measured in weeks, the licensing turnaround at the NRC (and DoE) is considerably longer—measured in months (and sometimes more than a year).
• A “General License” may be available in lieu of a specific license if the facts of a particular export satisfy all the prerequisites specified in the general license. One prerequisite shared by all general licenses is that availability is limited to a specific list of destination countries. General licenses provide the same licensing relief as license exceptions in the EAR (see § 740) and license exemptions in the ITAR (see § 123). Currently the NRC offers five general licenses:
— § 110.21 General license for the export of special nuclear material.
— § 110.22 General license for the export of source material.
— § 110.23 General license for the export of byproduct material.
— § 110.24 General license for the export of deuterium.4
— § 110.26 General license for the export of nuclear reactor components.
Both specific and general licenses are subject to quarterly and annual reporting requirements, as outlined in § 110.54.
Every export shipment subject to NRC jurisdiction—whether authorized by a specific or general license, and regardless of value—must be reported on an EEI (Electronic Export Information) in AES (Automated Export System) in accordance with the Census Bureau’s Foreign Trade Regulations (see 15 C.F.R. § 30.2(a)(1)(iv)(E)).
3.C. Reexport vs. Retransfer
The term reexport does not appear anywhere in § 110, but the NRC’s functional equivalent to reexport under the EAR and ITAR is the term retransfer, which is defined in § 110.2 as “the transport from one foreign country to another of nuclear equipment or nuclear material previously exported from the United States, or of special nuclear material produced through the use of source material or special nuclear material previously exported from the United States.” Importantly, the retransfer of nuclear equipment or material generally requires authorization from the DoE rather than the NRC, as specified in § 110.6:
§ 110.6 Retransfers.
(a) Retransfer of any nuclear equipment or material listed in §§ 110.8 and 110.9 (except byproduct material), including special nuclear material produced through the use of equipment, source material, or special nuclear material bearing obligations to the United States pursuant to an agreement for cooperation, requires authorization by the Department of Energy, unless the export to the new destination is authorized by the NRC under a specific or general license or an exemption from licensing requirements. …
4. DoE Export Regulations
4.A. Scope
The DoE regulations for transferring certain nuclear-related technology are found in 10 C.F.R. § 810. The scope of these regulations is specified in § 810.2:
§ 810.2 Scope.
(a) Part 810 (this part) applies to:
(1) All persons subject to the jurisdiction of the United States who directly or indirectly engage or participate in the development or production of any special nuclear material outside the United States; and
(2) The transfer of technology that involves any of the activities listed in paragraph (b) of this section either in the United States or abroad by such persons or by licensees, contractors or subsidiaries under their direction, supervision, responsibility, or control.
(b) The activities referred to in paragraph (a) of this section are:
(1) Chemical conversion and purification of uranium and thorium from milling plant concentrates and in all subsequent steps in the nuclear fuel cycle;
(2) Chemical conversion and purification of plutonium and neptunium;
(3) Nuclear fuel fabrication, including preparation of fuel elements, fuel assemblies and cladding thereof;
(4) Uranium isotope separation (uranium enrichment), plutonium isotope separation, and isotope separation of any other elements (including stable isotope separation) when the technology or process can be applied directly or indirectly to uranium or plutonium;
(5) Nuclear reactor development, production or use of the components within or attached directly to the reactor vessel, the equipment that controls the level of power in the core, and the equipment or components that normally contain or come in direct contact with or control the primary coolant of the reactor core;
(6) Development, production or use of production accelerator-driven subcritical assembly systems;
(7) Heavy water production and hydrogen isotope separation when the technology or process has reasonable potential for large-scale separation of deuterium (2H) from protium (1H);
(8) Reprocessing of irradiated nuclear fuel or targets containing special nuclear material, and post-irradiation examination of fuel elements, fuel assemblies and cladding thereof, if it is part of a reprocessing program; and
(9) The transfer of technology for the development, production, or use of equipment or material especially designed or prepared for any of the above listed activities. (See Nuclear Regulatory Commission regulations at 10
It is interesting to note that the DoE does not define export or transfer, nor is the term deemed export mentioned anywhere. However, as used in § 810 transfer is intended to effectively include the equivalent of exports, reexports, and deemed exports. The DoE uses both “technology” and “technical data” in its regulations, and the definitions of both terms, in § 810.3, suggest intent that is substantively similar to their meanings in the EAR and ITAR. Technology is defined as “assistance or technical data required for the development, production or use of any plant, facility, or especially designed or prepared equipment for the activities described in § 810.2(b).” Technical data “means data in such forms as blueprints, plans, diagrams, models, formulae, engineering designs, specifications, manuals, and instructions written or recorded on other media or devices such as disks, tapes, read-only memories, and computational methodologies, algorithms, and computer codes that can directly or indirectly affect the production of special nuclear material.”
Similar to the EAR and ITAR, § 810.2(c)(2) tells us that the DoE does not control the “transfer of publicly available information, publicly available technology, or the results of fundamental research”.
4.B. Export Licensing
As with the NRC, two types of DoE authorizations are available under § 810: “Specific” and “General”. Note that DoE uses the term “authorization” rather than “license”. The type of authorization required for a given scenario is dependent on the country (or countries) involved and the scope of the activity:
• “Specific Authorization” must be obtained from DoE prior to transferring technology, unless the transfer qualifies for “General Authorization”. Activities requiring specific authorization are listed in § 810.7:
§ 810.7 Activities requiring specific authorization.
Any person requires a specific authorization by the Secretary before:
(a) Engaging in any of the activities listed in § 810.2(b) with any foreign country or entity not specified in the Appendix to this part;
(b) Providing or transferring sensitive nuclear technology to any foreign country or entity; or
(c) Engaging in or providing technology (including assistance) for any of the following activities with respect to any foreign country or entity (or a citizen or national of that country other than U.S. lawful permanent residents or protected individuals under the Immigration and Naturalization Act (8 U.S.C. 1324b(a)(3)):
(1) Uranium isotope separation (uranium enrichment), plutonium isotope separation, or isotope separation of any other elements (including stable isotope separation) when the technology or process can be applied directly or indirectly to uranium or plutonium;
(2) Fabrication of nuclear fuel containing plutonium, including preparation of fuel elements, fuel assemblies, and cladding thereof;
(3) Heavy water production, and hydrogen isotope separation, when the technology or process has reasonable potential for large-scale separation of deuterium (2H) from protium (1H);
(4) Development, production or use of a production accelerator-driven subcritical assembly system;
(5) Development, production or use of a production reactor; or
(6) Reprocessing of irradiated nuclear fuel or targets containing special nuclear material.
Per § 810.11, an application is submitted in letter format rather than on an official DoE form. One or more written assurances are typically required. We learn from § 810.9(b) that all applications for specific authorization require approval by the State Department and consultation with the NRC and the Commerce and Defense Departments.
• “General Authorization” is available under § 810.6 for three broad buckets of activities. The first bucket, § 810.6(a), covers “engaging directly or indirectly in the production of special nuclear material at facilities in countries or with entities listed in the Appendix …”. The third bucket, § 810.6(c), includes certain “activities at any safeguarded or NRC-licensed facility …”. The middle bucket, § 810.6(b), speaks directly to technology transfers (i.e., exports and deemed exports):
§ 810.6 Generally authorized activities.
…
(b) Transfer of technology to a citizen or national of a country other than the United States not listed in the Appendix to this part and working at an NRC-licensed facility, provided:
(1) The foreign national is lawfully employed by or contracted to work for a U.S. employer in the United States;
(2) The foreign national executes a confidentiality agreement with the U.S. employer to safeguard the technology from unauthorized use or disclosure;
(3) The foreign national has been granted unescorted access in accordance with NRC regulations at an NRC-licensed facility; and
(4) The foreign national’s U.S. employer authorizing access to the technology complies with the reporting requirements in § 810.12(g).
As outlined in § 810.12, the DoE has placed several reporting requirements on virtually all activities controlled under § 810, regardless of whether an activity is generally or specifically authorized.
5. Penalties for violations
The NRC’s current civil monetary penalty is $307,058.5 Civil and criminal penalties are authorized, respectively, under §§ 110.64 and 110.67.
DoE’s penalties are prescribed under § 810.15(a)(2), which as currently published advises that willful violators “may be fined up to $10,000 or imprisoned up to 10 years, or both”, while an act “committed with intent to injure the United States or to aid any foreign nation” is punishable with imprisonment “up to life imprisonment or a $20,000 fine, or both.” The DoE also makes reference, in § 810.15(b), to the catch-all criminal false statements statute at 18 U.S.C. § 1001.
6. Summary
This article only scratches the surface of the complex jurisdictional and administrative requirements for nuclear-related exports. Due to the fact that the competing jurisdictional boundaries of BIS, DDTC, NRC, and DoE can often be difficult to understand—and because the penalties for getting it wrong can be significant—any company that engages in nuclear-related activities must devote the commitment and resources necessary to ensure compliance. Effective policies and procedures (including an airtight technology control plan (TCP)), along with appropriate training of employees and affected third parties, are essential. An exporter that has any doubts about its internal expertise in nuclear export controls would be wise to seek legal or consultative help before making any decisions involving the export, transfer, or retransfer of nuclear items, services, or technology.
Read more articles by this author: https://www.braumillerconsulting.com/author/mike-smiszek/
[1] See 15 C.F.R. §§ 730–774 and 22 C.F.R. §§ 120–130.
[2] BIS recently published a statistical report showing the jurisdictional breakdown for tangible U.S. exports reported in AES in 2020, by export value. See Statistical Analysis of U.S. Trade with the World: https://www.bis.doc.gov/index.php/country-papers/2729-2020-statistical-analysis-of-us-trade-with-the-world/file, p. 7. By a wide margin BIS held jurisdiction over most export activities, controlling 96.9% of export shipments. DDTC was a distant second, at 2.5%, followed by “other”—which presumedly included NRC-controlled shipments—at 0.6%. Note that intangible exports of DoE-controlled technology would not be reported in AES.
[3] For a broader overview of U.S. export controls, I recommend a recent article, A Primer on U.S. Sanctions and Export Controls, by Devin Sefton of Braumiller Law Group. See: https://www.braumillerlaw.com/primer-us-sanctions-export-controls/.
[4] The NRC and BIS recently announced changes to their respective regulations which transfer control (effective on December 6, 2021) of deuterium for non-nuclear end-uses from NRC to BIS. NRC previously controlled all deuterium, regardless of end-use. See Federal Register, Vol. 86, No. 191, 55476–55479 and 55492–55494 (Oct. 6, 2021).
[5] 10 C.F.R. § 2.205; 10 C.F.R. § 110.64
