Overview
Effective August 18, 2023, the U.S. Department of Commerce, Bureau of Industry and Security (BIS) issued amendments to the Commerce Control List (CCL) (15 CFR Part 774) of the Export Administration Regulations (EAR) to formalize changes based on Nuclear Supplier Group (NSG) commitments to prevent nuclear proliferation and the development of nuclear-related weapons of mass destruction.
The NSG is a multilateral, international export control organization that publishes the NSG Guidelines, including a list of items especially designed or prepared for nuclear uses, also known as the “Trigger List,” and a list of dual-use items (i.e., commodities, software, or technology) that could be used for nuclear proliferation activities. The amendments correspond to changes agreed to as part of NSG plenary meetings in 2019 (Astana, Kazakhstan) and 2022 (Warsaw, Poland), and were previously published as International Atomic Energy Agency (IAEA) Information Circulars that updated the text of Part 2 of the NSG Guidelines and its related Annex.
In summary, BIS promulgated changes to the following Export Control Classification Numbers (ECCNs):
- ECCN 1B229 has been removed entirely from the CCL because the only items included thereunder, water-hydrogen sulfide exchange tray columns and internal contractors, have been included in the Annex to Part 1 of the NSG Guidelines, which are subject to the export control jurisdiction of the U.S. Department of Energy (DOE) and the Nuclear Regulatory Commission (NRC).
- ECCN 1B231 has been changed to make clear that only “hydrogen isotope” purification systems fall within the scope of this ECCN, which previously was ambiguous and could have been read to apply to all purification systems used for other metal hydrides.
- ECCN 3A233 has been updated to include the modern “u” or “Dalton,” which is a more strictly defined measurement unit that is accepted by the scientific and legal communities, and removed reference to the outdated “atomic mass units.”
- ECCNs 2B209 and 2B228 have been updated so that they now have internal diameters of between 75 mm to 650 mm, as compared to the previously published diameters of between 75 mm to 400 mm, to more appropriately control certain: (1) flow forming and spin forming machines and mandrels and (2) rotor fabrication and assembly equipment, respectively. BIS applied these changes to correspond to earlier NSG changes that applied to gas centrifuges, but had not yet been updated in these ECCNs for the machine tools used to produce them.
These regulatory changes were not self-initiated by BIS, but reflect legal harmonization based upon multinational standards published by the NSG. The commitments should help to promote uniform application of nuclear-related export controls promulgated by BIS. Of course, as we previously published, persons involved in U.S. nuclear trade also should consider export regulatory regimes issued by DOE and NRC, including new restrictions related to China, Macau, and Hong Kong.
For more questions about this development or additional information, please contact a member of Steptoe’s Export Controls practice.
