2023-16750. Commerce Control List: Updates Based on the Latest Nuclear Suppliers Group (NSG) Plenary Meetings

AGENCY:

Bureau of Industry and Security, Department of Commerce.

ACTION:

Final rule.

SUMMARY:

The Bureau of Industry and Security (BIS) publishes this final rule to amend the Export Administration Regulations (EAR) to reflect changes reached by the Nuclear Suppliers Group (NSG) in its June 2019 plenary meeting in Nur-Sultan (now Astana), Kazakhstan and its plenary meeting of June 2022 in Warsaw, Poland. Consistent with U.S. commitments as a participating country in the NSG, this rule revises five existing Export Control Classification Numbers (ECCNs) under the Commerce Control List (CCL). These changes protect U.S. nuclear nonproliferation interests, while aligning the EAR with the control text agreed to by participating governments (PGs).

DATES:

This rule is effective August 18, 2023.

FOR FURTHER INFORMATION CONTACT:

For general questions, contact: Logan Norton, Regulatory Policy Division, [e-mail], (202) 482–2440.

For technical questions, contact: Steven Clagett, Director Nuclear and Missile Technology Division, (202) 482–4188.

SUPPLEMENTARY INFORMATION:

Background

BIS is amending the CCL, supp. no. 1 to part 774 of the EAR, 15 CFR parts 730–774, consistent with U.S. commitments as a participating country in the NSG. The NSG is a multilateral export control forum that consists of 48 PGs. The NSG maintains two lists of items that are subject to multilateral controls (collectively, the NSG Guidelines): first, a list of items especially designed or prepared for nuclear uses, also known as the trigger list; second, a list of dual-use items that could be used for nuclear proliferation activities. The list of dual-use items is maintained in the Annex to Part 2 of the “Guidelines for the Transfer of Nuclear Related Dual Use Equipment, Materials, Software and Related Technology.” NSG participating countries share a commitment to prevent nuclear proliferation and the development of nuclear-related weapons of mass destruction. In furtherance of that commitment, they have undertaken to impose export controls on the items listed in the Annexes to the NSG Guidelines. The NSG Guidelines and the Annexes thereto are designed to ensure that nuclear trade for peaceful purposes does not contribute to the proliferation of nuclear weapons or related proliferation activities. The changes reflected in this rule correspond to changes agreed to in the NSG plenary meeting of June 2019 in Nur-Sultan (now Astana), Kazakhstan and the plenary meeting of June 2022 in Warsaw, Poland.

These changes were published in International Atomic Energy Agency (IAEA) Information Circular INFCIRC/254/Rev.11/Part 2 in October 2019 and the IAEA Information Circular INFCIRC/254/Rev.12/Part 2 in July 2022, which contains the updated text of Part 2 of the NSG Guidelines and its related Annex. BIS is publishing these amendments to the EAR to fulfill U.S. commitments to the regime.

2019 Plenary Changes

Removal of Export Control Classification Number (ECCN) 1B229

To reflect changes implemented by the NSG, water-hydrogen sulfide exchange tray columns and internal contactors have been removed from the CCL; given that these were the only items controlled under ECCN 1B229, this ECCN is being removed in its entirety. Previously, the NSG maintained entries for these items on the Annexes to both Part 1 and Part 2 of the NSG Guidelines; the changes implemented in this rule reflect the NSG's June 2017 decision to remove the entries from the Annex to Part 2, as a result of the scope expansion of certain entries in the Annex to Part 1 in the 2017 NSG plenary meeting. While the decision to delete the text was made in June 2017, the entries' deletion from the Annex to Part 2 did not occur until 2019. The items will continue to be included in the Annex to Part 1 of the NSG Guidelines. Items in the Annex to Part 1 of the NSG Guidelines are subject to the export control jurisdiction of the Department of Energy and the Nuclear Regulatory Commission.

Revision to ECCN 1B231

This rule amends ECCN 1B231 by adding “hydrogen isotope” before “purification” in item paragraph .b.2. This change clarifies that only hydrogen isotope purification systems fall within the scope of the entry. The previous text could have erroneously been interpreted to control all purification systems in the form of metal hydrides and not just those purification systems of hydrogen isotopes. This rule also changes “and” to “or” in item paragraph .b.2. These changes reflect revisions from the 2019 plenary meeting.

Revision to ECCN 3A233

Also consistent with changes made in the 2019 plenary meeting, this rule amends ECCN 3A233 by replacing “atomic mass units” in the title of the ECCN with “u”. The description for items detailed under the heading of ECCN 3A233 includes the outdated unit “atomic mass units.” This language is replaced pursuant to this rule with the modern and widely accepted unit “u” or “Dalton.” BIS is making this amendment because the new mass unit is more strictly defined and accepted by the scientific and legal communities, removing a possible ambiguity in the text as it was previously written. There is a miniscule difference the masses of the two units.

2022 Plenary Changes

Revision of ECCNs 2B209 and 2B228

During the Fundamental Review of the NSG Control Lists—an NSG function, not a function of the U.S. Government—in 2010 through 2013, the parameters of gas centrifuges were changed to control centrifuge rotors with internal diameters of between 75 mm and 650 mm. Similarly, the parameters of filament winding machines were amended to those capable of winding cylindrical tubes with an internal diameter of between 75 mm and 650 mm. However, the parameters for the items controlled by ECCNs 2B209 and 2B228, applicable for the manufacture of gas centrifuge rotors, were not changed. This, respectively, includes: Flow forming machines, spin forming machines capable of flow forming functions, other than those controlled by 2B009 or 2B109, and mandrels; and Rotor fabrication and assembly equipment, rotor straightening equipment, bellows-forming mandrels and dies.

The NSG has now revised the control parameters for the items controlled by ECCNs 2B209 and 2B228 so that they now have internal diameters of between 75 mm to 650 mm, as opposed to the previous internal diameter parameters of between 75 mm and 400 mm. This revision ensures that the coverage of gas centrifuge rotor and of flow forming machines that can be used to produce gas centrifuge rotors is harmonized with the control parameters of the centrifuges.

Export Control Reform Act of 2018

On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA), 50 U.S.C. 4801–4852. ECRA provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule.

Rulemaking Requirements

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has been determined to be not significant under Executive Order 12866.

2. Notwithstanding any other provision of law, no person may be required to respond to or be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves a collection currently approved by OMB under control number 0694–0088, Simplified Network Application Processing System. This collection includes, among other things, license applications, and carries a burden estimate of 29.4 minutes for a manual or electronic submission for a total burden estimate of 31,919 hours. BIS does not expect the burden hours associated with this collection to change.

3. This rule does not contain policies with federalism implications as that term is defined under Executive Order 13132.

Administrative Procedure Act and Regulatory Flexibility Act Requirements

Pursuant to Section 4821 of ECRA, this action is exempt from the Administrative Procedure Act (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation and delay in effective date.

Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

List of Subjects in 15 CFR Part 774

• Exports
• Reporting and recordkeeping requirements
• Terrorism

Accordingly, part 774 of the Export Administration Regulations (15 CFR parts 730–774) is amended as follows:

PART 774—THE COMMERCE CONTROL LIST

1. The authority citation for part 774 continues to read as follows:

Authority: 50 U.S.C. 4801–4852; 50 U.S.C. 4601 et seq.;50 U.S.C. 1701 et seq.;10 U.S.C. 8720; 10 U.S.C. 8730(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et seq.;22 U.S.C. 6004; 42 U.S.C. 2139a; 15 U.S.C. 1824; 50 U.S.C. 4305; 22 U.S.C. 7201 et seq.;22 U.S.C. 7210; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783.

2. Supplement no. 1 to part 774 is amended by:

a. Category 1 is amended by removing ECCN 1B229 and revising ECCN 1B231;

b. Category 2 is amended by revising ECCNs 2B209 and 2B228; and

c. Category 3 is amended by revising ECCN 3A233.

The revisions read as follows:

Supplement No. 1 to Part 774

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Category 1—Special Materials and Related Equipment, Chemicals, “Microorganisms,” and “Toxins”

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B. “Test”, “Inspection” and “Production Equipment”

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1B231 Tritium facilities or plants, and equipment therefor, as follows (see List of Items Controlled).

License Requirements

Reason for Control: NP, AT

Control(s)	Country chart (see supp. No. 1 to part 738)
NP applies to entire entry	NP Column 1.
AT applies to entire entry	AT Column 1.

List Based License Exceptions (See Part 740 for a Description of All License Exceptions)

LVS: N/A

GBS: N/A

List of Items Controlled

Related Controls: (1) Tritium, tritium compounds, and mixtures containing tritium are subject to the export licensing authority of the Nuclear Regulatory Commission (see 10 CFR part 110). (2) See ECCNs 1E001 (“development” and “production”) and 1E201 (“use”) for technology for items controlled by this entry.

Related Definitions: N/A

Items:

a. Facilities or plant for the production, recovery, extraction, concentration, or handling of tritium;

b. Equipment for tritium facilities or plant, as follows:

b.1. Hydrogen or helium refrigeration units capable of cooling to 23 K (−250 °C) or less, with heat removal capacity greater than 150 watts; or

b.2. Hydrogen isotope storage or hydrogen isotope purification systems using metal hydrides as the storage, or purification medium.

* * * * *

Category 2—Materials Processing

* * * * *

B. “Test,” “Inspection” and “Production Equipment”

* * * * *

2B209 Flow forming machines, spin forming machines capable of flow forming functions, other than those controlled by 2B009 or 2B109, and mandrels, as follows (see List of Items Controlled).

License Requirements

Reason for Control: NP, AT

Control(s)	Country chart (see supp. No. 1 to part 738)
NP applies to entire entry	NP Column 1.
AT applies to entire entry	AT Column 1.

List Based License Exceptions (See Part 740 for a Description of All License Exceptions)

LVS: N/A

GBS: N/A

List of Items Controlled

Related Controls: (1) See ECCN 2D201 for “software” for items controlled under this entry. (2) See ECCNs 2E001 (“development”), 2E002 (“production”), and 2E201 (“use”) for technology for items controlled under this entry. (3) Also see ECCNs 2B009 and 2B109.

Related Definitions: N/A

Items:

a. Machines having both of the following characteristics:

a.1. Three or more rollers (active or guiding); and

a.2. According to the manufacturer's technical specifications, can be equipped with “numerical control” units or a computer control;

Note: 2B209.a includes machines that have only a single roller designed to deform metal, plus two auxiliary rollers that support the mandrel, but do not participate directly in the deformation process.

b. Rotor-forming mandrels designed to form cylindrical rotors of inside diameter between 75 mm and 650 mm.

* * * * *

2B228 Rotor fabrication and assembly equipment, rotor straightening equipment, bellows-forming mandrels and dies, as follows (see List of Items Controlled).

License Requirements

Reason for Control: NP, AT

Control(s)	Country chart (see supp. No. 1 to part 738)
NP applies to entire entry	NP Column 1.
AT applies to entire entry	AT Column 1.

List Based License Exceptions (See Part 740 for a Description of All License Exceptions)

LVS: N/A

GBS: N/A

List of Items Controlled

Related Controls: See ECCNs 2E001 (“development”), 2E002 (“production”), and 2E201 (“use”) for technology for items controlled under this entry.

Related Definitions: N/A

Items:

a. Rotor assembly equipment for assembly of gas centrifuge rotor tube sections, baffles, and end-caps;

Note: 2B228.a includes precision mandrels, clamps, and shrink fit machines.

b. Rotor straightening equipment for alignment of gas centrifuge rotor tube sections to a common axis;

Technical Note: The rotor straightening equipment in 2B228.b normally consists of precision measuring probes linked to a computer that subsequently controls the action of, for example, pneumatic rams used for aligning the rotor tube sections.

c. Bellows-forming mandrels and dies for producing single-convolution bellows.

Technical Note: In 2B228.c, the bellows have all of the following characteristics:

1. Inside diameter between 75 mm and 650 mm;

2. Length equal to or greater than 12.7 mm;

3. Single convolution depth greater than 2 mm; and

4. Made of high-strength aluminum alloys, maraging steel or high strength “fibrous or filamentary materials”.

* * * * *

Category 3—Electronics

A. “End Items,” “Equipment,” “Accessories,” “Attachments,” “Parts,” “Components,” and “Systems”

* * * * *

3A233 Mass spectrometers, capable of measuring ions of 230 u or greater and having a resolution of better than 2 parts in 230, and ion sources therefor, excluding items that are subject to the export licensing authority of the Nuclear Regulatory Commission (see 10 CFR part 110).

License Requirements

Reason for Control: NP, AT

Control(s)	Country chart (see supp. No. 1 to part 738)
NP applies to entire entry	NP Column 1.
AT applies to entire entry	AT Column 1.

List Based License Exceptions (See Part 740 for a Description of All License Exceptions)

LVS: N/A

GBS: N/A

List of Items Controlled

Related Controls: (1) See ECCNs 3E001 (“development” and “production”) and 3E201 (“use”) for technology for items controlled under this entry. (2) Mass spectrometers “specially designed” or prepared for analyzing on-line samples of UF₆ gas streams are subject to the export licensing authority of the Nuclear Regulatory Commission (see 10 CFR part 110).

Related Definitions: N/A

Items:

a. Inductively coupled plasma mass spectrometers (ICP/MS);

b. Glow discharge mass spectrometers (GDMS);

c. Thermal ionization mass spectrometers (TIMS);

d. Electron bombardment mass spectrometers having both of the following features:

d.1. A molecular beam inlet system that injects a collimated beam of analyte molecules into a region of the ion source where the molecules are ionized by an electron beam; and

d.2. One or more cold traps that can be cooled to a temperature of 193 K (−80 °C) or less in order to trap analyte molecules that are not ionized by the electron beam;

e. Mass spectrometers equipped with a microfluorination ion source designed for actinides or actinide fluorides.

Technical Notes:

1. ECCN 3A233.d controls mass spectrometers that are typically used for isotopic analysis of UF₆gas samples.

2. Electron bombardment mass spectrometers in ECCN 3A233.d are also known as electron impact mass spectrometers or electron ionization mass spectrometers.

3. In ECCN 3A233.d.2, a “cold trap” is a device that traps gas molecules by condensing or freezing them on cold surfaces. For the purposes of this ECCN, a closed-loop gaseous helium cryogenic vacuum pump is not a cold trap.

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Thea D. Rozman Kendler,

Assistant Secretary for Export Administration.