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) 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, BIS has included information on the controls because they usually are 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:
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:
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 45 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 August 2005, Asher Karni, a South African businessman, was sentenced to three years imprisonment as part of his guilty plea to conspiracy and export control violations arising out of the unlawful exports to Pakistan and India of U.S. origin goods controlled for nuclear nonproliferation reasons. In April 2005, the U.S. Attorney for the District of Columbia announced that Humayun Khan, of Islamabad, Pakistan had been indicted for conspiring to violate U.S. export restrictions on goods controlled for nuclear nonproliferation reasons. Khan was also indicted on three counts of violating U.S. export restrictions on goods controlled for nuclear nonproliferation reasons. Khan is alleged to have arranged, through Karni, the purchase of and export to Pakistan of U.S. origin triggered spark gaps. These triggered spark gaps can be used as switches in nuclear weapons firing sets. Khan falsely indicated that the goods were intended for medical use. Khan, currently in Pakistan, and his company, Pakland PME Corporation, are presently subject to a Temporary Denial Order to prevent further violations as this case proceeds. The Department of Commerce’s Office of Export Enforcement of the Bureau of Industry and Security, the Federal Bureau of Investigation, and the Department of Homeland Security's Immigration and Customs Enforcement jointly conducted this investigation.
In March 2005, Metric Equipment Sales (Metric) pled guilty in the Northern District of California to one felony count of exporting digital oscilloscopes to Israel without a BIS license. The oscilloscopes, with sampling rates exceeding 1 GHz, are unilaterally controlled by the U.S. for nuclear nonproliferation reasons. Metric was sentenced to a $50,000 criminal fine. The Department of Commerce assessed Metric a $150,000 administrative penalty and a five-year suspended denial of export privileges as part of an agreement with Metric to settle charges related to these unlicensed exports.
In an October 13, 2005, Federal Register notice (70 FR 59678), 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, as well as from the President’s Export Council Subcommittee on Export Administration. Comments also were solicited from the public via the BIS website. The comment period closed on November 14, 2005, and four comments were received. A detailed review of all comments received can be found in Appendix I.
1. 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.