The US Nuclear Regulatory Commission (NRC) published an order in the Federal Register on August 14, 2023 suspending the general license to export special nuclear material, source material, and deuterium for nuclear end use to China. Under the NRC’s order, which is effective immediately, any person wishing to export special nuclear material, source material, or deuterium to China must apply for, and receive, a specific license before they can make the export.
The NRC’s order leaves in place the October 2021 order that suspended the general license to export all radioactive material to China General Nuclear (CGN) and its subsidiaries. The August 14 order applicable to all of China does not suspend the general license for exports of byproduct material and, as such, the NRC’s broader export restrictions for CGN remain.
As explained in the Federal Register notice, the NRC’s order is part of a larger determination within the US government that more oversight and control of exports of these materials is necessary to further the national security interests of the United States. In parallel, the US Department of Commerce (DOC) amended the Export Administration Regulations (EAR) to add a license requirement for exports to China and Macau of items controlled under Non-Proliferation Column 2 (NP2) on the EAR’s Country Chart.
These are “dual-use” items that can be used for commercial nuclear end uses as well as nuclear weapon proliferation end uses. Therefore, effective immediately, an export of an item controlled for NP2 purposes under the EAR also will require an export to China (and Macao). The result is that exporters now must obtain a license to ship to China items that are part of the “balance of plant” of a nuclear facility. The US Department of Energy’s regulations in 10 CFR Part 810 already require US government approval for the export of nuclear technology to China.
The DOC’s announcement in the Federal Register emphasizes that the US government’s actions have been taken in reaction to recent Chinese nuclear activities. That the NRC still allows the export of byproduct material to China (but not CGN) under a general license under 10 CFR Part 110 suggests that the focus is on restricting materials that can help China’s reactor development program.
Nonetheless, the US government’s decision to take these coordinated actions emphasizes the shifting nature of nuclear trade with China. US exporters planning to ship nuclear material or related material and equipment to China must carefully analyze their planned exports prior to shipment.
Morgan Lewis will continue to monitor developments in this important area.