(a)License requirements.Section 309(c) of the Nuclear Non-Proliferation Act of 1978 requires BIS to identify items subject to the EAR that could be of significance for nuclear explosive purposes if used for activities other than those authorized at the time of export or reexport. ECCNs on the CCL that include the symbol “NP 1” or “NP 2” in the “Country Chart” column of the “License Requirements” section identify items that could be of significance for nuclear explosive purposes and are therefore subject to licensing requirements under this part and under section 309(c) of the Nuclear Non-Proliferation Act of 1978. These items are referred to as “The Nuclear Referral List” and are subject to the following licensing requirements:
(1) If NP Column 1 of the Country Chart (Supplement No. 1 topart 738 of the EAR) is indicated in the appropriate ECCN, a license is required to all destinations, except those Nuclear Suppliers Group (NSG) member countries that are listed under Country Group A:4 in Supplement No. 1 to part 740 of the EAR.
(2) If NP Column 2 of the Country Chart (Supplement No. 1 topart 738 of the EAR) is indicated in the applicable ECCN, a license is required to Country Group D:2 (see Supplement No. 1 to part 740 of the EAR).
(3) Other nuclear-related license requirements are described in§§ 744.2 and 744.5 of the EAR.
(1) To implement the controls in paragraph (a) of this section, the following factors are among those used to determine what action should be taken on individual applications:
(i) Whether the items to be transferred are appropriate for the stated end-use and whether that stated end-use is appropriate for the end-user;
(ii) The significance for nuclear purposes of the particular item;
(iii) Whether the items to be exported or reexported are to be used in research on, or for the development, design, manufacture, construction, operation, or maintenance of, any reprocessing or enrichment facility;
(iv) The types of assurances or guarantees given against use for nuclear explosive purposes or proliferation in the particular case;
(v) Whether any party to the transaction has been engaged in clandestine or illegal procurement activities;
(vi) Whether an application for a license to export or reexport to the end-user has previously been denied, or whether the end-user has previously diverted items received under a general license, a License Exception, or a validated license to unauthorized activities;
(vii) Whether the export or reexport would present an unacceptable risk of diversion to a nuclear explosive activity or unsafeguarded nuclear fuel-cycle activity described in§ 744.2(a) of the EAR;
(viii) The nonproliferation credentials of the importing country, based on consideration of the following factors:
(A) Whether the importing country is a party to the Nuclear Non-Proliferation Treaty (NPT) or to the Treaty for the Prohibition of Nuclear Weapons in Latin America (Treaty of Tlatelolco) or to a similar international legally-binding nuclear nonproliferation agreement;
(B) Whether the importing country has all of its nuclear activities, facilities, or installations that are operational, being designed, or under construction under International Atomic Energy Agency (IAEA) safeguards or equivalent full scope safeguards;
(C) Whether there is an agreement for cooperation in the civil uses of atomic energy between the U.S. and the importing country;
(D) Whether the actions, statements, and policies of the government of the importing country are in support of nuclear nonproliferation and whether that government is in compliance with its international obligations in the field of non-proliferation;
(E) The degree to which the government of the importing country cooperates in non-proliferation policy generally (e.g., willingness to consult on international nonproliferation issues); and
(F) Information on the importing country's nuclear intentions and activities; and
(ix) Whether the recipient state has sufficient national export controls (as described in paragraph 3 of United Nations Security Council Resolution 1540 (2004)) to prevent an unacceptable risk of retransfer or diversion to a nuclear explosive activity or unsafeguarded nuclear fuel-cycle activity described in§ 744.2(a) of the EAR.
(2) In addition, BIS will review license applications in accordance with the licensing policy described in paragraph (b) of this section for itemsnot on the Nuclear Referral List that:
(i) Require a license on the CCL for reasons other than “short supply;” and
(ii) Are intended for a nuclear related end-use or end-user.
(3) For the People's Republic of China, the general licensing policy for applications for those items that would make a direct and significant contribution to nuclear weapons and their delivery systems is extended review or denial.
(4) License applications for items described in paragraph (a) of this section, when destined to the People's Republic of China, will be reviewed in accordance with the licensing policies in both paragraph (b) of this section and§ 742.4(b)(7).
(c)Contract sanctity. Contract sanctity provisions are not available for license applications reviewed under this section.
(d)Nuclear Suppliers Group. Most items on the Nuclear Referral List that require a license under NP Column No. 1 on the Country Chart (see Supplement No. 1 to part 738 of the EAR) are contained in the Annex to the “Guidelines for Transfers of Nuclear-Related Dual-Use Equipment, Material, and Related Technology” (the Annex), as published by the International Atomic Energy Agency in INFCIRC/254/Revision 1/Part 2. The adherents to INFCIRC/254/Revision 1/Part 2, which includes the Nuclear Suppliers Guidelines, have agreed to establish export licensing procedures for the transfer of items identified in the Annex. Items that are listed as requiring a license under NP Column No. 2 on the Country Chart (see Supplement No. 1 to part 738 of the EAR) are not included in the Annex and are controlled only by the United States.