BIS Proposes to Add Nuclear Retransfer Controls and Clarify other Aspects of EAR
May 2008
The Bureau of Industry and Security has proposed to amend the Export Administration Regulations by making changes to ensure consistency within the language and terminology of Part 744. Because this is only a proposed rule, none of the changes are in force at this time.
Part 744 of the EAR deals with the end-user and end- use based control policy. Sections 744.3 (missile catch-all control), 744.4 (chemical/biological weapons catch-all control), and 744.6 (US persons involvement in weapons of mass destruction proliferation activities) all prohibit exports, reexports and transfers (in-country) of items subject to the EAR. 744.2 (nuclear catch-all control) presently only states it prohibits exports and reexports of items subject to the EAR. The proposed amendment would change the nuclear catch-all control language to prohibit export, reexport, and transfers (in-country) to conform to the other sections.
The rule also proposes to amend the “is informed” paragraph (B) of the sections of part 744 to ensure that the same terminology is used throughout all sections.
Section 744.1 will also be changed to clarify that a party cannot proceed with an export, reexport, or transfer (in-country) that is in transit at the time the party is informed by BIS that a license is required. This will be in accordance with the end-user/end-use controls in Sections 744.2, 744.3, 744.4, and 744.6 of the EAR. The rule further explains that once a person “is informed” by BIS that a transaction is subject to a prohibition, they would be required to apply for authorization from BIS before proceeding with the transaction. The amendment would also provide these individuals with steps to take if an item is included in such a transaction is already in transit when a person “is informed” by BIS.
Comments regarding the amendments must be received by the BIS on June 17, 2008. Comments can be sent to www.regulations.gov, or by email to publiccomments [at] bis.doc.gov, please include RIN 0694-AD59 in the subject line of the message.
It is reasonable to assume that it will take at least several months before BIS publishes a rule that causes the above proposed changes to enter into force.
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