BIS Proposes Rule to Clarify License Requirements for In-Transit Exports, Reexports, and Transfers, Etc.
The Bureau of Industry and Security has issued a proposed rule to amend the Export Administration Regulations (EAR) to clarify the license requirement for certain in-transit exports, reexports, or in-country transfers.
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BIS also proposes to revise the definition of the term "transfer" and certain related terms, among other things, and make conforming changes in certain end user/end-use controls in the EAR to ensure terminology consistency.
(BIS states that these proposed changes are intended to enhance its ability to stop items subject to the EAR, including items not on the Commerce Control List, from being exported, reexported or transferred (in-country) when there is an unacceptable risk that such items will be used in, or diverted to, any of the proliferation activities specified in 15 CFR 744.2, 744.3, 744.4 and 744.6.)
Proposed Clarification for In-Transit Export, Reexport, or Transfer (In-Country)
BIS proposes to amend 15 CFR 744.1(b)(2) 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, unless that party first obtains a license from BIS authorizing the completion of the transaction.
Proposed Revision to Definition of Transfer, Etc.
BIS also proposes to revise the term "transfer" in 15 CFR 772.1 to clarify that the term refers to a conveyance of items, and to further include the definition of "in-country transfer/transfer (in-country)" as an ancillary definition to the term "transfer," referring to the conveyance of items within a single foreign country.
In a note at the end of these definitions, BIS proposes to add cross references to 15 CFR 750.7(c) (Changes to a license) and 764.2(e) (Acting with knowledge of a violation) as a reminder to persons involved with items authorized by a BIS license that changes that can be made to a BIS license are the non-material changes described in 15 CFR 750.7(c). (The term "transfer" may also be included on licenses issued by BIS.)
Proposed Corrections to Use of Term Transfer
This rule also proposes to correct several places in the EAR where the term "transfer" is used, but the intended meaning is "transfer (in-country)" or "in-country transfer." Specifically, BIS proposes, among other things, to amend its General Provisions at 15 CFR 744.1(a)(1) by adding "transfer (in-country)" to specify clearly that the prohibitions in 15 CFR 744.2 (Restrictions on certain nuclear end-uses), 744.3 (Restrictions on certain rocket systems (including ballistic missile systems and space launch vehicles and sounding rockets) and unmanned air vehicles (including cruise missile systems, target drones and reconnaissance drones) end-uses), 744.4 (Restrictions on certain chemical and biological weapons end-uses), 744.5 (Restrictions on certain maritime nuclear end-uses), and 744.6 (Restrictions on certain activities of U.S. persons) also apply to such scenarios.
(See proposed rule for a complete list of proposes changes that are of a conforming nature, including those proposed for end-user and end-use based controls, such as the proposed amendment of 15 CFR 744.5(a) to clarify the prohibition of exports, reexports, and the proposed amendment of in-country transfers of items subject to the EAR to defined nuclear maritime end-uses in 15 CFR 744.5.)
- written comments due by June 17, 2008
BIS contact - Timothy Mooney (202) 482-2440
BIS proposed rule (D/N 080220216-8518-01, FR Pub 04/18/08) available at http://edocket.access.gpo.gov/2008/pdf/E8-8197.pdf