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Thursday November 19, 1998 Part II Department of Commerce Bureau of Export Administration 15 CFR Parts 742 and 744 India and Pakistan Sanctions and Other Measures; Interim Rule federal register 64321 64322 Federal Register / Vol. 63, No. 223 / Thursday, November 19, 1998 / Rules and Regulations DEPARTMENT OF COMMERCE Regulatory Policy Division, Bureau of missile technology reasons have been Export Administration, Department of made subject to this sanction policy Bureau of Export Administration Commerce, P.O. Box 273, Washington, because of their significance for nuclear DC 20044. Express mail address: explosive purposes and for delivery of 15 CFR Parts 742 and 744 Sharron Cook, Regulatory Policy nuclear devices. [Docket No. 98±1019261±8261±01] Division, Bureau of Export To supplement the sanctions of Administration, Department of RIN 0694±AB73 § 742.16, this rule adds certain Indian Commerce, 14th and Pennsylvania and Pakistani government, parastatal, India and Pakistan Sanctions and Avenue, NW, Room 2705, Washington, and private entities determined to be Other Measures DC 20230. involved in nuclear or missile activities FOR FURTHER INFORMATION CONTACT: to the Entity List in Supplement No. 4 AGENCY: Bureau of Export Eileen M. Albanese, Director, Office of to part 744. License requirements for Administration, Commerce. Exporter Services, Bureau of Export these entities are set forth in the newly ACTION: Interim rule. Administration, Telephone: (202) 482± added § 744.11. Exports and reexports of SUMMARY: In accordance with section 0436. all items subject to the EAR to listed 102(b) of the Arms Export Control Act, SUPPLEMENTARY INFORMATION: government, parastatal, and private entities require a license. A license is President Clinton reported to the Background Congress on May 13th with regard to also required if you know that the India and May 30th with regard to In accordance with section 102(b) of ultimate consignee or end-user is a Pakistan his determinations that those the Arms Export Control Act, President listed government, parastatal, or private non-nuclear weapon states had each Clinton reported to the Congress on May Indian or Pakistani entity, and the item detonated a nuclear explosive device. 13th with regard to India and May 30th is subject to the EAR. The only The President directed that the relevant with regard to Pakistan his exception to this license requirement is agencies and instrumentalities of the determinations that those non-nuclear for items listed in § 740.2(a)(5) of the United States take the necessary actions weapon states had each detonated a EAR, which remain eligible for to impose the sanctions described in nuclear explosive device. The President applicable License Exceptions when section 102(b)(2) of that Act. directed in the determination reported intended to ensure the safety of civil The Bureau of Export Administration to the Congress that the relevant aviation and safe operation of (BXA) is taking a number of sanctions agencies and instrumentalities of the commercial passenger aircraft. With measures consistent with the President's United States take the necessary actions respect to subordinates of listed entities directive. Consistent with the provisions to impose the sanctions described in in India and Pakistan, only those of section 102(b)(2)(G) of the Arms section 102(b)(2) of that Act. specifically listed in Supplement No. 4 Export Control Act, BXA is revising the Consistent with the President's to part 744, Entity List, are subject to the Export Administration Regulations directive, the Bureau of Export restrictions and policies set forth in (EAR) to codify sanctions against India Administration (BXA) is imposing § 742.16, except that General and Pakistan by setting forth a licensing certain sanctions, as well as certain Prohibition 5 (see 736.2(b)(5)) continues policy of denial for exports and supplementary measures to enhance the to apply to all exports and reexports to reexports of items controlled for nuclear sanctions. Consistent with the Indian and Pakistani entities, including nonproliferation and missile technology provisions of section 102(b)(2)(G) of the unlisted subordinates of listed entities. reasons to India and Pakistan, with Arms Export Control Act, BXA is All applications to export or reexport limited exceptions. This licensing amending the Export Administration items subject to the EAR will be policy was adopted in practice in Regulations (EAR) by adding new reviewed with a presumption of denial existing regulations in June 1998. This § 742.16, India and Pakistan sanctions. to these entities, except items for the rule also contains certain discretionary This section codifies a license review preservation of safety of civil aircraft measures that are being taken. BXA is policy of denial for the export and will be reviewed on a case-by-case basis. adding to the Entities List set forth in reexport of items controlled for nuclear Except for items controlled for NP or the EAR certain Indian and Pakistani proliferation (NP) reasons to all end- MT reasons, exports or reexports to government, parastatal, and private users in India and Pakistan, except for listed parastatals and private entities entities determined to be involved in computers (see § 742.12(b)(3)(iii), High with whom you have a preexisting nuclear or missile activities. In addition, Performance Computers, for license business arrangement will be Indian and Pakistani military entities review policy for computers). This considered on a case-by-case basis, with are added to the Entity List in order to licensing policy was adopted in practice a presumption of approval in cases supplement the sanctions. BXA is in existing regulations in June 1998. where neither the arrangement nor the adopting a licensing policy of a This section also includes a new license specific transaction involves nuclear or presumption of denial with respect to policy of denial for the export and missile activities and the exports or items specifically listed on the reexport of items controlled for missile reexports are pursuant to that Commerce Control List to listed Indian technology (MT) reasons to all end-users arrangement. The term ``business and Pakistani military entities, with in India and Pakistan, except that items arrangement'' covers the full range of limited exceptions. listed in § 740.2(a)(5) of the EAR remain business agreements, including general This rule will increase the number of eligible for applicable License contracts, general terms agreements license applications submitted for India Exceptions when intended to ensure the (e.g., agreements whereby the seller and Pakistan. safety of civil aviation and safe delivers products under purchase orders DATES: This rule is effective November operation of commercial passenger to be issued by the buyer), general 19, 1998. Comments on this rule must aircraft and licenses for items intended business agreements, offset agreements, be received on or before January 19, for the preservation of safety of civil letter agreements that are stand-alone 1999. aircraft will be reviewed on a case-by- contracts, and letter agreements that are ADDRESSES: Written comments on this case basis. Items controlled on the amendments to existing contracts or rule should be sent to Sharron Cook, Commerce Control List for nuclear and other agreements. The terms of the Federal Register / Vol. 63, No. 223 / Thursday, November 19, 1998 / Rules and Regulations 64323 preexisting business arrangement policy EAA and the EAR in Executive Order participation, and a delay in effective may also apply to the longstanding 12924 of August 19, 1994, continued by date, are inapplicable because this continued supply of a particular item or Presidential notices of August 15, 1995, regulation involves a military and items from the exporter to the entity August 14, 1996, August 15, 1997, and foreign affairs function of the United even when there is no current August 13, 1998. States (Sec. 5 U.S.C. 553(a)(1)). Further, agreement between the firms. BXA, in no other law requires that a notice of Saving Clause conjunction with other agencies, will proposed rulemaking and an determine eligibility under the Shipments of items removed from opportunity for public comment be preexisting business arrangement License Exception or NLR given for this interim rule. Because a policy. In order to be eligible under the authorizations as a result of this notice of proposed rulemaking and an policy, you must provide regulatory action that were on dock for opportunity for public comment are not documentation to establish such an loading, on lighter, laden aboard an required to be given for this rule under arrangement. The documentation exporting carrier, or en route aboard a 5 U.S.C. 553 or by any other law, the should be provided at the time you carrier to a port of export, on November analytical requirements of the submit a license application to export or 19, 1998, pursuant to actual orders for Regulatory Flexibility Act (5 U.S.C. 601 reexport items to any listed parastatal or export to that destination in India or et seq.) are not applicable. private entity. Pakistan, may proceed to that However, because of the importance To further supplement the sanctions destination under the previous License of the issues raised by these regulations, of § 742.16, this rule adds certain Indian Exception or NLR authorization this rule is being issued in interim form and Pakistani military entities to the provisions so long as they have been and comments will be considered in the Entity List in Supplement No. 4 to part exported from the United States before development of final regulations. 744. License requirements for these December 17, 1998. Any such items not Accordingly, the Department entities are set forth in the newly added actually exported before midnight encourages interested persons who wish § 744.12. Exports and reexports of all December 17, 1998, require a license in to comment to do at the earliest possible items subject to the EAR having a accordance with this regulation.

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