742.2—Proliferation of chemical and biological weapons.
(a) License requirements.
The following controls are maintained in support of the U.S. foreign policy of opposing the proliferation and illegal use of chemical and biological weapons. (See also § 742.18 of this part for license requirements pursuant to the Chemical Weapons Convention).
(1)
If CB Column 1 of the Country Chart (Supplement No. 1 to part 738 of the EAR) is indicated in the appropriate ECCN, a license is required to all destinations, including Canada, for the following:
(i)
Human pathogens, zoonoses, toxins, animal pathogens, genetically modified microorganisms and plant pathogens identified in ECCNs 1C351, 1C352, 1C353, 1C354 and 1C360; and
(ii)
Technology (ECCNs 1E001 and 1E351) for the production and/or disposal of microbiological commodities described in paragraph (a)(1)(i) of this section.
(2)
If CB Column 2 of the Country Chart (Supplement No. 1 to part 738 of the EAR) is indicated in the appropriate ECCN, a license is required to all destinations except countries in Country Group A:3 (see supplement No. 1 to part 740 of the EAR) (Australia Group members) for the following:
(i)
Chemicals identified in ECCN 1C350 (precursor and intermediate chemicals used in the production of chemical warfare agents).
(A)
This license requirement includes chemical mixtures identified in ECCN 1C350.b, .c, or .d, except as specified in License Requirements Note 2 to that ECCN.
(B)
This licensing requirement does not include chemical compounds created with any chemicals identified in ECCN 1C350, unless those compounds are also identified in ECCN 1C350.
(C)
This licensing requirement does not apply to any of the following medical, analytical, diagnostic, and food testing kits that consist of pre-packaged materials of defined composition that are specifically developed, packaged, and marketed for diagnostic, analytical, or public health purposes:
(1) Test kits containing no more than 300 grams of any chemical controlled by ECCN 1C350.b or .c (CB-controlled chemicals also identified as Schedule 2 or 3 chemicals under the CWC) that are destined for export or reexport to CWC States Parties (destinations listed in supplement No. 2 to part 745 of the EAR). Such test kits are controlled by ECCN 1C395 for CB and CW reasons, to States not Party to the CWC (destinations not listed in supplement No. 2 to part 745 of the EAR), and for AT reasons.
(2) Test kits that contain no more than 300 grams of any chemical controlled by ECCN 1C350.d (CB-controlled chemicals not also identified as Schedule 1, 2, or 3 chemicals under the CWC). Such test kits are controlled by ECCN 1C995 for AT reasons.
(ii)
Software (ECCN 1D390) for process control that is specifically configured to control or initiate production of the chemical precursors controlled by ECCN 1C350.
(iii)
Technology (ECCN 1E001) for the development or production of chemical detection systems and dedicated detectors therefore, controlled by ECCN 1A004.c, that also have the technical characteristics described in ECCN 2B351.a.
(iv)
Technology (ECCNs 1E001 and 1E350) involving the following for facilities designed or intended to produce chemicals described in 1C350:
(C)
Supervision of construction, installation, or operation of complete plant or components thereof;
(v)
Technology (ECCNs 1E001 and 1E351) for the production and/or disposal of chemical precursors described in ECCN 1C350;
(vi)
Equipment and materials identified in ECCN 2B350 or 2B351 on the CCL, chemical detection systems controlled by 1A004.c for detecting chemical warfare agents and having the characteristics of toxic gas monitoring systems described in 2B351.a, and valves controlled by ECCN 2A226 or ECCN 2A292 having the characteristics of those described in 2B350.g, which can be used in the production of chemical weapons precursors or chemical warfare agents.
(vii)
Equipment and materials identified in ECCN 2B352, which can be used in the production of biological agents.
(viii)
Dedicated software identified in ECCN 2D351 for the “use” of toxic gas monitoring systems and their dedicated detecting components controlled by ECCN 2B351.
(ix)
Technology identified in ECCN 2E001 for the “development” of software controlled by ECCN 2D351.
(B)
The development or production of valves controlled by ECCN 2A226 or 2A292 having the characteristics of those described in ECCN 2B350.g.
(xi)
Technology identified in ECCN 2E201 or 2E290 for the use of valves controlled by ECCN 2A226 or 2A292 having the characteristics of those described in 2B350.g.
(3)
If CB Column 3 of the Country Chart (Supplement No. 1 to part 738 of the EAR) is indicated in the appropriate ECCN, a license is required to Country Group D:3 (see supplement No. 1 to part 740 of the EAR) for medical products identified in ECCN 1C991.d.
(4)
A license is required, to States not Party to the CWC (destinations not listed in supplement No. 2 to part 745 of the EAR), for mixtures controlled by 1C395.a and test kits controlled by 1C395.b.
(b) Licensing policy.
(1)
License applications for the items described in paragraph (a) of this section will be considered on a case-by-case basis to determine whether the export or reexport would make a material contribution to the design, development, production, stockpiling or use of chemical or biological weapons. When an export or reexport is deemed to make such a material contribution, the license will be denied. When an export or reexport is intended to be used in a chemical weapons or biological weapons program, or for chemical or biological weapons terrorism purposes, it is deemed to make a material contribution. The factors listed in paragraph (b)(2) of this section are among those that will be considered to determine what action should be taken on license applications for these items.
(2)
The following factors are among those that will be considered to determine what action should be taken on license applications for the items described in paragraph (a) of this section:
(ii)
The significance of the export and reexport in terms of its potential contribution to the design, development, production, stockpiling, or use of chemical or biological weapons;
(iii)
The nonproliferation credentials of the importing country, including the importing country's chemical and biological capabilities and objectives;
(iv)
The extent and effectiveness of the export control system in the importing country and in any intermediary country through which the items being exported or reexported will transit or be transshipped en route to the importing country;
(v)
The risk that the items will be diverted for use in a chemical weapons or biological weapons program, or for chemical weapons or biological weapons terrorism purposes;
(A)
An export or reexport license application involving any such parties has previously been denied;
(C)
The end-user is capable of securely handling and storing the items to be exported or reexported;
(vii)
Relevant information about proliferation and terrorism activities, including activities involving the design, development, production, stockpiling, or use of chemical or biological weapons by any parties to the transaction;
(viii)
The types of assurances or guarantees against the design, development, production, stockpiling, or use of chemical or biological weapons that are given in a particular case, including any relevant assurances provided by the importing country or the end-user;
(ix)
The applicability of other multilateral export control or nonproliferation agreements (e.g., the Chemical Weapons Convention and the Biological and Toxin Weapons Convention) to the transaction; and
(3)
BIS will review license applications in accordance with the licensing policy described in paragraph (b)(1) of this section for items not described in paragraph (a) of this section that:
(ii)
Could be destined for the design, development, production, stockpiling, or use of chemical or biological weapons, or for a facility engaged in such activities.
(4)
License applications for items described in paragraph (a) of this section, when destined for 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 dates are set forth in supplement No. 1 to part 742. Applicants who wish that a preexisting contract be considered in reviewing their license applications must submit documentation sufficient to establish the existence of such a contract.
(d) Australia Group.
The Australia Group, a multilateral body that works to halt the spread of chemical and biological weapons, has developed common control lists of items specifically related to chemical and biological weapons. Australia Group members are listed in Country Group A:3 (see supplement No. 1 to part 740 of the EAR). Controls on items listed in paragraph (a) of this section are consistent with lists agreed to in the Australia Group.
(e) License application requirements and instructions.
(1)
supplement No. 1 to part 748 of the EAR provides general instructions for completing license applications. When preparing applications for items controlled for chemical and biological reasons, pay particular attention to the instructions contained in paragraphs (e) and (f) of the supplement that apply to entering “Quantity” and “Units,” respectively, on license applications. Paragraphs (e) and (f) require that, if an item is licensed in terms of “$ value” (refer to the “Unit” paragraph within the appropriate ECCN), the unit of quantity commonly used in the trade must also be shown on the license application. In such cases, Section 750.7 of the EAR provides that the quantity of commodities authorized is limited by the total dollar value as shown on the approved license and not by the quantity specified thereon. Although the EAR do not place a specific limitation on quantity in such cases, the total quantity that may be exported or reexported is limited, to a significant degree, by the fact that the EAR do not provide a shipping tolerance for items licensed by “dollar value” (see Section 750.11(b)(1) of the EAR) and require that the “unit price” indicated on the license application reflect the fair market value of the items listed on the application (see paragraph (g) of supplement No. 1 to part 748 of the EAR).
(2)
Unique application and submission requirements for chemicals, medicinals, and pharmaceuticals are described in paragraph (a) of supplement No. 2 to part 748 of the EAR.