BIS Interim Rule Implements New Policy for Exports/Reexports to Libya Effective April 29, 2004
The Bureau of Industry and Security (BIS) has issued an interim rule, effective April 29, 2004, that amends the Export Administration Regulations (EAR) to implement (1) President Bush's April 23, 2004, decision to revise U.S. sanctions against Libya; and (2) the transfer to BIS from the Treasury Department's Office of Foreign Assets Control (OFAC) of the licensing jurisdiction for exports to Libya of items subject to the EAR.
(See ITT's Online Archives or 04/28/04 news, 04042805, for previous BP summary on President Bush's April 23, 2004 decision, etc.)
License required for export/reexport of most items on the CCL to Libya. Under the new policy established by BIS' interim rule, BIS will require a license for the export or reexport of most items on the Commerce Control List (CCL) to Libya.
This requirement applies to the export or reexport of all items under the jurisdiction of the Commerce Department that are on the multilateral export control regime lists:
Wassenaar Arrangement (reason for control: National Security (NS)),
Nuclear Suppliers' Group (reason for control: Nuclear Nonproliferation (NP)),
Australia Group (reasons for control: Chemical and Biological Weapons (CB)), and
Missile Technology Control Regime (reason for control: Missile Technology (MT)).
BIS states that a license requirement also applies to items unilaterally controlled for crime control (CC) or regional stability (RS) reasons. In addition, a license requirement applies to most U.S.-origin items unilaterally controlled for anti-terrorism (AT) reasons.
BIS also will require a license for certain categories of items that are controlled for reasons not included on the Country Chart (Supplement No. 1 to 15 CFR Part 738): encryption (EI), short supply (SS), Chemical Weapons (CW), Computers (XP), and Significant Items (SI).
EAR99 items do not require an export or reexport license to Libya. BIS states that items subject to the EAR but not specifically listed on the CCL (referred to as EAR99 items) do not require an export or reexport license to Libya.
However, BIS notes that its interim rule does not relieve exporters and others of their responsibility to comply with obligations under the end-user and end-use controls maintained under the Enhanced Proliferation Control Initiative (EPCI).
General policy of denial for exports of certain items to Libya. According to the BIS interim rule, a general policy of denial will apply to applications for exports or reexports of the following items to Libya:
items controlled for chemical and biological weapons proliferation reasons;
military-related items controlled for national security reasons;
items that are controlled for missile proliferation reasons;
cryptographic, cryptoanalytic, and cryptologic items controlled for national security reasons;
explosives detection equipment controlled under Export Control Classification Number (ECCN) 2A983;
"Software" (ECCN 2D983) specially designed or modified for the "development'," "production," or "use" of explosives detection equipment controlled by 2A983;
"Technology"' (ECCN 2E983) specially designed or modified for the "development," "production," or "use" of explosives detection equipment controlled by 2A983;
commercial charges and devices controlled under ECCN 1C992;
ammonium nitrate, including certain fertilizers containing ammonium nitrate, controlled under ECCN 1C997; and
technology for the production of Chemical Weapons Convention (CWC) Schedule 2 and 3 chemicals controlled under ECCN 1E355.
BIS states that all aircraft (powered and unpowered), helicopters, engines, and related spare parts and components will generally be denied, except that parts and components intended to ensure the safety of civil aviation and the safe operation of commercial passenger aircraft will be reviewed on a case-by-case basis, with a presumption of approval.
Also, BIS will generally deny all applications for export and reexport to Libya of items controlled for AT (Column 1) reasons, and not described above, if such items are destined to military, police or intelligence end-users in Libya.
BIS will review, on a case-by-case basis, all other applications for exports or reexports to Libya under the applicable licensing policy described in 15 CFR Part 742.
License exceptions for Libya. BIS states that although this interim rule removes Libya from Country Group E:2, it remains in Country Groups E:1, D:2; D:3, and D:4 and, as a result, the following License Exceptions may be available, in whole or in part: TMP, RPL, GOV, GFT, TSU, BAG, and AVS.
Transition for licenses granted by OFAC. To facilitate a smooth transition of licensing responsibility from OFAC to BIS, this interim rule extends the validity of licenses issued by OFAC for exports to Libya.
OFAC licenses in effect as of April 29, 2004. OFAC licenses in effect as of April 29, 2004, are continued in accordance with their terms, except as modified by BIS' interim rule or by BIS, as if issued by the Commerce Department.
BIS states that for those OFAC licenses with specified expiration dates, such dates will continue to apply and OFAC licenses without specified expiration dates will be valid through May 1, 2005.
Items licensed by OFAC and subsequently returned from Libya to U.S.According to BIS, items licensed by OFAC and subsequently returned from Libya to the U.S. do not require further authorization from BIS. However, persons returning items that were previously exported to Libya under a specific license granted by OFAC to the U.S. are subject to a recordkeeping requirement set forth in 15 CFR Part 762.
Transfer of items exported/reexported to Libya under specific license to new end user. BIS also states that items exported or reexported to Libya under a specific OFAC license may not be transferred within Libya to a new end-user without further authorization from BIS.
Reexports of items to countries other than the U.S. from Libya including those previously authorized under OFAC licenses must conform with the relevant provisions of the EAR for the country to which the items are being reexported. In certain circumstances, such reexports may be eligible for a License Exception or may not require a license. Such reexports will also be subject to a recordkeeping requirement.
Other. BIS states that license applications for the deemed export of technology or source code to Libyan nationals in the U.S. will be reviewed on a case-by-case basis.
In addition, BIS states that the de minimis rules applicable to Libya remain unchanged.
BIS contact - Joan Roberts (202) 482-4252
BIS interim rule (D/N 040422128-4128-01, FR Pub 04/29/04) available at
http://a257.g.akamaitech.net/7/257/2422/14mar20010800/edocket.access.gpo.gov/2004/pdf/04-9717.pdf.
BIS summary of U.S. export controls on Libya available at
http://www.bis.doc.gov/PoliciesAndRegulations/LybiaSummary.htm.
BIS answers to Frequently Asked Questions (FAQs) available at
http://www.bis.doc.gov/PoliciesAndRegulations/LybiaFAQs.htm.