Overall Libya Guidance
BIS License Requirements
BIS Licensing Policy
Department of the Treasury Licensing Regulation
On April 23, 2004, the Department of the Treasury's Office of Foreign Assets Control (OFAC) issued General License 550.575, which transferred licensing jurisdiction for the export of items subject to the Export Administration Regulations (EAR) to the Bureau of Industry and Security (BIS). The effective date of this General License is April 29, 2004.
On April 29, 2004, BIS published an amendment to the EAR in the Federal Register. This amendment updated our license requirements for Libya under the EAR. The amendment is consistent with changes in U.S. legal authorities concerning Libya and reflects Libya's continuing good faith effort to completely dismantle its weapons of mass destruction and missile programs, and its adherence to its renunciation of terrorism.
On September 20, 2004, the President signed Executive Order 13357, terminating the National Emergency with respect to Libya and removing the remaining economic restrictions and sanctions implemented as a result of the Emergency. Note that Libya remains a designated sponsor of terrorism and as a result significant restirctions on exports and reexports to Libya remain in effect.
On March 22, 2005, BIS published another amendment to the EAR in the Federal Register. This amendment implements certain changes in addition to those made in the April 29th rule and corrects an inadvertent error in the April 29 rule. Details on the changes contained in the March 22 rule are here and summarized below. BIS's licensing requirements and polices for Libya are as follows:
License Requirements
- Items subject to the EAR but not listed on the Commerce Control List (CCL) (i.e., EAR99 items) are generally not subject to a license requirement, except as defined in the end-user and end-use controls set forth in Part 744 of the EAR.
- Items controlled by the multilateral export control regimes (i.e., items controlled for national security (NS), missile technology (MT), chemical and biological weapons (CB), and nuclear nonproliferation (NP) reasons on the Commerce Control List (15 CFR Part 774)(CCL)] require a license for export or reexport to Libya, as do items controlled for crime control (CC) and regional stability (RS) reasons.
- Libya remains on the list of designated state sponsors of terrorism. As a result, most items controlled for anti-terrorism (AT) reasons continue to require a license for export or reexport to Libya. The scope of this requirement is set forth in Section 742 of the EAR.
- Additionally, certain categories of items controlled for reasons not included on the Commerce Country Chart in Supplement No. 1 to Part 738 of the EAR (e.g., encryption (EI), short supply (SS), Chemical Weapons (CW), Computers (XP) and Significant Items (SI) require a license for export or reexport to Libya.
Deemed Exports
- As cited in §734.2(b)(2)(ii) of the EAR, any release of technology or source code to a foreign national in the United States is deemed to be an export to the home country of that foreign national.
- License applications for the deemed export of technology or source code to Libyan nationals in the United States will be reviewed on a case-by-case basis.
- This license requirement does not apply to Libyan nationals who have established permanent residency in the United States or to persons protected under the Immigration and Naturalization Act [8 USC 1324(b)(a)(3)].
De minimis
- Foreign made products incorporating U.S.-origin controlled commodities exported to Libya require a license from BIS if their U.S.-origin controlled content exceeds ten percent.
- BIS will review applications for the reexport of foreign-made products containing between ten and twenty percent U.S. content on a case-by-case basis.
License Exceptions
- Libya remains in Country Groups E:1, D:2, D:3, and D:4. It has been removed from Country Group E:2.
- As a result, the following License Exceptions may be available in whole or in part: TMP, GOV, GFT, TSU, BAG, RPL, and AVS.
- A specific transaction is eligible for a License Exception only if it satisfies all of the terms and conditions of the relevant License Exception and is not excluded by any of the restrictions that apply to all License Exceptions, as set forth in Section 740.2 of the EAR.
- Additional guidance on the use of License Exceptions is found in Part 740 of the EAR.
Licensing Policy
- License applications for exports or reexports to Libya will be reviewed pursuant to applicable licensing policies in the EAR, as follows:
Chemical/Biological
- Items controlled for chemical/biological (CB) reasons on the CCL and destined to Libya will be reviewed under a general policy of denial.
- Additional guidance on the export and reexport of chemical/biological items is found in Sections 742.2 and 742.20 of the EAR.
Nuclear Nonproliferation
- Items controlled for nuclear nonproliferation (NP) reasons on the CCL and destined to Libya will be reviewed on a case-by-case basis. Items controlled for NP reasons on the CCL and destined to military, police, intelligence, or other sensitive end-users in Libya will generally be denied.
- Additional guidance on the export and reexport of NP items is found in Sections 742.3 and 742.20 of the EAR.
National Security
- Items controlled for national security (NS) reasons on the CCL destined to Libya will be reviewed on a case-by-case basis. Items controlled for NS reasons on the CCL and destined to military, police, intelligence, or other sensitive end-users in Libya will generally be denied.
- Items designated as "NS Column 1" in the Country Chart column of the License Requirements section of the ECCN on the CCL and controlled by equipment or material entries ending in the number "18" that are destined to Libya will be reviewed under a general policy of denial.
- Additional guidance on the export and reexport of national security items is found in Sections 742.4 and 742.20 of the EAR.
Missile Technology
- Items controlled for missile technology (MT) reasons on the CCL and destined to Libya will be reviewed under a general policy of denial.
- Additional guidance on the export and reexport of missile technology items is found in Sections 742.5 and 742.20, and Supplement No. 2 to Part 742 of the EAR.
Cryptographic, Cryptoanalytic, and Cryptologic Items
- Cryptographic, cryptoanalytic and cryptologic items destined to Libya will be reviewed under a general policy of denial. Such items are designated under AT column 1 and NS Column 1 or NS column 2 in the Country Chart of the License Requirements section of an ECCN on the CCL.
Computers
- Computers with a composite theoretical performance (CTP) of 6 million theoretical operations per second (MTOPs) or more will be reviewed on a case-by-case basis. Items with a CTP of 6 MTOPs or more and destined to military, police, intelligence or other sensitive end-users in Libya will generally be denied.
Crime Control
- Items controlled for crime control (CC) reasons on the CCL and destined to Libya will generally be approved unless there is evidence that the government has violated internationally recognized human rights.
- Additional guidance on the export and reexport of crime control items is found in Section 742.7 of the EAR.
Civil Aircraft
- License Applications for the export or reexport of civil aircraft (powered and unpowered), helicopters, engines, and related spare parts and components to Libya will be considered on a case-by-case basis.
End-use/End-user Controls
- Existing license requirements in Part 744 of the EAR apply.
- These requirements include the export or reexport of any item subject to the EAR, if, at the time of export or reexport, you know, have reason to know, or are informed by BIS that the item will be used in the design, development, production or use of weapons of mass destruction.
Department of the Treasury Licensing
- Specific licenses previously issued by OFAC will be valid until the date specified on the license or May 1, 2005, if no expiration date is specified.
- Persons returning items previously exported to Libya under a specific license authorized by OFAC are subject to a recordkeeping requirement. Guidance on this requirement is found in Section 762.2 of the EAR. Items being returned to the United States from Libya do not require authorization from BIS.
- Items exported or reexported to Libya under a specific license from OFAC may not be transferred within Libya to a new end-user without authorization from BIS.
- Additionally, items reexported from Libya must conform with relevant provisions of the EAR on the basis of the country to which the items are being sent. Items reexported from Libya may require a BIS license or be eligible for shipment under a License Exception.
Treatment of "Installed Base Items"
Section 764.2(e) of the EAR prohibits ordering, buying, removing, concealing, storing, using, selling, loaning, disposing of, transferring, financing, forwarding, or otherwise servicing, in whole or part, any items that may have been originally illegally exported or reexported to Libya by third parties ("installed base" items). This prohibition is restated in General Prohibition No. 10 in Section 736.2(b) of the EAR. While recognizing the need to support U.S. industry's participation in Libya's newly-opened market, BIS must also protect U.S. national security interests. In Section 764.7, activities involving installed base items in Libya are divided into two categories: those that require a report to BIS, but not a license, and those that require a license, in order to overcome the prohibition.
- Activities involving the following items will generally only require a report to BIS:
- Items subject to the EAR but not on the CCL;
- Items on the CCL that are now authorized for export or reexport to Libya under License Exception; and
- Items on the CCL that are controlled only for NS and AT or AT reasons only and are not on the Wassenaar Arrangement's Sensitive List or Very Sensitive List.
- Activities involving all other installed base items listed on the CCL will require a BIS license to overcome the prohibition.
- Additional guidance on installed base items is here and here.
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