International Law Advisory - Department of Commerce Revises Libya Export Controls Regulations; Amends License Exception TMP

On Tuesday, March 22, the Department of Commerce, Bureau of Industry and Security (BIS) issued a revision to its regulations relating to the export and re-export of  goods to Libya.  See 70 Fed. Reg. 14,387 (March 22, 2005).1   BIS had published an interim rule regarding Libya export / re-export controls in April 2004, with a request for public comments.  See 69 Fed. Reg. 23,626 (April 29, 2004).

The regulation published on Tuesday includes a number of important revisions from the April 2004 interim rule:

• Installed Base.  The new regulation includes a provision relating to “installed base” -- i.e., U.S.-origin items found in Libya at this time that may have been illegally exported.  Under 15 C.F.R. § 764.2 and General Prohibition 10, such items could not used, sold, or disposed of without authorization from BIS.  The new regulations ease that restriction.  For items not on the Wassenaar Arrangement’s Sensitive List or Very Sensitive List2, and which are either EAR99 or NS/AT-controlled, the General Prohibition 10 restrictions are removed, subject to the fulfillment of reporting requirements set forth in the new 15 C.F.R. § 764.7.  For all other items, a license is still required to perform any activities restricted by General Prohibition 10.  However, someone who was responsible for an illegal export to Libya cannot rely on this rule to avoid liability; nor is that person permitted to service or undertake activity with regard to the item previously unlawfully exported, regardless of its classification.
  
• Easing of Restrictions in ECCN 1C992.  The interim rule imposed a general policy of denial for license requests to export or re-export to Libya commercial charges controlled under ECCN 1C992.  The final rule maintains a license requirement for 1C992 items but removes the general policy of denial (license requests will be considered on a case-by-case basis).
  
• License Exception AVS.  The new regulation makes available license exception AVS for the temporary export of vessels on temporary sojourn to Libya.
  
• Easing of Restrictions for Civil Helicopters / Aircraft.  The new regulation removes the general policy of denial, implemented in the interim rule, for license requests for the export of civil helicopters and aircraft to Libya.
  
• Portable Electric Power Generators.  The new rule clarifies that portable electric power generators controlled under ECCN 2A994, and software/technology for those products controlled under ECCNs 2D994 and 2E994, require a license for export or re-export to Libya.
  
• License Exception TMP.  The new rule also amends License Exception TMP, to clarify that software controlled under ECCN 5D992 may be exported to any destination for which License Exception TMP is available.  (The availability of License Exception TMP for 5D992 products was somewhat unclear under the earlier regulation.)

Please contact Ed Krauland at 202-429-8083 or David Lorello at 202-429-6757 if you have any questions on the above.

____________________________

1The new regulation is available for download here.
2The Sensitive List and Very Sensitive List are available for download here.