[Federal Register Volume 70, Number 220 (Wednesday, November 16, 2005)]
[Rules and Regulations]
[Pages 69432-69435]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22674]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Parts 740, 742, 772 and 774

[Docket No. 051028279-5279-01]
RIN 0694-AD57


Establishment of New License Exception for the Export or Reexport 
to U.S. Persons in Libya of Certain Items Controlled for Anti-Terrorism 
Reasons Only on the Commerce Control List

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Interim rule with request for comments.

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SUMMARY: In this interim rule, the Bureau of Industry and Security 
(BIS) amends the Export Administration Regulations (EAR) to implement 
changes to export and reexport controls with respect to Libya. 
Specifically, in this rule, BIS establishes a License Exception 
authorizing the export or reexport to U.S. persons in Libya of certain 
items listed on the Commerce Control List and controlled for anti-
terrorism (AT) reasons only. This rule is consistent with the 
President's decision to modify United States' sanctions against Libya, 
in response to Libya's continuing efforts to dismantle its weapons of 
mass destruction (WMD) and missile programs and its renunciation of 
terrorism.

DATES: This rule is effective November 16, 2005. Comments must be 
received on or before December 16, 2005.

ADDRESSES: Written comments on this rule may be sent to the Federal 
eRulemaking Portal: http://www.regulations.gov, or by e-mail to 
<a href="/cdn-cgi/l/email-protection#b6c6c3d4dadfd5d5d9dbdbd3d8c2c5f6d4dfc598d2d9d598d1d9c0"><span class="__cf_email__" data-cfemail="adddd8cfc1c4cecec2c0c0c8c3d9deedcfc4de83c9c2ce83cac2db">[email protected]</span></a>. Include RIN 0694-AD57 in the subject line 
of the message. Comments may be submitted by mail or hand delivery to 
Sheila Quarterman, Office of Exporter Services, Regulatory Policy 
Division, Bureau of Industry and Security, Department of Commerce, 14th 
& Pennsylvania Avenue, NW., Room 2705, Washington, DC 20230, ATTN: RIN 
0694-AD57; or by fax: 202-482-3355.
    Send comments regarding the collection of information to David 
Rostker, Office of Management and Budget (OMB), by e-mail to <a href="/cdn-cgi/l/email-protection#296d485f404d767b465a5d424c5b6946444b074c4659074e465f"><span class="__cf_email__" data-cfemail="377356415e5368655844435c524577585a551952584719505841">[email protected]</span></a>, or by fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Joan Roberts, Director, Foreign Policy 
Division, Office of Nonproliferation and Treaty Compliance, Bureau of 
Industry and Security, Department of Commerce,

[[Page 69433]]

P.O. Box 273, Washington, DC 20044; Telephone: (202) 482-4252, or E-
mail: <a href="/cdn-cgi/l/email-protection#b8d2cad7daddcacccbf8dad1cb96dcd7db96dfd7ce"><span class="__cf_email__" data-cfemail="660c1409040314121526040f154802090548010910">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Background

    In this rule, the Bureau of Industry and Security (BIS) amends the 
Export Administration Regulations (EAR) by creating a new License 
Exception authorizing the export or reexport of certain items 
controlled for anti-terrorism (AT) reasons only on the Commerce Control 
List (CCL) to U.S. persons in Libya. In consultation with U.S. 
industry, BIS has identified certain items controlled for AT reasons 
only which are essential for undertaking business or professional 
activities, including humanitarian activities, in Libya. Excepting 
these items from license requirements, when consigned to and for use by 
U.S. persons or their employees only, would facilitate the ability of 
U.S. persons to do business in Libya without adversely jeopardizing 
U.S. national security or foreign policy interests with respect to 
Libya.
    This rule is consistent with the President's April 23, 2004, 
decision to modify United States' sanctions against Libya, in response 
to Libya's continuing efforts to dismantle its weapons of mass 
destruction and missile programs and its renunciation of terrorism.

Establishment of New License Exception USPL

    BIS has determined that a change in policy is warranted for certain 
AT-controlled items that are essential for U.S. persons conducting 
business or professional activities in Libya. In drafting this rule, 
BIS considered a range of items controlled for AT reasons only and 
identified those that could be excepted from license requirements when 
exported or reexported for the exclusive use of U.S. persons in Libya 
or their employees (within the scope of their employment). These items 
are widely available outside the United States, and have a low 
likelihood to contribute significantly to terrorism or WMD-related 
activities in Libya. Items classified under Export Control 
Classification Numbers (ECCNs) 2A994 (portable generators), 5A992 
(encryption hardware), 5D992 (``Information Security'' ``software'' not 
controlled by 5D002) and 9A990 (diesel engines), and certain items 
classified under ECCNs 3A991 (electronic devices), 3A992 (electronic 
equipment), 3B992 (test and inspection equipment for electronic 
components), 4A994 (computers), 5A991 (telecommunications equipment) 
are eligible for new License Exception United States Persons In Libya 
(USPL), as set forth in new section 740.19 of the EAR, when those items 
are exported or reexported to Libya consigned to and for use by U.S. 
persons and their employees only. The definition of U.S. person set 
forth in part 772 of the EAR is applicable to this new provision.
    Items exported or reexported to Libya pursuant to the new License 
Exception USPL may only be used by U.S. persons or by non-U.S. person 
employees within the scope of their employment and must remain under 
the control and supervision of the U.S. person employer. They may not 
be transferred to non-U.S. persons in Libya.
    Additionally, items exported or reexported to Libya pursuant to 
License Exception USPL and not consumed or destroyed in the ordinary 
course of business may be returned to the United States without 
authorization from BIS, or such items may be reexported to a third 
country consistent with the provisions of the EAR applicable to such 
reexports, which in some cases may require authorization from BIS.
    Libya remains on the list of state sponsors of terrorism, and, 
therefore, it is appropriate for the United States to continue to 
require a license for the export or reexport to non-U.S. persons in 
Libya of AT-controlled items, as set forth in section 742.20. Further, 
AT-controlled items not specifically identified as eligible under 
License Exception USPL continue to require a license if exported or 
reexported to U.S. persons in Libya.
    Although the Export Administration Act of 1979 (EAA), as amended, 
expired on August 20, 2001, Executive Order 13222 of August 17, 2001 (3 
CFR 2001 Comp., p. 783 (2002)) as extended by the Notice of August 2, 
2005 (70 FR 45273, August 5, 2005), continues the EAR in effect under 
the International Emergency Economic Powers Act (IEEPA).

Rulemaking Requirements

    1. This interim rule has been determined to be not significant for 
the purposes of Executive Order 12866.
    2. Notwithstanding any other provision of law, no person is 
required to respond to nor be subject to a penalty for failure to 
comply with a collection of information, subject to the requirements of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless that collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This regulation involves 
collections previously approved by the OMB under control numbers 0694-
0088, ``Multi-Purpose Application,'' which carries a burden hour 
estimate of 58 minutes to prepare and submit form BIS-748. This rule is 
expected to result in a small decrease in license applications.
    3. This rule does not contain policies with federalism implications 
sufficient to warrant preparation of a federalism assessment under 
Executive Order 13132.
    4. The provisions of the Administrative Procedure Act (5 U.S.C. 
553) requiring notice of proposed rulemaking, the opportunity for 
public participation, and a delay in effective date, are inapplicable 
because this regulation involves a military or foreign affairs function 
of the United States (see 5 U.S.C. 553(a)(1)). Further, no other law 
requires that a notice of proposed rulemaking and an opportunity for 
public comment be given for this rule. Because a notice of proposed 
rulemaking and an opportunity for public comment are not required to be 
given for this rule by 5 U.S.C. 553, or by any other law, the 
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq., are not applicable.
    However, because of the importance of the issues raised by these 
regulations, this rule is being issued in interim form and BIS will 
consider comments in the development of the final regulations. 
Accordingly, the Department of Commerce (the Department) encourages 
interested persons who wish to comment to do so at the earliest 
possible time to permit the fullest consideration of their views.
    The period for submission of comments will close December 16, 2005. 
The Department will consider all comments received before the close of 
the comment period in developing final regulations. Comments received 
after the end of the comment period will be considered if possible, but 
their consideration cannot be assured. The Department will not accept 
public comments accompanied by a request that a part or all of the 
material be treated confidentially because of its business proprietary 
nature or for any other reason. The Department will return such 
comments and materials to the persons submitting the comments and will 
not consider them in the development of final regulations. All public 
comments on these regulations will be a matter of public record and 
will be available for public inspection and copying. In the interest of 
accuracy and completeness, the Department requires comments in written 
form.
    Oral comments must be followed by written memoranda, which will 
also be a matter of public record and will be

[[Page 69434]]

available for public review and copying. Communications from agencies 
of the United States Government or foreign governments will not be 
available for public inspection.
    The Office of Administration, Bureau of Industry and Security, U.S. 
Department of Commerce, displays these public comments on BIS's Freedom 
of Information Act (FOIA) Web site at http://www.bos.doc.gov/foia. This 
office does not maintain a separate public inspection facility. If you 
have technical difficulties accessing this Web site, please call BIS's 
Office of Administration at (202) 482-0637 for assistance.

List of Subjects

15 CFR Part 740

    Administrative practice and procedure, Exports, Reporting and 
recordkeeping requirements.

15 CFR Parts 742 and 774

    Exports, Foreign trade.

15 CFR Part 772

    Exports.


0
Accordingly, parts 740, 742, 772 and 774 of the Export Administration 
Regulations (15 CFR parts 730-799) are amended as follows:

PART 740--[AMENDED]

0
1. The authority citation for 15 CFR part 740 continues to read as 
follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 
Sec. 901-911, Pub. L. 106-387; E.O. 13026, 61 FR 58767, 3 CFR, 1996 
Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; 
Notice of August 2, 2005, 70 FR 45273 (August 5, 2005).


0
2. Add new Sec.  740.19 to read as follows:


Sec.  740.19  United States persons in Libya (USPL).

    (a) Scope. This License Exception authorizes exports and reexports 
to U.S. persons in Libya of items controlled for AT reasons only under 
the following ECCNs as described:
    (1) All items controlled under the following ECCNs:
    (i) 2A994;
    (ii) 5A992;
    (iii) 5D992; and
    (iv) 9A990.
    (2) Other items, as follows:
    (i) 3A991.a through 3A991.j, and 3A991.n;
    (ii) 3A992.b.1, 3A992.b.2 and 3A992.c;
    (iii) 3B992.b;
    (iv) 4A994, for items with CTP levels up to 12,000 MTOPS; and
    (v) 5A991.b.2, 5A991.b.3, 5A991.b.4, 5A991.b.7, 5A991.c.1 through 
c.9, 5A991.e, 5A991.g and 5A991.h.
    (b) Additional restrictions. Items exported or reexported to Libya 
pursuant to this License Exception must be consigned to and for 
exclusive use in business or professional activities (including 
humanitarian activities) by U.S. persons or their employees only, and 
must remain under the control and supervision of the U.S. person 
employer.
    (c) Definition of U.S. person. See part 772 of the EAR.

PART 742--[AMENDED]

0
3. The authority citation for 15 CFR part 742 continues to read as 
follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 
18 U.S.C. 2510 et seq.; 22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; 
Sec. 901-911, Pub. L. 106-387; Sec. 221, Pub. L. 107-56; Sec 1503, 
Pub. L. 108-11,117 Stat. 559; E.O. 12058, 43 FR 20947, 3 CFR, 1978 
Comp., p. 179; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; 
E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13026, 61 
FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 
2001 Comp., p. 783; Presidential Determination 2003-23 of May 7, 
2003, 68 FR 26459, May 16, 2003; Notice of November 4, 2004, 69 FR 
64637, 3 CFR, 2004 Comp., p. 303; Notice of August 2, 2005, 70 FR 
45273 (August 5, 2005).


0
4. Section 742.20 is amended by revising paragraph (a)(1) to read as 
follows:


Sec.  742.20  Anti-terrorism: Libya

    (a) License requirements. (1) If AT Column 1 of the Country Chart 
(Supplement No. 1 to part 738 of the EAR) is indicated in the 
appropriate ECCN, or the License Requirements Section of an ECCN on the 
Commerce Control List (Supplement No. 1 to part 774 of the EAR) 
indicates that such an ECCN is otherwise controlled to Libya for AT 
reasons without reference to a particular column on the Country Chart, 
BIS requires a license for export and reexport to Libya for 
antiterrorism purposes. Also see Sec.  740.19 of the EAR.
* * * * *

PART 772--[AMENDED]

0
5. The authority citation for 15 CFR part 772 continues to read as 
follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 
E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 
2, 2005, 70 FR 45273 (August 5, 2005).


0
6. Paragraph (a) introductory text of the definition for U.S. Person in 
Sec.  772.1 is amended to read as follows:


Sec.  772.1  Definitions of terms as used in the Export Administration 
Regulations (EAR).

* * * * *
    U.S. Person. (a) For purposes of Sec. Sec.  740.19, 744.6, 744.10, 
744.11, 744.12, 744.13 and 744.14 of the EAR, the term U.S. person 
includes:
* * * * *

PART 774--[AMENDED]

0
7. The authority citation for 15 CFR part 774 continues to read as 
follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 
10 U.S.C. 7420; 10 U.S.C. 7430(e); 18 U.S.C. 2510 et seq.; 22 U.S.C. 
287c, 22 U.S.C. 3201 et seq., 22 U.S.C. 6004; 30 U.S.C. 185(s), 
185(u); 42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. 
app. 466c; 50 U.S.C. app. 5; Sec. 901-911, Pub. L. 106-387; Sec. 
221, Pub. L. 107-56; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 
228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of 
August 2, 2005, 70 FR 45273 (August 5, 2005).

Supplement No. 1 to Part 774 [Amended]

0
8. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 2--Materials Processing, Export Control Classification Number 
(ECCN) 2A994 is amended by revising the License Requirements section to 
read as follows:

2A994 Portable electric generators and specially designed parts.

License Requirements

    Reason for Control: AT.
    Control(s). AT applies to entire entry. A license is required 
for items controlled by this entry to Cuba, Iran, Libya and North 
Korea. The Commerce Country Chart is not designed to determine 
licensing requirements for this entry. See part 746 of the EAR for 
additional information on Cuba and Iran. See Sec. Sec.  740.19 and 
742.20 of the EAR for additional information on Libya. See Sec.  
742.19 of the EAR for additional information on North Korea.
* * * * *

0
9. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 3--Electronics, Export Control Classification Number (ECCN) 
3A991 is amended by revising the License Requirements section to read 
as follows:

3A991 Electronic devices and components not controlled by 3A001.

License Requirements

    Reason for Control: AT.

------------------------------------------------------------------------
                Control(s)                         Country chart
------------------------------------------------------------------------
AT applies to entire entry...............  AT Column 1.
------------------------------------------------------------------------

    See Sec. Sec.  740.19 and 742.20 of the EAR for additional 
information on Libya.
* * * * *

[[Page 69435]]


0
10. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 3--Electronics, Export Control Classification Number (ECCN) 
3A992 is amended by revising the License Requirements section to read 
as follows:

3A992 General purpose electronic equipment not controlled by 3A002.

License Requirements

    Reason for Control: AT.

------------------------------------------------------------------------
                Control(s)                         Country chart
------------------------------------------------------------------------
AT applies to entire entry...............  AT Column 1.
------------------------------------------------------------------------

    See Sec. Sec.  740.19 and 742.20 of the EAR for additional 
information on Libya.
* * * * *

0
11. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 3--Electronics, Export Control Classification Number (ECCN) 
3B992 is amended by revising the License Requirements section to read 
as follows:

3B992 Equipment not controlled by 3B002 for the inspection or testing 
of Electronic components and materials, and specially designed 
components and accessories therefor.

License Requirements

    Reason for Control: AT.

------------------------------------------------------------------------
                Control(s)                         Country chart
------------------------------------------------------------------------
AT applies to entire entry...............  AT Column 1.
------------------------------------------------------------------------

    See Sec. Sec.  740.19 and 742.20 of the EAR for additional 
information on Libya.
* * * * *

0
12. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 4--Computers, Export Control Classification Number (ECCN) 
4A994 is amended by revising the License Requirements section to read 
as follows:

4A994 Computers, ``electronic assemblies'', and related equipment not 
controlled by 4A001 or 4A003, and specially designed components 
therefor.

License Requirements

    Reason for Control: AT.

------------------------------------------------------------------------
                Control(s)                         Country chart
------------------------------------------------------------------------
AT applies to entire entry...............  AT Column 1.
------------------------------------------------------------------------

    See Sec. Sec.  740.19 and 742.20 of the EAR for additional 
information on Libya.
* * * * *

0
13. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 5--Telecommunications and Information Security''--
Telecommunications, Export Control Classification Number (ECCN) 5A991 
is amended by revising the License Requirements section to read as 
follows:

5A991 Telecommunication equipment, not controlled by 5A001.

License Requirements

    Reason for Control: AT.

------------------------------------------------------------------------
                Control(s)                         Country chart
------------------------------------------------------------------------
AT applies to entire entry...............  AT Column 1.
------------------------------------------------------------------------

    See Sec. Sec.  740.19 and 742.20 of the EAR for additional 
information on Libya.
* * * * *

0
14. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 5--Telecommunications and ``Information Security''--
Information Security, Export Control Classification Number (ECCN) 5A992 
is amended by revising the License Requirements section to read as 
follows:

5A992 Equipment not controlled by 5A002.

License Requirements

    Reason for Control: AT.

------------------------------------------------------------------------
                Control(s)                         Country chart
------------------------------------------------------------------------
AT applies to 5A992.a....................  AT Column 1.
AT applies to 5A992.b....................  AT Column 2.
------------------------------------------------------------------------

    See Sec. Sec.  740.19 and 742.20 of the EAR for additional 
information on Libya.
* * * * *
0
15. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 5--Telecommunications and ``Information Security''--
Information Security, Export Control Classification Number (ECCN) 5D992 
is amended by revising the License Requirements section to read as 
follows:

5D992 ``Information Security'' ``software'' not controlled by 5D002.

License Requirements

    Reason for Control: AT.

------------------------------------------------------------------------
                Control(s)                         Country chart
------------------------------------------------------------------------
AT applies to 5D992.a.1 and .b.1.........  AT Column 1.
AT applies to 5D992.a.2, b.2 and c.......  AT Column 2.
------------------------------------------------------------------------

    See Sec. Sec.  740.19 and 742.20 of the EAR for additional 
information on Libya.
* * * * *

0
16. In Supplement No. 1 to part 774 (the Commerce Control List), 
Category 9--Propulsion Systems, Space Vehicles and Related Equipment, 
Export Control Classification Number (ECCN) 9A990 is amended by 
revising the License Requirements section to read as follows:

9A990 Diesel engines, n.e.s., and tractors and specially designed parts 
therefor, n.e.s.

License Requirements

    Reason for Control: AT.

------------------------------------------------------------------------
                Control(s)                         Country chart
------------------------------------------------------------------------
AT applies to entire entry except 9A990.a  AT Column 1.
AT applies to 9A990.a only...............  AT Column 2.
------------------------------------------------------------------------

    See Sec. Sec.  740.19 and 742.20 of the EAR for additional 
information on Libya.
* * * * *

    Dated: November 9, 2005.
Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 05-22674 Filed 11-15-05; 8:45 am]
BILLING CODE 3510-33-P


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