Burma: Revision of Restrictions on Exports, Reexports and Transfers to Persons Whose Property and Interests in Property Are Blocked Pursuant to Executive Orders, 770-772 [E9-127]

Agencies

• DEPARTMENT OF COMMERCE
• Bureau of Industry and Security
• Industry and Security Bureau

[Federal Register Volume 74, Number 5 (Thursday, January 8, 2009)]
[Rules and Regulations]
[Pages 770-772]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-127]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Part 744

[Docket No. 080717847-81643-01]
RIN 0694-AE35


Burma: Revision of Restrictions on Exports, Reexports and 
Transfers to Persons Whose Property and Interests in Property Are 
Blocked Pursuant to Executive Orders

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Final rule.

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SUMMARY: In response to the Government of Burma's continued repression 
of the democratic opposition in Burma, and consistent with Executive 
Order 13047 of May 20, 1997, Executive Order 13310 of July 28, 2003, 
Executive Order 13448 of October 18, 2007, and the Trade Sanctions 
Reform and Export Enhancement Act (Title IX of Pub. L. 106-387), the 
Bureau of Industry and Security (BIS) previously amended the Export 
Administration Regulations (EAR) on October 24, 2007 to impose a 
license requirement for most exports, reexports, or transfers of items 
subject to the EAR to persons whose property and interests in property 
are blocked pursuant to those Executive Orders. In light of the 
Government of Burma's continued repression of the democratic opposition 
in Burma and unwillingness to respond to the calls of the Burmese 
people for genuine dialogue that will lead to a democratic transition 
in Burma, this final rule amends the EAR to extend these existing 
licensing requirements to persons whose property and interests in 
property are blocked pursuant to Executive Order 13464 of April 30, 
2008.

DATES: Effective Date: This rule is effective January 8, 2009. Although 
there is no formal comment period, public comments on this regulation 
are welcome on a continuing basis.

ADDRESSES: You may submit comments, identified by RIN 0694-AE35 (Burma 
II), by any of the following methods:
    E-mail: publiccomments@bis.doc.gov. Include ``RIN 0694-AE 35 (Burma 
II)'' in the subject line of the message.
    Fax: (202) 482-3355. Please alert the Regulatory Policy Division, 
by calling (202) 482-2440, if you are faxing comments.
    Mail or Hand Delivery/Courier: Sheila Quarterman, U.S. Department 
of Commerce, Bureau of Industry and Security, Regulatory Policy 
Division, 14th St. & Pennsylvania Avenue, NW., Room 2705, Washington, 
DC 20230, Attn: RIN 0694-AE35 (Burma II).
    Send comments regarding the collection of information associated 
with this rule, including suggestions for reducing the burden, to 
Jasmeet Seehra, Office of Management and Budget (OMB), by e-mail to 
jseehra@omb.eop.gov, or by fax to (202) 395-7285; and to the U.S. 
Department of Commerce, Bureau of Industry and Security, Regulatory 
Policy Division, 14th St. & Pennsylvania Avenue, NW., Room 2705, 
Washington, DC 20230. Comments on this collection of information should 
be submitted separately from comments on the final rule (i.e. RIN 0694-
AE35 (Burma II))--all comments on the latter should be submitted by one 
of the three methods outlined above.

FOR FURTHER INFORMATION CONTACT: Susan Kramer, Foreign Policy Division, 
Office of Nonproliferation and Treaty Compliance, Bureau of Industry 
and Security, Department of Commerce, 14th St. & Pennsylvania Avenue, 
NW., Room 2705,Washington, DC 20230; Telephone: (202) 482-4252, or E-
mail: skramer@bis.doc.gov.

SUPPLEMENTARY INFORMATION:

Background

    In response to the Government of Burma's repression of the 
democratic opposition in Burma, the President has issued a series of 
Executive Orders imposing economic sanctions on the Burmese regime. In 
1997, pursuant to Executive Order 13047 (May 20, 1997) and other 
relevant authorities, the U.S. imposed a ban on new investments in 
Burma by U.S. persons. In 2003, pursuant to Executive Order 13310 (July 
28, 2003) and other relevant authorities, the U.S. imposed additional 
economic sanctions, including a ban on all imports from Burma, a ban on 
the export of financial services by U.S. persons to Burma, and the 
freezing of assets of designated Burmese persons listed in the Annex or 
subsequently designated according to the criteria of the Executive 
Order. The sanctions are primarily administered by the Department of 
the Treasury's Office of Foreign Assets Control (OFAC).
    In 2007, the President further expanded the sanctions by issuing 
Executive Order 13448 (October 18, 2007), which listed certain 
additional persons in its Annex and set forth additional criteria for 
blocking the property and interests in property of additional persons. 
Consistent with Executive Orders 13310 and 13448, and the Trade 
Sanctions Reform and Export Enhancement Act (Title IX of Pub. L. 106-
387), BIS issued a final rule, published in the Federal Register on 
October 24, 2007 (72 FR 60248, October 24, 2007), amending the EAR to 
impose a license requirement for exports, reexports or transfers of 
items subject to the EAR, except agricultural commodities, medicine, or 
medical devices classified as EAR99, to persons listed in or designated 
pursuant to Executive Orders 13310 or 13448. The 2007 BIS rule created 
section 744.22 of the EAR to set forth this licensing requirement.
    Further, in part 740 of the EAR (License Exceptions), that rule 
moved Burma from Computer Tier 1 to Computer Tier 3, restricting access 
to high-performance computers and certain related technology and 
software under License Exception APP (Section 740.7). In Supplement No. 
1 to part 740 (Country Groups), that rule moved Burma from Country 
Group B (countries raising few national security concerns) to Country 
Group D:1 (countries raising national security concerns), which further 
limits the number of license exceptions available for exports to Burma. 
Burma remained in Country Group D:3 (countries raising proliferation 
concerns related to chemical and biological weapons).
    In this final rule, BIS further amends the EAR to expand the 
existing licensing requirements in section 744.22 of the EAR to include 
persons whose property and interests in property are blocked pursuant 
to Executive Order 13464 of April 30, 2008 (73 FR 24489, May 2, 2008). 
The Annex to Executive Order 13464 designates certain persons subject 
to this prohibition, and provides criteria for additional designations. 
Additional designations were announced by the Department of the 
Treasury on July 29, 2008 (73 FR 45270 and 73 FR 45271, both of August 
4, 2008). As set forth in section 744.22 of the EAR, exports, reexports 
or transfers of items subject to the EAR, except agricultural 
commodities, medicine, or medical devices classified as EAR99, to any 
person whose property and interests in property are blocked pursuant to 
Executive Orders 13310, 13448 or 13464, require a license under the 
EAR.
    The licensing requirements set forth in section 744.22 of the EAR 
are applicable to all persons whose property

[[Page 771]]

and interests in property are blocked pursuant to Executive Orders 
13310, 13448, or 13464. This includes persons listed in or designated 
pursuant to Executive Orders 13310, 13448, or 13464. Such persons are 
identified with the reference [BURMA] on OFAC's list of Specially 
Designated Nationals and Blocked Persons set forth in Appendix A to 31 
CFR Chapter V and on OFAC's Web site at https://www.treas.gov/OFAC. 
Consistent with guidance issued by OFAC on February 14, 2008, a person 
whose property and interests in property are blocked pursuant to an 
Executive order or regulations administered by OFAC is considered to 
have an interest in all property and interests in property of an entity 
in which it owns, directly or indirectly, a 50% or greater interest. 
The property and interests in property of such an entity are blocked, 
and licensing requirements in section 744.22 of the EAR apply to the 
entity, regardless of whether the entity itself is listed in the annex 
to an Executive order or otherwise designated pursuant to such order. 
The OFAC guidance on this topic is available at https://www.treas.gov/
offices/enforcement/ofac/programs/common/licensing_guidance.pdf. 
Exporters should contact OFAC directly if you have questions about how 
to determine interest in property for purposes of complying with this 
final rule.
    As was previously the case, in order to avoid duplication, U.S. 
persons are not required to seek separate BIS authorization for an 
export, reexport, or transfer to a person identified in section 744.22 
of any item subject to both the EAR and regulations maintained by OFAC. 
Therefore, if OFAC authorizes an export from the United States or an 
export, reexport, or transfer by a U.S. person to a person identified 
in section 744.22, no separate authorization from BIS is necessary.
    Consistent with the provisions of section 6 of the Export 
Administration Act of 1979, as amended (EAA), a foreign policy report 
was submitted to Congress on January 2, 2009, notifying Congress of the 
imposition of foreign policy-based licensing requirements reflected in 
this rule.
    Although the EAA expired on August 20, 2001, the President, through 
Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 
(2002), which has been extended by successive Presidential Notices, the 
most recent being that of July 23, 2008 (73 FR 43603 (July 23, 2008)), 
has continued the EAR in effect under the International Emergency 
Economic Powers Act.

Saving Clause

    Shipments of items removed from eligibility for export or reexport 
under a license exception or without a license (i.e., under the 
designator ``NLR'') as a result of this regulatory action that were on 
dock for loading, on lighter, laden aboard an exporting carrier, or en 
route aboard a carrier to a port of export, on February 9, 2009, 
pursuant to actual orders for export or reexport to a foreign 
destination, may proceed to that destination under the previously 
applicable license exception or without a license (NLR) so long as they 
are exported or reexported before February 23, 2009. Any such items not 
actually exported or reexported before midnight, on February 23, 2009, 
require a license in accordance with this regulation.

Rulemaking Requirements

    1. This final rule has been determined to be not significant for 
purposes of E.O. 12866.
    2. Notwithstanding any other provision of law, no person is 
required to respond to, nor shall any person 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 rule 
involves a collection of information subject to the PRA. The collection 
has been approved by OMB under control number 0694-0088, ``Multi-
Purpose Application,'' and carries a burden hour estimate of 58 minutes 
for a manual or electronic submission. Send comments regarding these 
burden estimates or any other aspect of these collections of 
information, including suggestions for reducing the burden, to Jasmeet 
Seehra, Office of Management and Budget (OMB), and to the Regulatory 
Policy Division, Bureau of Industry and Security as indicated in the 
ADDRESSES section of this rule.
    3. This rule does not contain policies with Federalism implications 
as that term is defined under E.O. 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 and foreign affairs 
function of the United States (5 U.S.C. 553(a)(1)). Because a notice of 
proposed rulemaking and an opportunity for public comment are not 
required to be given for this rule under the Administrative Procedure 
Act or by any other law, the analytical requirements of the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Therefore, 
this regulation is issued in final form. Although there is no formal 
comment period, public comments on this regulation are welcome on a 
continuing basis. Comments should be submitted to Sheila Quarterman, 
Regulatory Policy Division, Office of Exporter Services, Bureau of 
Industry and Security, Department of Commerce, 14th St. & Pennsylvania 
Avenue, NW., Room 2705, Washington, DC 20230.

List of Subjects in 15 CFR Part 744

    Exports, Reporting and recordkeeping requirements, Terrorism.

0
Accordingly, part 744 of the Export Administration Regulations (15 CFR 
parts 730-774) is amended as follows:

PART 744--[AMENDED]

0
1. The authority citation for part 744 continues to read as follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 
22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22 
U.S.C. 7210; 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. 12947, 60 FR 5079, 3 CFR, 
1995 Comp., p. 356; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 
228; E.O. 13099, 63 FR 45167, 3 CFR, 1998 Comp., p. 208; E.O. 13222, 
66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13224, 66 FR 49079, 3 
CFR, 2001 Comp., p. 786; Notice of July 23, 2008, 73 FR 43603 (July 
25, 2008); Notice of November 10, 2008, 73 FR 67097 (November 12, 
2008).


0
2. Section 744.22 is revised to read as follows:


Sec.  744.22  Restrictions on Exports, Reexports and Transfers to 
Persons Whose Property and Interests In Property Are Blocked Pursuant 
to Executive Orders 13310, 13448 or 13464.

    Consistent with Executive Order 13310 of July 28, 2003, Executive 
Order 13448 of October 18, 2007 and Executive Order 13464 of April 30, 
2008, BIS maintains restrictions on exports, reexports, and transfers 
to persons whose property and interests in property are blocked 
pursuant to Executive Orders 13310, 13448 or 13464. These persons 
include individuals and entities listed in the Annexes to Executive 
Orders 13310, 13448 and 13464, as well as other persons whose property 
and interests in property are blocked pursuant to those orders.
    (a) License Requirements. (1) A license requirement applies to the 
export, reexport, or transfer of any item

[[Page 772]]

subject to the EAR (except for agricultural commodities, medicine, or 
medical devices, classified as EAR99 and destined for entities whose 
property and interests in property are blocked pursuant to Executive 
Orders 13310, 13448 or 13464) to--
    (i) Persons listed in the Annexes to Executive Order 13310 of July 
28, 2003, Executive Order 13448 of October 18, 2007 or Executive Order 
13464 of April 30, 2008; or
    (ii) Persons designated pursuant to Executive Order 13310, 
Executive Order 13448 or Executive Order 13464.

    Note to paragraph (a)(1): All persons listed in or designated 
pursuant to Executive Orders 13310, 13448, or 13464 are identified 
with the reference [BURMA] on OFAC's list of Specially Designated 
Nationals and Blocked Persons set forth in Appendix A to 31 CFR 
Chapter V and on OFAC's Web site at https://www.treas.gov/OFAC. 
Consistent with guidance issued by OFAC on February 14, 2008, a 
person whose property and interests in property are blocked pursuant 
to an Executive Order or regulations administered by OFAC is 
considered to have an interest in all property and interests in 
property of an entity in which it owns, directly or indirectly, a 
50% or greater interest. The property and interests in property of 
such an entity are blocked, regardless of whether the entity itself 
is listed in the annex to an Executive order or otherwise designated 
pursuant to such order. The OFAC guidance on this topic is available 
at https://www.treas.gov/offices/enforcement/ofac/programs/common/
licensing_guidance.pdf.

    (2) To avoid duplication, U.S. persons are not required to seek 
separate BIS authorization for an export, reexport, or transfer to a 
person identified in paragraph (a) of this section of any item subject 
to both the EAR and regulations maintained by OFAC. Therefore, if OFAC 
authorizes an export from the United States or an export, reexport, or 
transfer by a U.S. person to a person identified in paragraph (a) of 
this section, no separate authorization from BIS is necessary.
    (3) U.S. persons must seek authorization from BIS for the export, 
reexport, or transfer to a person identified in paragraph (a) of this 
section of any item subject to the EAR (except for agricultural 
commodities, medicine, or medical devices, classified as EAR99 and 
destined for entities whose property and interests in property are 
blocked pursuant to Executive Orders 13310, 13448 or 13464) but not 
subject to regulations maintained by OFAC.
    (4) Non-U.S. persons must seek authorization from BIS for the 
export from abroad, reexport, or transfer to a person identified in 
paragraph (a) of this section of any item subject to the EAR (except 
for agricultural commodities, medicine, or medical devices, classified 
as EAR99 and destined for entities whose property and interests in 
property are blocked pursuant to Executive Orders 13310, 13448 or 
13464).
    (5) Any export, reexport, or transfer to a person identified in 
paragraph (a) of this section by a U.S. person of any item subject both 
to the EAR and regulations maintained by OFAC and not authorized by 
OFAC is a violation of the EAR.
    (6) Any export, reexport, or transfer by a U.S. person to a person 
identified in paragraph (a) of this section of any item subject to the 
EAR (except for agricultural commodities, medicine, or medical devices, 
classified as EAR99 and destined for entities whose property and 
interests in property are blocked pursuant to Executive Orders 13310, 
13448 or 13464) that is not subject to regulations maintained by OFAC 
and not authorized by BIS is a violation of the EAR. Any export from 
abroad, reexport, or transfer by a non-U.S. person to a person 
identified in paragraph (a) of this section of any item subject to the 
EAR (except for agricultural commodities, medicine, or medical devices, 
classified as EAR99 and destined for entities whose property and 
interests in property are blocked pursuant to Executive Orders 13310, 
13448 or 13464) and not authorized by BIS is a violation of the EAR.
    (7) These licensing requirements supplement any other requirements 
set forth elsewhere in the EAR.
    (b) Exceptions. No License Exceptions or other BIS authorizations 
are available for export, reexport, or transfer to a person identified 
in paragraph (a) of this section of any item subject to the EAR (except 
for agricultural commodities, medicine, or medical devices, classified 
as EAR99 and destined for entities whose property and interests in 
property are blocked pursuant to Executive Orders 13310, 13448 or 
13464).
    (c) Licensing policy. Applications for licenses for the export, 
reexport, or transfer to a person identified in paragraph (a) of this 
section of any item subject to the EAR (except for agricultural 
commodities, medicine, or medical devices, classified as EAR99 and 
destined for entities whose property and interests in property are 
blocked pursuant to Executive Orders 13310, 13448 or 13464) will 
generally be denied. You should consult with OFAC concerning 
transactions subject to OFAC licensing requirements.
    (d) Contract sanctity. Contract sanctity provisions are not 
available for license applications reviewed under this section, except 
as available under 31 CFR 537.210(c).

    Dated: January 2, 2009.
Christopher R. Wall,
Assistant Secretary for Export Administration.
[FR Doc. E9-127 Filed 1-7-09; 8:45 am]
BILLING CODE 3510-33-P