[Federal Register: January 8, 2009 (Volume 74, Number 5)]
[Rules and Regulations]
[Page 770-772]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08ja09-2]
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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 http://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 http://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 http://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 http://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