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Q: Why is BIS publishing a new regulation related to license requirements involving Burmese entities?
On October 24, 2007, in response to the Government of Burma’s continued repression of the democratic opposition in Burma, the Bureau of Industry and Security (BIS) amended the Export Administration Regulations (EAR) to impose a license requirement for most exports, reexports, and transfers of items subject to the EAR to persons whose property and interests in property are blocked pursuant to Executive Orders 13310 or 13448. This amendment is located in Section 744.22 of the EAR and is 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).
On April 30, 2008, President Bush issued Executive Order 13464, which expanded the scope of Burmese entities whose property and interests in property are blocked. Through BIS’s January 08, 2009 rule (74 FR 770), Section 744.22 of the EAR is expanded to also apply to any persons designated in or pursuant to Executive Order 13464.
Q: What does the new regulation do?
Previously, Section 744.22 of the EAR imposed a license requirement for exports, reexports and transfers of items subject to the EAR, except agricultural commodities, and medicine or medical devices designated EAR99, to persons designated in or pursuant to Executive Orders 13310 and 13448. This regulation adds the same license requirement for persons designated in or pursuant to Executive Order 13464.
Q: Where is the list of persons designated in or pursuant to Executive Orders 13310, 13448, or 13464 located?
The Department of the Treasury’s Office of Foreign Assets Control (OFAC) maintains the list of persons designated in or pursuant to these Executive Orders. Such persons are identified with the reference [BURMA] on OFAC’s list of Specially Designated Nationals and Blocked Persons available at: http://www.treas.gov/offices/enforcement/ofac/sdn/index.shtml.
Consistent with guidance issued by OFAC, a person whose property and interests in property are blocked, pursuant to an Executive Order or regulations maintained 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 percent or greater interest. The property and interests in property of such an entity are also blocked, and licensing requirements in Section 744.22 of the EAR would also apply to such an entity, regardless of whether the entity itself is listed in the annex to an Executive Order or otherwise designated pursuant to such order.
Q: Which agency do I contact for permission to deal with persons designated in or pursuant to Executive Orders 13310, 13448 or 13464?
The Department of the Treasury’s Office of Foreign Assets Control (OFAC) is the primary licensing agency for dealings with persons designated in or pursuant to Executive Orders 13310, 13448, and 13464. The OFAC guidance on this topic is available at http://www.treas.gov/offices/enforcement/ofac/programs/burma/burma.shtml.
For transactions subject to both the EAR and OFAC’s regulations on this topic, if OFAC authorizes an export, reexport, or transfer involving an entity designated in or pursuant to one of the named Executive Orders, no separate authorization from BIS is necessary.
For transactions subject to the EAR and involving a person designated in or pursuant to one of the named Executive Orders, but not prohibited under OFAC regulations, authorization must be obtained from BIS. The BIS license requirements do not apply to exports, reexports, or transfers of agricultural commodities, or medicine or medical devices designated EAR99.
Q: What is BIS’s license review policy for exports, reexports, or transfers to persons listed in or designated pursuant to Executive Orders 13310, 13448 or 13464?
All applications for the export, reexport, or transfer of any item subject to the EAR, except agricultural commodities, and medicine or medical devices designated EAR99, to entities designated in or pursuant to one of the named Executive Orders will
Q: Are there any License Exceptions available for these transactions?
No, License Exceptions are not available for exports, reexports, or transfers of items subject to the EAR to persons designated in or pursuant to Executive Orders 13310, 13448, and 13464.
Q: How are exports or reexports to Burma handled, when they do not involve an entity designated in or pursuant to Executive Orders 13310, 13448 or 13464?
Such exports or reexports would be considered under BIS’s standard licensing process. Exporters and reexporters should review the Commerce Control List in part 774 of the EAR and the Commerce Country Chart located in Supplement No. 1 to Part 738 of the EAR, to determine whether a proposed transaction would require BIS authorization. Certain License Exceptions set forth in part 740 of the EAR may also be available, provided that the export or reexport is not destined for persons designated in or pursuant to Executive Orders 13310, 13448, and 13464.
Exporters should also be aware that in October 2007, consistent with the Executive Orders named above, Burma was moved from Computer Tier 1 to Tier 3, which restricts access to high-performance computers and certain related technology and software under License Exception APP (Section 740.7). The October 2007 rule also moved Burma from Country Group B (countries raising few national security concerns) to Country Group D:1 (countries raising national security concerns) in Supplement No. 1 to part 740, which further limits the number of license exceptions available for exports to Burma. Burma remains in Country Group D:3 (countries raising proliferation concerns related to chemical and biological weapons).
Questions regarding BIS’s policy toward Burma and persons designated in or pursuant to the named Executive Orders can be addressed to OFAC at 202-622-2480 and BIS’s Foreign Policy Division at 202-482-4252. General questions regarding the licensing process should be directed to BIS’s Office of Exporter Services, Outreach and Education Services Division at 202-482-4811.
Last Updated 1/26/09