[Federal Register: October 24, 2007 (Volume 72, Number 205)]
[Rules and Regulations]
[Page 60248-60250]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24oc07-10]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Parts 740 and 744
[Docket No. 071018609-7611-01]
RIN 0694-AE17
Burma: Revision of the Export Administration Regulations
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 13310 of July 28, 2003 and Executive Order 13448 of October 18,
2007, this final rule amends the Export Administration Regulations
(EAR) to move Burma into more restrictive country groupings and impose
a license requirement for exports, reexports or transfers of most items
subject to the EAR to persons listed in or designated pursuant to
Executive Orders 13310 and 13448.
DATES: Effective Date: This rule is effective October 24, 2007.
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-AE17
(Burma), by any of the following methods:
E-mail: publiccomments@bis.doc.gov Include ``RIN 0694-AE17
(Burma)'' 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-AE17 (Burma).
Send comments regarding the collection of information associated
with this rule, including suggestions for reducing the burden, to David
Rostker, Office of Management and Budget (OMB), by e-mail to
David_Rostker@omb.eop.gov, or by fax to (202) 395-7285; and to the Regulatory
Policy Division, Bureau of Industry and Security, Department of
Commerce, P.O. Box 273, Washington, DC 20044. Comments on this
collection of information should be submitted separately from comments
on the final rule (i.e. RIN 0694-AE17 (Burma))--all comments on the
latter should be submitted by one of the three methods outlined above.
FOR FURTHER INFORMATION CONTACT: Joan Roberts, Acting Director, Office
of Nonproliferation and Treaty Compliance, Bureau of Industry and
Security, Department of Commerce, P.O. Box 273, Washington, DC 20044;
Telephone: (202) 482-4252, or E-mail: jroberts@bis.doc.gov.
SUPPLEMENTARY INFORMATION
Background
The United States enacted an arms embargo against Burma in 1993 (58
FR 33293). Additionally, in 2003, pursuant to Executive Order 13310
(July 28, 2003) and other relevant authorities, the U.S. imposed
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 an asset
freeze on certain Burmese individuals and entities. Executive Order
13310 listed certain persons in its Annex and set forth criteria for
designation of additional persons.
In response to the Government of Burma's continued repression of
the democratic opposition in Burma, the President issued Executive
Order (E.O.) 13448 of October 18, 2007, listing certain persons in the
Annex as subject to sanctions administered by the Department of the
Treasury, Office of Foreign Assets Control (OFAC) and setting forth
criteria for designation of additional persons by OFAC. Consistent with
Executive Orders 13310 and 13448, and the Trade Sanctions Reform and
Export Enhancement Act (Title IX of Pub. L. 106-387), this final rule
amends the EAR to impose a license requirement for exports, reexports
or transfers of items subject to the EAR to persons listed in or
designated pursuant to Executive Orders 13310 or 13448, except for
agricultural commodities, medicine, or medical devices classified as
EAR99 and destined for entities listed in or designated pursuant to
those orders. All persons listed in or designated pursuant these
Executive Orders 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.
This rule creates a new Sec. 744.22 to set forth
this new license requirement.
Further, in part 740 of the EAR (License Exceptions), this rule
moves Burma from Computer Tier 1 to Computer Tier 3, restricting access
to high-performance computers and related technology and software under
License Exception APP (Section 740.7). In Supplement No. 1 to part 740
(Country Groups), this rule moves 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 will remain in
Country Group D:3 (countries raising proliferation concerns related to
chemical and biological weapons).
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 October 19, 2007, 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 August 15, 2007 (72 Fed. Reg. 46137 (Aug. 16,
2007)), 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 November 23, 2007,
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 December 10, 2007. Any such items not
actually exported or reexported before midnight, on December 10, 2007,
require a license in accordance with this regulation.
Rulemaking Requirements
1. This final rule has been determined to be significant for
purposes of E.O. 12866. U.S. trade with Burma is generally limited to
non-strategic goods (e.g., biotechnology, electronic, and life
sciences). In 2006, the value of trade between the two countries
totaled $7.5 million. Since 1997, BIS has processed only 21 license
applications, approving 14 valued at $3.31 million for exports
primarily for items in the oil sector. The changes made by this rule
primarily affect strategic items controlled for national security
reasons, including high-performance computers. This
[[Page 60249]]
analysis demonstrates that this rule is not expected to impact
significantly U.S. trade with Burma as a whole but is tailored to
effectively prevent the benefit of trade to certain persons in Burma or
related to the situation in Burma, as identified, in order to implement
an important U.S. foreign policy objective.
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 two collections of information subject to the PRA. One of the
collections 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 OMB Desk
Officer, New Executive Office Building, Washington, DC 20503; and to
the Office of Administration, Bureau of Industry and Security,
Department of Commerce, 14th and Pennsylvania Avenue, NW., Room 6883,
Washington, DC 20230.
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)). Further, no other
law requires that a notice of proposed rulemaking and an opportunity
for public comment be given for this final rule. 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,
Office of Exporter Services, Bureau of Industry and Security,
Department of Commerce, P.O. Box 273, Washington, DC 20044.
List of Subjects
15 CFR Part 740
Administrative practice and procedure, Exports, Reporting and
recordkeeping requirements.
15 CFR Part 744
Exports, Reporting and recordkeeping requirements, Terrorism.
0
Accordingly, parts 740 and 744 of the Export Administration Regulations
(15 CFR parts 730-774) are amended as follows:
PART 740--[AMENDED]
0
1. The authority citation for 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 3, 2006, 71 FR 44551 (August 7, 2006); Notice of
August 15, 2007, 72 FR 46137 (August 16, 2007).
0
2. Section 740.7 is amended by:
0
a. Removing ``Burma'' from paragraph (c); and
0
b. Revising paragraph (d)(1) to read as follows:
Sec. 740.7 Computers (APP).
* * * * *
(d) Computer Tier 3 destinations. (1) Eligible destinations.
Eligible destinations under paragraph (d) of this section are:
Afghanistan, Albania, Algeria, Andorra, Angola, Armenia, Azerbaijan,
Bahrain, Belarus, Bosnia & Herzegovina, Burma, Cambodia, China
(People's Republic of), Comoros, Croatia, Djibouti, Egypt, Georgia,
India, Iraq, Israel, Jordan, Kazakhstan, Kuwait, Kyrgyzstan, Laos,
Lebanon, Libya, Macau, Macedonia (The Former Yugoslav Republic of),
Mauritania, Moldova, Mongolia, Montenegro, Morocco, Oman, Pakistan,
Qatar, Russia, Saudi Arabia, Serbia, Tajikistan, Tunisia, Turkmenistan,
Ukraine, United Arab Emirates, Uzbekistan, Vanuatu, Vietnam, and Yemen.
* * * * *
0
3. Supplement No. 1 to part 740--Country Groups is amended by:
0
a. Removing the entry ``Burma'' from Country Group B; and
0
b. Adding an entry ``Burma'' to Country Group D to read as follows:
Supplement No. 1 to Part 740--Country Groups
* * * * *
Country Group D
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[D:1] National [D:3] Chemical & [D:4] Missile
Country Security [D:2] Nuclear Biological Technology
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* * * * * * *
Burma........................... X X ..................
* * * * * * *
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PART 744--[AMENDED]
0
4. The authority citation for part 744 is revised 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; Sec. 901-911, Pub. L. 106-
387; Sec. 221, Pub. L. 107-56; 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; E.O. 13310, 68 FR 44853, 3
CFR 2003 Comp., p. 241; E.O. 13448; Notice of August 3, 2006, 71 FR
44551 (August 7, 2006); Notice of October 27, 2006, 71 FR 64109
(October 31, 2006); Notice of August 15, 2007, 72 FR 46137 (August
16, 2007).
0
5. A new Sec. 744.22 is added to read as follows:
Sec. 744.22 Restrictions on Exports, Reexports and Transfers to
Persons Listed in or Designated Pursuant to Executive Orders 13310 and
13448.
Consistent with Executive Order 13310 of July 28, 2003 and
Executive
[[Page 60250]]
Order 13448 of October 18, 2007 (``Blocking Property and Prohibiting
Certain Transactions Related to Burma''), BIS maintains restrictions on
exports, reexports, and transfers to persons listed in or designated
pursuant to Executive Orders 13310 and 13448. These persons include
individuals and entities listed in the Annexes to Executive Orders
13310 or 13448, as well as other persons designated pursuant to
criteria set forth in those orders.
(a) License Requirements. (1) A license requirement applies to the
export, reexport, or transfer of any item subject to the EAR (except
for agricultural commodities, medicine, or medical devices classified
as EAR99 and destined for entities listed in or designated pursuant to
Executive Orders 13310 and 13448) to--
(i) Persons listed in the Annexes to Executive Order 13310 of July
28, 2003 or Executive Order 13448 of October 18, 2007; or
(ii) Persons designated pursuant to Executive Order 13310 or
Executive Order 13448.
Note to paragraph (a)(1): OFAC includes these persons with the
reference [BURMA] on its list of Specially Designated Nationals and
Blocked Persons set forth in Appendix A to 31 CFR Chapter V and on
its Web site at http://www.treas.gov/OFAC.
(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 listed in or designated pursuant to Executive
Orders 13310 and 13448) 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 listed in or designated pursuant to
Executive Orders 13310 and 13448).
(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 listed in or designated
pursuant to Executive Orders 13310 and 13448) 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 listed
in or designated pursuant to Executive Orders 13310 and 13448) 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 listed in or designated pursuant to
Executive Orders 13310 and 13448).
(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 listed in or designated pursuant to Executive
Orders 13310 and 13448) 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: October 18, 2007.
Christopher A. Padilla,
Assistant Secretary for Export Administration.
[FR Doc. E7-20962 Filed 10-23-07; 8:45 am]
BILLING CODE 3510-33-P