[Federal Register Volume 72, Number 205 (Wednesday, October 24, 2007)]
[Rules and Regulations]
[Pages 60248-60250]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-20962]



[[Page 60248]]

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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: [email protected] 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 [email protected], 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: [email protected].

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

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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
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
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