On February 10, 2021, President Biden signed Executive Order (EO) 14014, “Blocking Property With Respect to the Situation in Burma,” which authorized the imposition of sanctions. In the EO, the President declared a national emergency to address the threat following a February 1, 2021 military coup in Burma, whereby the military overthrew the democratically-elected government and arrested and detained government leaders, human rights defenders, and journalists.
February 18, 2021 Action
Subsequently, on February 18, 2021, the US Department of Commerce, Bureau of Industry and Security (BIS) published in the Federal Register a Notification that BIS has amended the Export Administration Regulations (EAR) to limit exports and reexports of certain items to Burma’s military, as the result of the recent coup by the Burmese military. Specifically, BIS amended the EAR to impose a presumption of denial for items subject to the EAR requiring a license for export or reexport when destined to Burma’s Ministry of Defense, Ministry of Home Affairs, armed forces, and security services. BIS also suspended the availability of the following license exceptions: Shipments of Limited Value (LVS) (§ 740.3); Shipments to Group B Countries (GBS) (§ 740.4); Technology and Software under Restriction (TSR) (§ 740.6); and Computers (APP) (§ 740.7).
March 8, 2021 Actions
On March 8, 2021, BIS published in the Federal Register a Final Rule that further amended the EAR by removing Burma from Country Group B in Supplement No. 1 to part 740 and moving it to Country Group D:1. As a result of this change, BIS further limited the availability of the following license exceptions or portions of those license exceptions, in addition to those previously suspended by the February 18, 2021 Notification: Temporary Imports, Exports, Reexports, and Transfers (in-country) (TMP) (§ 740.9); Servicing and Replacement Parts and Equipment (RPL) (§ 740.10); Aircraft, Vessels, and Spacecraft (AVS) (§ 740.15); Additional Permissive Reexports (APR) (§ 740.16(j)); and Encryption commodities, technology, and software (ENC) (§ 740.17). Additionally, this rule added Burma to the list of countries subject to the “military end use” and “military end user” (MEU) restrictions in § 744.21.
Concurrent with these actions, changing Burma’s Country Group designation, restricting the availability of certain license exceptions, and adding Burma to the list of countries subject to MEU restrictions, BIS also published in the Federal Register a Final Rule that added four entities to the Entity List (Supp. No. 4 to Part 744), for their alleged role in the coup by the military in Burma to overthrow the democratically-elected government. Specifically, this Rule adds the following entities to the Entity List under the destination of Burma: The Ministry of Defence; the Ministry of Home Affairs; Myanmar Economic Corporation; and Myanmar Economic Holdings Limited. As the result of these designations, a BIS license is required for the export, reexport, or transfer (in-country) of all items subject to the EAR to these four entities. Additionally, license applications will be reviewed with a presumption of denial.
April 9, 2021 Action
On April 9, 2021, BIS again published an Interim Final Rule in the Federal Register that amended the EAR by adding Burma to the list of countries subject to the military-intelligence end use and military-intelligence end user restrictions in § 744.22. BIS also revised §§ 736.2(b)(7)(i)(A)(5) (General Prohibition Seven) and 744.6(b)(5) (Restrictions on specific activities of “US Persons”) to add Burma to the list of countries in which US persons are prohibited from supporting military-intelligence end uses or end users, even when such support does not involve an item subject to the EAR.
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