[Federal Register Volume 86, Number 43 (Monday, March 8, 2021)]
[Rules and Regulations]
[Pages 13173-13178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04745]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Parts 740, 742 and 744

[Docket No. 210302-0033]
RIN 0694-AI43


Burma: Implementation of Sanctions

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: In response to the Burmese military coup that overthrew the 
democratically-elected government of Myanmar (Burma), in this final 
rule, the

[[Page 13174]]

Bureau of Industry and Security (BIS) amends the Export Administration 
Regulations (EAR) to apply more restrictive treatment to exports and 
reexports to, and transfers within, Burma of items subject to the EAR. 
This action advances the U.S. Government's efforts to reduce the 
availability of items to Burma's military and security services.

DATES: This rule is effective March 8, 2021.

FOR FURTHER INFORMATION CONTACT: Tracy Patts, Foreign Policy Division, 
Office of Nonproliferation and Treaty Compliance, Bureau of Industry 
and Security, U.S. Department of Commerce, by email at 
<a href="/cdn-cgi/l/email-protection#a5e3cad7c0ccc2cb8bf5cac9ccc6dce5c7ccd68bc1cac68bc2cad3"><span class="__cf_email__" data-cfemail="50163f223539373e7e003f3c393329103239237e343f337e373f26">[email protected]</span></a>, or by phone at 202-482-4252.

SUPPLEMENTARY INFORMATION:

Background

Burma Under the Export Administration Regulations

    On February 10, 2021, President Biden signed Executive Order (E.O.) 
14014, ``Blocking Property With Respect to the Situation in Burma.'' 
See 86 FR 9429 (Feb. 12, 2021). In E.O. 14104, the President declared a 
national emergency to address the threat posed to the United States by 
the situation in, and in relation to, Burma following a February 1, 
2021 military coup, citing the military's overthrow of the country's 
democratically-elected government and arrest and detention of 
government leaders, human rights defenders, and journalists. See id. 
The United States had removed sanctions on Burma over the past decade 
based on progress toward democracy, and the reversal of that progress 
necessitated an immediate review of our sanction laws and authorities, 
followed by appropriate action. See President Biden's February 1, 2021 
statement, available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/02/01/statement-by-president-joseph-r-biden-jr-on-the-situation-in-burma/.
    In response to the February 1, 2021 Burmese military coup, on 
February 18, 2021, BIS took action under the Export Administration 
Regulations, 15 CFR parts 730-774 (EAR), and published a Federal 
Register notice announcing a more restrictive review policy for 
applications involving exports and reexports of items requiring a 
license under the EAR that are destined for Burma's military and 
security services and suspended the availability of certain license 
exceptions for items destined for Burma. See 86 FR 10011 (Feb. 18, 
2021). Taken together, the measures set forth in the February 18, 2021 
Federal Register notice and this final rule are consistent with recent 
actions taken by the Department of the Treasury's Office of Foreign 
Assets Control under E.O. 14104. Specifically, this rule: 1) moves 
Burma from Country Group B to the more restrictive Country Group D:1; 
2) adds Burma to the countries subject to the national security 
licensing policy for certain military end uses and end users, and to 
the `military end use' and `military end user' restrictions; and 3) 
moves Burma from Computer Tier 1 to the more restrictive Computer Tier 
3 in the (Computers) (APP) license exception.

Burma Under the EAR Prior to the February 18, 2021 Notice

    As a general matter, during a four-year period following BIS's 
placement of Burma in Country Group B in December 2016, BIS did not 
maintain special controls on Burma. See 81 FR 94962 (Dec. 27, 2016). 
Applications for items requiring a license for export or reexport to 
Burma were generally subject to case-by-case review consistent with the 
licensing policies set forth in Part 742 and other applicable parts of 
the EAR. For purposes of License Exception Computers (APP) (Section 
740.7 of the EAR) in August 2017, Burma was placed in Computer Tier 1, 
a relatively less-restrictive placement. See 82 FR 38764, 8/15/17.
    Prior to December 2016, BIS had imposed more significant 
restrictions on exports and reexports to Burma as part of a broad U.S. 
Government-wide embargo in effect for nearly two decades that had 
restricted trade with or involving Burma under a national emergency 
declared by President Bill Clinton pursuant to Executive Order 13047 of 
May 20, 1997, in response to repression by the then-governing regime in 
Burma. This emergency was extended and expanded by Presidents George W. 
Bush and Barack Obama, who together issued five additional Burma-
related Executive Orders. Between October 2007 and December 2016, Burma 
was located in Country Group D:1, Supp. No. 1 to Part 740 of the EAR. 
It was located in Computer Tier 3, a relatively restrictive placement, 
for purposes of License Exception Computers (APP) until August 2017. 
See 82 FR 38764, 8/15/17. BIS also maintained license requirements in 
part 744 (then Sec.  744.22) (see 72 FR 60248, October 24, 2007, as 
modified by 74 FR 770, January 8, 2009), for the export, reexport, or 
transfer (in country) of most items subject to the EAR, to persons 
listed in or designated pursuant to three of the Burma-related 
Executive Orders. Executive Order 13742 of October 7, 2016, terminated 
the national emergency declared in Executive Order 13047 and revoked 
that Executive Order and the other Burma-related Executive Orders.
    Notwithstanding the EAR changes made following the October 2016 
termination of the embargo, Burma continued to be located in Country 
Group D:3 (countries raising proliferation concerns related to chemical 
and biological weapons) and Country Group D:5 (U.S. arms-embargoed 
countries), consistent with Sec.  126.1 of the International Traffic in 
Arms Regulations, 22 CFR parts 120-130.

Burma Under the EAR: February 18, 2021 Notice

    On February 1, 2021, the Burmese military overthrew the 
democratically-elected government of Burma and detained President Win 
Myint and State Counsellor Aung San Suu Kyi and other parliamentarians 
affiliated with the National League for Democracy.
    In response to this coup, as noted above, BIS issued a Federal 
Register notice effective February 18, 2021, adopting a more 
restrictive license application review policy of a presumption of 
denial for items subject to the EAR that require a license for export 
and reexport and that are destined for Burma's Ministry of Defense, 
Ministry of Home Affairs, armed forces, or security services. BIS also 
suspended the use of four license exceptions set forth in part 740 of 
the EAR that would otherwise have generally been available to Burma as 
a result of its Country Group B placement: Shipments of Limited Value 
(LVS) (Sec.  740.3); Shipments to Group B Countries (GBS) (Sec.  
740.4); Technology and Software under Restriction (TSR) (Sec.  740.6); 
and Computers (APP) (Sec.  740.7).

Changes Made by This Rule

    This rule strengthens export controls on Burma consistent with the 
policy concerns described in BIS's February 18, 2021 notice. The 
actions in this rule support the United States Government's efforts to 
promote an immediate return to democracy in Burma, to underscore to 
Burma's security forces there must not be violence against civilians, 
and to stand in solidarity with the people of Burma, who continue to 
voice their desire for democracy, peace, and rule of law. In 
particular, this rule enhances the U.S. Government's efforts to ensure 
that items subject to the EAR are not available to Burma's military and 
security services. These measures also address the foreign policy and 
national

[[Page 13175]]

security concerns that formed the basis for the issuance of E.O. 14104 
of February 10, 2021.

Country Group D:1

    The rule removes Burma from EAR Country Group B in supplement no. 1 
to part 740 (Country Groups) and moves it into the more restrictive 
Country Group D:1. This action makes certain license exceptions or 
portions of license exceptions unavailable for Burma, or imposes 
conditions on the use of such license exceptions, including as follows:
    <bullet> Shipments of Limited Value (LVS) (Sec.  740.3). This 
license exception is no longer available for Burma due to Burma's 
removal from Country Group B.
    <bullet> Shipments to Group B Countries (GBS) (Sec.  740.4). This 
license exception is no longer available for Burma due to Burma's 
removal from Country Group B.
    <bullet> Technology and Software under Restriction (TSR) (Sec.  
740.6). This license exception is no longer available for Burma due to 
Burma's removal from Country Group B.
    <bullet> Temporary Imports, Exports, Reexports, and Transfers (in-
country) (TMP) (Sec.  740.9). Paragraph (b) (Exports of items 
temporarily in the United States) of this license exception places 
restrictions on shipments of national security (NS) controlled items to 
D:1 countries, and thus the provisions in paragraph (b) that would 
authorize exports of NS-controlled items to Country Group B (but not 
Country Group D:1) are no longer available for shipments destined to 
Burma.
    <bullet> Servicing and Replacement Parts and Equipment (RPL) (Sec.  
740.10). This license exception authorizes certain items to be returned 
to Country Group B (see (a)(4) (Reexports), and (b)(3)(ii)(C) (return 
of defective or unacceptable equipment)). These two paragraphs are no 
longer available for the return of such items to Burma due to Burma's 
removal from Country Group B.
    <bullet> Aircraft, Vessels, and Spacecraft (AVS) (Sec.  740.15). 
Paragraph (b) of this license exception authorizes exports and 
reexports of certain equipment and spare parts for permanent use upon a 
vessel or aircraft, except for vessels registered in a D:1 country or 
aircraft registered in, owned or controlled by, or under charter or 
lease to a country included in Country Group D:1, or a national of any 
of these countries. With the publication of this rule, Burma is a D:1 
country, and restrictions in this paragraph are applied to exports for 
vessels registered in Burma, or aircraft registered in, owned or 
controlled by, or under charter or lease to Burma or a Burmese 
national. Paragraph (c) of this license exception authorizes certain 
exports to U.S. or Canadian vessels, planes and airline installations 
or agents except for exports to D:1 countries and for aircraft located 
in, or owned, operated or controlled by, or leased or chartered to a 
D:1 country. Burma is now subject to all D:1-related specified 
restrictions set forth in paragraph (c) of Sec.  740.15.
    <bullet> Additional Permissive Reexports (APR) (Sec.  740.16(j)). 
Paragraph (j) of this license exception authorizes certain reexports of 
nuclear non-proliferation controlled items except when also controlled 
for NS reasons when destined to a D:1 country. Burma is now a D:1 
country and will thus no longer be eligible for reexports of NS-
controlled items under this provision.
    <bullet> Encryption commodities, technology, and software (ENC) 
(Sec.  740.17). Paragraph (b)(2)(iv)(B) of this license exception 
places restrictions on certain encryption technology exports to users 
in D:1 countries. These restrictions shall apply to users in Burma now, 
due to Burma's placement in Country Group D:1.
    The restrictions on the export, reexport, and transfer (in-country) 
of certain microprocessors to military end uses and end users in 
Country Group D:1, pursuant to Sec.  744.17 (Restrictions on certain 
exports, reexports, and transfers (in-country) of microprocessors and 
associated ``software'' and ``technology'' for `military end uses' and 
to `military end users'), apply to transactions to Burma now that it is 
in Country Group D:1 as a result of this rule. Furthermore, the 
restrictions in Sec.  744.7 (Restrictions on certain exports to and for 
the use of certain foreign vessels or aircraft) on certain exports and 
reexports to vessels and aircraft located in ports in a D:1 country now 
apply to exports and reexports to Burma, and restrictions in that 
section that apply to aircraft located in, or owned, operated or 
controlled by, or leased or chartered to, Country Group D:1 or a 
national of such country, now apply to aircraft located in, or owned, 
operated or controlled by, or leased or chartered to Burma or a Burmese 
national. Finally, the addition of Burma to Country Group D:1 expands 
the applicability of Sec.  736.2(b)(3), General Prohibition Three, by 
imposing licensing requirements for reexports of foreign-produced 
direct products of certain U.S.-origin technology and software to 
Burma.
    Burma remains in Country Groups D:3 (countries raising 
proliferation concerns related to chemical and biological weapons) and 
D:5 (U.S. arms-embargoed countries). See supplement no. 1 to part 740 
of the EAR.

Licensing Policy

    As noted below, this rule adds Burma to the countries subject to 
the military end use and end user controls, and associated licensing 
policies, in Sec.  744.21. This rule also adds Burma to the list of 
countries subject to the licensing policy in Sec.  742.4(b)(7) (NS-
controlled items) of the EAR. The license review policy for NS-
controlled items in Sec.  742.4(b)(7) applies to transactions with the 
other countries included in Sec.  744.21, and now applies to Burma as 
well.

Section 744.21

    This rule adds Burma to the countries subject to the `military end 
use' and `military end user' (MEU) restrictions in Sec.  744.21 of the 
EAR. In addition to the license requirements for items specified on the 
Commerce Control List (CCL), Sec.  744.21 prohibits the export, 
reexport, or transfer (in-country) without a license of items subject 
to the EAR that are listed in supplement no. 2 to part 744--List of 
Items Subject to the Military End Use or End User License Requirement 
of Sec.  744.21--to the People's Republic of China (China), the Russian 
Federation, or Venezuela, and with the publication of this rule, Burma, 
in certain circumstances. Such exports, reexports, or transfers (in-
country) require a license if, at the time of the export, reexport, or 
transfer (in-country), the exporter, reexporter, or transferor (in-
country) has ``knowledge,'' as defined in Sec.  772.1 of the EAR that 
the item is intended, entirely or in part, for a `military end use,' or 
`military end user,' in Burma, China, the Russian Federation, or 
Venezuela. Applications submitted for the export or reexport to Burma, 
or transfer within Burma, of an item in supplement no. 2 to part 744 
under this section will be reviewed with a presumption of denial.
    This rule also adds a reference to Burma in supplement no. 7 to 
part 744--`Military End User' List but does not add any entities 
located in Burma to the list of Military End Users (MEU List) at this 
time. The MEU List notifies the public that certain entities are 
subject to the military end-user prohibitions in Sec.  744.21 of the 
EAR. BIS may add entities located in Burma to the MEU List in the 
future.
    This rule also corrects a typo in the last sentence of the 
introductory text to supplement no. 7 to part 744. The correction 
removes the phrase `supplement no. 2 to part 744' from the last 
sentence of the introductory text and adds in its place the phrase 
`supplement no. 7 to part 744'. Supplement no. 7 to part 744 is the

[[Page 13176]]

correct supplement reference in the context of this sentence. With this 
correction, the last sentence correctly states that ``. . . license 
application procedure and license review policy for entities specified 
in supplement no. 7 to part 744 is specified in Sec.  744.21(d) and 
(e).''

Computer Tier 3

    This rule moves Burma from Computer Tier 1 to Computer Tier 3 under 
License Exception Computers (APP), Sec.  740.7. This change limits the 
use of that license exception for exports and reexports to, or 
transfers (in-country) within, Burma. The placement of Burma in Country 
Group D:1 by this rule and movement of Burma into Computer Tier 3 
supersedes the suspension of four License Exceptions announced as part 
of the February 18, 2021 notice, as the prior suspension was linked to 
Burma's placement at the time in Country Group B and in Computer Tier 
1.

Export Control Reform Act of 2018

    On August 13, 2018, President Donald J. Trump signed into law the 
John S. McCain National Defense Authorization Act for Fiscal Year 2019, 
which included the Export Control Reform Act of 2018 (ECRA) (50 U.S.C. 
4801-4852) that provides the legal basis for BIS's principal 
authorities and serves as the authority under which BIS issues this 
rule.

Rulemaking Requirements

    1. Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distribute impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This final rule has been designated to be a ``significant 
regulatory action,'' although not economically significant, under 
section 3(f) of Executive Order 12866.
    2. This rule does not contain policies with Federalism implications 
as that term is defined under Executive Order 13132.
    3. Pursuant to section 1762 of the Export Control Reform Act of 
2018 (50 U.S.C. 4821), this action is exempt from the Administrative 
Procedure Act (5 U.S.C. 553) requirements for notice of proposed 
rulemaking, opportunity for public participation, and delay in 
effective date.
    4. Because a notice of proposed rulemaking and an opportunity for 
public comment are not required to be given for this rule by 5 U.S.C. 
553, or by any other law, the analytical requirements of the Regulatory 
Flexibility Act, 5 U.S.C. 601, et seq., are not applicable. 
Accordingly, no regulatory flexibility analysis is required and none 
has been prepared.
    5. Notwithstanding any other provision of law, no person may be 
required to respond to or 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 regulation involves a 
collection currently approved by OMB under control number 0694-0088, 
Simplified Network Application Processing System. The collection 
includes, among other things, license applications, and carries a 
burden estimate of 42.5 minutes for a manual or electronic submission 
for a total burden estimate of 31,878 hours. BIS expects the burden 
hours associated with this collection to not significantly increase 
with the publication of this rule.

Savings Clause

    Shipments of items that may no longer be made under No License 
Required (NLR) or license exception as a result of this action and were 
on dock for loading, on lighter, laden aboard an exporting or 
transferring carrier, or en route aboard a carrier to a port of export 
or reexport on April 7, 2021, pursuant to actual orders for export to 
Burma, reexport to Burma, or transfer (in country) within Burma may 
proceed to their destination under the prior authorization.

List of Subjects

15 CFR Part 740

    Administrative practice and procedure, Exports, Reporting and 
recordkeeping requirements.

15 CFR Part 742

    Exports, Terrorism

15 CFR 744

    Exports, Reporting and recordkeeping requirements, Terrorism.

    Accordingly, parts 740, 742, and 744 of the Export Administration 
Regulations (15 CFR parts 730-774) are amended as follows:

PART 740--LICENSE EXCEPTIONS

0
1. The authority citation for part 740 continues to read as follows:

    Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50 
U.S.C. 1701 et seq.; 22 U.S.C. 7201 et seq.; E.O. 13026, 61 FR 
58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 
2001 Comp., p. 783.


Sec.  740.7  [Amended]

0
2. Amend Sec.  740.7 by
0
a. Removing ``Burma,'' from paragraph (c)(1); and
0
b. Adding ``Burma'' alphabetically in paragraph (d)(1).

Supplement No. 1 to Part 740--Country Groups

0
3. Supplement no. 1 to part 740 is amended by
0
a. In the Country Group B table, removing ``Burma''; and
0
b. In the Country Group D table revising the entry for ``Burma'' to 
read as follows:

Supplement No. 1 to Part 740--Country Groups

* * * * *

Country Group D

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                         [D:5] U.S. Arms
                              Country                                 [D:1] National   [D:2] Nuclear    [D:3] Chemical   [D:4] Missile       embargoed
                                                                         security                       &  biological      technology     countries \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Burma..............................................................               X                                 x                                 x
 

[[Page 13177]]

 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Note to Country Group D:5: Countries subject to U.S. arms embargoes are identified by the State Department through notices published in the Federal
  Register. The list of arms embargoed destinations in this table is drawn from 22 CFR 126.1 and State Department Federal Register notices related to
  arms embargoes (compiled at http://www.pmddtc.state.gov/embargoed_countries/index.html) and will be amended when the State Department publishes
  subsequent notices. If there are any discrepancies between the list of countries in this table and the countries identified by the State Department as
  subject to a U.S. arms embargo (in the Federal Register), the State Department's list of countries subject to U.S. arms embargoes shall be
  controlling.

* * * * *

PART 742--CONTROL POLICY--CCL BASED CONTROLS

0
4. The authority citation for part 742 continues to read as follows:

    Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 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; Sec. 1503, Pub. L. 108-11, 117 
Stat. 559; 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. 13026, 61 FR 58767, 3 CFR, 
1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 
783; Presidential Determination 2003-23, 68 FR 26459, 3 CFR, 2004 
Comp., p. 320; Notice of November 12, 2019, 84 FR 61817 (November 
13, 2019).


0
5. Section 742.4 is amended by revising paragraph (b) (7) to read as 
follows:


Sec.  742.4  National security.

* * * * *
    (b) * * *
    (7)(i) For Burma, the People's Republic of China (China), the 
Russian Federation, and Venezuela, all applications will be reviewed to 
determine the risk of diversion to a military end user or military end 
use. There is a general policy of approval for license applications to 
export, reexport, or transfer items determined to be for civil end 
users for civil end uses. There is a presumption of denial for license 
applications to export, reexport, or transfer items that would make a 
material contribution to the ``development,'' ``production,'' 
maintenance, repair, or operation of weapons systems, subsystems, and 
assemblies, such as, but not limited to, those described in supplement 
no. 7 to part 742 of the EAR, of Burma, China, the Russian Federation, 
or Venezuela.
    (ii) The following factors are among those that will be considered 
in reviewing license applications described in paragraph (b)(7)(i) of 
this section:
    (A) The appropriateness of the export, reexport, or transfer for 
the stated end use;
    (B) The significance of the item for the weapon systems 
capabilities of the importing country;
    (C) Whether any party is a `military end user' as defined in Sec.  
744.21(g) of the EAR;
    (D) The reliability of the parties to the transaction, including 
whether:
    (1) An export or reexport license application has previously been 
denied;
    (2) Any parties are or have been engaged in unlawful procurement or 
diversion activities;
    (3) The parties are capable of securely handling and storing the 
items; and
    (4) End-use checks have been and may be conducted by BIS or another 
U.S. government agency on parties to the transaction;
    (E) The involvement of any party to the transaction in military 
activities, including activities involving the ``development,'' 
``production,'' maintenance, repair, or operation of weapons systems, 
subsystems, and assemblies;
    (F) Government strategies and policies that support the diversion 
of exports from their stated civil end use and redirection towards 
military end use.
    (G) The scope and effectiveness of the export control system in the 
importing country; and
    (iii) The review will also include an assessment of the impact of a 
proposed export of an item on the United States defense industrial base 
and the denial of an application for a license that would have a 
significant negative impact, as defined in Sec.  1756(d)(3) of the 
Export Control Reform Act of 2018 (50 U.S.C. 4815(d)(3)), on such 
defense industrial base.
* * * * *

PART 744--CONTROL POLICY: END-USER AND END-USE BASED

0
6. The authority citation for part 744 continues to read as follows:

    Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 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. 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 September 18, 2020, 85 FR 59641 (September 22, 2020); Notice of 
November 12, 2020, 85 FR 72897 (November 13, 2020).


0
7. Section 744.21 is revised to read as follows:


Sec.  744.21  Restrictions on certain `military end use' or `military 
end user' in Burma, The People's Republic of China, The Russian 
Federation, or Venezuela.

    (a) General prohibition. In addition to the license requirements 
for items specified on the Commerce Control List (CCL), you may not 
export, reexport, or transfer (in-country) any item subject to the EAR 
listed in supplement no. 2 to part 744 to Burma, the People's Republic 
of China (China), the Russian Federation, or Venezuela without a 
license if, at the time of the export, reexport, or transfer (in-
country), you have ``knowledge,'' as defined in Sec.  772.1 of the EAR, 
that the item is intended, entirely or in part, for a `military end 
use,' as defined in paragraph (f) of this section, or `military end 
user,' as defined in paragraph (g) of this section, in Burma, China, 
the Russian Federation, or Venezuela.
    (b) Additional prohibition on those informed by BIS. BIS may inform 
you either individually by specific notice, through amendment to the 
EAR published in the Federal Register, or through a separate notice 
published in the Federal Register, that a license is required for 
specific exports, reexports, or transfers (in-country) of any item 
because there is an unacceptable risk of use in or diversion to a 
`military end use' or `military end user' in Burma, China, the Russian 
Federation, or Venezuela. Specific notice will be given only by, or at 
the direction of, the Deputy Assistant Secretary for Export 
Administration. When such notice is provided orally, it will be 
followed by written notice within two working days signed by the Deputy 
Assistant Secretary for Export Administration or the Deputy Assistant 
Secretary's

[[Page 13178]]

designee. The absence of BIS notification does not excuse the exporter 
from compliance with the license requirements of paragraph (a) of this 
section.
    (1) `Military End-User' (MEU) List. BIS may inform and provide 
notice to the public that certain entities are subject to the 
additional prohibition described under this paragraph (b) following a 
determination by the End-User Review Committee (ERC) that a specific 
entity is a `military end user' pursuant to this section and therefore 
any exports, reexports, or transfers (in-country) to that entity 
represent an unacceptable risk of use in or diversion to a `military 
end use' or `military end user' in Burma, China, the Russian 
Federation, or Venezuela. Such entities may be added to supplement No. 
7 to part 744--`Military End-User' (MEU) List through Federal Register 
notices published by BIS, and will thus be subject to a license 
requirement for exports, reexports, or transfers (in-country) of items 
specified in supplement No. 2 to part 744. The listing of entities 
under supplement No. 7 to part 744 is not an exhaustive listing of 
`military end users' for purposes of this section. Exporters, 
reexporters, and transferors are responsible for determining whether 
transactions with entities not listed on supplement No. 7 to part 744 
are subject to a license requirement under paragraph (a) of this 
section. The process in paragraph this (b)(1) for placing entities on 
the MEU List is only one method BIS may use to inform exporters, 
reexporters, and transferors of license requirements under this 
section.
    (i) End-User Review Committee (ERC). The End-User Review Committee 
(ERC), composed of representatives of the Departments of Commerce 
(Chair), State, Defense, Energy and, where appropriate, the Treasury, 
makes all decisions regarding additions to, removals from, or other 
modifications to the MEU List. Decisions by the ERC for purposes of the 
MEU List will be made following the procedures identified in this 
section and in supplement no. 5 to part 744--Procedures for End-User 
Review Committee Entity List and `Military End User' (MEU) List 
Decisions.
    (ii) License requirement for parties to the transaction. The 
license requirement for entities listed in supplement no. 7 to part 744 
applies to the export, reexport, or transfer (in-country) of any item 
subject to the EAR listed in supplement No. 2 to part 744 when an 
entity that is listed on the MEU List is a party to the transaction as 
described in Sec.  748.5(c) through (f).
    (2) Requests for removal from or modification of `Military End 
User' (MEU) List. Any entity listed on the MEU List may request that 
its listing be removed or modified. All such requests, including 
reasons therefor, must be in writing and sent to: Chair, End-User 
Review Committee, Bureau of Industry and Security, U.S. Department of 
Commerce, 14th Street and Pennsylvania Avenue NW, Room 3886, 
Washington, DC 20230. In order for an entity listed on the MEU List to 
petition BIS for their removal or modification, as applicable, the 
entity must address why the entity is not a `military end user' for 
purposes of this section.
    (i) Review. The ERC will review such requests for removal or 
modification in accordance with the procedures set forth in supplement 
No. 5 to part 744.
    (ii) BIS action. The Deputy Assistant Secretary for Export 
Administration will convey the decision on the request to the requester 
in writing. That decision will be the final agency action on the 
request.
    (c) License exception. Despite the prohibitions described in 
paragraphs (a) and (b) of this section, you may export, reexport, or 
transfer (in-country) items subject to the EAR under the provisions of 
License Exception GOV set forth in Sec.  740.11(b)(2)(i) and (ii) of 
the EAR.
    (d) License application procedure. When submitting a license 
application pursuant to this section, you must state in the 
``additional information'' block of the application that ``this 
application is submitted because of the license requirement in this 
section. In addition, either in the additional information block of the 
application or in an attachment to the application, you must include 
all known information concerning the `military end use' and `military 
end user(s)' of the item(s). If you submit an attachment with your 
license application, you must reference the attachment in the 
``additional information'' block of the application.
    (e) License review standards. (1) Applications to export, reexport, 
or transfer (in-country) items described in paragraph (a) of this 
section will be reviewed with a presumption of denial.
    (2) Applications may be reviewed under chemical and biological 
weapons, nuclear nonproliferation, or missile technology review 
policies, as set forth in Sec. Sec.  742.2(b)(4), 742.3(b)(4), and 
742.5(b)(4) of the EAR, if the end use may involve certain 
proliferation activities.
    (3) Applications for items requiring a license for any reason that 
are destined to Burma, China, the Russian Federation, or Venezuela for 
a `military end use' or `military end user' also will be subject to the 
review policy stated in paragraph (e)(1) of this section.
    (f) Military end use. In this section, `military end use' means: 
Incorporation into a military item described on the U.S. Munitions List 
(USML) (22 CFR part 121, International Traffic in Arms Regulations); 
incorporation into items classified under ECCNs ending in ``A018'' or 
under ``600 series'' ECCNs; or any item that supports or contributes to 
the operation, installation, maintenance, repair, overhaul, 
refurbishing, ``development,'' or ``production,'' of military items 
described on the USML, or items classified under ECCNs ending in 
``A018'' or under ``600 series'' ECCNs.
    (g) Military end user. In this section, the term `military end 
user' means the national armed services (army, navy, marine, air force, 
or coast guard), as well as the national guard and national police, 
government intelligence or reconnaissance organizations, or any person 
or entity whose actions or functions are intended to support `military 
end uses' as defined in paragraph (f) of this section.
    (h) Effects on contracts. Venezuela: Transactions involving the 
export, reexport, or transfer (in country) of items to or within 
Venezuela are not subject to the provisions of Sec.  744.21 if the 
contracts for such transactions were signed prior to November 7, 2014.

Supplement No. 7 to Part 744 [Amended]

0
8. The Supplement No.7 to Part 744 table is amended by:
0
a. Removing from the last sentence of the introductory text the phrase 
`supplement no. 2 to part 744' and adding in its place the phrase 
``this supplement 7 to part 744''; and
0
b. In the table adding in alphabetical order an entry for ``BURMA''.
    The addition reads as follows:
* * * * *

------------------------------------------------------------------------
                                                              Federal
                 Country                      Entity         Register
                                                             citation
------------------------------------------------------------------------
Burma...................................      [Reserved]      [Reserved]
 
                                * * * * *
------------------------------------------------------------------------


Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 2021-04745 Filed 3-4-21; 4:15 pm]
BILLING CODE 3510-33-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>