On April 9, 2021, the US Commerce Department’s Bureau of Industry and Security (BIS) strengthened restrictions targeting Burma by adding Burma to the list of countries subject to the Export Administration Regulations’ (EAR’s) military-intelligence end-use and end-user controls and controls on certain support activities by US persons (“Interim Final Rule“). These controls were first issued on January 15, 2021 (“January Rule“), and became effective March 16, 2021.  Our blog posts on other recent sanctions targeting Burma in response to the Burmese military’s coup are available here and here.   

January Rule

By way of background, the January Rule imposed (i) new end-use and end-user controls, as well as (ii) new controls on certain support activities by US persons, with respect to military-intelligence end-uses and end-users in China, Russia, Venezuela, or a country in Country Groups E:1 and E:2 (currently Cuba, Iran, North Korea, and Syria) (together, “Military-Intelligence Jurisdictions”). 

  • Pursuant to the January Rule, US persons must receive authorization from BIS to export, reexport, or transfer any items subject to the EAR when the items are intended for military-intelligence end-uses or end-users in Military-Intelligence Jurisdictions. 
  • Further, the January Rule expanded controls on US persons’ activities such that a BIS license is required to ship, transmit, or transfer any items (even foreign-origin items not otherwise subject to the EAR) for military-intelligence end-uses and end-users in Military Intelligence Jurisdictions; to facilitate any shipment, transmission, or transfer; or to perform any contract, service, or employment in support of such military-intelligence end-uses and end-users in Military-Intelligence Jurisdictions. 

Our previous blog post on the January Rule is available here.

The military-intelligence end-use and end-user controls now apply to Burma

The Interim Final Rule amends EAR § 744.22 to apply military-intelligence end-use and end-user controls to Burma. As a result, a BIS license is now required for the export/reexport to or transfer within Burma of any items subject to the EAR if the exporter, reexporter, or transferor has knowledge, or is informed by BIS, that the item is destined for a military-intelligence end-use or end-user in Burma. 

The Interim Final Rule identified the following Burmese military entities as military-intelligence end-users:

  • Office of Chief of Military Security Affairs, a branch of the Burmese armed forces tasked with monitoring and interrogating Burmese protesters, and
  • Directorate of Signal, a branch of the Burmese Army responsible for the military telecommunications network.

US persons are now prohibited from supporting military-intelligence end-uses and end-users in Burma

The Interim Final Rule also adds Burma to the list of countries at EAR § 736.2(b)(7)(i)(A)(5) in which US persons are prohibited from supporting military-intelligence end-uses and end-users. Following Burma’s addition to this list, US persons must receive authorization from BIS to ship, transmit, transfer items for military-intelligence end-uses and end-users in Burma; to facilitate any such shipment, transmission, or transfer; or to perform any contract, service, or employment in support of such military-intelligence end-uses and end-users in Burma. As noted above, this restriction applies to all items, even those not subject to the EAR, and thus can apply to foreign-origin items that may not be subject to US export controls in other contexts.

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Ms. Contini focuses her practice on export controls, trade sanctions, and anti-boycott laws. This includes advising US and multinational companies on trade compliance programs, risk assessments, licensing, review of proposed transactions and enforcement matters. Ms. Contini works regularly with companies across a wide range of industries, including the pharmaceutical/medical device, oil and gas, and nuclear sectors.

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