On May 18, 2016, the US Treasury Department’s Office of Foreign Assets Control (OFAC) took steps to further ease economic sanctions against Burma (or Myanmar), continuing a recent trend. The actions, in OFAC’s words, are intended to demonstrate the Obama Administration’s “strong support” for the peaceful transition to a democratically-elected Burmese government and are intended to facilitate trade with Burma. The most significant changes are those extending and expanding the authorization for trade-related transactions to allow for transactions incident to the movement of goods within Burma, which had been difficult to do without running afoul of OFAC sanctions given the prevalence of designated individuals in the Burmese economy. Also, several important Burmese banks, which had been off-limits to US businesses, are no longer prohibited parties.
OFAC’s changes fall into four categories: expanding trade-related authorizations; delisting and expanding the authorization to engage with certain Burmese financial institutions; authorizing transactions for US persons residing in Burma; and designating six additional companies with whom any business is prohibited. We address each change and its implications in turn.
The most significant change involves indefinitely extending and expanding the authorization to engage in transactions ordinarily incident to the exportation to or from Burma of goods, technology and non-financial services. Last December, OFAC had issued General License 20 (GL20), which was intended to “encourage normal trade with non-sanctioned businesses in Burma.” That general license, which was limited in duration to six months, authorized transactions ordinarily incident to exports to and from Burma, including participating in trade finance transactions and paying port fees and shipping and handling charges associated with sending goods to or from Burma. While GL20 greatly expanded trade opportunities with Burma for US persons, the prevalence of Burmese SDNs in the Burmese economy generally, and in the transportation industry in particular, limited the impact of the general license because it was difficult to get goods to market without having to deal with SDNs.
OFAC’s new actions expand the scope of GL20 by authorizing not only those transactions incident to exports to and from Burma, but also expressly authorizing all transactions ordinarily incident to the movement of goods within Burma. This includes transactions such as transporting goods from warehouses in Burma for further distribution, even if those transactions involve dealings with (but not exports to, from, or on behalf of) designated parties. OFAC also indefinitely extended the general license by eliminating the June 7, 2016 expiration date originally contained in GL20. OFAC’s actions in this regard should substantially lessen compliance concerns for businesses exporting goods to or from Burma and enable them to engage in longer-term business planning.
In addition to freeing up trade-related controls, OFAC also took steps to lift most restrictions on dealing with Burmese financial institutions. Specifically, OFAC delisted three previously-designated Burmese banks, eliminating the prohibition on dealing with them.1 At the same time, OFAC added two other designated Burmese financial institutions—Innwa Bank and Myawaddy Bank—to the general license that authorizes most transactions with the specified financial institutions notwithstanding their ongoing designation. Together, these two actions authorize most transactions involving all Burmese financial institutions—the only exceptions being the exportation or re-exportation of financial services to the Burmese Ministry of Defense or any new investment in or with Asia Green Development Bank, Ayeyarwady Bank, Innwa Bank and Myawaddy Bank. Coupled with the expanded general license for exports to and from Burma, these regulatory changes should allow for greater trade involving US persons and Burma.
US Persons Residing in Burma
In addition to the trade- and finance-related changes discussed above, OFAC also issued a general license authorizing US persons resident in Burma to engage in those transactions necessary to their routine maintenance, including the payment of rent and other living expenses and the acquisition of goods and services for personal use. In OFAC’s words, these amendments will “make it easier for US persons to reside and work in Burma.” Employment of US persons by designated parties, however, is still prohibited.
At the same time that it took steps to ease sanctions and increase the opportunity for trade with Burma, OFAC added six entities to the SDN list, based on their being owned 50 percent or more by designated parties Steven Law or Asia World Co. Ltd. OFAC took these actions to “incentivize further democratic reforms and maintain pressure on targeted individuals and entities and the military.”2 While transactions with these entities are now prohibited, the additional designations should not have a material impact on US trade with Burma.
OFAC’s actions significantly reduce the scope of US sanctions that have discouraged and impeded US business dealings with Burma. While some sanctions remain in place—including a ban on new investment with the Ministry of Defense, a ban on dealings with SDNs and state and non-state armed groups, and a ban on the importation into the United States of Burmese-origin rubies and jadeite and jewelry containing them—most transactions with Burma and Burmese companies are now authorized. That said, as sanctions do remain in place in certain areas, US companies should tread carefully and seek legal counsel before engaging in business in Burma.