On October 7, 2016, President Obama issued an executive order finding that the situation that led to national emergency declared in Executive Order 13047, and which led to the imposition of sanctions on Burma, had terminated. As a result of this expected action, all of the Burma sanctions appear to have been removed effective immediately as of the date of that order. The order revoked the various previous orders that implemented the finding of a national emergency and imposed sanctions. Additionally, it waived the sanctions in section 5(b) of the Tom Lantos Block Burmese JADE (Junta’s Anti-Democratic Efforts) Act of 2008 (Public Law 110-286) (the “JADE Act”). Finally, the President set aside the visa ban and entry restrictions imposed on certain persons in Burma under Presidential Proclamation 8693

As I noted in an earlier post, the Office of Foreign Assets Control (“OFAC”) had previously indicated that the Burmese Sanctions Regulations would no longer be in effect as of the date of the executive order terminating the national emergency with respect to Burma. Even so, the order has now been issued but the regulations are still sitting on the OFAC website as if they were in effect. There is another web page, however, which says that the Burmese Sanctions Regulations are now no longer in effect.

That same web page says that the restrictions on the import of jade and rubies from Burma has been lifted, but it’s not quite clear why (or if) that is the case. The Executive Order just released only waived the provisions of section 4(b) of the Jade Act but not those of section 6 which implements the import ban on jade and rubies. The President has the power to waive the ban in section 6 on import but only after forwarding certifications to the Ways and Means and Foreign Affairs Committees in the House and the Finance and Foreign Relations Committees in the Senate. There is nothing to indicate that this has been done yet, although it is reasonable to assume that this will happen at some point. So it would seem to me that until that certification is made to Congress and an executive order is issued waiving section 6, the import ban is legally still in effect.

At the same time as the executive order, OFAC removed from the SDN List all the individuals and entities that had been designated under the Burma Sanctions. This includes individuals, such as Steven Law, that were designated under the Burma sanctions as a result of narcotics related activities.

Probably the person who was happiest over being removed from the SDN List was Law’s father, Lo Hsing Han, although Mr. Lo may not be able to express his happiness to those of among the living, Mr. Lo having died in 2013. The removal of dead people from the SDN List long after they have rotted in their graves would, I suppose, be a humorous anecdote illustrating agency ineptitude were it not for the fact that live people with similar names continue to feel the ill effects of SDN List designations. The least that OFAC could decently do to prevent the collateral impact of SDN List designations on innocent people is to scrub corpses from that list in a timely fashion.

President Obama announced today, after meeting with the newly elected President of Burma, that he intends to lift all remaining sanctions on Burma. With unusual alacrity, at least for the Office of Foreign Assets Control (“OFAC”), that agency issued FAQ #480 stating that its sanctions against Burma would disappear the moment that the President issues an executive order terminating the national emergency with respect to Burma. In other words, the Burmese Sanctions Regulations will immediately become ineffective even if it takes, as it probably will, months for OFAC to get around to pulling them down or issue a rule repealing them.

Of course, and not surprisingly, that FAQ may not be true. The restrictions on the import of jade and rubies from Burma were imposed by the infelicitously named “Tom Lantos Block Burmese JADE (Junta’s Anti-Democratic Efforts) Act of 2008” and cannot be removed until the White House makes certain notifications to Congress.

There is also the question of the status of blocked individuals after the President declares that the national emergency with respect to Burma is over. Section 5(b)(1) automatically blocked the property of certain persons in Burma and section 5(h) requires congressional notification before waiving that sanction. In 2009, the President issued a waiver as to all such persons not listed on the SDN List and that waiver has been congressionally notified.

But is President Obama really intending to remove everyone on the SDN List designated under the Burma sanctions including Steven Law and his companies such as Asia World? Law is on the list for narcotics trafficking, and there seems little reason to rehabilitate him simply because Burma has a democratically elected government. But if Law and his companies remain on the SDN list and the regulations go away, what happens to General License No. 20, which permits goods to be exported to Burma through Asia World ports? Without that license, exports to Burma from the United States will effectively be halted again.

Perhaps we need a few more FAQs.

Yesterday the Office of Foreign Assets Control (“OFAC”) amended the Burmese Sanctions Regulations to broaden the scope of permissible trade with Burma. The Burma regulations, which have been amended piecemeal rather than simply re-issued, remain a complex and confusing mess with prohibitions in one section repealed in a later section. (Why not just remove the first provision, you ask? Don’t be silly, I answer. Do you want lawyers to starve?)

So, for example, section 537.202 prohibits the “exportation … to Burma of any financial services,” which effectively eliminates all trade with Burma because transferring money to Burma is considered an “export of financial services” in OFAC-ese. But if you keep reading the regulations, then you’ll find all the way at the end of the Burma regulations another provision, section 537.529, which says the exact opposite and says that exports of financial services to Burma are authorized. Of course, as is always the case, you still can’t transfer money, er, export financial services, to any blocked party.

Of course, that was all well and good until OFAC discovered that the best port in Burma, and the one through which almost all goods went to and from Burma, was owned by Asia World, a blocked party, effectively foreclosing U.S. trade with Burma. So on December 7, 2015, issued General License No. 20 which allowed all transactions “ordinarily incident to an exportation to or from” Burma as long as it did not involve an exportation of goods to a blocked party.

Although it’s not entirely clear that shipping goods through a blocked port isn’t an export to or from a blocked party, the intent, if not the language, was clear and the port at Yangon was back in business, at least until June 7, 2016, when General License 20 was set to expire. Yesterday’s amendment moved General License No. 20 to a new section 537.532, effectively eliminating the expiration date for dealing with Yangon Port or other blocked individuals while moving goods to and from Burma.

Yesterday’s amendment also dealt with a similar problem confronting U.S. persons residing in Burma, although there was no comparable General License and this issue is now being addressed for the first time by OFAC. Blocked parties have pervasive ownership interests in Burma.  Asia World, for example, owns toll roads, airports, hotels, electric companies and supermarkets. The new section 537.525 allows all transactions by U.S. persons “ordinarily incident to the routine and necessary maintenance within Burma,” other than transactions related to employment of a U.S. person by a blocked party. With this amendment, U.S. persons living in Burma will not have to worry that they’ll have to pay OFAC a $250,000 fine on top of a $1 highway toll, a $2 bread loaf purchase or a $30 electricity bill.

Finally, the amendment is intended to permit transactions with and through almost all banks in Burma. In addition to a number of other entities, the amendment removed three blocked banks from the SDN List and from the general license in section 537.531 since it would no longer be necessary for those banks. It also added two blocked banks to that general license. Of course, this still leaves the issue that we’ve talked about before. Nothing in the SDN listings for these five banks covered by the general license references the general license. So screening software will still show these banks as hits, and funds will be needlessly blocked.

Photo Credit: Bagan by Staffan Scherz [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://flic.kr/p/aAeXsZ [cropped and processed]. Copyright 2011 Staffan Scherz.

When John Kerry, while attending the Association of Southeast Asian Nations (ASEAN) Regional Forum hosted by Burma, stayed at the Lake Garden Hotel, a posh French-managed resort in the country’s capital of Nay Pyi Taw, he probably wasn’t expecting it to be a big deal. Of course, that’s probably because no one at State realized that the resort was owned by Burmese tycoon U Zaw Zaw who is on OFAC’s SDN List. Sometimes you really are smarter when you stay at a Holiday Inn Express.

The State Department, however, rushed in to try to put out the public relations fires.

“You can stay at this hotel no matter who you are, you just can’t do business with it. So if you wanted to sell them towels, you could not do that. But you could stay there,” [State Department spokesman Marie] Harf explained.

That’s a fairly clumsy invocation of the travel exemption contained in the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. § 1702(b)(4), which exempts from sanctions “any transactions ordinarily incident to travel to or from any country.” Although many exemptions do not extend to dealings with SDN, this statutorily based exemption does. (In case you’re wondering, the travel ban to Cuba is not affected by this exemption because those sanctions are imposed not under IEEPA but under the Trading with the Enemy Act.)

Of course, the problem here is this: what is “ordinarily incident” to international travel? Certainly, Kerry staying in the room, ordering a little room service, buying a miniature of vodka from the room’s minibar, and perhaps even watching a pay-per-view movie would fall within this. But suppose (purely hypothetically, of course) that Secretary Kerry decided to pay for a massage in the hotel spa? Is that “ordinarily incident” to international travel? Or paying the resort its standard greens fee for a round of golf?  As is the case in most sanctions matters, there is no clear answer here and no answers from OFAC.  That Holiday Inn Express is looking smarter and smarter.

*This headline would have been so much better if the military junta had not moved the capital of Burma from Rangoon to Nay Pyi Taw in 2005