E9-3918. Removal and Modification of Certain Entries From the Entity List: Person Removed Based on Removal Request and Clarification of Certain Entries

AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

SUMMARY:

This rule amends the Export Administration Regulations (EAR) by removing a person from the Entity List (Supplement No. 4 to Part 744). This person is being removed from the Entity List because the End-User Review Committee (ERC) decided to approve this person's request for removal from the Entity List.

This rule also makes a clarification for two persons that were listed on the Entity List prior to this rule being published to revise the addresses provided for these listed persons. This rule updates the address information for these two persons by replacing incorrect information.

The Entity List provides notice to the public that certain exports and reexports to parties identified on the Entity List require a license from the Bureau of Industry and Security (BIS) and that availability of License Exceptions in such transactions is limited.

DATES:

Effective Date: This rule is effective February 24, 2009. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis.

ADDRESSES:

You may submit comments, identified by RIN 0694-AE51, by any of the following methods:

E-mail: [e-mail] Include “RIN 0694-AE51” in the subject line of the message.

Fax: [phone]. Please alert the Regulatory Policy Division, by calling [phone], if you are faxing comments.

Mail or Hand Delivery/Courier: Timothy Mooney, U.S. Department of Commerce, Bureau of Industry and Security, Regulatory Policy Division, 14th St. & Pennsylvania Avenue, NW., Room 2705, Washington, DC 20230, Attn: RIN 0694-AE51.

Send comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, to Jasmeet K. Seehra, Office of Management and Budget (OMB), by e-mail to [e-mail], or by fax to [phone]; and to the Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, 14th St. & Pennsylvania Avenue, NW., Room 2705, Washington, DC 20230. Comments on this collection of information should be submitted separately from comments on the final rule (i.e. RIN 0694-AE51)—all comments on the latter should be submitted by one of the three methods outlined above.

FOR FURTHER INFORMATION CONTACT:

Karen Nies-Vogel, End-User Review Committee, Office of the Assistant Secretary, Export Administration, Bureau of Industry and Security, Department of Commerce, Phone: [phone], Fax: [phone], E-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

Background

In Supplement No. 4 to part 744 (The Entity List) of the EAR, this rule removes one person from the Entity List on the basis of § 744.16 (Procedure for requesting removal or modification of an Entity List Entity) of the EAR. In addition, as a clarification, this rule modifies the entries for two listed persons. The modifications to existing entries include revising the addresses for two listed persons in Malaysia that were listed on the Entity List prior to this rule being published.

On August 21, 2008 (73 FR 49311), BIS published a final rule that expanded the Entity List by adding § 744.11 (License Requirements that Apply to Entities Acting Contrary to the National Security or Foreign Policy Interests of the United States) to the EAR. Since the publication of that August 2008 rule, BIS has published two final rules that added persons to the Entity List on the basis of § 744.11 of the EAR. The first rule that added persons to the Entity List on the basis of § 744.11 of the EAR was published on September 22, 2008 (73 FR 54499) and the second rule was published on December 5, 2008 (73 FR 73999).

In addition to adding § 744.11, the August 2008 rule added § 744.16 and Supplement No. 5 to part 744 to the EAR. Section 744.16 established a formal procedure under the EAR whereby persons listed on the Entity List could submit to BIS in writing a formal request for removal or modification of their listing on the Entity List. The procedures for submitting these removal or modification requests were outlined in § 744.16 and the review and decision process for the requests was outlined in Supplement No. 5 to part 744.

ERC Entity List Decisions

The ERC, composed of representatives of the Departments of Commerce, State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from or changes to the Entity List. The ERC is chaired by the Department of Commerce and makes all decisions to add an entry to the Entity List by majority vote and all decisions to remove or modify an entry by unanimous vote. As noted in the preamble of the August 2008 final rule and in Supplement No. 5 to part 744, the activities of the ERC include conducting an annual review of the Entity List to make a determination whether any removals or modifications should be made.

Pursuant to Supplement No. 5 to Part 744, the ERC determined that the following Entity List entry should be removed, for the reasons provided below. This rule implements this decision. In total, this rule removes one (1) entry from the Entity List and modifies two (2) additional entries, as described below under Technical Update to Two Entities.

Removal Based Upon § 744.16

The person being removed with this rule submitted a formal removal request to BIS based upon the procedures outlined in § 744.16 of the EAR. This one entity is located in Hong Kong:

Hong Kong

(1) Britestone, 4/F, Chinabest International Centre, 8 Kwai On Rd, Kwai Chung, N.T., Hong Kong.

As outlined in Supplement No. 5 to part 744, the ERC received and reviewed this removal request submitted by this listed entity. Based upon the review of the information provided in the removal request submitted to BIS, in accordance with § 744.16 and further review that was conducted by the ERC's member agencies of this end-user, the ERC determined that this one person should be removed from the Entity List. The ERC decision to remove Britestone took into account Britestone's cooperation with the U.S. Government, as well as Britestone's assurances of future compliance with the EAR. In accordance with § 744.16(c), the Deputy Assistant Secretary for Export Administration has sent written notification to this person informing them of the ERC's decision to remove them from the Entity List. This final rule implements the decision to remove this one Hong Kong person from the Entity List.

Reminder To Consider Other End-Use/End-User Controls

The removal of this one person from the Entity List (from Hong Kong, as described above) eliminates the existing license requirement in Supplement No. 4 to part 744 for exports and reexports to this person. However, the removal of this person from the Entity List does not relieve persons of other obligations under part 744 of the EAR or under other parts of the EAR. Neither the removal of a person from the Entity List nor the removal of Entity List-based license requirements relieve persons of their obligations under General Prohibition 5 in § 736.2(b)(5) of the EAR which provides that, “you may not, without a license, knowingly export or reexport any item subject to the EAR to an end-user or end-use that is prohibited by part 744 of the EAR.” Nor do such removals relieve persons of their obligation to apply for export or reexport licenses required by other provisions of the EAR. BIS strongly urges the use of Supplement No. 3 to part 732 of the EAR, “BIS's 'Know Your Customer' Guidance and Red Flags,” when persons are involved in transactions that are subject to the EAR.

Technical Update for Two Entities

This rule revises the addresses of two persons that were listed on the Entity List under Malaysia prior to this rule being published to update the addresses provided for these listed persons. These updated addresses will better assist the public in identifying these listed persons. This rule revises the addresses in Malaysia for these two persons, respectively, as follows:

Malaysia

(2) Antcorp System, 5-02 Wisma Pantai, Jalan Wisma Pantai 12200 Butterworth, Penang, Malaysia; 27-G Lorong Kelasah 2, Tamen Kelasah 13700 Seberang Jaya, Penang, Malaysia; and No. 9 Jalan 3/4C Desa Melawati 53100 Kuala Lumpur, Malaysia; and

(3) Mohd Ansari, 5-02 Wisma Pantai, Jalan Wisma Pantai 12200 Butterworth, Penang, Malaysia; 27-G Lorong Kelasah 2, Tamen Kelasah 13700 Seberang Jaya, Penang Malaysia; and No. 9 Jalan 3/4C Desa Melawati 53100 Kuala Lumpur Malaysia.

Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of July 23, 2008, 73 FR 43603 (July 23, 2008), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act.

Rulemaking Requirements

1. This rule has been determined to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to nor 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 collections previously approved by the OMB under control numbers 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748. Miscellaneous and recordkeeping activities account for 12 minutes per submission. Total burden hours associated with the Paperwork Reduction Act and Office and Management and Budget control number 0694-0088 are expected to increase slightly as a result of this rule.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military or foreign affairs function of the United States. (See 5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. 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.

List of Subjects in 15 CFR Part 744

• Exports
• Reporting and recordkeeping requirements
• Terrorism

Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730-774) is amended as follows:

PART 744—[AMENDED]

1. The authority citation for 15 CFR part 744 continues to read as follows:

Authority: 50 U.S.C. app. 2401 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. 12947, 60 FR 5079, 3 CFR, 1995 Comp., p. 356; 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 July 23, 2008, 73 FR 43603 (July 25, 2008); Notice of November 10, 2008, 73 FR 67097 (November 12, 2008).

2. Supplement No. 4 to part 744 is amended:

(a) By removing under Hong Kong, this one Hong Kong entity “Britestone, 4/F, Chinabest International Centre, 8 Kwai On Rd, Kwai Chung, N.T., Hong Kong”; and

(b) By revising under Malaysia, in alphabetical order, two Malaysian entities, to read as follows:

Supplement No. 4 to Part 744—Entity List

Country	Entity	License requirement	License review policy	Federal Register citation
*         *         *         *         *         *         *
Malaysia
*         *         *         *         *         *         *
	Antcorp System, 5-02 Wisma Pantai, Jalan Wisma Pantai 12200 Butterworth, Penang, Malaysia; 27-G Lorong Kelasah 2, Tamen Kelasah 13700 Seberang Jaya, Penang, Malaysia; and No. 9 Jalan 3/4C Desa Melawati 53100 Kuala Lumpur, Malaysia	For all items subject to the EAR. (See § 744.11 of the EAR)	Presumption of denial	73 FR 54508. 9/22/08. 74 FR [INSERT FR PAGE NUMBER]. 2/24/2009.
*         *         *         *         *         *         *
	Mohd Ansari, 5-02 Wisma Pantai, Jalan Wisma Pantai 12200 Butterworth, Penang, Malaysia; 27-G Lorong Kelasah 2, Tamen Kelasah 13700 Seberang Jaya, Penang Malaysia; and No. 9 Jalan 3/4C Desa Melawati 53100 Kuala Lumpur Malaysia	For all items subject to the EAR. (See § 744.11 of the EAR)	Presumption of denial	73 FR 54508 9/22/08. 73 FR 74001 12/5/08. 74 FR [INSERT FR PAGE NUMBER]. 2/24/2009.
*         *         *         *         *         *         *

Dated: February 19, 2009.

Matthew S. Borman,

Acting Assistant Secretary for Export Administration.