E9-5860. Removal and Modification of Certain Entries From the Entity List: Persons Removed or Modified Based on ERC Annual Review

AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

SUMMARY:

This rule amends the Export Administration Regulations (EAR) by removing two persons from the Entity List (Supplement No. 4 to Part 744). These persons are being removed from the Entity List because of determinations made by the United States Government during the annual review of the Entity List conducted by the End-User Review Committee (ERC).

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 or add an address. These two listed persons were listed under addresses in more than one country. This rule removes one of the addresses for each of these entities.

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 March 18, 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-AE57, by any of the following methods:

E-mail: [e-mail]. Include “RIN 0694-AE57” 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-AE57.

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-AE57)—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 two listed persons and modifies the entries for two listed persons on the basis of an annual review of the Entity List that was conducted by the End-User Review Committee (ERC). The modifications of the entries of two of the listed entries include the removal of their addresses under the United Arab Emirates (U.A.E.) and deletion of cross-references to the U.A.E. entries for these listed persons' entries under Germany and Hong Kong. The ERC approved these modifications pursuant to an annual review of the Entity List, which was conducted in accordance with the procedures outlined in Supplement No. 5 to part 744 (Procedures for End-User Review Committee Entity List Decisions).

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 entries should be removed or revised, for the reasons provided below. This rule implements these decisions. In total, this rule removes four entries from the Entity List, including two entries for persons that had been listed on the Entity List as persons with addresses in multiple countries prior to publication of this rule, and modifies two entries, including removing cross-references for the two entities that had previously been listed with addresses in multiple countries.

Removals Based Upon ERC Annual Review

The two persons being removed from the Entity List with this rule are removed on the basis of the results of the annual review of the Entity List that was conducted by the ERC in accordance with the procedures outlined in Supplement No. 5 to Part 744. These two entities are both located in the United Arab Emirates:

United Arab Emirates

(1) Bazaar Trading Co., No. 212 Baniyas Tower, Dubai, U.A.E. 6708; and

(2) Elmstone Trading L.L.C., P.O. Box 24896, Sharjah, U.A.E.

As outlined in Supplement No. 5 to part 744, the ERC conducts a systematic review of the Entity List. Based upon the results of that annual review, the ERC made a determination that these two persons, described above, should be removed from the Entity List. The ERC decision to recommend removal of these persons also took into account recent cooperation between the U.S. Government and the U.A.E. Government regarding certain end-users of concern. This final rule implements the decision to remove these two U.A.E. persons from the Entity List.

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

The removal of these two persons from the Entity List (from the U.A.E, as described above—based upon the ERC Annual Review) eliminates the existing license requirements in Supplement No. 4 to part 744 for exports and reexports to these persons. However, the removal of these persons 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.

Modifications Based Upon ERC Annual Review

This rule makes modifications to the entries for two listed persons on the Entity List. This rule removes additional addresses for these persons that had been listed on the Entity List as alternate addresses for these entities prior to publication of this final rule. Both of these alternate addresses that are removed were addresses in the U.A.E. In other words, prior to publication of this final rule, these listed persons were entities that had two entries each on the Entity List to account for addresses in two different countries. This rule removes the addresses in the U.A.E. for these two persons, but retains the listing for these listed persons on the Entity List under Germany and Hong Kong, respectively, as follows:

United Arab Emirates

(3) Akbar Ashraf Vaghefi, Shop No. 3-4, Sharafia Ahmed Ali Building, Al Nakheel, Deira, Dubai, U.A.E.; (See alternate address under Germany); and

Note that Akbar Ashraf Vaghefi is still listed on the Entity List as a German entry. The changes in this rule are limited to eliminating the alternate country address that had been provided for this listed person in the U.A.E.

(4) Antony Emmanuel, No. 3 & 4, Sharifia Ahmed Ali Bldg, P.O. Box 42340, Al Nakheel, Deira, Dubai, U.A.E. (See alternate address under Hong Kong).

Note that Antony Emmanuel is still listed on the Entity List as a Hong Kong entry. The changes in this rule are limited to eliminating the alternate country address that had been provided for this listed person in the U.A.E.

Based upon the results of the annual review, the ERC made a determination to remove these two listed persons' entries under the U.A.E, but to retain their listings on the Entity List under Germany and Hong Kong. The ERC decision to recommend removal of these persons also took into account recent cooperation between the U.S. Government and the U.A.E. Government regarding certain end-users of concern. This rule implements that decision by removing the U.A.E. entries for these two listed persons and by revising their respective entries under Germany and Hong Kong, to remove the last sentence of the “Entity” column entry that had referred persons to “(See alternate address under U.A.E.)” for these listed persons prior to publication of this rule.

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 of 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 United Arab Emirates, these four U.A.E. entities “Akbar Ashraf Vaghefi, Shop No. 3-4 Sharafia Ahmed Ali Building, Al Nakheel, Deira, Dubai, U.A.E. (See alternate address under Germany)”; “Antony Emmanuel, No. 3 & 4; Sharifia Ahmed Ali Bldg, P.O. Box 42340, Al Nakheel , Deira, Dubai, U.A.E. (See alternate address under Hong Kong)”; “Bazaar Trading Co., No. 212 Baniyas Tower, Dubai, U.A.E. 6708”; and “Elmstone Trading L.L.C., P.O. Box 24896, Sharjah, U.A.E.”;

(b) By revising under Germany, in alphabetical order, one German entity; and

(c) By revising under Hong Kong, in alphabetical order, one Hong Kong entity to read as follows:

Supplement No. 4 to Part 7-4—Entity List

Country	Entity	License requirement	License review policy	Federal Register Citation
*         *         *         *         *         *         *
GERMANY	Akbar Ashraf Vaghefi, Koburgerstr 10, D-10825, Berlin, Germany	For all items subject to the EAR. (See § 744.11 of the EAR)	Presumption of denial	73 FR 54504, 9/22/08, 74 FR [INSERT FR PAGE NUMBER] 03/18/09.
*         *         *         *         *         *         *
HONG KONG	Antony Emmanuel, No: 3 & 4; 12F Commercial VIP Building, 112-116 Canton Rd., Tsim Sha Tsui, Hong Kong	For all items subject to the EAR. (See § 744.11 of the EAR)	Presumption of denial	73 FR 54505, 9/22/08, 74 FR [INSERT FR PAGE NUMBER] 03/18/09.
*         *         *         *         *         *         *

Dated: March 13, 2009.

Matthew S. Borman,

Acting Assistant Secretary for Export Administration.