Rule2023-06663
Additions to the Entity List; Amendment To Confirm Basis for Adding Certain Entities to the Entity List Includes Foreign Policy Interest of Protection of Human Rights Worldwide
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Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 30, 2023
Effective
March 28, 2023
Issuing agencies
Commerce DepartmentIndustry and Security Bureau
Abstract
In this rule, the Bureau of Industry and Security (BIS) amends the Export Administration Regulations (EAR) by adding eleven entities to the Entity List under the destinations of Burma, the People's Republic of China (China), Nicaragua, and Russia. These eleven entities have been determined by the U.S. Government to be acting contrary to the national security or foreign policy interests of the United States. In this rule, BIS also amends the EAR to explicitly confirm that the foreign policy interest of protecting human rights worldwide is a basis for adding entities to the Entity List.
Full Text
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<title>Federal Register, Volume 88 Issue 61 (Thursday, March 30, 2023)</title>
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[Federal Register Volume 88, Number 61 (Thursday, March 30, 2023)]
[Rules and Regulations]
[Pages 18983-18987]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-06663]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Part 744
[Docket No. 230324-0084]
RIN 0694-AJ20
Additions to the Entity List; Amendment To Confirm Basis for
Adding Certain Entities to the Entity List Includes Foreign Policy
Interest of Protection of Human Rights Worldwide
AGENCY: Bureau of Industry and Security, Department of Commerce.
ACTION: Final rule.
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SUMMARY: In this rule, the Bureau of Industry and Security (BIS) amends
the Export Administration Regulations (EAR) by adding eleven entities
to the Entity List under the destinations of Burma, the People's
Republic of China (China), Nicaragua, and Russia. These eleven entities
have been determined by the U.S. Government to be acting contrary to
the national security or foreign policy interests of the United States.
In this rule, BIS also amends the EAR to explicitly confirm that the
foreign policy interest of protecting human rights worldwide is a basis
for adding entities to the Entity List.
DATES: This rule is effective on March 28, 2023.
FOR FURTHER INFORMATION CONTACT: Chair, End-User Review Committee,
Office of the Assistant Secretary for Export Administration, Bureau of
Industry and Security, Department of Commerce, Phone: (202) 482-5991,
Email: <a href="/cdn-cgi/l/email-protection#0f4a5d4c4f6d667c216b606c21686079"><span class="__cf_email__" data-cfemail="c184938281a3a8b2efa5aea2efa6aeb7">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background
The Entity List (supplement no. 4 to part 744 of the EAR (15 CFR
parts 730 through 774)) identifies entities for which there is
reasonable cause to believe, based on specific and articulable facts,
that the entities have been involved, are involved, or pose a
significant risk of being or becoming involved in activities contrary
to the national security or foreign policy interests of the United
States, pursuant to Sec. 744.11(b). The EAR impose additional license
requirements on, and limit the availability of, most license exceptions
for exports, reexports, and transfers (in-country) when a listed entity
is a party to the transaction. The license review policy for each
listed entity is identified in the ``License Review Policy'' column on
the Entity List, and the impact on the availability of license
exceptions is described in the relevant Federal Register document that
added the entity to the Entity List. The Bureau of Industry and
Security (BIS) places entities on the Entity List pursuant to parts 744
(Control Policy: End-User and End-Use Based) and 746 (Embargoes and
Other Special Controls) of the EAR.
The End-User Review Committee (ERC), composed of representatives of
the Departments of Commerce (Chair), State, Defense, Energy and, where
appropriate, the Treasury, makes all decisions regarding additions to,
removals from, or other modifications to the Entity List. The ERC makes
all decisions to add an entry to the Entity List by majority vote and
makes all decisions to remove or modify an entry by unanimous vote.
[[Page 18984]]
Entity List Decisions
A. Additions to the Entity List
The ERC determined to add two entities, Aviatech and Aviazapchast,
under the destination of Russia, and three entities, Miya Win, Myanmar
New Era Trading Company, and Suntac Group, under the destination of
Burma, to the Entity List for engaging in activities contrary to U.S.
foreign policy interests. These additions are being made because
Aviatech, Avizapchast, Miya Win, Myanmar New Era Trading Company, and
Suntac Group sell, procure, and service military equipment that enables
Burma's military regime to carry out human rights abuses, as well as
brutal aerial attacks that have killed and injured civilians. These
activities are contrary to the foreign policy interests of the United
States under Sec. 744.11(b) of the EAR. For these five entities, BIS
imposes a license requirement for all items subject to the EAR and will
review license applications under a presumption of denial.
The ERC determined to add the Nicaraguan National Police (NNP) to
the Entity List under the destination of Nicaragua for engaging in
activities contrary to U.S. foreign policy interests. This addition is
being made because the NNP is responsible for or complicit in, or has
directly or indirectly engaged in, serious human rights abuses in
Nicaragua. These activities are contrary to the foreign policy
interests of the United States under Sec. 744.11(b) of the EAR. For
this entity, BIS imposes a license requirement for all items subject to
the EAR and will review license applications under a presumption of
denial.
The ERC determined to add the following five entities: Luopu Haishi
Dingxin Electronic Technology Co., Ltd., Moyu Haishi Electronic
Technology Co., Ltd., Pishan Haishi Yong'an Electronic Technology Co.,
Ltd., Urumqi Haishi Xin'an Electronic Technology Co., Ltd., and Yutian
Haishi Meitian Electronic Technology Co., Ltd., to the Entity List
under the destination of China, for engaging in activities contrary to
U.S. foreign policy interests. These additions are being made because
Luopu Haishi Dingxin Electronic Technology Co., Ltd., Moyu Haishi
Electronic Technology Co., Ltd., Pishan Haishi Yong'an Electronic
Technology Co., Ltd., Urumqi Haishi Xin'an Electronic Technology Co.,
Ltd., and Yutian Haishi Meitian Electronic Technology Co., Ltd. have
been implicated in human rights violations and abuses in the
implementation of China's campaign of repression, mass arbitrary
detention and high-technology surveillance against the Uyghur people
and members of other Muslim minority groups in the Xinjiang Uyghur
Autonomous Region (XUAR). These activities are contrary to the foreign
policy interests of the United States under Sec. 744.11(b) of the EAR.
For these five entities, BIS imposes a license requirement for all
items subject to the EAR and will review license applications under a
presumption of denial.
For the reasons described above, this final rule adds the following
eleven entities to the Entity List and includes, where appropriate,
aliases:
Burma
<bullet> Miya Win International Ltd.,
<bullet> Myanmar New Era Trading Company Ltd., and
<bullet> Suntac Group.
China
<bullet> Luopu Haishi Dingxin Electronic Technology Co., Ltd.,
<bullet> Moyu Haishi Electronic Technology Co., Ltd.,
<bullet> Pishan Haishi Yong'an Electronic Technology Co., Ltd.,
<bullet> Urumqi Haishi Xin'an Electronic Technology Co., Ltd., and
<bullet> Yutian Haishi Meitian Electronic Technology Co., Ltd.,
Nicaragua
<bullet> Nicaraguan National Police (NNP).
Russia
<bullet> Aviatech Supply Ltd., and
<bullet> Aviazapchast PLC.
B. Amendment to Sec. 744.11--License Requirements That Apply to
Entities Acting or at Significant Risk of Acting Contrary to the
National Security or Foreign Policy Interests of the United States:
Explicit Inclusion of Protection of Human Rights To Further U.S.
Foreign Policy Interests
As part of BIS's ongoing review and update of the EAR to further
the foreign policy interest of protecting human rights, consistent with
the Export Control Reform Act of 2018 (ECRA), in this rule BIS amends
the ``Criteria for revising the Entity List'' paragraph (b)
introductory text and the ``is informed'' provisions of paragraph
(c)(3) (Additional prohibition on persons informed by BIS) of Sec.
744.11 to explicitly confirm a longstanding position that the
protection of human rights throughout the world is a foreign policy
interest considered in assessing whether the activities of an entity--
and those acting on behalf of such entity are contrary to the national
security or foreign policy of the United States. This amendment is
consistent with the foreign policy objectives set forth at 50 U.S.C.
4811(2)(D), which include the protection of human rights and promotion
of democracy.
BIS is amending this provision to confirm this foreign policy
interest and its potential application to the Entity List, similar to
the current illustrative list of examples of activities that could lead
to an entity's addition to the Entity List, as set forth in Sec.
744.11(b)(1)-(5) of the EAR. This amendment is consistent with the
recent decision by the United States Court of Appeals for the District
of Columbia Circuit in Changji Esquel Textile Co. Ltd. v. Raimondo, 40
F.4th 716 (2022), which affirmed BIS's authority to add parties to the
Entity List for human rights-related reasons. In that case, the Court
found that ``[a]dding human-rights violators to the Entity List falls
comfortably within'' the scope of 50 U.S.C. 4813(a)(16), which
authorizes the Secretary of Commerce to ``undertake any other action as
is necessary to carry out this subchapter that is not otherwise
prohibited by law,'' and that it did not ``discern any clear and
mandatory prohibition on adding entities to the [Entity] List for
human-rights abuses, particular given the breadth of section
4813(a)(16) and the deference we owe to the Executive Branch in matters
of foreign affairs.'' Id. at 723, 725.
Further, and as noted by the Court in the Esquel decision (Id. at
720), years before the enactment of ECRA, BIS made explicit reference
in its Entity List rules to the agency's longstanding authority to take
action under the Entity List to address human rights concerns. For
example, the background sections of two Entity List rules published in
November 2012 and April 2014, respectively, each cite a range of
``grounds for inclusion,'' among them ``activities contrary to U.S.
national security or foreign policy interests, including terrorism and
export control violations involving abuse of human rights'' (77 FR
71,097 (Nov. 29, 2012)); 79 FR 21,394 (Apr. 16, 2014)). These rules
relied upon authority set forth in the Export Administration Act of
1979, as amended, (50 U.S.C. 4601-4623 (Supp. III 2015)), specifically,
Section 6 (Foreign Policy Controls). This provision's Congressional
supporters intended that foreign policy controls apply to human rights
concerns, including ``changing the human rights policy of another
country.'' H.R. Rep. No. 96-200, at 7 (1979) (Comm. Rep.).
[[Page 18985]]
Savings Clause
For the changes being made in this final rule, shipments of items
removed from eligibility for a License Exception or export, reexport,
or transfer (in-country) without a license (NLR) as a result of this
regulatory action that were en route aboard a carrier to a port of
export, reexport, or transfer (in-country), on March 28, 2023, pursuant
to actual orders for export, reexport, or transfer (in-country) to or
within a foreign destination, may proceed to that destination under the
previous eligibility for a License Exception or export, reexport, or
transfer (in-country) without a license (NLR) before April 27, 2023.
Any such items not actually exported, reexported, or transferred (in-
country) before midnight, on April 27, 2023, require a license in
accordance with this final rule.
Export Control Reform Act of 2018
On August 13, 2018, the President signed into law the John S.
McCain National Defense Authorization Act for Fiscal Year 2019, which
included the Export Control Reform Act of 2018 (ECRA) (50 U.S.C. 4801-
4852). ECRA provides the legal basis for BIS's principal authorities
and serves as the authority under which BIS issues this rule.
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 or 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 an
information collection approved by OMB under control number 0694-0088,
Simplified Network Application Processing System. BIS does not
anticipate a change to the burden hours associated with this collection
as a result of this rule. Information regarding the collection,
including all supporting materials, can be accessed at <a href="https://www.reginfo.gov/public/do/PRAMain">https://www.reginfo.gov/public/do/PRAMain</a>.
3. This rule does not contain policies with federalism implications
as that term is defined in Executive Order 13132.
4. Pursuant to section 1762 of the Export Control Reform Act of
2018, this action is exempt from the Administrative Procedure Act (5
U.S.C. 553) requirements for notice of proposed rulemaking, opportunity
for public participation, and delay in effective date.
5. 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.
Accordingly, no regulatory flexibility analysis is required, and none
has been prepared.
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 through 774) is amended as follows:
PART 744--CONTROL POLICY: END-USER AND END-USE BASED
0
1. The authority citation for 15 CFR part 744 continues to read as
follows:
Authority: 50 U.S.C. 4801-4852; 50 U.S.C. 4601 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. 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 September 19, 2022, 87 FR 57569 (September 21, 2022); Notice of
November 8, 2022, 87 FR 68015 (November 10, 2022).
0
2. Section 744.11 is amended by revising the last sentence of paragraph
(b) introductory text and the first sentence of paragraph (c)(3) to
read as follows:
Sec. 744.11 License Requirements that Apply to Entities Acting or at
Significant Risk of Acting Contrary to The National Security or Foreign
Policy Interests of the United States.
* * * * *
(b) * * * Paragraphs (b)(1) through (5) of this section provide an
illustrative list of activities that could be or represent a
significant risk of being contrary to the national security or foreign
policy interests of the United States, including the foreign policy
interest of the protection of human rights throughout the world.
* * * * *
(c) * * *
(3) The export, reexport, or transfer (in-country) of specified
items to a certain party because there is reasonable cause to believe,
based on specific and articulable facts, that the entity has been
involved, is involved, or poses a significant risk of being or becoming
involved in activities that are contrary to the national security or
foreign policy interests of the United States, including the foreign
policy interest of the protection of human rights throughout the world,
and those acting on behalf of such entity. * * *
0
3. Supplement no. 4 to part 744 is amended by:
0
a. Under BURMA, adding entries in alphabetical order for ``Miya Win
International Ltd.,'' ``Myanmar New Era Trading Company Ltd.,'' and
``Suntac Group'';
0
b. Under CHINA, PEOPLE'S REPUBLIC OF, adding entries in alphabetical
order for ``Luopu Haishi Dingxin Electronic Technology Co., Ltd.,''
``Moyu Haishi Electronic Technology Co., Ltd.,'' ``Pishan Haishi
Yong'an Electronic Technology Co., Ltd.,'' ``Urumqi Haishi Xin'an
Electronic Technology Co., Ltd.,'' and ``Yutian Haishi Meitian
Electronic Technology Co., Ltd.'';
0
c. Adding in alphabetical order the destination of NICARAGUA under the
Country Column, and the entry ``Nicaraguan National Police (NNP)''; and
0
d. Under RUSSIA, adding entries in alphabetical order for ``Aviatech
Supply Ltd.'' and ``Aviazapchast PLC''.
The additions read as follows:
Supplement No. 4 to Part 744--Entity List
* * * * *
----------------------------------------------------------------------------------------------------------------
License review Federal Register
Country Entity License requirement policy citation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
BURMA * * * * * *
[[Page 18986]]
Miya Win International Ltd., For all items Presumption of 88 FR [INSERT FR
3rd street, Thit subject to the denial. PAGE NUMBER ] 3/
Sarhousing, No.3/401, (8) EAR. (See Sec. 30/2023.
Ward, South 744.11 of the EAR)
Okkalapatownship, Yangon
Region, Burma, 11091; and
Kokkineresidence Street,
No.12/B, Shwe Taungkyar (2)
Ward, Bahan Township,
Yangon Region, Burma,
11201.
* * * * * *
Myanmar New Era Trading For all items Presumption of 88 FR [INSERT FR
Company Ltd., Bo Myint Swe subject to the denial. PAGE NUMBER] 3/
Street, No. (B/193), Aung EAR. (See Sec. 30/2023.
Chan Thar (2) Ward, 744.11 of the EAR)
Thanlyin Township, Yangon
Region, Burma, 01-655200.
* * * * * *
Suntac Group, a.k.a., the For all items Presumption of 88 FR [INSERT FR
following one alias: subject to the denial. PAGE NUMBER] 3/
-Suntac International EAR. (See Sec. 30/2023.
Trading Co.; and 744.11 of the EAR)
-Suntac Group of Companies.
151 (B) Thiri Mingalar Lane,
Mayangon Township, Yangon,
Burma.
* * * * * *
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CHINA, PEOPLE'S * * * * * *
REPUBLIC OF
Luopu Haishi Dingxin For all items Presumption of 88 FR [INSERT FR
Electronic Technology Co., subject to the denial. PAGE NUMBER ] 3/
Ltd., a.k.a., the following EAR. (See Sec. 30/2023.
two aliases: 744.11 of the EAR)
-Luo Pu District HaiShi Ding
Xin Electronic Technology
Co., Ltd.; and
-Luopu County Haishi Dingxin
Electronic Technology Co.,
Ltd.
No.8, South Side, National
Highway 315, Luopu County
Petroleum Company Hotan
Prefecture, Xinjiang,
848201 China.
* * * * * *
Moyu Haishi Electronic For all items Presumption of 88 FR [INSERT FR
Technology Co., Ltd., No. subject to the denial. PAGE NUMBER ] 3/
7, Yinhe North Road, Moyu EAR. (See Sec. 30/2023.
County Hotan Prefecture, 744.11 of the EAR)
Xinjiang, 848100 China.
* * * * * *
Pishan Haishi Yong'an For all items Presumption of 88 FR [INSERT FR
Electronic Technology Co., subject to the denial. PAGE NUMBER ] 3/
Ltd., a.k.a., the following EAR. (See Sec. 30/2023.
two aliases: 744.11 of the EAR)
-PiShan Haishi YongAn
Electronic Technology Co.,
Ltd.; and
-Pishan Haishi Yongan
Electronic Technology Co.,
Ltd.
No. 28, Guma North Road,
Pishan County, Hotan
Prefecture, Xinjiang,
845150 China.
* * * * *
Urumqi Haishi Xin'an For all items Presumption of 88 FR [INSERT FR
Electronic Technology Co., subject to the denial. PAGE NUMBER ] 3/
Ltd., Room 5010-5021, Block EAR. (See Sec. 30/2023.
A, Yingke Plaza, No. 217 744.11 of the EAR)
Gaoxin Street, Xinshi
District, High-tech
Industrial Development Zone
Wulumuqi, Xinjiang, 830011
China.
* * * * *
Yutian Haishi Meitian For all items Presumption of 88 FR [INSERT FR
Electronic Technology Co., subject to the denial. PAGE NUMBER ] 3/
Ltd., No. 9, Tuanjie Road, EAR. (See Sec. 30/2023.
Yutian County Hotan 744.11 of the EAR)
Prefecture, Xinjiang,
848499 China.
* * * * * *
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NICARAGUA Nicaraguan National Police For all items Presumption of 88 FR [INSERT FR
(NNP), 4PJP+GFP, Managua subject to the denial. PAGE NUMBER ] 3/
11132, Nicaragua. EAR. (See Sec. 30/2023.
744.11 of the EAR)
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[[Page 18987]]
* * * * * * *
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RUSSIA * * * * * *
Aviatech Supply Ltd., For all items Presumption of 88 FR [INSERT FR
a.k.a., the following two subject to the denial. PAGE NUMBER]
aliases: EAR. (See Sec. 3/30/2023
-Aviatech; and 744.11 of the EAR)
-Aviatechexport Ltd.
630123, Aeroport St.
Build.1A, 3rd Floor,
Novosibirsk, Russia.
Aviazapchast PLC, 48, Ivana For all items Presumption of 88 FR [INSERT FR
Franko Street, Moscow, subject to the denial. PAGE NUMBER ] 3/
121351, Russia. EAR. (See Sec. 30/2023.
744.11 of the EAR)
* * * * *
* * * * * * *
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* * * * *
Thea D. Rozman Kendler,
Assistant Secretary for Export Administration.
[FR Doc. 2023-06663 Filed 3-28-23; 4:15 pm]
BILLING CODE 3510-33-P
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