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, 18983-18987 [2023-06663]

Agencies

• DEPARTMENT OF COMMERCE
• Bureau of Industry and Security

[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 [www.gpo.gov]
[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: [email protected].

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
 Miya Win International Ltd.,
 Myanmar New Era Trading Company Ltd., and
 Suntac Group.
China
 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.,
Nicaragua
 Nicaraguan National Police (NNP).
Russia
 Aviatech Supply Ltd., and
 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 https://www.reginfo.gov/public/do/PRAMain.
    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
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                                                  * * * * * * *
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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