Authorization Validated End-User: Amendment to Existing Validated End-User Authorizations in the People's Republic of China (PRC) and India

AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

SUMMARY:

In this final rule, the Bureau of Industry and Security (BIS) amends the Export Administration Regulations (EAR) to suspend the availability of Authorization Validated End-User (VEU) status for any export, reexport, or transfer (in-country) of items subject to the EAR to Aviza Technology China, a VEU in the People's Republic of China (PRC/China) and to GE India's GE Fanuc Systems PVT Ltd facility in India. VEU status was provided to the PRC company in an April 2009 final rule published in the Federal Register, and to the eligible facility of the Indian company in a July 2009 final rule published in the Federal Register.

BIS is suspending the availability of Authorization VEU for exports, reexports, and transfers (in-country) due to material changes at the companies, consistent with the authorization's eligible end-user provisions. Suspension of the availability of Authorization VEU in this amendment is not the result of prohibited activities by the two companies. This amendment does not otherwise create a new license requirement or adversely affect the licensing policy for exports, reexports or transfers of items to the company and facility identified in this rule.

DATES:

This rule is effective December 23, 2009.

ADDRESSES:

Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. You may submit comments, identified by RIN 0694-AE77 (VEUAVIZAGE), by any of the following methods:

E-mail: publiccomments@bis.doc.gov. Include “RIN 0694-AE77 (VEUAVIZAGE)” in the subject line of the message.

Fax: (202) 482-3355. Please alert the Regulatory Policy Division, by calling (202) 482-2440, if you are faxing comments.

Mail or Hand Delivery/Courier: Sheila Quarterman, 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-AE77 (VEUAVIZAGE).

Send comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, to Jasmeet Seehra, Office of Management and Budget (OMB), by e-mail to Jasmeet_K._Seehra@omb.eop.gov, or by fax to (202) 395-7285. Comments on this collection of information should be submitted separately from comments on the final rule (i.e., RIN 0694-AE77 (VEUAVIZAGE))—all comments on the matter should be submitted by one of the three methods outlined above.

FOR FURTHER INFORMATION CONTACT:

Elizabeth Scott Sangine, Acting Chair, End-User Review Committee, Bureau of Industry and Security, U.S. Department of Commerce, 14th St. & Pennsylvania Avenue, NW., Room 2705, Washington, DC 20230; by telephone (202) 482-3343, or by e-mail to bscott@bis.doc.gov.

SUPPLEMENTARY INFORMATION:

Background

BIS amended the EAR in a final rule published in the Federal Register on June 19, 2007 (72 FR 33646) to create a new Authorization Validated End-User (VEU). Authorization VEU allows the export, reexport or transfer (in-country) of certain specified items (including commodities, software and technology, except for those controlled for missile technology or crime control reasons) to approved civil end-users located in eligible destinations under a general authorization instead of under multiple individual licenses. Authorization VEU is described in § 748.15 of the EAR. The June 19 rule also identified China as the initial eligible destination for shipments under the authorization; BIS identified India as an eligible destination in an October 1, 2007 final rule (72 FR 56010).

In a rule published in the Federal Register on April 29, 2009 (74 FR 19382), BIS designated Aviza Technology China (Aviza) as a VEU, thus authorizing certain specific exports, reexports and transfers (in-country) to the listed facilities of the company under Authorization VEU. On July 2, 2009, BIS designated GE India as a VEU (74 FR 31620); GE India's listing included its GE Fanuc Systems PVT Ltd. (GE Fanuc) facility as an “Eligible Destination,” and listed specific items that could be exported, reexported or transferred (in-country) to the GE Fanuc facility under Authorization VEU. Prior to publication of this rule, Aviza and GE India's GE Fanuc facility were listed in Supplement No. 7 to Part 748 of the EAR (Supplement No. 7 to Part 748—Authorization Validated End-User (VEU): List of Validated End-Users, Respective Eligible Items and Eligible Destinations).

In this final rule, BIS amends the EAR to suspend, until further notice, the authority of any person to export, reexport, or transfer (in-country) any items subject to the EAR under Authorization VEU to Aviza and to the GE Fanuc facility in India. BIS is suspending the availability of Authorization VEU for Aviza and the GE Fanuc facility due to material changes at the companies, consistent with § 748.15 of the EAR.

Suspension of the availability of Authorization VEU in this amendment is not the result of prohibited activities by the two companies. This amendment does not otherwise create a new license requirement or adversely affect the licensing policy for exports, reexports or transfers of items to the company and facility identified in this rule.

This amendment applies only to transactions under Authorization VEU involving Aviza and the GE Fanuc facility in India, which were previously identified in Supplement No. 7 to Part 748 of the EAR. This amendment does not apply to other companies or facilities in China or India that may be designated as eligible under Authorization VEU. License requirements and other provisions of the EAR continue to apply to exports, reexports, or transfers (in-country) to Aviza in China and the GE Fanuc facility in India. Additionally, all conditions and restrictions that applied to transactions involving Aviza or the GE Fanuc facility pursuant to Authorization VEU prior to the effective date of this amendment continue to apply. These restrictions and conditions include any that were imposed on either company in connection with its eligibility for Authorization VEU, as communicated by BIS in the initial letter that granted each company VEU status.

Since August 21, 2001, the Export Administration Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp., p. 783 (2002)), as extended most recently by the Notice of August 13, 2009 (74 FR 41325 (August 14, 2009), has continued the EAR in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222.

Saving Clause

Shipments of items removed from eligibility for export, reexport or transfer under Authorization VEU as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting carrier, or en route aboard a carrier to a port of export, on December 23, 2009, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previously applicable authorization so long as they are exported, reexported or transferred before January 6, 2010. Any such items not actually exported or reexported before midnight, on January 6, 2010, require a license in accordance with this regulation.

Rulemaking Requirements

1. This final 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 shall any person 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 (PRA), 44 U.S.C. 3501 et seq., unless that collection of information displays a currently valid OMB Control Number. This regulation involves information collections previously approved by the OMB under control number 0694-0088, “Multi-Purpose Application”, which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748, and which involves requirements in connection with Authorization Validated End-User. This rule is expected to result in an increase in license applications submitted to BIS. Total burden hours associated with the PRA and OMB control number 0694-0088 are not expected to increase significantly as a result of this rule.

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

4. The provisions of the Administrative Procedure Act requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable to this rule because this regulation involves a military and foreign affairs function of the United States (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 final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are not applicable. Therefore, this regulation is issued in final form. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. Comments may be submitted to Sheila Quarterman, Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, 14th St. & Pennsylvania Avenue, NW., Room 2705, Washington, DC 20230.

List of Subjects in 15 CFR Part 748

• Administrative practice and procedure
• Exports
• Reporting and recordkeeping requirements

Accordingly, part 748 of the Export Administration Regulations (15 CFR parts 730-774) is amended as follows:

PART 748—[AMENDED]

1. The authority citation for 15 CFR part 748 continues to read as follows:

Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 13, 2009, 74 FR 41325 (August 14, 2009).

Supplement No. 7 to Part 748 [Amended]

2. Supplement No. 7 to part 748 (Authorization Validated End-User (VEU): List of Validated End-Users, Respective Eligible Items and Eligible Destinations) is amended by:

a. Removing the entry for Aviza Technology China from the “Validated End-User,” “Eligible Items (By ECCN),” and “Eligible Destination” columns; and

b. Removing the entry for GE Fanuc Systems PVT Ltd. from the “Eligible Items (by ECCN)” and “Eligible Destination” columns associated with the VEU GE India.