Addition of Certain Persons to the Entity List; and Removal of Person From the Entity List Based on a Removal Request
Federal Register, Volume 80 Issue 32 (Wednesday, February 18, 2015)
Federal Register Volume 80, Number 32 (Wednesday, February 18, 2015)
Rules and Regulations
Pages 8524-8529
From the Federal Register Online via the Government Printing Office www.gpo.gov
FR Doc No: 2015-03321
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Part 744
Docket No. 141230999-4999-01
RIN 0694-AG46
Addition of Certain Persons to the Entity List; and Removal of Person From the Entity List Based on a Removal Request
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Final rule.
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SUMMARY: This rule amends the Export Administration Regulations (EAR) by adding eleven persons to the Entity List. The eleven persons who are added to the Entity List have been determined by the U.S. Government to be acting contrary to the national security or foreign policy interests of the United States. These eleven persons will be listed on the Entity List under the destinations of People's Republic of China (China), Pakistan, and United Arab Emirates (U.A.E.).
This final rule also removes one person from the Entity List, as the result of a request for removal submitted by the person, a review of information provided in the removal request in accordance with the procedure for requesting removal or modification of an Entity List entity, and further review conducted by the End-User Review Committee (ERC).
DATES: This rule is effective February 18, 2015.
FOR FURTHER INFORMATION CONTACT: Chair, End-User Review Committee, Office of the Assistant Secretary, Export Administration, Bureau of Industry and Security, Department of Commerce, Phone: (202) 482-5991, Fax: (202) 482-3911, Email: ERC@bis.doc.gov.
SUPPLEMENTARY INFORMATION:
Background
The Entity List (Supplement No. 4 to Part 744) notifies the public about entities that have engaged in activities that could result in an increased risk of the diversion of exported, reexported or transferred (in-country) items to weapons of mass destruction (WMD) programs. Since its initial publication, grounds for inclusion on the Entity List have expanded to include activities sanctioned by the State Department and activities contrary to U.S. national security or foreign policy interests. Certain exports, reexports, and transfers (in-country) to entities identified on the Entity List require licenses from BIS and are usually subject to a policy of denial. The availability of license exceptions in such transactions is very limited. The license review policy for each entity is identified in the license review policy column on the Entity List and the availability of license exceptions is noted in the Federal Register notices adding persons to the Entity List. BIS places entities on the Entity List based on certain sections of part 744 (Control Policy: End-User and End-Use Based) and part 746 (Embargoes and Other Special Controls) of the EAR.
The 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 all decisions to remove or modify an entry by unanimous vote.
ERC Entity List Decisions
Additions to the Entity List
This rule implements the decision of the ERC to add eleven persons under eleven entries to the Entity List. These eleven persons are being added on the basis of Sec. 744.11 (License requirements that apply to entities acting contrary to the national security or foreign policy interests of the United States) of the EAR. The eleven entries added to the Entity List consist of four entries in China, four in Pakistan, and three in the U.A.E.
The ERC reviewed Sec. 744.11(b) (Criteria for revising the Entity List) in making the determination to add these eleven persons to the Entity List. Under that paragraph, persons for whom there is reasonable cause to believe, based on specific and articulable facts, have been involved, are involved, or pose 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 and those acting on behalf of such persons may be added to the Entity List. Paragraphs (b)(1) through (b)(5) of Sec. 744.11 include an illustrative list of activities that could be contrary to the national security or foreign policy interests of the United States.
The ERC determined the following four persons being added to the Entity List under the destination of China have been involved in activities contrary to the national security and foreign policy interests of the United States. The ERC determined that the National University of Defense Technology (NUDT), the National Supercomputing Center in Changsha (NSCC-CS), National Supercomputing Center in Guangzhou (NSCC-GZ), and the National Supercomputing Center in Tianjin (NSCC-TJ), all located in the People's Republic of China, meet the guidelines listed under Sec. 744.11(b): Entities for which there is reasonable cause to believe, based on specific and articulated facts, that an 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 and those acting on behalf of such entities may be added to the Entity List pursuant to this
Page 8525
section. Specifically, NUDT has used U.S.-origin multicores, boards, and (co)processors to produce the TianHe-1A and TianHe-2 supercomputers located at the National Supercomputing Centers in Changsha, Guangzhou, and Tianjin. The TianHe-1A and TianHe-2 supercomputers are believed to be used in nuclear explosive activities as described in Sec. 744.2(a) of the EAR.
The ERC also determined the seven persons being added to the Entity List under the destinations of Pakistan (four additions) and the U.A.E. (three additions) have been involved in activities contrary to the national security and foreign policy interests of the United States. The ERC determined that Pakistan's Hakim Noor (a.k.a., Hakim Nur) and the United Arab Emirates' Ajab Noor (a.k.a., Ajab Nur) and entities working with Hakim and Ajab meet the guidelines listed under Sec. 744.11(b). Specifically, Hakim Noor, Ajab Noor, Sher Qadir, Azad Motors Property Choice, Hakim Nur Sarafa, Ajab Trading Co. LLC, and Perfect Tyre Trading Co. LLC, have engaged in activities in support of the Haqqani Network, a person designated by the Secretary of State as a Foreign Terrorist Organization, and a number of transnational extremist organizations.
Pursuant to Sec. 744.11(b)(1) and (b)(5) of the EAR, the ERC determined that the conduct of these eleven persons raises sufficient concern that prior review of exports, reexports, or transfers (in-
country) of items subject to the EAR involving these persons, and the possible imposition of license conditions or license denials on shipments to the persons, will enhance BIS's ability to prevent violations of the EAR.
For the National University of Defense Technology (NUDT), National Supercomputing Center in Changsha (NSCC-CS), National Supercomputing Center in Guangzhou (NSCC-GZ), and the National Supercomputing Center in Tianjin (NSCC-TJ), the ERC specified a license requirement for all items subject to the EAR, and established a license application review policy of case-by-case review for all items subject to the EAR. For the other seven persons recommended for addition on the basis of Sec. 744.11, the ERC specified a license requirement for all items subject to the EAR and a license review policy of presumption of denial.
The license requirements apply to any transaction in which items are to be exported, reexported, or transferred (in-country) to any of the persons or in which such persons act as purchaser, intermediate consignee, ultimate consignee, or end-user. In addition, no license exceptions are available for exports, reexports, or transfers (in-
country) to the persons being added to the Entity List in this rule.
This final rule adds the following eleven persons under eleven entries to the Entity List:
China
(1) National Supercomputing Center Changsha (NSCC-CS), Changsha City, Hunan Province, China;
(2) National Supercomputing Center Guangzhou (NSCC-GZ), Sun Yat-Sen University, University City, Guangzhou, China;
(3) National Supercomputing Center Tianjin (NSCC-TJ), 7th Street, Binhai New Area, Tianjin, China; and
(4) National University of Defense Technology (NUDT), Garden Road (Metro West), Changsha City, Kaifu District, Hunan Province, China.
Pakistan
(1) Azad Motors Property Choice, a.k.a., the following four aliases:
--Peshawar Master Azad Motors;
--Peshawar Motors Complex;
--Karakoram Azad Motors; and
--Azad Cars. Main GT Road, Hajji Camp, Peshawar, Pakistan;
(2) Hakim Noor, a.k.a., the following one alias:
--Hakim Nur. Sarafa Shop #10, Noor Muhammad Market, Miram Shaw, Pakistan; and Mir Nasir Plaza, Sikandar Pura, Pakistan;
(3) Hakim Nur Sarafa, a.k.a., the following two aliases:
--Noor Muhammad Market; and
--Haji Hakim Noor Saraf. Sarafa Shop #10, Noor Muhammad Market, Miram Shaw, Pakistan; and Market Shop Number 10, Sarafa Bazar Miram Shaw, Pakistan; and
(4) Sher Qadir, Darpa Khel Village, Mirim Shaw, Pakistan.
United Arab Emirates
(1) Ajab Noor, a.k.a., the following one alias:
--Ajab Nur. Box No. 28715, Dubai, U.A.E.; and Dubai Tower, Al Maktoum Rd, Al Rigga, Dubai, Near Baniyas Square Metro Station, U.A.E.;
(2) Ajab Trading Co. LLC, Box No. 28715, Dubai, U.A.E.; and Dubai Tower, Al Maktoum Rd, Al Rigga, Dubai, Near Baniyas Square Metro Station, U.A.E.; and
(3) Perfect Tyre Trading Co LLC, Al Ain--Al Sanaiya--Inh. Mohammed Sultan Aldarmaki-Bld, Dubai, U.A.E.; and Post Box No. 67221, Abu Dhabi, U.A.E.
Removal From the Entity List
This rule implements a decision of the ERC to remove one person, SATCO GmbH, located in Germany, from the Entity List on the basis of a removal request by a company of the same name as the listed person. Based upon a review of the information provided in the removal request in accordance with Sec. 744.16 (Procedure for requesting removal or modification of an Entity List entity), the ERC determined that this person should be removed from the Entity List.
SATCO GmbH was originally added to the Entity List on December 12, 2013 (78 FR 75458) for participating in a procurement ring headed by Saeed Talebi (Talebi) that coordinated the supply and sale of U.S.-
origin items in violation of Department of Treasury, Office of Foreign Assets Control regulations and the EAR. Based on a request from an unrelated company of the same name being adversely impacted, and the fact that SATCO GmbH is not a legally established corporate entity in Bremen, Germany, and that BIS has no evidence of the use of this name by Talebi network since their addition to the Entity List, the ERC determined to remove SATCO GmbH from the Entity List.
In accordance with Sec. 744.16(c), the Deputy Assistant Secretary for Export Administration has sent written notification to this person, informing the person of the ERC's decision to remove the person from the Entity List.
This final rule implements the decision to remove the following one person located in Germany from the Entity List:
Germany
(1) SATCO GmbH, a.k.a., the following one alias:
--Satco Inc., Park Street 4, Bremen, Germany 28209.
The removal of the one entity referenced above, which was approved by the ERC, eliminates the existing license requirements in Supplement No. 4 to part 744 for exports, reexports and transfers (in-country) to this entity. However, the removal of this entity 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 an entity from the Entity List nor the removal of Entity List-based license requirements relieves persons of their obligations under General Prohibition 5 in Sec. 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
Page 8526
end-use that is prohibited by part 744 of the EAR.'' Additionally this removal does not relieve persons of their obligation to apply for export, reexport or in-country transfer 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.
Savings Clause
Shipments of items removed from eligibility for a License Exception or export or reexport without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export or reexport, on February 18, 2015, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export or reexport without a license (NLR).
Export Administration Act
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 amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013) and as extended by the Notice of August 7, 2014, 79 FR 46959 (August 11, 2014), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222 as amended by Executive Order 13637.
Rulemaking Requirements
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Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been determined to be not significant for purposes of Executive Order 12866.
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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 OMB under control number 0694-0088, Simplified Network Application Processing System, which includes, among other things, license applications and carries a burden estimate of 43.8 minutes for a manual or electronic submission. Total burden hours associated with the PRA and OMB control number 0694-0088 are not expected to increase as a result of this rule. You may 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 email to Jasmeet_K._Seehra@omb.eop.gov, or by fax to (202) 395-7285.
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This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.
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For the eleven persons added under eleven entries to the Entity List in this final rule, the provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public comment 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)). BIS implements this rule to protect U.S. national security or foreign policy interests by preventing items from being exported, reexported, or transferred (in-country) to the persons being added to or the entries being modified on the Entity List. If this rule were delayed to allow for notice and comment and a delay in effective date, then entities being added to the Entity List by this action would continue to be able to receive items without a license and to conduct activities contrary to the national security or foreign policy interests of the United States. In addition, because these parties may receive notice of the U.S. Government's intention to place these entities on the Entity List if a proposed rule is published, doing so would create an incentive for these persons to either accelerate receiving items subject to the EAR to conduct activities that are contrary to the national security or foreign policy interests of the United States, or to take steps to set up additional aliases, change addresses, and other measures to try to limit the impact of the listing on the Entity List once a final rule was published. 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. Accordingly, no regulatory flexibility analysis is required and none has been prepared.
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For the one removal from the Entity List in this final rule, pursuant to the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B), BIS finds good cause to waive requirements that this rule be subject to notice and the opportunity for public comment because it would be contrary to the public interest.
In determining whether to grant removal requests from the Entity List, a committee of U.S. Government agencies (the End-User Review Committee (ERC)) evaluates information about and commitments made by listed persons requesting removal from the Entity List, the nature and terms of which are set forth in 15 CFR part 744, Supplement No. 5, as noted in 15 CFR 744.16(b). The information, commitments, and criteria for this extensive review were all established through the notice of proposed rulemaking and public comment process (72 FR 31005 (June 5, 2007) (proposed rule), and 73 FR 49311 (August 21, 2008) (final rule)). This one removal has been made within the established regulatory framework of the Entity List. If the rule were to be delayed to allow for public comment, U.S. exporters may face unnecessary economic losses as they turn away potential sales because the customer remained a listed person on the Entity List even after the ERC approved the removal pursuant to the rule published at 73 FR 49311 on August 21, 2008. By publishing without prior notice and comment, BIS allows the applicant to receive U.S. exports immediately since this one applicant already has received approval by the ERC pursuant to 15 CFR part 744, Supplement No. 5, as noted in 15 CFR 744.16(b).
The removals from the Entity List granted by the ERC involve interagency deliberation and result from review of public and non-
public sources, including sensitive law enforcement information and classified information, and the measurement of such information against the Entity List removal criteria. This information is extensively reviewed according to the
Page 8527
criteria for evaluating removal requests from the Entity List, as set out in 15 CFR part 744, Supplement No. 5 and 15 CFR 744.16(b). For reasons of national security, BIS is not at liberty to provide to the public detailed information on which the ERC relied to make the decision to remove this entity. In addition, the information included in the removal request is information exchanged between the applicant and the ERC, which by law (section 12(c) of the Export Administration Act), BIS is restricted from sharing with the public. Moreover, removal requests from the Entity List contain confidential business information, which is necessary for the extensive review conducted by the U.S. Government in assessing such removal requests.
Section 553(d) of the APA generally provides that rules may not take effect earlier than thirty (30) days after they are published in the Federal Register. BIS finds good cause to waive the 30-day delay in effectiveness under 5 U.S.C. 553(d)(1) because this rule is a substantive rule which relieves a restriction. This rule's removal of one person from the Entity List removes a requirement (the Entity-List-
based license requirement and limitation on use of license exceptions) on this one person being removed from the Entity List. The rule does not impose a requirement on any other person for this one removal from the Entity List.
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 under the APA or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. As a result, no final regulatory flexibility analysis is required and none has been prepared.
List of Subject 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
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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 January 21, 2014, 79 FR 3721 (January 22, 2014); Notice of August 7, 2014, 79 FR 46959 (August 11, 2014); Notice of September 17, 2014, 79 FR 56475 (September 19, 2014); Notice of January 21, 2015, 80 FR 3461 (January 22, 2015).
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Supplement No. 4 to part 744 is amended:
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By adding under China, in alphabetical order, four Chinese entities;
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By removing under Germany, one German entity, ``Satco GmbH, a.k.a., the following one alias: -Satco Inc. Park Street 4, Bremen, Germany 28209.'';
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By adding under Pakistan, in alphabetical order, four Pakistani entities; and
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By adding under United Arab Emirates, in alphabetical order, three Emirati entities.
The additions read as follows:
Supplement No. 4 to Part 744--Entity List
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License review Federal Register
Country Entity License requirement policy citation
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CHINA, PEO- * * * * * *
PLE'S RE-
PUBLIC OF
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National Supercomputing For all items Case-by-case 80 FR INSERT FR
Center Changsha (NSCC-CS), subject to the basis. PAGE NUMBER 2/18/
Changsha City, Hunan EAR. (See Sec. 15.
Province, China 744.11 of the EAR)
National Supercomputing For all items Case-by-case 80 FR INSERT FR
Center Guangzhou (NSCC-GZ), subject to the basis. PAGE NUMBER 2/18/
Sun Yat-Sen University, EAR. (See Sec. 15.
University City, Guangzhou, 744.11 of the EAR)
China
National Supercomputing For all items Case-by-case 80 FR INSERT FR
Center Tianjin (NSCC-TJ), subject to the basis. PAGE NUMBER 2/18/
7th Street, Binhai New EAR. (See Sec. 15.
Area, Tianjin, China 744.11 of the EAR)
National University of For all items Case-by-case 80 FR INSERT FR
Defense Technology (NUDT), subject to the basis. PAGE NUMBER 2/18/
Garden Road (Metro West), EAR. (See Sec. 15.
Changsha City, Kaifu 744.11 of the EAR)
District, Hunan Province,
China
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PAKISTAN * * * * * *
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Azad Motors Property Choice, For all items Presumption of 80 FR INSERT FR
a.k.a., the following four subject to the denial. PAGE NUMBER 2/18/
aliases: EAR. (See Sec. 15.
--Peshawar Master Azad 744.11 of the EAR)
Motors;
--Peshawar Motors
Complex;
--Karakoram Azad Motors;
and
--Azad Cars
Page 8528
Main GT Road, Hajji Camp,
Peshawar, Pakistan
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Hakim Noor, a.k.a., the For all items Presumption of 80 FR INSERT FR
following one alias: subject to the denial. PAGE NUMBER 2/18/
--Hakim Nur. EAR. (See Sec. 15.
744.11 of the EAR)
Sarafa Shop #10, Noor
Muhammad Market, Miram
Shaw, Pakistan; and
Mir Nasir Plaza, Sikandar
Pura, Pakistan.
Hakim Nur Sarafa, a.k.a., For all items Presumption of 80 FR INSERT FR
the following two aliases: subject to the denial. PAGE NUMBER 2/18/
--Noor Muhammad Market; and EAR. (See Sec. 15.
744.11 of the EAR)
--Haji Hakim Noor Saraf.
Sarafa Shop #10, Noor
Muhammad Market, Miram
Shaw, Pakistan; and
Market Shop Number 10,
Sarafa Bazar Miram Shaw,
Pakistan.
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Sher Qadir, Darpa Khel For all items Presumption of 80 FR INSERT FR
Village, Mirim Shaw, subject to the EAR denial. PAGE NUMBER 2/18/
Pakistan 15.
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UNITED ARAB EMIRATES * * * * * *
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Ajab Noor, a.k.a., the For all items Presumption of 80 FR INSERT FR
following one alias: subject to the denial. PAGE NUMBER 2/18/
--Ajab Nur. EAR. (See Sec. 15.
744.11 of the EAR)
Box No. 28715, Dubai,
U.A.E.; and
Dubai Tower, Al Maktoum Rd,
Al Rigga, Dubai, Near
Baniyas Square Metro
Station, U.A.E.
Ajab Trading Co. LLC, Box For all items Presumption of 80 FR INSERT FR
No. 28715, Dubai, U.A.E.; subject to the denial. PAGE NUMBER 2/18/
and EAR. (See Sec. 15.
744.11 of the EAR)
Dubai Tower, Al Maktoum Rd,
Al Rigga, Dubai, Near
Baniyas Square Metro
Station, U.A.E.
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Perfect Tyre Trading Co LLC, For all items Presumption of 80 FR INSERT FR
Al Ain--Al Sanaiya--Inh. subject to the denial. PAGE NUMBER 2/18/
Mohammed Sultan Aldarmaki-- EAR. (See Sec. 15.
Bld, Dubai, U.A.E.; and 744.11 of the EAR)
Post Box No. 67221, Abu
Dhabi, U.A.E.
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Page 8529
Dated: February 12, 2015.
Kevin J. Wolf,
Assistant Secretary for Export Administration.
FR Doc. 2015-03321 Filed 2-17-15; 8:45 am
BILLING CODE 3510-33-P
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