In the Matter of MUTCO International Kelenbergweg 37 1101 EX Amsterdam, Netherlands; Respondent, 38133-38136 [06-5986]

Agencies

• DEPARTMENT OF COMMERCE
• Bureau of Industry and Security
• Industry and Security Bureau

[Federal Register Volume 71, Number 128 (Wednesday, July 5, 2006)]
[Notices]
[Pages 38133-38136]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-5986]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

[Docket No. 05-BIS-20]


In the Matter of MUTCO International Kelenbergweg 37 1101 EX 
Amsterdam, Netherlands; Respondent

Decision and Order

    In a charging letter dated November 22, 2005, the Bureau of 
Industry and Security (``BIS'') alleged that Respondent, MUTCO 
International (``MUTCO''), committed two violations of the Export 
Administration Regulations (``Regulations''), \1\ issued under the 
Export Administration Act of 1979, as amended (50 U.S.C. app. 2401-2420 
(2000)) (the ``Act'').\2\ BIS alleged that MUTCO conspired to obtain 
toxins, including Aflatoxin (M1, P1, Q1) and Staphyloccocal Enterotoxin 
(A and B), items subject to the Regulations and

[[Page 38134]]

classified under export control classification number (``ECCN'') 1C351, 
on behalf of a North Korean end-user and to export those toxins to 
North Korea. The charging letter also alleged that MUTCO solicited a 
violation of the Regulations by ordering the aforementioned toxins from 
a United States company and by agreeing to complete the shipment of the 
toxins through the Netherlands to North Korea.
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    \1\ The Regulations are currently codified at 15 CFR Parts 730-
774 (2006). The charged violations occurred in 2000 through 2002. 
The Regulations governing the violations at issue are found in the 
2000 through 2002 versions of the Code of Federal Regulations (15 
CFR Parts 730-774 (2000-2002)). The 2006 Regulations establish the 
procedures that apply to this matter.
    \2\ From August 21, 1994 through November 12, 2000, the Act was 
in lapse. During that period, the President, through Executive Order 
12924, which had been extended by successive Presidential Notices, 
the last of which was August 3, 2000 (3 CFR Part 2000 Comp. 397 
(2001)), continued the Regulations in effect under the International 
Emergency Economic Powers Act (50 U.S.C. 1701-1706 (2000)) 
(``IEEPA''). On November 13, 2000, the Act was reauthorized and it 
remained in effect through August 20, 2001. Since August 21, 2001, 
the Act has been in lapse and the President, through Executive Order 
13222 of August 17, 2001 (3 CFR Part 2001 Comp. 783 (2002)), which 
has been extended by successive Presidential Notices, the most 
recent being that of August 2, 2005 (70 FR 45,273 (August 5, 2005)), 
has continued the Regulations in effect under IEEPA.
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    In accordance with Sec.  766.3(b)(1) of the Regulations, on 
November 22, 2005, BIS mailed the notice of issuance of the charging 
letter by registered mail to MUTCO at its last known address. BIS has 
established that this charging letter by registered mail to MUTCO at 
its last known address. BIS has established that this charging letter 
was served in accordance with Sec.  766.3 of the Regulations and that 
BIS received the signed mail return receipt on January 9, 2006. MUTCO 
did not file an answer to the charging letter with the ALJ, as required 
by Sec.  766.6(a) of the Regulations.
    In accordance with Sec. 766.7 of the Regulations, BIS filed a 
Motion for Default Order on April 17, 2006. This Motion for Default 
Order recommended that MUTCO be denied export privileges under the 
Regulations for a period of six years. Under Sec.  766.7(a) of the 
Regulations, ``[f]ailure of the respondent to file an answer within the 
time provided constitutes a waiver of the respondent's right to 
appear,'' and ``on BIS's motion and without further notice to the 
respondent, [the ALJ] shall find the facts to be as alleged in the 
charging letter.''
    On June 8, 2006, based on the record before him, the ALJ found the 
Respondent to be in default, and issued a Recommended Decision and 
Order in which he found that MUTCO committed one violation of Sec.  
764.2(d) and one violation of Sec.  764.2(c) of the Regulations. The 
ALJ recommended the penalty of denial of MUTCO's export privileges for 
a period of six years.
    The ALJ's Recommended Decision and Order, together with the entire 
record in this case, has been referred to me for final action under 
Sec.  766.22 of the Regulations.
    I find that the record supports the ALJ's findings of fact and 
conclusions of law. I also find that the penalty recommended by the ALJ 
is appropriate, given the nature of the violations, the lack of 
mitigating circumstances, and the importance of preventing future 
unauthorized exports.
    Based on my review of the entire record, I affirm the findings of 
fact and conclusions of law in the ALJ's Recommended Decision and 
Order.
    Accordingly, it is therefore ordered, first, that, for a period of 
six years from the date this Order is published in the Federal 
Register, MUTCO International, Kelenbergweg 37 1101, EX Amsterdam, 
Netherlands, and all of its successors and assigns, and when acting for 
on behalf of MUTCO, its officers, representatives, agents, and 
employees (``Denied Person''), may not, directly or indirectly, 
participate in any way in any transaction involving any commodity, 
software or technology (hereinafter collectively referred to as 
``item'') exported or to be exported from the United States that is 
subject to the Regulations, or in any other activity subject to the 
Regulations, including, but not limited to:
    A. Applying for, obtaining, or using any license, License 
Exception, or export control document;
    B. Carrying on negotiations concerning, or ordering, buying, 
receiving, using, selling, delivering, sorting, disposing of, 
forwarding, transporting, financing, or otherwise servicing in any way, 
any transaction involving any exported or to be exported from the 
United States that is subject to the Regulations, or in any other 
activity subject to the Regulations; or
    C. Benefiting in any way from any transaction involving any item 
exported or to be exported from the United States that is subject to 
the Regulations, or in any other activity subject to the Regulations.
    Second, that no person may, directly or indirectly, do any of the 
following:
     A. Export or reexport to or on behalf of the Denied Person any 
item subject to the Regulations;
     B. Take any action that facilitates the acquisition or attempted 
acquisition by the Denied Person of the ownership, possession, or 
control of any item subject to the Regulations that has been or will be 
exported from the United States, including financing or other support 
activities related to a transaction whereby the Denied Person acquires 
or attempts to acquire such ownership, possession or control;
    Take any action to acquire from or to facilitate the acquisition or 
attempted acquisition from the Denied Person of any item subject to the 
Regulations that has been exported from the United States;
    D. Obtain from the Denied Person in the United States any item 
subject to the Regulations with knowledge or reason to know that the 
item will be, or is intended to be, exported from the United States; or
     E. Engage in any transaction to service any item subject to the 
Regulations that has been or will be exported from the United States 
and that is owned, possessed or controlled by the Denied Person, or 
service any item, of whatever origin, that is owned, possessed or 
controlled by the Denied Person if such service involves the use of any 
item subject to the Regulations that has been or will be exported from 
the United States. For purposes of this paragraph, servicing means 
installation, maintenance, repair, modification or testing.
     Third, that, after notice and opportunity for comment as provided 
in Sec.  766.23 of the Regulation, any person, firm, corporation, or 
business organization related to the Denied Person by affiliation, 
ownership, control, or position of responsibility in the conduct of 
trade or related services may also be made subject to the provisions of 
this Order.
     Fourth, that this Order does not prohibit any export, reexport, or 
other transaction subject to the Regulations where the only items 
involved that are subject to the Regulations are the foreign-produced 
direct product of U.S.-origin technology.
    Fifth, that this Order shall be served on the Denied Person and on 
BIS, and shall be published in the Federal Register. In addition, the 
ALJ's Recommended Decision and Order, except for the section related to 
the Recommended Order, shall be published in the Federal Register.
    This Order which constitutes the final agency action in this 
matter, is effective upon publication in the Federal Register.

    Dated: June 27, 2006.
David H. McCormick,
Under Secretary of Commerce for Industry and Security.

Recommended Decision and Order

    On November 22, 2005, the Bureau of Industry and Security, U.S. 
Department of Commerce (``BIS''), issued a charging letter initiating 
this administrative enforcement proceeding against MUTCO International 
(``MUTCO''). The charging letter alleged that MUTCO committed two 
violations of the Export Administration Regulations (currently codified 
at CFR Parts 730-774 (2006)) (the ``Regulations''),\1\ issued under the 
Export Administration Act of 1979, as

[[Page 38135]]

amended (50 U.S.C. App. 2401-2420 (2000)) (the ``Act'').\2\
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    \1\ The charged violations occurred in 2000 through 2002. The 
Regulations governing the violations at issue are found in the 2000 
through 2002 versions of the Code of Federal Regulations (15 CFR 
Parts 730-774 (2000-2002)). The 2006 Regulations establish the 
procedures that apply to this matter.
    \2\ From August 21, 1994 through November 12, 2000, the Act was 
in lapse. During that period, the President, through Executive Order 
12924, which was extended by successive Presidential Notices, the 
last of which was August 3, 2000 (3 CFR part 2000 Comp. 397 (2001)), 
continued the Regulations in effect under the International 
Emergency Economic Powers Act (50 U.S.C. 1701-06 (2000)) 
(``IEEPA''). On November 13, 2000, the Act was reauthorized and it 
remained in effect through August 20, 2001. Since August 21, 2001, 
The Act has been in lapse and the President, through Executive Order 
13222 of August 17, 2001 (3 CFR part 2001 Comp. 783 (2002)), as 
extended by the Notice of August 2, 2005 (70 FR 45,273 (Aug. 5, 
2005)), has continued the Regulations in effect under IEEPA.
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    Specifically, the charging letter alleged that MUTCO conspired and 
acted in concert with others, known and unknown, to export toxins from 
the United States to North Korea without the required Department of 
Commerce license. BIS alleged that the goal of the conspiracy was to 
obtain toxins, including Aflatoxin (M1, P1, Q1) and Staphyloccocal 
Enterotoxin (A and B), items subject to the Regulations and classified 
under export control classification number (``ECCN'') 1C351, on behalf 
of a North Korean end-user and to export those toxins to North Korea. 
BIS alleged that, in furtherance of the conspiracy, MUTCO ordered the 
toxins from a co-conspirator in the United States and agreed to 
complete the export to North Korea once the toxins were delivered to 
the Netherlands from the United. States. BIS alleged that, contrary to 
Sec.  742.2 of the Regulations, no Department of Commerce license was 
obtained for the export from the Untied States to North Korea. (Charge 
1).
    The charging letter filed by BIS also alleged that, in or about 
July 2002, MUTCO solicited a violation of the Regulations by ordering 
toxins, including Aflatoxin (M1, P1, Q1) and Staphyloccocal Enterotoxin 
(A and B), items subject to the Regulations and classified under export 
control classification number (``ECCN'') 1C351, from a co-conspirator 
in the United States and agreeing to complete the export of the toxins 
to North Korea. BIS also alleged that, contrary Sec.  742.2 of the 
Regulations, no Department of Commerce license was obtained for the 
export from the United States to North Korea. (Charge 2).
    Section 766.3(b)(1) of the Regulations provides that notice of the 
issuance of a charging letter shall be served on a respondent by 
mailing a copy by registered or certified mail addressed to the 
respondent at the respondent's last known address. In accordance with 
the Regulations, on November 22, 2005, BIS mailed the notice of 
issuance of a charging letter by registered mail to MUTCO at its last 
known address: MUTCO International, Kelenberweg 37 1101, EX Amsterdam, 
Netherlands. BIS has submitted evidence that establishes that this 
charging letter was served in accordance with Sec.  766.3 of the 
Regulations and that BIS received the signed return receipt on January 
9, 2006.
    Section 766.6(a) of the Regulations provides, in pertinent part, 
that ``[t]he respondent must answer the charging letter within 30 days 
after being served with notice of issuance of the charging letter'' 
initiating the administrative enforcement proceeding. To date, MUTCO 
has not filed an answer to the charging letter.
    Pursuant to the default procedures set forth in Sec.  766.7 of the 
Regulations, the undersigned finds the facts to be as alleged in the 
charging letter, and hereby determines that those facts establish that 
MUTCO committed one violation of Sec.  764.2(d), and one violation of 
Sec.  764.2(c) of the Regulations.
    Section 764.3 of the Regulations sets forth the sanctions BIS may 
seek for violations of the Regulations. The applicable sanctions are: 
(i) A monetary penalty, (ii) suspension from practice before the Bureau 
of Industry and Security, and (iii) a denial of export privileges under 
the Regulations. See 15 CFR 764.3 (2000-2002). Because MUTCO solicited 
the export of toxins, items controlled by BIS for Anti-Terrorism 
reasons for export to North Korea, BIS requests that the undersigned 
recommends to the Under Secretary of Commerce for Industry and Security 
\3\ that MUTCO's export privileges be denied for six years.
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    \3\ Pursuant to Section 13(c)(1) of the Export Administration 
Act and Sec.  766.17(b)(2) of the Regulations, in export control 
enforcement cases, the Administrative Law Judge makes recommended 
findings of fact and conclusions of law that the Under Secretary 
must affirm, modify or vacate. The Under Secretary's action is the 
final decision for the U.S. Commerce Department.
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    BIS has suggested these sanctions because MUTCO's role in 
conspiring to export toxins to North Korea, as well as its role in 
ordering toxins for export to North Korea, represents a significant 
potential harm to the essential national interests protected by U.S. 
export controls.\4\ BIS has noted that the items involved in the 
attempted export in this case involved Aflatoxins (M1, P1, Q1) and 
Staphyloccocal Enterotoxins (A and B). These items are controlled by 
BIS for Anti-Terrorism reasons. Furthermore, BIS has noted that MUTCO's 
role in conspiring and soliciting the export of these items for 
delivery to North Korea--a country that the United States Government 
has designated a state sponsor of international terrorism--represents 
significant harm to the national interests protected by U.S. export 
controls.\5\ Furthermore, BIS believes that the imposition of a six-
year denial order is particularly appropriate in this case since BIS 
may face difficulties in collecting a monetary penalty, as MUTCO is not 
located in the United States. Finally, BIS believes that the 
recommended denial order is particularly appropriate in this case, 
since MUTCO has failed to respond to the charging letter filed by BIS. 
In light of these circumstances, BIS believes that the denial of 
MUTCO's export privileges for six years is an appropriate sanction.
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    \4\ See 15 CFR Part 766, Supp. No. 1, III, A. (Stating that a 
denial order may be considered even in matters involving simple 
negligence or carelessness, if the violation(s) involves ``harm to 
the national security or other essential interests protected by the 
export control system,'' if the violations are of such a nature and 
extent that a monetary fine alone represents an insufficient 
penalty. * * *) (emphasis added).
    \5\ See id. (``Destination Involved: BIS is more likely to seek 
a greater monetary penalty and/or denial or export privileges * * * 
in cases involving: (1) exports or reexports to countries subject to 
anti-terrorism controls. * * *'') (emphasis in original).
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    On this basis, the undersigned concurs with BIS and recommends that 
the Under Secretary enter an Order denying MUTCO's export privileges 
for a period of six years. Such a denial order is consistent with 
penalties imposed in past cases under the Regulations involving 
shipments to countries designated as ``Terrorist Supporting 
Countries.'' \6\ See In the Matter of Petrom GmbH International Trade, 
70 FR 32,743 (June 6, 2005) (affirming the recommendations of the 
Administrative Law Judge that a twenty-year denial order and a civil 
monetary sanction of $143,000 were appropriate where knowing violations 
involved a shipment of EAR99 items to Iran); In the Matters of Yaudat 
Mustafa Talyi a.k.a. Yaudat Mustafa a.k.a. Joseph Talyi, 69 FR 77,177 
(Dec. 27, 2004) (affirming the ALJ's recommendations that a twenty-year 
denial order and the maximum civil penalty of $11,000 per violation 
were appropriate where an individual exported oil field parts to Libya 
without authorization, in violation of a BIS order temporarily denying 
his export privileges and with knowledge that a violation would occur; 
and solicited a violation of the Regulations by ordering oil field 
parts from a U.S. manufacturer without authorization and with knowledge 
that a violation would occur); In the Matter of Arian

[[Page 38136]]

Transportvermittlungs, GmbH, 69 FR 28,120 (May 18, 2004) (affirming the 
recommendation of the Administrative Law Judge that a ten-year denial 
order was appropriate where knowing violations involved a shipment of a 
controlled item to Iran); In the Matter of Jabal Damavand General 
Trading Company, 67 FR 32,009 (May 13, 2002) (affirming the 
recommendation of the Administrative Law Judge that a ten-year denial 
order was appropriate where knowing violations involved shipments of 
EAR99 items to Iran); In the Matter of Adbulamir Mahdi, 68 FR 57,406 
(Oct. 3, 2003) (affirming the recommendation of the Administrative Law 
Judge that a twenty-year denial order was appropriate where knowing 
violations involved shipments of EAR99 items to Iran as part of a 
conspiracy to ship such items through Canada to Iran). A six-year 
denial of MUTCO's export privileges is warranted because MUTCO's 
violations, like those of the respondents in the above-cited case, 
involved exports made to Terrorist Supporting Countries in violation of 
U.S. export control laws.
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    \6\ BIS's list of Terrorist Supporting Countries is set forth in 
15 CFR Part 740, Supp. No. 1, Country Group E:1.
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    The terms of the denial of export privileges against MUTCO should 
be consistent with the standard language used by BIS in such orders. 
The language is:

[REDACTED SECTION]

    This Order, which constitutes the final agency action in this 
matter, is effective upon publication in the Federal Register.
    Accordingly, the undersigned refers this Recommended Decision and 
Order to the Under Secretary of Commerce for Industry and Security for 
review and final action for the agency, without further notice to the 
respondent, as provided in Sec.  766.7 of the Regulations.
    Within 30 days after receipt of this Recommended Decision and 
Order, the Under Secretary shall issue a written order affirming, 
modifying, or vacating the Recommended Decision and Order. See 15 CFR 
766.22(c).

    Dated: June 8, 2006.
The Honorable Joseph N. Ingolia,
Chief Administrative Law Judge.

CERTIFICATE OF SERVICE

    I hereby certify that I have served the foregoing RECOMMENDED 
DECISION & ORDER by DHL Express to the following person:

James C. Pelletier, Esq., Office of Chief Counsel for Industry and 
Security, U.S. Department of Commerce, Room H-3839, 14th Street & 
Constitution Avenue, NW., Washington, D.C. 20230.

    I hereby certify that I have served the foregoing RECOMMENDED 
DECISION & ORDER by U.S. First Class Mail to the following person:

MUTCO International, Kelenberweg 37 1101, EX Amsterdam, Netherlands
Attn: Kailash Muttreja, President

Done and dated June 8, 2006 at Baltimore, Maryland.
Debra Gundy,
Paralegal Specialist.
[FR Doc. 06-5986 Filed 7-3-06; 8:45 am]
BILLING CODE 3510-DT-M