In the Matter of Mohammad Al-Mashan Group, Jleeb Asoukh Commercial Area, Alwaha Complex, First Floor #1, Safat, Kuwait and P.O. Box 5909, Safat 13060 Kuwait, Respondent; Decision and Order, 55427-55429 [06-8067]
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Federal Register / Vol. 71, No. 184 / Friday, September 22, 2006 / Notices
the Recommended Decision and Order.
See 15 CFR 766.22(c).
Done and Dated August 30, 2006.
Joseph N. Ingolia,
Chief Administrative Law Judge.
[FR Doc. 06–8066 Filed 9–21–06; 8:45 am]
BILLING CODE 3510–33–M
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
[Docket No. 04–BIS–21]
In the Matter of Mohammad Al-Mashan
Group, Jleeb Asoukh Commercial
Area, Alwaha Complex, First Floor #1,
Safat, Kuwait and P.O. Box 5909, Safat
13060 Kuwait, Respondent; Decision
and Order
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In a charging letter filed on October
25, 2004, the Bureau of Industry and
Security (‘‘BIS’’) alleged that
Respondent, Mohammad Al-Mashan
Group (‘‘MAMG’’), 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.
Sections 2401–2420 (2000)) (the
‘‘Act’’).2
Specifically, the charging letter
alleged that during the period between
on or about October 27, 1999 and on or
about February 23, 2000, MAMG
engaged in conduct prohibited by the
Regulations when it transferred an
uncooled infrared camera, an item
subject to the Regulations and
controlled on the Commerce Control
List for national security reasons, to an
individual from the United Arab
Emirates in violation of a BIS license
condition. The BIS license that
authorized the export of the camera
1 The charged violations occurred from 1999
through 2000. The Regulations governing the
violations at issue are found in the 1999 through
2000 versions of the Code of Federal Regulations
(15 CFR Parts 730–774 (1999–2000)). Actions taken
during this administrative enforcement proceeding
are governed by the Regulations in effect at the time
such actions take place.
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, 2000 Comp. 297 (2001)), continued the
Regulations in effect under the International
Emergency Economic Powers Act (50 U.S.C.
Sections 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, 2001 Comp. 783 (2002)), which
has been extended by successive Presidential
Notices, the most recent being that of August 3,
2006 (71 FR 44,551 (August 7, 2006)), has
continued the Regulations in effect under IEEPA.
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20:37 Sep 21, 2006
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from the United States to MAMG
prohibited the resale, transfer, or
reexport of the camera to anyone other
than the approved end-users on the
license without prior authorization by
the U.S. Government. In transferring the
camera to a non-approved end-user
without prior U.S. Government
authorization, MAMG committed one
violation of Section 764.2(a) of the
Regulations.
The charging letter further alleged
that during the period on or about
October 27, 1999 and on or about
February 23, 2000, MAMG transferred
an uncooled infrared camera, an item
subject to the Regulations and
controlled on the Commerce Control
List for national security reasons, to an
individual from the United Arab
Emirates with knowledge, or reason to
know, that a violation would
subsequently occur in connection with
the item. Specifically, at the time
MAMG transferred the camera, it knew,
or had reason to know, that the BIS
license authorizing the export of the
camera from the United States to
MAMG prohibited the resale, transfer,
or reexport of the camera by MAMG to
any entity other than those listed on the
license as approved end-users without
prior U.S. Government authorization. In
transferring the camera with such
knowledge, MAMG committed one
violation of Section 764.2(e) of the
Regulations.
In accordance with Section 766.3 of
the Regulations, on October 25, 2004,
BIS mailed the notice of issuance of the
charging letter by registered mail to
MAMG at its last known address. The
charging letter was returned to BIS
unopened. As stated in the ALJ’s
Recommended Decision and Order,
although service of the notice of
issuance of the charging letter by
registered mail did not result in actual
delivery of the charging letter, MAMG
constructively refused delivery of the
charging letter when it was served in
accordance with Section 766.3 of the
Regulations but returned to BIS as
undeliverable. To date, MAMG has not
filed an answer to the charging letter
with the ALJ, as required by the
Regulations.
In accordance with Section 766.7 of
the Regulations, and because more than
thirty days had passed since delivery of
the charging letter was constructively
refused, BIS filed a Motion for Default
Order on July 19, 2006. This Motion for
Default Order recommended that
MAMG be denied export privileges
under the Regulations for a period of ten
years. Under Section 766.7(a) of the
Regulations, ‘‘[f]ailure of the respondent
to file an answer within the time
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55427
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 August 30, 2006, based on the
record before him, the ALJ found
MAMG in default, and issued a
Recommended Decision and Order in
which he found that MAMG committed
one violation of Section 764.2(a) and
one violation of Section 764.2(e) of the
Regulations. The ALJ recommended the
penalty of denial of MAMG’s export
privileges for ten 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 Section 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 ten (10)
years from the date this Order is
published in the Federal Register,
Mohammad Al-Mashan Group, Jleeb
Asoukh Commercial Area, Alwaha
Complex, First Floor #1, Safat, Kuwait
and with an address at P.O. Box 5909,
Safat 13060 Kuwait (‘‘MAMG’’), its
successors and assigns, and when acting
for or on behalf of MAMG, its
representatives, agents, assigns 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,
storing, disposing of, forwarding,
transporting, financing, or otherwise
servicing in any way, 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;
or
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Federal Register / Vol. 71, No. 184 / Friday, September 22, 2006 / Notices
C. Benefitting 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;
C. 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
Section 766.23 of the Regulations, 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
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20:37 Sep 21, 2006
Jkt 208001
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: September 18, 2006.
Mark Foulon,
Acting Under Secretary of Commerce for
Industry and Security.
Recommended Decision and Order
On October 24, 2004, the Bureau of
Industry and Security, U.S. Department
of Commerce (‘‘BIS’’), issued a charging
letter initiating this administrative
enforcement proceeding against the
Mohammad Al-Mashan Group
(‘‘MAMG’’). The charging letter alleged
that MAMG committed one violation of
§ 764.2(a) and one violation of § 764.2(e)
of the Export Administration
Regulations (currently codified at 15
CFR Parts 730–774 (2006)) (the
‘‘Regulations’’).1 The Regulations are
issued under the Export Administration
Act of 1979, as amended (50 U.S.C. app.
2401–2420 (2000)) (the ‘‘Act’’).2 In
accordance with § 766.7 of the
Regulations, BIS has moved for the
issuance of an Order of Default against
MAMG for failure to file an answer to
the allegations contained in the charging
letter issued by BIS within the time
period required by law.
A. Legal Authority for Issuing an Order
of Default
Section 766.7 of the Regulations states
that BIS may file a motion for an order
of default if a respondent fails to file a
timely answer to a charging letter. That
section, entitled Default, provides in
pertinent part:
1 The violations charged occurred from 1999
through 2000. The Regulations governing the
violations at issue are found in the 1999 through
2000 versions of the Code of Federal Regulations
(15 CFR Parts 730–774 (1999–2000)). Actions taken
during this administrative enforcement proceeding
are governed by the Regulations in effect at the time
such actions take place.
2 From August 21, 1994 through November 12,
2000, the Act was in lapse. During that period, the
President, through Executive Order 12,924, which
had been extended by successive Presidential
Notices, the last of which was August 3, 2000, 3
CFR, 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 remained in effect
through August 20, 2001. Since August 21, 2001,
the Act has been in lapse and the President, through
Executive Order 13,222 of August 17, 2001, 3 CFR,
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 the
IEEPA.
PO 00000
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Fmt 4703
Sfmt 4703
Failure of the respondent to file an answer
within the time provided constitutes a waiver
of the respondent’s right to appear and
contest the allegations in the charging letter.
In such event, the administrative law judge,
on BIS’s motion and without further notice
to the respondent, shall find the facts to be
as alleged in the charging letter and render
an initial or recommended decision
containing findings of fact and appropriate
conclusions of law and issue or recommend
an order imposing appropriate sanctions.
15 CFR 766.7 (2006).
Pursuant to § 766.6 of the Regulations,
a respondent must file an answer to the
charging letter ‘‘within 30 days after
being served with notice of the issuance
of the charging letter’’ initiating the
proceeding.
B. Service of the Notice of Issuance of
Charging Letter
In this case, BIS served notice of
issuance of the charging letter in
accordance with § 766.3(b)(1) of the
Regulations when it sent a copy of the
charging letter by registered mail to
MAMG at its last known address on
October 25, 2005. After the letter was
returned unopened, BIS sent a copy of
the charging letter by registered mail to
MAMG at its only other known address.
That letter was also returned to BIS, but
postage marks indicated that the letter
had remained in Kuwait for
approximately one month. Finally, in
one last attempt to provide actual notice
to MAMG, BIS mailed a copy of the
charging letter to its last known address
via Federal Express. The final letter was
delivered.
Although there is no evidence that the
letters were actually refused by a
representative of MAMG, MAMG is
determined to have constructively
refused delivery as of the date the notice
sent out on October 25, 2004 was
returned to BIS. I find that delivery of
a charging letter is deemed
constructively refused when the letter
has been properly served at the
respondent’s last known address in
accordance with § 766.3 of the
Regulations but has been returned to
BIS as undeliverable. See In re Export
Materials, Inc. (Docket No. 98–BXA–09),
64 FR 40,820, (July 28, 1999) (Decision
and Order); see also In re Modern
Engineering Services, Ltd. (Docket No.
97–BXA–01), 65 FR 81,822 (Dec. 27,
2000), (Decision and Order). BIS may
legally pursue a default judgment
against MAMB because more than thirty
(30) days have passed without response
from MAMG.
C. Summary of Violations Charged
The charging letter issued by BIS
included a total of two charges.
Specifically, the charging letter alleged
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that during the period between on or
about October 27, 1999 and on or about
February 23, 2000, MAMG engaged in
conduct prohibited by the Regulations
when it transferred an uncooled infrared
camera, an item subject to the
Regulations, to an individual from the
United Arab Emirates in violation of a
BIS license condition. The BIS license
that authorized the export of the camera
from the United States to MAMG
prohibited the resale, transfer, or
reexport of the camera to anyone other
than the approved end-users on the
license without prior authorization by
the U.S. Government. In transferring the
camera to a non-approved end-user
without prior U.S. Government
authorization, MAMG committed one
violation of § 764.2(a) of the
Regulations.
The charging letter further alleged
that during the period on or about
October 27, 1999 and on or about
February 23, 2000, MAMG transferred
an uncooled infrared camera, an item
subject to the Regulations, to an
individual from the United Arab
Emirates with knowledge or reason to
know that a violation would
subsequently occur in connection with
the item. Specifically, at the time
MAMG transferred the camera, it knew
or had reason to know that the BIS
license authorizing the export of the
camera from the United States to
MAMG prohibited the resale, transfer,
or reexport of the camera by MAMG to
any entity other than those listed on the
license as approved end-users without
prior U.S. Government authorization. In
transferring the camera with such
knowledge, MAMG committed one
violation of § 764.2(e) of the
Regulations.
D. Penalty Recommendation
[REDACTED SECTION]
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E. Conclusion
Accordingly, I am referring 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 § 766.7 of the Regulations.
Within thirty (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).
Done and Dated August 30th, 2006.
Joseph N. Ingolia,
Chief Administrative Law Judge.
[FR Doc. 06–8067 Filed 9–21–06; 8:45 am]
BILLING CODE 3510–33–M
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Jkt 208001
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
Deemed Export Advisory Committee;
Notice of Partially Closed Meeting
The Deemed Export Advisory
Committee (DEAC) will meet on October
12, 2006, 9 a.m., in the main lobby of
the Herbert C. Hoover Building, 14th
Street between Constitution and
Pennsylvania Avenues, NW.,
Washington, DC. The Committee shall
advise the Secretary on deemed export
licensing policy. A tentative agenda of
topics for discussion is listed below.
While these topics will likely be
discussed, this list is not exhaustive and
there may be discussions on other
related items during the public session.
October 12
1. Introductory Remarks.
2. Current Deemed Export Control
Policy Issues.
3. Technology Transfer Issues.
4. U.S. Industry Competitiveness.
5. U.S. Academic and Government
Research Communities.
Closed Session
6. Discussion of matters determined to
be exempt from the provisions relating
to public meetings found in 5 U.S.C.
app.2 §§ 10(a)(1) and 10(a)(3).
A limited number of seats will be
available for the public session.
Reservations are not accepted. To the
extent time permits, members of the
public may present oral statements to
the Committee.
The public may submit written
statements at any time before or after the
meeting. However, to facilitate
distribution of public presentation
materials to Committee members, the
Committee suggests that public
presentation materials or comments be
forwarded before the meeting to Ms.
Yvette Springer at
Yspringer@bis.doc.gov.
The Assistant Secretary for
Administration, with the concurrence of
the delegate of the General Counsel,
formally determined on September 14,
2006, pursuant to section 10(d) of the
Federal Advisory Committee Act, as
amended (5 U.S.C. app.2 § (10)(d)), that
the portion of the meeting dealing with
matters that are (A) specifically
authorized under criteria established by
an Executive order to be kept secret in
the interests of national defense or
foreign policy and (B) in fact properly
classified pursuant to such Executive
order (5 U.S.C. 552b(c)(1)(A) and (1)(B)),
shall be exempt from the provisions
Frm 00014
Fmt 4703
relating to public meetings found in 5
U.S.C. app.2 §§ 10(a)(1) and 10(a)(3).
The remaining portions of the meeting
will be open to the public.
For more information, call Yvette
Springer at (202) 482–4814.
Dated: September 19, 2006.
Yvette Springer,
Committee Liaison Officer.
[FR Doc. 06–8068 Filed 9–21–06; 8:45 am]
BILLING CODE 3510–JT–M
DEPARTMENT OF COMMERCE.
International Trade Administration
[A–427–801]
Ball Bearings and Parts Thereof from
France: Notice of Court Decision Not in
Harmony
Import Administration,
International Trade Administration,
Department of Commerce
SUMMARY: On September 1, 2006, the
United States Court of International
Trade affirmed in part and struck in part
the Department of Commerce’s
redetermination on remand of the final
results of the administrative review of
the antidumping duty order on ball
bearings and parts thereof from France.
See SKF USA Inc., SKF France S.A., and
Sarma v. United States, Court No. 03–
00490, slip op. 06–133 (CIT 2006). The
Department is now issuing this notice of
court decision not in harmony with the
Department’s determination.
EFFECTIVE DATE: September 22, 2006.
FOR FURTHER INFORMATION CONTACT:
Yang Jin Chun or Richard Rimlinger,
AD/CVD Operations, Office 5, Import
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW, Washington, DC 20230;
telephone: (202) 482–5760 or (202) 482–
4477, respectively.
SUPPLEMENTARY INFORMATION:
AGENCY:
Public Session
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55429
Sfmt 4703
Background
On June 16, 2003, the Department of
Commerce (the Department) published
the final results of the administrative
review of the antidumping duty order
on ball bearings and parts thereof from
France for the period May 1, 2001,
through April 30, 2002. See Ball
Bearings and Parts Thereof from France,
et al.; Final Results of Antidumping
Duty Administrative Reviews,
Rescission of Administrative Reviews in
Part, and Determination Not to Revoke
Order in Part, 68 FR 35623 (June 16,
2003). SKF France S.A., SKF USA Inc.,
and Sarma (hereafter ‘‘SKF’’) filed a
lawsuit challenging the final results. On
August 24, 2005, the United States
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]]>Agencies
[Federal Register Volume 71, Number 184 (Friday, September 22, 2006)]
[Notices]
[Pages 55427-55429]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-8067]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
[Docket No. 04-BIS-21]
In the Matter of Mohammad Al-Mashan Group, Jleeb Asoukh
Commercial Area, Alwaha Complex, First Floor 1, Safat, Kuwait
and P.O. Box 5909, Safat 13060 Kuwait, Respondent; Decision and Order
In a charging letter filed on October 25, 2004, the Bureau of
Industry and Security (``BIS'') alleged that Respondent, Mohammad Al-
Mashan Group (``MAMG''), 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. Sections
2401-2420 (2000)) (the ``Act'').\2\
---------------------------------------------------------------------------
\1\ The charged violations occurred from 1999 through 2000. The
Regulations governing the violations at issue are found in the 1999
through 2000 versions of the Code of Federal Regulations (15 CFR
Parts 730-774 (1999-2000)). Actions taken during this administrative
enforcement proceeding are governed by the Regulations in effect at
the time such actions take place.
\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, 2000 Comp. 297 (2001)),
continued the Regulations in effect under the International
Emergency Economic Powers Act (50 U.S.C. Sections 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, 2001 Comp. 783 (2002)), which has
been extended by successive Presidential Notices, the most recent
being that of August 3, 2006 (71 FR 44,551 (August 7, 2006)), has
continued the Regulations in effect under IEEPA.
---------------------------------------------------------------------------
Specifically, the charging letter alleged that during the period
between on or about October 27, 1999 and on or about February 23, 2000,
MAMG engaged in conduct prohibited by the Regulations when it
transferred an uncooled infrared camera, an item subject to the
Regulations and controlled on the Commerce Control List for national
security reasons, to an individual from the United Arab Emirates in
violation of a BIS license condition. The BIS license that authorized
the export of the camera from the United States to MAMG prohibited the
resale, transfer, or reexport of the camera to anyone other than the
approved end-users on the license without prior authorization by the
U.S. Government. In transferring the camera to a non-approved end-user
without prior U.S. Government authorization, MAMG committed one
violation of Section 764.2(a) of the Regulations.
The charging letter further alleged that during the period on or
about October 27, 1999 and on or about February 23, 2000, MAMG
transferred an uncooled infrared camera, an item subject to the
Regulations and controlled on the Commerce Control List for national
security reasons, to an individual from the United Arab Emirates with
knowledge, or reason to know, that a violation would subsequently occur
in connection with the item. Specifically, at the time MAMG transferred
the camera, it knew, or had reason to know, that the BIS license
authorizing the export of the camera from the United States to MAMG
prohibited the resale, transfer, or reexport of the camera by MAMG to
any entity other than those listed on the license as approved end-users
without prior U.S. Government authorization. In transferring the camera
with such knowledge, MAMG committed one violation of Section 764.2(e)
of the Regulations.
In accordance with Section 766.3 of the Regulations, on October 25,
2004, BIS mailed the notice of issuance of the charging letter by
registered mail to MAMG at its last known address. The charging letter
was returned to BIS unopened. As stated in the ALJ's Recommended
Decision and Order, although service of the notice of issuance of the
charging letter by registered mail did not result in actual delivery of
the charging letter, MAMG constructively refused delivery of the
charging letter when it was served in accordance with Section 766.3 of
the Regulations but returned to BIS as undeliverable. To date, MAMG has
not filed an answer to the charging letter with the ALJ, as required by
the Regulations.
In accordance with Section 766.7 of the Regulations, and because
more than thirty days had passed since delivery of the charging letter
was constructively refused, BIS filed a Motion for Default Order on
July 19, 2006. This Motion for Default Order recommended that MAMG be
denied export privileges under the Regulations for a period of ten
years. Under Section 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 August 30, 2006, based on the record before him, the ALJ found
MAMG in default, and issued a Recommended Decision and Order in which
he found that MAMG committed one violation of Section 764.2(a) and one
violation of Section 764.2(e) of the Regulations. The ALJ recommended
the penalty of denial of MAMG's export privileges for ten 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
Section 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 ten (10) years from the date this
Order is published in the Federal Register, Mohammad Al-Mashan Group,
Jleeb Asoukh Commercial Area, Alwaha Complex, First Floor 1,
Safat, Kuwait and with an address at P.O. Box 5909, Safat 13060 Kuwait
(``MAMG''), its successors and assigns, and when acting for or on
behalf of MAMG, its representatives, agents, assigns 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, storing, disposing of,
forwarding, transporting, financing, or otherwise servicing in any way,
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; or
[[Page 55428]]
C. Benefitting 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;
C. 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 Section 766.23 of the Regulations, 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: September 18, 2006.
Mark Foulon,
Acting Under Secretary of Commerce for Industry and Security.
Recommended Decision and Order
On October 24, 2004, the Bureau of Industry and Security, U.S.
Department of Commerce (``BIS''), issued a charging letter initiating
this administrative enforcement proceeding against the Mohammad Al-
Mashan Group (``MAMG''). The charging letter alleged that MAMG
committed one violation of Sec. 764.2(a) and one violation of Sec.
764.2(e) of the Export Administration Regulations (currently codified
at 15 CFR Parts 730-774 (2006)) (the ``Regulations'').\1\ The
Regulations are issued under the Export Administration Act of 1979, as
amended (50 U.S.C. app. 2401-2420 (2000)) (the ``Act'').\2\ In
accordance with Sec. 766.7 of the Regulations, BIS has moved for the
issuance of an Order of Default against MAMG for failure to file an
answer to the allegations contained in the charging letter issued by
BIS within the time period required by law.
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\1\ The violations charged occurred from 1999 through 2000. The
Regulations governing the violations at issue are found in the 1999
through 2000 versions of the Code of Federal Regulations (15 CFR
Parts 730-774 (1999-2000)). Actions taken during this administrative
enforcement proceeding are governed by the Regulations in effect at
the time such actions take place.
\2\ From August 21, 1994 through November 12, 2000, the Act was
in lapse. During that period, the President, through Executive Order
12,924, which had been extended by successive Presidential Notices,
the last of which was August 3, 2000, 3 CFR, 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
remained in effect through August 20, 2001. Since August 21, 2001,
the Act has been in lapse and the President, through Executive Order
13,222 of August 17, 2001, 3 CFR, 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 the IEEPA.
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A. Legal Authority for Issuing an Order of Default
Section 766.7 of the Regulations states that BIS may file a motion
for an order of default if a respondent fails to file a timely answer
to a charging letter. That section, entitled Default, provides in
pertinent part:
Failure of the respondent to file an answer within the time provided
constitutes a waiver of the respondent's right to appear and contest
the allegations in the charging letter. In such event, the
administrative law judge, on BIS's motion and without further notice
to the respondent, shall find the facts to be as alleged in the
charging letter and render an initial or recommended decision
containing findings of fact and appropriate conclusions of law and
issue or recommend an order imposing appropriate sanctions.
15 CFR 766.7 (2006).
Pursuant to Sec. 766.6 of the Regulations, a respondent must file
an answer to the charging letter ``within 30 days after being served
with notice of the issuance of the charging letter'' initiating the
proceeding.
B. Service of the Notice of Issuance of Charging Letter
In this case, BIS served notice of issuance of the charging letter
in accordance with Sec. 766.3(b)(1) of the Regulations when it sent a
copy of the charging letter by registered mail to MAMG at its last
known address on October 25, 2005. After the letter was returned
unopened, BIS sent a copy of the charging letter by registered mail to
MAMG at its only other known address. That letter was also returned to
BIS, but postage marks indicated that the letter had remained in Kuwait
for approximately one month. Finally, in one last attempt to provide
actual notice to MAMG, BIS mailed a copy of the charging letter to its
last known address via Federal Express. The final letter was delivered.
Although there is no evidence that the letters were actually
refused by a representative of MAMG, MAMG is determined to have
constructively refused delivery as of the date the notice sent out on
October 25, 2004 was returned to BIS. I find that delivery of a
charging letter is deemed constructively refused when the letter has
been properly served at the respondent's last known address in
accordance with Sec. 766.3 of the Regulations but has been returned to
BIS as undeliverable. See In re Export Materials, Inc. (Docket No. 98-
BXA-09), 64 FR 40,820, (July 28, 1999) (Decision and Order); see also
In re Modern Engineering Services, Ltd. (Docket No. 97-BXA-01), 65 FR
81,822 (Dec. 27, 2000), (Decision and Order). BIS may legally pursue a
default judgment against MAMB because more than thirty (30) days have
passed without response from MAMG.
C. Summary of Violations Charged
The charging letter issued by BIS included a total of two charges.
Specifically, the charging letter alleged
[[Page 55429]]
that during the period between on or about October 27, 1999 and on or
about February 23, 2000, MAMG engaged in conduct prohibited by the
Regulations when it transferred an uncooled infrared camera, an item
subject to the Regulations, to an individual from the United Arab
Emirates in violation of a BIS license condition. The BIS license that
authorized the export of the camera from the United States to MAMG
prohibited the resale, transfer, or reexport of the camera to anyone
other than the approved end-users on the license without prior
authorization by the U.S. Government. In transferring the camera to a
non-approved end-user without prior U.S. Government authorization, MAMG
committed one violation of Sec. 764.2(a) of the Regulations.
The charging letter further alleged that during the period on or
about October 27, 1999 and on or about February 23, 2000, MAMG
transferred an uncooled infrared camera, an item subject to the
Regulations, to an individual from the United Arab Emirates with
knowledge or reason to know that a violation would subsequently occur
in connection with the item. Specifically, at the time MAMG transferred
the camera, it knew or had reason to know that the BIS license
authorizing the export of the camera from the United States to MAMG
prohibited the resale, transfer, or reexport of the camera by MAMG to
any entity other than those listed on the license as approved end-users
without prior U.S. Government authorization. In transferring the camera
with such knowledge, MAMG committed one violation of Sec. 764.2(e) of
the Regulations.
D. Penalty Recommendation
[REDACTED SECTION]
E. Conclusion
Accordingly, I am referring 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 thirty (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).
Done and Dated August 30th, 2006.
Joseph N. Ingolia,
Chief Administrative Law Judge.
[FR Doc. 06-8067 Filed 9-21-06; 8:45 am]
BILLING CODE 3510-33-M
