[Federal Register Volume 65, Number 48 (Friday, March 10, 2000)]
[Notices]
[Pages 13072-13073]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-5922]


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DEPARTMENT OF STATE

[Public Notice 3245]


Statutory Debarment Under the International Traffic in Arms 
Regulations Involving Orbit/FR, Inc.

AGENCY: Department of State.

ACTION: Notice.

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SUMMARY: Notice is hereby given that Orbit/FR, Inc. is statutorily 
debarred pursuant to section 127.7 (c) of the International Traffic in 
Arms Regulations (ITAR) (22 CFR parts 120-130). It shall be the policy 
of the Department of State to deny all export license applications and 
other requests for approval involving Orbit/FR, Inc. directly or 
indirectly.

EFFECTIVE DATE: November 10, 1999.

FOR FURTHER INFORMATION CONTACT: Eva O. Tyler, Acting Chief, Compliance 
Enforcement Branch, Office of Defense Trade Controls, Department of 
State (703-875-6644, Ext. 3).

SUPPLEMENTARY INFORMATION: On November 10, 1999, Oribt/FR, Inc. pled 
guilty to two (2) counts of violating the Arms Export Control Act 
(AECA) (22 U.S.C. 2778) in the U.S. District Court, Eastern District of 
Pennsylvania. The information charges Orbit/FR, Inc. with illegally 
exporting components for an antenna and radome measurement system, AL-
8098, also known as AL-8099 to the People's Republic of China and 
illegally furnishing a defense service involving the modification of 
the antenna measurement software so that the antenna measurement system 
would have sufficient accuracy to measure antennas on a Patriot-type 
missile system to the People's Republic of China. United States v. 
Orbit/FR, Inc., Eastern District of Pennsylvania, Criminal Docket No. 
CR 99-560.
    Section 38(g)(4)(A) of the Arms Export Control Act (AECA), 22 
U.S.C. 2778, prohibits licenses or other approvals for the export of 
defense articles and defense services to be issued to a person, or any 
party to the export, who has been convicted of violating certain U.S. 
criminal statutes, including the AECA. The term ``person'', as defined 
in 22 CFR 120.14 of the International Traffic in Arms Regulations 
(ITAR), means a natural person as well as a corporation, business 
association, partnership, society, trust, or any other entity, 
organization or group, including governmental entities. The ITAR, 
specifically 126.7(e), defines the term ``party to the export'' to 
include the president, the chief executive officer, and other senior 
officers and officials of the license applicant; the freight forwarders 
or designated exporting agent of the license applicant; and any 
consignee or end-user of any item to be exported.
    The ITAR, Section 127.7, authorizes the Assistant Secretary of 
State for Political-Military Affairs to prohibit certain persons 
convicted of violating, or conspiring to violate, the AECA, from 
participating directly or indirectly in the export of defense articles 
or in the furnishing of defense services for which a license or 
approval is required. Such a prohibition is referred to as a 
``statutory debarment,'' which may be imposed on the basis of a 
judicial proceeding that resulted in a conviction for violating, or of 
conspiring to violate, the AECA. See 22 CFR 127.7(c). The period for 
debarment will normally be three years from the date of conviction. At 
the end of the debarment period, and possibly after a period of one 
year, licensing privileges may be reinstated at the request of the 
debarred person following the necessary interagency consultations, 
after a thorough review of the circumstances surrounding the 
conviction, and a finding that appropriate steps have been taken to 
mitigate any law enforcement concerns, as required by the AECA, 22 
U.S.C. 2778(g)(4).
    Statutory debarment is based solely upon a conviction in a criminal 
proceeding, conducted by a United States court. Thus, the 
administrative debarment procedures, as outlined in the ITAR, 22 CFR 
part 128, are not applicable in such cases.
    The Department of State will not consider applications for licenses 
or

[[Page 13073]]

requests for approvals that involve any person or any party to the 
export who has been convicted of violating, or of conspiring to 
violate, the AECA during the period of statutory debarment. Persons who 
have been statutorily debarred may appeal to the under Secretary for 
International Security Affairs for reconsideration of the ineligibility 
determination. A request for reconsideration must be submitted in 
writing within 30 days after a person has been informed of the adverse 
decision. 22 CFR 127.7(d).
    The Department of State policy permits debarred persons to apply 
for reinstatement of export privileges one year after the date of the 
debarment, in accordance with the AECA, 22 U.S.C. 2778(g)(4)(A), and 
the ITAR, Section 127.7. A reinstatement request is made to the 
Director of the Office of Defense Trade Controls. Any decision to 
reinstate export privileges can be made only after the statutory 
requirements under Section 38(g)(4) of the AECA have been satisfied 
through a process administered by the Office of Defense Trade Controls. 
If reinstatement is granted, the debarment will be suspended.
    Pursuant to the AECA, 22 U.S.C. 2778(g)(4)(A), and the ITAR, 22 CFR 
127.7, the Assistant Secretary for Political-Military Affairs has 
statutorily debarred Orbit/FR, Inc. which has been convicted of 
violating the AECA. On November 10, 1999, Orbit/FR, Inc. was convicted 
of two counts of violating section 38 of the AECA.
    Exceptions may be made to this denial policy on a case-by-case 
basis at the discretion of the Office of Defense Trade Controls. 
However, such an exception would be granted only after a full review of 
all circumstances, paying particular attention to the following 
factors: whether an exception is warranted by overriding U.S. foreign 
policy or national security interest; whether an exception would 
further law enforcement concerns which are not inconsistent with the 
foreign policy or national security interests of the United States; or, 
whether other compelling circumstances exist which are not inconsistent 
with the foreign policy or national security interests of the United 
States, and which do not conflict with law enforcement concerns.
    This notice involves a foreign affairs function of the United 
States encompassed within the meaning of the military and foreign 
affairs exclusion of the Administrative Procedure Act. Because the 
exercise of this foreign affairs function is discretionary, it is 
excluded from review under the Administrative Procedure Act.

    Dated: March 6, 2000.
Michael T. Dixon,
Acting Director, Office of Defense Trade Controls, Bureau of Political-
Military Affairs Department of State.
[FR Doc. 00-5922 Filed 3-9-00; 8:45 am]
BILLING CODE 4710-25-P