[Federal Register Volume 66, Number 151 (Monday, August 6, 2001)]
[Notices]
[Pages 40971-40973]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-19614]


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DEPARTMENT OF COMMERCE

Bureau of Export Administration

[Docket No. 01-BXA-03]


Mark Jin, Also Known as Zhongda Jin Individually and FJ 
Technology, Respondent; Decision and Order

    On June 25, 2001, the Administrative Law Judge (hereinafter 
``ALJ'') issued a Recommended Decision and Order in the above-captioned 
matter. The Recommended Decision and order, a copy of which is attached 
hereto and made a part hereof, has been referred to me for final 
action. The Recommended Decision and Order sets forth the procedural 
history of the case, the facts of the case, and the detailed findings 
of fact and conclusions of law. The findings of fact and conclusions of 
law concern whether Mark Jin, also known as Zhongda Jin, individually, 
and FJ Technology Service, Inc., also known as FJT Technology 
(hereinafter collectively referred to as ``Jin''), committed 34 
violations of the former and current Export Administration Regulations 
(hereinafter ``Regulations'') \1\ issued pursuant to the Export 
Administration Act of 1979, as amended (50 U.S.C.A. app. 2401-2420 
(1991 & Supp. 2000)) (hereinafter the ``Act''),\2\ and a recommended 
penalty for those violations.
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    \1\ The violations at issue occurred between 1996 and 2000. The 
Regulations governing the violations are found in the 1996, 1997, 
1998 1999, and 2000 versions of the Code of Federal Regulations (15 
CFR parts 768-799 (1996), as amended (61 FR 12,714, March 25, 1996) 
(hereinafter the ``former Regulations'') and 15 CFR parts 730-774 
(1997, 1998, 1999, and 2000)). The March 25, 1996 Federal Register 
publication redesignated, but did not republish, the then-existing 
regulations as 15 CFR parts 768A-799A. In addition, the March 25 
Federal Register published the restructured and reorganized 
Regulations, designating them as an interim rule at 15 CFR parts 
730-774, effective April 24, 1996. Compliance with either the former 
Regulations or the Regulations was permitted until November 1, 1996, 
at which time the removal of the former Regulations became 
effective. Both the former Regulations and the Regulations define 
the various violations that BXA alleges occurred in this matter. The 
Regulations establish the proceedings that apply to this matter.
    \2\ The Act expired on August 20, 1994. Executive Order 12924 (3 
CFR 1994 Comp. 917 (1995)), which had been extended by successive 
presidential Notices, the most recent being that of August 3, 2000 
(65 FR 48.347, August 8, 2000), continued the Regulations in effect 
under the International Emergency Economic Powers Act (50 U.S.C.A. 
1701-1706 (1991 & Supp. 2000)) until November 13, 2000 when the Act 
was reauthorized. See Pub. L. 106-508
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    Based on the allegations in the charging letter, the Recommended 
Decision and Order found that Jin had committed one violation of 
section 787.4, one violation of section 787.6 four violations of 
section 787A.4, and four violations of section 787A.6 of the former 
Regulations; and twelve violations of section 764.2(a) and twelve 
violations of section 764.2(e) of the Regulations (for a total of 34 
violations). These violations resulted from shipping arsine, phosphine, 
trimethylgallium, trimethylaluminum, and trimethylindium to China on 
seventeen occasions between March 1996 and January 2000 without 
obtaining the export licenses that Jin knew or had reason to know were 
required for such exports under both the former and current 
Regulations. Based on these violations, the ALJ recommended that Jin's 
export privileges be denied for a period of 25 years.
    Based on my review of the record and pursuant to section 766.22(c) 
of the Regulations, I am affirming the June 25, 2001 Recommended 
Decision and Order finding that Jin committed 34 violations of the 
former and current Regulations. I also am imposing as a penalty for 
these knowing and continual violations the 25-year denial of Jin's 
export privileges that was recommended by the ALJ.
    Accordingly, It Is Therefore Ordered, 
    First, that, for a period of 25 years from the date of this Order, 
Mark Jin, also known as Zhongda Jin, individually, and FJ Technology

[[Page 40972]]

Service, Inc., also known as FJ Technology, 1895 Dobbin Drive, Suite B, 
San Jose, California 95133 (hereinafter collectively referred to as 
``Jin''), 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 form 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
    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 Jin any item subject to 
the Regulations;
    B. Take any action that facilitates the acquisition or attempted 
acquisition by Jin 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 Jin 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 Jin of any item subject to the 
Regulations that has been exported from the United States;
    D. Obtain from Jin 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 Jin, or service any 
item, of whatever origin, that is owned, possessed, or controlled by 
Jin 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 Jin by affiliation, ownership, 
control, or position of responsibility in the conduct of trade or 
related services may also be 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 a copy of this Order shall be served on Jin and on BXA, 
and shall be published in the Federal Register.
    This Order, which constitutes the final agency action in this 
matter, is effective immediately.

    Dated: July 31, 2001.
Kenneth I. Juster,
Under Secretary of Commerce for Export Administration.

Recommended Decision and Order

    On February 28, 2001, the Office of Export Enforcement, Bureau of 
Export Administration, United States Department of Commerce 
(hereinafter ``BXA''), issued a charging letter initiating this 
administrative proceeding against Mark Jin, also known as Zhongda Jin, 
individually, and FJ Technology Service, Inc., also known as FJ 
Technology (hereinafter collectively referred to as Jin). The charging 
letter alleged that Jin committed 34 violations of the Export 
Administration Regulations (currently codified at 15 CFR parts 730-774 
(2001)) (the Regulations),\1\ issued under the Export Administration 
Act of 1979, as amended (50 U.S.C.A. app 2401-2420 (1991 & Supp. 2000)) 
(the Act).\2\
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    \1\ The alleged violations occurred in 1996, 1997, 1998, 1999 
and 2000. The Regulations governing the violations at issue are 
found in the 1996, 1997, 1998, 1999, and 2000 versions of the Code 
of Federal Regulations (15 CFR Parts 768-799 (1996), as amended (61 
FR 12714, March 25, 1996) (hereinafter ``the former Regulations'')), 
and 15 CFR parts 768-799 (1997, 1998, 1999 and 2000)). The March 25, 
1996 Federal Register publication redesignated, but did not 
republish, the then-existing Regulations as 15 CFR parts 768A-799A. 
As an interim measure that was part of the transition to newly 
restructured and reorganized Regulations, the March 25, 1996 Federal 
Register publication also restructured and reorganized the 
Regulations, designating them as an interim rule at 15 CFR parts 
730-774, effective April 24, 1996. The former Regulations and the 
Regulations define the various violations that BXA alleges occurred. 
The Regulations establish the procedures that apply to this matter.
    \2\ The Act expired on August 20, 1994. Executive Order 12924 (3 
CFR, 1994 Comp. 917 (1995)), which had been extended by successive 
Presidential Notices, the most recent being that of August 3, 2000 
(65 FR 48347, August 8, 2000), continued the Regulations in effect 
under the International Emergency Economic Powers Act (50 U.S.C.A. 
1701-1706 (1991 & Supp. 2000)) until November 13, 2000 when the Act 
was reauthorized. See Pub. L. 106-508.
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    Specifically, the charging letter alleged that on or about March 
15, 1996, Jin exported phosphine and arsine from the United States to 
the People's Republic of China without obtaining the validated export 
license required by section 772.1(b) of the former Regulations. BXA 
alleged that, by exporting from the United States commodities contrary 
to the provisions of the Act or any regulations, order or license 
issued thereunder, Jin violated section 787.6 of the Regulations. The 
charging letter also alleged that in connection with the export made on 
or about March 15, 1996, Jin knew or had reason to know that the export 
of phosphine and arsine to the People's Republic of China required a 
validated export license. BXA alleged that, by selling or transferring 
commodities exported or to be exported from the United States with 
knowledge or reason to know that a violation of the Act or any 
regulation, order or license issued thereunder has occurred, was about 
to occur, or was intended to occur, Jin violated section 787.4 of the 
former Regulations.
    Further, the charging letter alleged that on four separate 
occasions between on or about May 14, 1996, and on or about June 25, 
1996, Jin exported phosphine and arsine from the United States to the 
People's Republic of China without obtaining the validated export 
license required by section 772A.1(b) of the former Regulations. BXA 
alleged that, by exporting commodities from the United States contrary 
to the provisions of the Act or any regulation, order, or license 
issued thereunder, Jin committed four violations of section 787A.6 of 
the former Regulations. The charging letter also alleged that in 
connection with the exports made between on or about May 14, 1996, and 
on or about June 25, 1996, Jin knew or had reason to know that the 
export from the United States of phosphine and arsine to the People's 
Republic of China required validated export licenses. BXA alleged that, 
by selling or transferring commodities exported or to be exported from 
the United States with knowledge or reason to know that a violation of 
the Act or any regulation, order or license issued thereunder has 
occurred, was

[[Page 40973]]

about to occur, or was intended to occur, Jin committed four violations 
of section 787A.4 of the former Regulations.
    In addition, the charging letter alleged that on 12 separate 
occasions between on or about June 6, 1997, and on or about January 16, 
2000, Jin exported phosphine, arsine, trimethylgallium, 
thimethylaluminum, and trimethylindium from the United States to the 
People's Republic of China without obtaining the export licenses 
required by section 742.4 of the Regulations. BXA alleged that, by 
engaging in conduct prohibited by or contrary to the Act, Regulations, 
or any order, license or authorization issued thereunder, Jin committed 
12 violations of section 764.2(a) of the Regulations. The charging 
letter also alleged that in connection with the exports made between on 
or about June 6, 1997, and on or about January 16, 2000, Jin knew or 
had reason to know that the export from the United States of phosphine, 
arsine, trimethylgallium, thimethylaluminum, and trimethylindium to the 
People's Republic of China required export licenses. BXA alleged that, 
by selling or transferring commodities exported or to be exported from 
the United States with knowledge that a violation of the Act, or the 
Regulations, or any order, license or authorization issued thereunder, 
has occurred, was about to occur, or was intended to occur, Jin 
committed 12 violations of section 764.2(e) of the Regulations.
    Section 766.3(b)(1) of the Regulations provides that notice of 
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 respondent's last known address. In accordance with that 
section, on February 28, 2001, BXA sent to Jin, at his address in San 
Jose, California, notice that it had issued a charging letter against 
him. BXA has established that delivery of the notice was made at that 
address on March 5, 2001.
    To date, Jin has not filed an answer to the charging letter. 
Accordingly, because Jin has not answered the charging letter as 
required by and in the manner set forth in section 766.6 of the 
Regulations, Jin is in default.
    Pursuant to the default procedures set forth in section 766.7 of 
the Regulations, I therefore find the facts to be as alleged in the 
charging letter, and hereby determine that Jin committed one violation 
of section 787.4, one violation of section 787.6, four violations of 
section 787A.4, and four violations of section 787A.6 of the former 
Regulations, and 12 violations of section 764.2(a) and 12 violations of 
section 764.2(e) of the Regulations, for a total of 34 violations.
    Section 764.3 of the Regulations establishes the sanctions 
available to BXA for the violations charged in this default proceeding. 
The applicable sanctions as set forth in the Regulations are a civil 
monetary penalty, suspension from practice before BXA, and/or a denial 
of export privileges. See 15 CFR 764.3 (2001).
    BXA urges that I recommend to the Under Secretary for Export 
Administration\3\ that Jin be denied all U.S. export privileges for a 
period of 25 years for the following reasons.
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    \3\ Pursuant to section 13(c)(1) of the Act and section 
766.17(b)(2) of the Regulations, in export control enforcement cases 
the Administrative Law Judge issues a recommended decision which is 
reviewed by the Under Secretary for Export Administration who issues 
the final decision for the agency.
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    First, BXA believes that Jin has left the United States. Jin has 
not responded to the allegations set forth in the charging letter 
issued, and Jin has not demonstrated any intention of ever resolving 
this matter, either through the hearing process or through settlement. 
In light of these circumstances, the denial of all of Jin's export 
privileges is the appropriate sanction, because it is unlikely that Jin 
would ever pay a civil monetary penalty or that BXA would ever collect 
a civil monetary if one were imposed.
    Second, an appropriate sanction should be tailored to the severity 
of the violation. Jin, for a period of five years, exported commodities 
from the United States to the People's Republic of China without the 
required BXA licenses. Jin exported the commodities with full knowledge 
that licenses were required but he did not obtain the licenses. Given 
the fact that Jin is charged with multiple violations of the 
Regulations over a course of several years, a 25 year denial is 
warranted.
    Given the foregoing, I concur the BXA, and recommend that the Under 
Secretary for Export Administration enter an Order against Jin denying 
his export privileges for a period of 25 years.\4\
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    \4\ Denial orders can be either ``standard'' or ``non-
standard.'' A standard order denying export privileges is 
appropriate in this case. The terms of a standard denial order are 
set forth in Supplement No. 1 to Part 764 of the interim rule.
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    Accordingly, I am referring my recommended decision and order to 
the Under Secretary for review and final action for the agency, without 
further notice to the respondent, as provided in section 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)(2001).

    Dated: June 25, 2001.
Edwin M. Bladen,
Administrative Law Judge.
[FR Doc. 01-19614 Filed 8-3-01; 8:45 am]
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