[Federal Register Volume 69, Number 113 (Monday, June 14, 2004)]
[Notices]
[Pages 32978-32979]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13275]



[[Page 32978]]

-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

Bureau of Industry and Security

[Docket No. 03-BIS-06]


In the Matter of Arian Transportvermittlungs GmbH

    On Tuesday, May 18, 2004, the Federal Register published the May 
12, 2004 Decision and Order issued by the Under Secretary of Commerce, 
Bureau of Industry and Security (BIS), United States Department of 
Commerce in the above-referenced matter (69 FR 28120). However, the 
April 8, 2004 Recommended Decision and Order of the Administrative Law 
Judge (ALJ) was inadvertently not published with the Order of the Under 
Secretary. The Recommended Decision and Order of the ALJ shall hereby 
be published in the Federal Register.

    Dated: June 7, 2004.
Kenneth I. Juster,
Under Secretary of Commerce for Industry and Security.

In the Matter of: Arian Transportvermittlungs GmbH, Morsestrasse 1, D-
50769 Koln, Germany, Respondent.

Recommended Decision and Order

    On May 15, 2003, the Bureau of Industry and Security, United States 
Department of Commerce (BIS or Agency), issued a charging letter 
initiating this administrative enforcement proceeding against Arian 
Transportvermittlungs GmbH (Arian). The charging letter alleged that 
Arian committed two violations of the Export Administration Regulations 
(currently codified at 15 CFR Parts 730-774 (2003)) (the 
Regulations),\1\ issued under the Export Administration Act of 1979, as 
amended (50 U.S.C. app. 2401-2420 (2000)) (the Act).\2\
---------------------------------------------------------------------------

    \1\ The violations charged occured in 1999. The Regulations 
governing the violations at issue are found in the 1999 version of 
the Code of Federal Regulations (15 CFR Parts 730-774 (1999)). The 
2003 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, 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 30, 2001. Executive Order 13222 of August 17, 
2001 (3 CFR, 2001 Comp., p. 783 (2002)), which has been extended by 
successive Presidential Notices, the most recent being that of 
August 7, 2003 (68 FR 47833, August 11, 2003), continues the 
Regulations in effect under IEEPA.
---------------------------------------------------------------------------

    Specifically, the charging letter alleged that on or about June 17, 
1999, Arian re-exported computers and software, items subject to the 
Regulations and classified under Export Control Classification Numbers 
4A994 and 5D002, from Germany to Iran without obtaining a license from 
BIS as required by Section 746.7 of the Regulations. BIS alleged that, 
by re-exporting the computers and software, Arian committed one 
violation of Section 764.2(a) of the Regulations.
    The charging letter also alleged that in connection with the 
reexport, Arian caused the transport of computers and software to Iran 
with knowledge that a violation of the Regulations would occur in 
connection with those items. BIS alleged that, by causing the re-export 
of items with knowledge that a violation of the Regulations would 
occur, Arian committed one violation of Section 764.2(e) of the 
Regulations.
    The record provides that BIS mailed its May 15, 2003 Charging 
Letter to Mr. Mehdi Moghimi, Managing Director for Arian 
Transportvermittlungs GMBH located at Bremerhavener Str. 23, 50835 
Cologne, Germany. On May 28, 2003, the ALJ Docketing Center notified 
the parties of the assignment of a case docket number for this matter. 
This letter was subsequently returned to the ALJ Docketing Center as 
being undeliverable. On July 18, 2003, BIS provided a new address for 
Mr. Moghimi and Arian Transportvermittlungs GmbH at Morsestrasse 1, D-
507669 Koln, Germany.
    On March 11, 2004, BIS filed a Motion for Default Order (Motion) in 
this matter stating that Arian had failed to file an Answer to its 
Charging Letter as required by 15 CFR 766.3(b)(1). On March 15, 2004, 
this matter was assigned to the Undersigned. In its Motion, BIS states 
that it sent notice the of issuance of the Charging Letter to Arian by 
registered mail and submits Government Exhibit 1, showing a registered 
mail receipt dated July 15, 2003 addressed to Arian in Koln, Germany. 
BIS also submits Government Exhibit 2 showing that Arian received this 
notice on July 22, 2003. The record is devoid of any response or Answer 
filed by Arian. Under section 766.3(b)(1), the notice of issuance of a 
charging letter is required to be served on a respondent by mailing a 
copy by registered or certified mail addressed to the respondent at the 
respondent's last know address. The Agency's actions as stated above 
constitute proper service on Arian.
    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[.]'' 
Since service was effected on July 22, 2003, Arian's answer to the 
Charging Letter was due no later than August 21, 2003. As of this date, 
Arian has not filed an Answer to the Charging Letter.
    The default procedures set forth in Section 766.7 state ``[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, 
shall find the facts to be as alleged in the charging letter * * *.'' 
Based on the above, the facts as alleged in the Charging Letter are 
hereby held to constitute the findings of fact in this matter and 
thereby establish that Arian committed one violation of Section 
764.2(a) of the Regulations and one violation of Section 764.2(e) of 
the Regulations.
    Section 764.3 of the Regulations sets forth the sanctions BIS may 
seek for violations of the Regulations. The applicable sanctions as set 
forth in the Regulations are a civil monetary penalty, suspension from 
practice before the Department of Commerce, and denial of export 
privileges. See 15 CFR 764.3 (2003).
    Because Arian violated the Regulations by causing the re-export of 
items that were subject to the Regulations with knowledge that a 
violation of the Regulations would occur, BIS requests that Arian's 
export privileges be denied for ten years.
    BIS has proposed this sanction because Arian's actions in 
committing a knowing violation of the Regulations evidences a disregard 
for U.S. export control laws. Further, BIS indicates that Iran is a 
country against which the United States maintains an economic embargo 
because of Iran's support for international terrorism.
    Finally, BIS states that imposition of a civil penalty in this case 
may be ineffective, given the difficulty of collecting payment against 
a party outside of the United States. In light of these circumstances, 
BIS proposes that the appropriate sanction to be assessed is the denial 
of Arian's export privileges for ten years.
    Given the foregoing, I recommend that the Under Secretary enter an 
Order denying Arian's export privileges for a period of ten years. Such 
a denial order is consistent with penalties imposed in recent cases 
under the Regulations involving shipments to Iran. See, In the Matter 
of Jabal Damavand General Trading Company, 67 FR 32009 (May 13, 2002) 
(affirming the recommendations of the Administrative

[[Page 32979]]

Law Judge that a ten year denial was appropriate where violations 
involved shipments of EAR99 items to Iran) and In the Matter of 
Abdulamir Mahdi, 68 FR 57406 (October 3, 2003) (affirming the 
recommendations of the Administrative Law Judge that a twenty year 
denial was appropriate where violations involved shipments of EAR99 
items to Iran as a part of a conspiracy to ship such items through 
Canada to Iran).
    Accordingly, I am referring this 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).

    Done and dated this 8th day of April, at New York, NY.
Walter J. Brudzinski,
Administrative Law Judge.
[FR Doc. 04-13275 Filed 6-10-04; 8:45 am]
BILLING CODE 3510-DT-M