[Federal Register Volume 69, Number 226 (Wednesday, November 24, 2004)]
[Notices]
[Pages 68307-68309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-25988]


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

DEPARTMENT OF COMMERCE

Bureau of Industry and Security


Action Affecting Export Privileges; Order Relating to Bernard A. 
Spear

    In the Matter of: Bernard A. Spear, 530 North Firestone Lane, 
Placentia, California 92870, Respondent

    The Bureau of Industry and Security, United States Department of 
Commerce (``BIS'') having notified Bernard A. Spear (``Spear'') of its 
intention to initiate an administrative proceeding against Spear 
pursuant to Section 766.3 of the Export Administration Regulations 
(currently codified at 15 CFR parts 730-774 (2004)) 
(``Regulations''),\1\ and section 13(c) of the Export Administration 
Act of 1979, as amended (50 U.S.C. app. sections 2401-2420 (2000)) 
(``Act''),\2\ based on the proposed charging letter issued to Spear 
that alleged that, during the time period of 1998 to 2001, Spear, as 
President of Halear, Inc., doing business as Preston Scientific, in his 
individual capacity committed nine violations of the Regulations. 
Specifically, the charges are:
---------------------------------------------------------------------------

    \1\ The charged violations occurred from 1998 to 2001. The 
Regulations governing the violations at issue are found in the 1998 
to 2001 versions of the Code of Federal Regulations (15 CFR parts 
730-774 (1998-2001)). The 2004 Regulations set forth 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 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)), as extended 
by the Notice of August 6, 2004 (69 FR 48763 (August 10, 2004)), has 
continued the Regulations in effect under the IEEPA.
---------------------------------------------------------------------------

    1. 15 CFR 764.2(a)--Export of an Amplifier to India Without the 
Required Department of Commerce License: On or about November 30, 1998, 
Spear exported an amplifier (ECCN 3A992) \3\ from the United States to 
an organization in India on BIS' Entity List \4\ without the Department 
of Commerce license required by Section 744.11 of the Regulations.
---------------------------------------------------------------------------

    \3\ The term ``ECCN'' refers to an Export Control Classification 
Number. See Supp. 1 to 15 CFR 774.
    \4\ See Supplement No. 4 to Part 744 of the Regulations.
---------------------------------------------------------------------------

    2. 15 CFR 764.2(e)--Selling and Transferring an Item With Knowledge 
a Violation of the Regulations Would Occur: On or about November 30, 
1998, Spear sold and transferred the amplifier

[[Page 68308]]

referenced in Paragraph One above with knowledge that a violation of 
the regulations would occur. Specifically, Spear sold and transferred 
the amplifier to an organization in India on BIS' Entity List when 
Spear know that the required Department of Commerce license would not 
be obtained.
    3. 15 CFR 764.2(g)--False Statements on a Shipper's Export 
Declaration Concerning Authority to Export: On or about December 1, 
1998, in connection with the export referenced in Paragraph One above, 
Spear filed or caused to be filed a Shipper's Export Declaration with 
the U.S. government for the export of the amplifier to an organization 
in India on BIS' Entity List that stated it qualified for export from 
the United States as NLR (``No License Required''). This statement was 
false because, as described in Paragraph One above, a Department of 
Commerce license was required to export the amplifier.
    4. 15 CFR 764.2(g)--False Statement to an Office of Export 
Enforcement Special Agent in the Course of an Investigation: On or 
about January 25, 2001, in connection with an ongoing BIS, Office of 
Export Enforcement (``OEE'') investigation concerning the transactions 
referenced in Paragraph One above, Spear made a false statement to OEE 
investigators. Specifically, Spear stated to OEE investigators that the 
export of the amplifier had been made prior to the imposition of 
sanctions against India and Pakistan on November 19, 1998, that gave 
rise to the license requirements in this case. This statement was false 
because the export was not made until after the imposition of the 
sanctions.
    5. 15 CFR 764.29a)--Export of a Connector Socket Without the 
Required Department of Commerce License: On or about February 26, 1999, 
Spear exported a connector socket (EAR99) \5\ from the United States, 
through a distributor in India, to an organization in India on BIS' 
Entity List without the Department of Commerce license required by 
Section 744.11 of the Regulations.
---------------------------------------------------------------------------

    \5\ The term ``EAR99'' refers to items subject to the 
Regulations which are not listed on the Commerce Control List. See 
15 CFR 734.3(c).
---------------------------------------------------------------------------

    6. 15 CFR 764.2(e)--Selling and Transferring an Item With Knowledge 
a Violation of the Regulations Would Occur: On or about February 26, 
1999, Spear sold and transferred the connector socket referenced in 
Paragraph Five above with knowledge that a violation of the Regulations 
would occur. Specifically, Spear sold and transferred the connector 
socket to an organization in India on BIS' Entity List when Speak knew 
that the required Department of Commerce license would not be obtained.
    7. 15 CFR 764.2(a)--Export of Spare Part Without the Required 
Department of Commerce License: On or about July 29, 1999, Spear 
exported spare parts (EAR99) from the United States, through a 
distributor in India, to an organization in India on BIS' Entity List 
without obtaining a license from the Department of the Commerce as 
required by Section 744.11 of the Regulations.
    8. 15 CFR 764.2(e)--Selling and Transferring Items With Knowledge a 
Violation of the Regulations Would Occur: On or about July 29, 1999, 
Spear sold and transferred the spare parts referenced in Paragraph 
Seven above with knowledge that a violation of the Regulations would 
occur. Specifically, Spear sold and transferred the spare parts to an 
organization in India on BIS' Entity List when Speak knew that the 
required Department of Commerce license would not be obtained.
    9. 15 CFR 764.2(g)--False Statement to an Office of Export 
Enforcement Special Agent in the Course of an Investigation: On or 
about January 25, 2001, in connection with an ongoing BIS, OEE 
investigation concerning the transactions referenced in Paragraphs Five 
and Seven above, Spear made a false statement to OEE investigators. 
Specifically, Spear stated to OEE investigators that he had not shipped 
any items to India since December 1998. This statement was false 
because Spear had exported items to India after December 1998, as 
described in Paragraphs Five and Seven above.
    BIS and Spear having entered into a Settlement Agreement pursuant 
to Section 766.18(a) of the Regulations whereby they agreed to settle 
this matter in accordance with the terms and conditions set forth 
therein, and the terms of the Settlement Agreement having been approved 
by me;
    It is therefore ordered:
    First, that for a period of three years from the date of this 
Order, Bernard A. Spear, 530 North Firestone Lane, Placentia, 
California, 92870 (``Spear''), and when acting for or on behalf of 
Spear, his representatives, agents, assigns or 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
    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 which 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 
businesses organization related to Spear by affiliation, ownership, 
control, or

[[Page 68309]]

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 the proposed charging letter, the Settlement Agreement, 
and this Order shall be made available to the public.
    Sixth, that this Order shall be served on the Denied Person and on 
BIS, and shall be published in the Federal Register.
    This Order, which constitutes the final agency action in this 
matter, is effective immediately.

    Entered this 18th day of November 2004.
Julie L. Salcido,
Acting Deputy Assistant Secretary of Commerce for Export Enforcement.
[FR Doc. 04-25988 Filed 11-23-04; 8:45 am]
BILLING CODE 3510-DT-M