[Federal Register Volume 73, Number 89 (Wednesday, May 7, 2008)]
[Notices]
[Pages 25648-25649]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-9980]


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

DEPARTMENT OF COMMERCE

Bureau of Industry and Security

[Docket No. 05-BIS-08]


 In the Matter of: Kabba & Amir Investments, Inc., d.b.a. 
International Freight Forwarders, 286 Attwell Drive 16, 
Toronto, ON M9W 5B2, Canada, Respondent; Final Decision and Order

    This matter is before me upon a Recommended Decision and Order 
(``RDO'') of an Administrative Law Judge (``ALJ''), as further 
described below.
    In a charging letter filed on June 28, 2005, the Bureau of Industry 
and Security (``BIS'') alleged that Respondent Kabba & Amir 
Investments, Inc., d/b/a International Freight Forwarders (``IFF''), 
committed two violations of the Export Administration Regulations 
(currently codified at 15 CFR Parts 730-774 (2008) (``Regulations'')), 
issued pursuant to the Export Administration Act of 1979, as amended 
(50 U.S.C. app. 2401-2420 (2000)) (the ``Act''), 1 stemming from its 
involvement in an attempted unlicensed export of items subject to the 
Regulations from the United States to Cuba. Charge One of the charging 
letter alleged as follows:

    Charge 1 15 CFR 764.2(b)--Aiding and abetting an attempted 
violation of the Regulations.
    On or about June 29, 2000, IFF aided and abetted the doing of an 
act prohibited by the Regulations when it took possession of a 
shipment of X-Ray Film Processors, items subject to the Regulations, 
in the United States for export to Cuba via Canada. Under section 
746.2 of the Regulations, a BIS export license was required for this 
shipment, but no such license was obtained. In aiding and abetting 
the attempted export, IFF committed one violation of section 
764.2([b])2 of the Regulations.

June 28, 2005 Charging Letter, at 1.

    On November 6, 2007, BIS filed a motion for summary decision 
against IFF as to Charge One. During the briefing of this motion, BIS 
withdrew the only other charged violation, Charge Two, which alleged 
that IFF had conspired to violate the Regulations. See Sec.  7663(a) of 
the Regulations (``BIS may unilaterally withdraw charging letters at 
any time, by notifying the respondent and the administrative law 
judge.''). The ALJ entered an order of dismissal as to Charge Two on 
January 29, 2008, consistent with BIS's notice of withdrawal of that 
charge.
    On April 2, 2008, based on the record before him, the ALJ issued an 
RDO in which he determined that BIS was entitled to summary decision as 
to Charge One, finding that IFF had committed one violation of Sec.  
764.2(b) when it aided and abetted an attempted unlicensed export of 
items subject to the Regulations to Cuba, via Canada. The ALJ also 
recommended, following consideration of the record, that IFF be 
assessed a monetary penalty of $6,000.00 and a denial of export 
privileges for three years. The ALJ further recommended that the denial 
of export privileges be suspended for a period of three years as long 
as IFF pays the monetary penalty of $6,000.00 within thirty days of the 
final Decision and Order and does not commit any further violations of 
the Act or Regulations within three years of the issuance of the final 
Decision and Order.
    The RDO, together with the entire record in this case, has been 
referred to me for final action under Sec.  766.22 of the Regulations. 
I find that the record supports the ALJ's findings of fact and 
conclusions of law. In making this finding, I have determined that the 
ALJ made at least an implied finding that IFF took constructive 
possession of the items in question when it had the items transported 
by truck to Canada, arranged for them to then be transported to Cuba by 
plane, and took other actions to effect their forwarding and the 
completion of their unlicensed export to Cuba. Such a finding is 
entirely consistent with Charge One of the charging letter and the RDO. 
See, e.g., RDO at 5-6 (making finding based on uncontroverted 
documentary exhibits submitted by BIS in support of its Motion for 
Summary Decision, including Respondent's Answer, that IFF had, inter 
alia, agreed to forward the items from the United States to Cuba, had 
the items trucked to Canada, and arranged for their further transport 
by plane to Cuba prior to the items being seized by Canada Customs); 
RDO at 13 (``BIS established by documentary evidence and IFF's 
admissions that there exists no genuine issues of material fact that 
Respondent violated 15 CFR 764.2(b) by aiding and abetting in the 
attempted export of X-Ray film Processors (classified as EAR 99) from 
the United States to Cuba, via Canada on or about June 29, 2000.'')
    I also find that the penalty recommended by the ALJ based upon his 
review of the entire record is appropriate, given the nature of the 
violations, the facts of this case, and the importance of deterring 
future unauthorized exports or attempted exports.
    Based on my review of the entire record, I affirm the findings of 
fact and conclusions of law in the RDO.

[[Page 25649]]

    Accordingly, it is therefore ordered,
    First, that a civil penalty of $6,000.00 is assessed against Kabba 
& Amir Investments, Inc., d/b/a International Freight Forwarders, which 
shall be paid to the U.S. Department of Commerce within (30) thirty 
days from the date of entry of this Order.
    Second, pursuant to the Debt Collection Act of 1982, as amended (31 
U.S.C. 3701-3720E (2000)), the civil penalty owed under this Order 
accrues interest as more fully described in the attached Notice, and, 
if payment is not made by the due date specified herein, Kabba & Amir 
Investments, Inc., d/b/a International Freight Forwarders, will be 
assessed, in addition to the full amount of the civil penalty and 
interest, a penalty charge and administrative charge.
    Third, for a period of three (3) years from the date that this 
Order is published in the Federal Register, Kabba & Amir Investments, 
Inc., d/b/a International Freight Forwarders, 286 Attwell Drive 
16, Toronto, ON M9W 5B2, Canada (``IFF''), its successors or 
assigns, and when acting for or on behalf of IFF, its representatives, 
agents, officers or employees (hereinafter collectively referred to as 
``Denied Person'') may not participate, directly or indirectly, 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. 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.
    Fourth, 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.
    Fifth, that, after notice and opportunity for comment as provided 
in Sec.  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 
the Order.
    Sixth, 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.
    Seventh, that, as authorized by Sec.  766.17(c) of the Regulations, 
the denial period set forth above shall be suspended in its entirety, 
and shall thereafter be waived, provided that: (1) Within thirty days 
of the effective date of the Decision and Order, IFF pays the monetary 
penalty of $6,000.00 in full, and (2) during the period of the 
suspension IFF commits no further violations of the Act or Regulations.
    Eighth, that the final Decision and Order shall be served on IFF 
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 also 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: April 30, 2008.
Mario Mancuso,
Under Secretary of Commerce for Industry and Security.
    1. 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 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 
15, 2007 (72 FR 46137 (August 16, 2007)), has continued the Regulations 
in effect under IEEPA.
    2. Due to a typographical error, BIS referred to section 764.2(d) 
in the last sentence of the original Charge One. This typographical 
error was later corrected by BIS, as noted by the ALJ in fn. 4 of the 
RDO.
    3. The sanction recommended by the ALJ also is consistent with the 
sanction proposed by BIS, which based its request on the facts and 
circumstances of the case as a whole.

 [FR Doc. E8-9980 Filed 5-6-08; 8:45 am]
BILLING CODE 3510-DT-M