[Federal Register Volume 73, Number 208 (Monday, October 27, 2008)]
[Notices]
[Pages 63678-63681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25351]


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

DEPARTMENT OF COMMERCE

Bureau of Industry and Security

[05-BIS-24]


In the Matter of: Yasmin Ahmed, 612 Business Centre, Mumtaz Hasan 
Road, Off I.I. Chundrigar Road, Karachi, Pakistan, Respondent

Final Decision and Order

    This matter is before me upon a Recommended Decision and Order 
(``RDO'') of an Administrative Law Judge (``ALJ'').
    In a charging letter issued on December 15, 2005, the Bureau of 
Industry and Security (``BIS'') alleged that Respondent, Yasmin 
Ahmed,\1\ committed four violations of the Export Administration 
Regulations (currently codified at 15 CFR Parts 730-774 (2008) 
(``Regulations'')),\2\ issued pursuant to the Export Administration Act 
of 1979, as amended (50 U.S.C. app. 2401-2420 (2000)) (``Act'').\3\
---------------------------------------------------------------------------

    \1\ Yasmin Ahmed was also known as Fatimah Mohammad and Yasmin 
Ahmed Tariq during the period in which the charged violations 
occurred.
    \2\ The charged violations occurred during the 2000-2002 period. 
The Regulations governing the violations at issue are found in the 
2000-2002 versions of the Code of Federal Regulations (15 CFR Parts 
730-774 (2000-2002)). The 2008 Regulations establish the procedures 
that apply to this matter.
    \3\ 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 46,137 (August 16, 2007)), has continued the Regulations in 
effect under the International Emergency Economic Powers Act (50 
U.S.C. 1701-1706 (2000)) (``IEEPA'').
---------------------------------------------------------------------------

    The charging letter included a total of four charges based on 
Yasmin Ahmed's actions as a sales representative of Advance Technical 
System (``ATS'') of Dubai, United Arab Emirates (``UAE'') in connection 
with unlawful shipments of U.S.-origin radar parts made to Pakistan 
through the UAE. Specifically, the charging letter alleged as follows:
    Charge 1 (15 CFR 764.2(b)--Causing the Filing of a False Statement 
on Shipper's Export Declaration as to the Ultimate Destination)
    On or about December 18, 2000, Ahmed caused the filing of a false 
statement with the U.S. Government in violation of the Regulations. 
Specifically, in connection with the export of radar parts (``parts''), 
items subject to the Regulations (``EAR99'') \4\, from the United 
States to Pakistan via the UAE, Ahmed submitted an end-user 
certificate, DSP Form 83,\5\ to the exporter that falsely stated that 
the Bangladeshi Air Force was the end-user of the parts. The exporter 
relied on the end-user information submitted by Ahmed in completing a 
Shipper's Export Declaration (SED) for the export of the parts which 
falsely stated that the country of ultimate destination was Bangladesh. 
The actual country of ultimate destination was Pakistan. By providing 
false end-user information to the exporter, Ahmed committed one 
violation of section 764.29([b]) \6\ of the Regulations.
---------------------------------------------------------------------------

    \4\ EAR 99 is a designation for items subject to the Regulations 
that are not listed on the Commerce Control list.
    \5\ The DSP Form 83, ``Nontransfer and Use Certificate,'' is 
used by the State Department in connection with the export of 
munitions items subject to the State Department's export controls. 
The Respondent used it here in connection with items subject to the 
Regulations.
    \6\ Due to a typographical error, the charging letter 
incorrectly referred to section 764.2(g) in the last sentence of 
Charge One, rather than section 764.2(b). As indicated by Charge 
One's heading and by its content, the last sentence should have 
referred to 764.2(b), the violation provision that corresponds to 
the causing language that comprises the substance of the charge. 
This typographical error does not prejudice the Respondent, as it is 
clear that the intended reference was to section 764.2(b).
---------------------------------------------------------------------------

    Charge 2 (15 CFR 764.2(c)--Attempting to Cause a Violation of the 
Regulations by Submitting False End-User Information to Exporter)
    On or about April 16, 2002, Ahmed attempted to cause a violation of 
the Regulations by submitting a false end-user certificate to the 
exporter in connection with the export of parts, items subject to the 
Regulations, from the United States to Pakistan via the UAE. The 
certificate stated that the Bangladeshi Air Force was the end-user of 
the parts. The actual country of ultimate destination was Pakistan. The 
exported relied on the end-user information submitted by Ahmed in 
completing an airway bill listing Bangladesh as the ultimate 
destination of the parts.
    In completing the SED for the export based on a consultation of the 
airway bill, however, the freight forwarder incorrectly listed UAE as 
the country of ultimate destination. By providing false end-user 
information to the exporter, Ahmed attempted to cause a violation of 
the Regulations. In so doing, Ahmed committed one violation of section 
764.2(c) of the Regulations.
    Charge 3 (15 CFR 764.2(h)--Actions Taken with Intent to Evade the 
Provisions of the Regulations)
    In connection with the export described in Charge 1 above, Ahmed 
took actions with the intent to evade the provisions of the 
Regulations. Specifically, Ahmed took actions, including but not 
limited to, obtaining false signatures from a purported end-user and 
representative of ATS for

[[Page 63679]]

inclusion on an end-user certificate submitted to an exporter in 
connection with the export of parts, items subject to the Regulations, 
from the United States to Pakistan via the UAE. The purpose of securing 
the false signatures was to prepare a false end-user certificate 
concealing the actual destination for the parts, Pakistan. The exporter 
relied on the information provided in the end-user certificates in 
preparing an SED which falsely stated the country of ultimate 
destination. In so doing, Ahmed committed one violation of section 
764.2(h) of the Regulations.
    Charge 4 (15 CFR 764.2(h)--Actions Taken with Intent to Evade the 
Provisions of the Regulations)
    In connection with the export described in Charge 2 above, Ahmed 
took actions with the intent to evade the provisions of the 
Regulations. Specifically, Ahmed took actions, including but not 
limited to, obtaining false signatures from a purported end-user and 
representative of ATS for inclusion on an end-user certificate 
submitted to an exporter in connection with the export of parts, items 
subject to the Regulations, from the United States to Pakistan via the 
UAE. The purpose of obtaining the false signatures was to prepare a 
false end-user certificate concealing the actual destination for the 
parts, Pakistan. The exporter relied on the information provided in the 
end-user certificates in preparing an SED which falsely stated the 
country of ultimate destination. In so doing, Ahmed committed one 
violation of section 764.2(h) of the Regulations.
    In accordance with section 766.3(b)(1) of the Regulations, on 
December 15, 2005, BIS mailed the notice of issuance of the charging 
letter by registered mail to Yasmin Ahmed at her last known address, 
which is in Pakistan. Although BIS did not receive a signed return mail 
receipt for the letter, the charging letter was delivered no later than 
on or about February 16, 2006. On or about that date, Yasmin Ahmed 
telephoned the BIS attorney named in the charging letter to discuss 
that letter, as well as the charging letter in a related administrative 
proceeding also initiated by BIS on December 15, 2005, In the Matter of 
NEAZ Trading Corporation (Docket No. 05-BIS-23). Ms. Ahmed had 
possession of the Yasmin Ahmed charging letter by the date of that 
telephone call; otherwise, she would not have known the name or direct 
contact information for BIS's attorney or been able to discuss the 
charging letter with BIS. To date, however, Yasmin Ahmed has not filed 
an answer to the charging letter with the AU, as required by the 
Regulations.
    Under section 766.6(a) of the Regulations, the ``respondent must 
answer the charging letter within 30 days after being served with 
notice of issuance'' of the charging letter. Section 766.7(a) of the 
Regulations provides that the ``[f]ailure of the respondent to file an 
answer within the time provided constitutes a waiver of the 
respondent's right to appear and contest the allegations in the 
charging letter,'' and that ``on BIS's motion and without further 
notice to the respondent, [the AU] shall find the facts to be as 
alleged in the charging letter.''
    In accordance with section 766.7 of the Regulations, and because 
more than thirty days had passed since Ahmed had been served with the 
charging letter, BIS filed a Motion for Default Order that was received 
by the AU on July 15, 2008. This Motion for Default Order recommended 
that Ahmed be denied export privileges under the Regulations for a 
period of seven years.
    On September 16, 2008, based on the record before him, the AU 
issued a RDO in which he found Yasmin Ahmed in default, found the facts 
to be as alleged in the charging letter, and held that Ahmed had 
committed the four violations alleged in the charging letter. The AU 
also recommended the penalty of denial of Yasmin Ahmed's export 
privileges for seven years.
    The RDO, together with the entire record in this case, has been 
referred to me for final action under section 766.22 of the 
Regulations. I find that the record supports the ALJ's findings of fact 
and conclusions of law with one modification. With respect to Charge 
One, I modify the RDO to the extent it states at one point that Yasmin 
Ahmed committed one violation ``of section 764.2(g) of the 
Regulations'', RDO at 3, because the violation set forth in Charge One, 
as indicated by its heading and the content of that charging paragraph, 
is a violation under section 764.2(b) of the Regulations. See note 6, 
supra. I also find that the penalty recommended by the AU is 
appropriate, given the serious nature of the violations and the 
importance of preventing future unauthorized exports or similar conduct 
in violations of the Regulations.
    Based on my review of the entire record, I affirm the findings of 
fact and conclusions of law in the RDO with the one modification 
regarding Charge One that is described above.
    Accordingly, it is therefore ordered:
    First, that, for a period of seven (7) years from the date this 
Order is published in the Federal Register, Yasmin Ahmed, 612 Business 
Centre, Mumtaz Hasan Road, Off I.I. Chundrigar Road, Karachi, Pakistan, 
and when acting for or on behalf of Yasmin Ahmed, her representatives, 
agents, assigns and employees (hereinafter collectively referred to as 
the ``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 that is owned, possessed or controlled by the Denied Person, or 
service any item, of whatever origin, that is owned, possessed or

[[Page 63680]]

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 
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 
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 this Order shall be served on the Denied Person and on 
BIS, and shall be published in the Federal Register. In addition, the 
AU's Recommended Decision and Order, except for the section related to 
the Recommended Order, shall 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: October 16, 2008.
Mario Mancuso,
Under Secretary of Commerce for Industry and Security.

United States Department of Commerce Bureau of Industry and Security

    In the Matter of: Yasmin Ahmed, 612 Business Centre, Mumtaz 
Hasan Road, Off I.I. Chundrigar Road, Karachi, Pakistan. Respondent.

Recommended Decision and Order

    On December 15, 2005, the Bureau of Industry and Security, U.S. 
Department of Commerce (BIS), issued a charging letter initiating 
this administrative enforcement proceeding against Yasmin Ahmed.\1\ 
The charging letter alleged that Yasmin Ahmed committed four 
violations of the Export Administration Regulations (currently 
codified at 15 CFR Parts 730 774 (2008)) (the Regulations),\2\ 
issued under the Export Administration Act of 1979, as amended (50 
U.S.C. app. 2401-2420 (2000)) (the Act).\3\ In accordance with Sec.  
766.7 of the Regulations, BIS moved for the issuance of an Order of 
Default against Yasmin Ahmed because Ms. Ahmed failed to file an 
answer to the allegations in the charging letter issued by BIS 
within the time period required by the Regulations.
---------------------------------------------------------------------------

    \1\ Yasmin Ahmed was also known as Fatimah Mohammad and Yasmin 
Ahmed Tariq during the period in which the charged violations 
occurred.
    \2\ The charged violations occurred during the 2000-2002 period. 
The Regulations governing the violations at issue are found in the 
2000-2002 versions of the Code of Federal Regulations (15 CFR Parts 
730-774 (2000-2002)). The 2008 Regulations establish the procedures 
that apply to this matter.
    \3\ 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 by 
Public Law No. 106-508 (114 Stat. 2360 (2000)) 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)), which has been 
extended by successive Presidential Notices, the most recent being 
that of August 15, 2007 (72 FR 46137 (Aug. 16, 2007)), has continued 
the Regulations in effect under IEEPA.
---------------------------------------------------------------------------

A. Legal Authority for Issuing an Order of Default

    Section 766.7 of the Regulations states that upon motion by BIS, 
the Court shall enter a default if a respondent fails to properly 
file a timely answer to a charging letter. That section, entitled 
Default, provides in pertinent part as follows:
    Failure of the respondent to file an answer within the time 
provided constitutes a waiver of the respondent's right to appear 
and contest the allegations in the charging letter. In such event, 
the administrative law judge, on BIS's motion and without further 
notice to the respondent, shall find the facts to be as alleged in 
the charging letter and render an initial or recommended decision 
containing findings of fact and appropriate conclusions of law and 
issue or recommend an order imposing appropriate sanctions.
    15 CFR 766.7 (2008).
    Pursuant to Section 766.6 of the Regulations, a respondent must 
file an answer to the charging letter ``within 30 days after being 
served with notice of the issuance of the charging letter'' 
initiating the proceeding. 15 CFR 766.6 (2008).

B. Service of the Notice of Issuance of Charging Letter

    In this case, BIS served notice of issuance of the charging 
letter in accordance with Sec.  766.3(b)(l) of the Regulations by 
sending a copy of the charging letter by registered mail to Yasmin 
Ahmed at her last known address on December 15, 2005. BIS did not 
receive a return mail receipt for the letter. To date, Respondent 
has failed to file an answer to the charging letter as required by 
section 766.6 of the Regulations. On or about February 16, 2006, 
Yasmin Ahmed, telephoned the BIS attorney named in the charging 
letter. Since Ms. Ahmed contacted BIS on February 16, 2006, Ms. 
Ahmed must have been in possession of the Charging Letter or she 
would not have known the BIS attorney's contact information. Clearly 
30 days has passed since Ms. Ahmed received the charging letter. 
Accordingly, Yasmin Ahmed is in default.

C. Summary of Violations Charged

    The charging letter filed and served in this matter included a 
total of four charges based on Yasmin Ahmed's actions as a sales 
representative of Advance Technical System (ATS) of Dubai, United 
Arab Emirates (UAE), in connection with shipments of U.S. origin 
items to Pakistan. Charge I of the charging letter alleged that on 
or about December 18, 2000, Yasmin Ahmed caused the filing of a 
false statement with the U.S. Government in connection with the 
export of radar parts, items subject to the Regulations,\4\ from the 
United States to Pakistan via the UAE. Yasmin Ahmed submitted an 
end-user certificate, DSP Form 83,\5\ to the exporter that falsely 
stated that the Bangladesh Air Force was the end-user of the parts. 
The exporter relied on the end-user information submitted by Yasmin 
Ahmed in completing a Shipper's Export Declaration (SED) for the 
export of the parts that falsely stated that the country of ultimate 
destination was Bangladesh. The actual country of ultimate 
destination was Pakistan. By providing false end-user information to 
the exporter, Yasmin Ahmed committed one violation of section 
764.2(g) of the Regulations.
---------------------------------------------------------------------------

    \4\ These parts are designated as ``EAR 99,'' a designation for 
items subject to the Regulations that are not listed on the Commerce 
Control List.
    \5\ The DSP Form 83, ``Nontransfer and Use Certificate,'' is 
used by the State Department in connection with the export of 
munitions items subject to the State Department's export controls. 
In this instance, the Respondent used it to conceal the end-user of 
an item that was subject to the EAR.
---------------------------------------------------------------------------

    Second, the charging letter alleged that on or about April 16, 
2002, Yasmin Ahmed attempted violate the Regulations by submitting a 
false end-user certificate to the exporter in connection with the 
export of radar parts, items subject to the Regulations, from the 
United States to Pakistan via the UAE. The certificate stated that 
the Bangladesh Air Force was the end user of the radar parts. The 
actual country of ultimate destination was Pakistan. The exporter 
relied on the end-user information submitted by Yasmin Ahmed in 
completing an airway bill listing Bangladesh as the ultimate 
destination of the parts. In completing the SED for the export based 
on a consultation of the airway bill, the freight forwarder 
incorrectly listed UAE as the country of ultimate destination. By 
providing false end-user information to the exporter, Yasmin Ahmed 
attempted to cause a violation of the Regulations, namely, the 
filing of a SED with false end-user information, and thereby 
violated section 764.2(c) of the Regulations.
    Charge 3 of the charging letter alleged that in connection with 
the December 18, 2000, transaction (described in Charge 1 of the 
charging letter), Yasmin Ahmed took actions with the intent to evade 
the provisions of the Regulations. Specifically, she took actions, 
including but not limited to, obtaining false signatures from a 
purported end-user who was actually a representative of ATS for 
inclusion on an end-user certificate submitted to an exporter in 
connection with the export of radar parts, items subject to the 
Regulations, from the United States to Pakistan via the UAE. The 
purpose of securing the false signatures was to prepare

[[Page 63681]]

a false end-user certificate concealing the actual destination for 
the radar parts, Pakistan. The exporter relied on the information 
provided in the end-user certificates in preparing a SED that 
falsely stated the country of ultimate destination as Bangladesh. In 
so doing, Yasmin Ahmed committed one violation of section 764.2(h) 
of the Regulations.
    Finally, in connection with the April 16, 2002, transaction 
described in Charge 2 of the charging letter, Yasmin Ahmed took 
actions with the intent to evade the provisions of the Regulations. 
Specifically, Yasmin Ahmed took actions, including but not limited 
to, obtaining false signatures from a purported end-user who was 
actually a representative of ATS for inclusion on an end-user 
certificate submitted to an exporter in connection with the export 
of radar parts, items subject to the Regulations, from the United 
States to Pakistan via the UAE. The purpose of obtaining the false 
signatures was to prepare a false end-user certificate concealing 
the actual destination for the radar parts, Pakistan. The exporter 
relied on the information provided in the end-user certificates in 
preparing a SED which falsely stated the country of ultimate 
destination as Bangladesh. In so doing, Yasmin Ahmed committed one 
violation of section 764.2(h) of the Regulations.

D. Penalty Recommendation

[REDACTED SECTION]

E. Conclusion

    Accordingly, I am referring this Recommended Decision and Order 
to the Under Secretary of Commerce for Industry and Security for 
review and final action for the agency, without further notice to 
the Respondent, as provided in Sec.  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).

Hon. Joseph N. Ingolia,
Chief Administrative Law Judge, United States Coast Guard.

Done and Dated 16th September, 2008, Baltimore, Maryland.

Certificate of Service

    I hereby certify that I have served the foregoing RECOMMENDED 
DECISION AND ORDER upon the following party in this proceeding at the 
addresses indicated below by First Class Mail to:

Parvin R. Huda, Senior Counsel, Attorneys for Bureau of Industry and 
Security, Office of Chief Counsel For Industry and Security, U.S. 
Department of Commerce, Room H-3839, 14th Street & Constitution Avenue, 
NW., Washington, DC 20230, (202) 482-5301.
Yasmin Ahmed, 612 Business Centre, Mumtaz Hasan Road, Off I.I 
Chundrigar Road, Karachi, Pakistan.

    Dated on September 18, 2008, Baltimore, Maryland.
Debra M. Gundy,
Paralegal Specialist, Administrative Law Judges Office, U.S. Coast 
Guard.
 [FR Doc. E8-25351 Filed 10-24-08; 8:45 am]
BILLING CODE 3510-DT-M