[Federal Register Volume 74, Number 215 (Monday, November 9, 2009)]
[Notices]
[Pages 57626-57627]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26946]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security


Action Affecting Export Privileges; Orion Air, S.L.; Syrian Pearl 
Airlines

    In the Matter of:

Orion Air, S.L., Canada Real de Merinas, 7 Edificio 5, 3'A, 
Eissenhower Business Center, 28042 Madrid, Spain;
Ad. de las Cortes Valencianas no 37, Esc.A Puerta 45 46015 Valencia, 
Spain;
Syrian Pearl Airlines, Damascus International Airport, Damascus, 
Syria; Respondents.

Order Renewing Order Temporarily Denying Export Privileges

    Pursuant to Section 766.24 of the Export Administration 
Regulations, 15 CFR Parts 730-774 (2009) (``EAR'' or the 
``Regulations''), I hereby grant the request of the Bureau of Industry 
and Security (``BIS'') to renew for 180 days the Order Temporarily 
Denying the Export Privileges of Respondents Orion Air, S.L. and Syrian 
Pearl Airlines (collectively, ``Respondents''), as I find that renewal 
of the temporary denial order (``TDO'' or the ``ORDER'') is necessary 
in the public interest to prevent an imminent violation of the EAR.

I. Procedural History

    On May 7, 2009, I signed an Order Temporarily Denying the Export 
Privileges of the Respondents for 180 days on the grounds that its 
issuance was necessary in the public interest to prevent an imminent 
violation of the Regulations. Pursuant to Section 766.24(a), the TDO 
was issued ex parte and was effective upon issuance. Copies of the TDO 
were sent to each Respondent in accordance with Section 766.5 of the 
Regulations and the Order was published in the Federal Register on May 
26, 2009.\1\ The TDO would expire on November 3, 2009, unless renewed 
in accordance with Section 766.24 of the Regulations.
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    \1\ 74 FR 24,786.
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    On October 13, 2009, BIS, through its Office of Export Enforcement 
(``OEE''), filed a written request for renewal of the TDO against the 
Respondents for 180 days and served a copy of its request on the 
Respondents in accordance with Section 766.5 of the Regulations. No 
opposition to renewal of the TDO has been received from either Orion 
Air or Syrian Pearl Airlines.

II. Discussion

A. Legal Standard

    Pursuant to section 766.24(d)(3) of the EAR, the sole issue to be 
considered in determining whether to continue a TDO is whether the TDO 
should be renewed to prevent an imminent violation of the EAR as the 
term ``imminent'' violation is defined in Section 766.24. ``A violation 
may be `imminent' either in time or in degree of likelihood.'' 15 CFR 
766.24(b)(3). BIS may show ``either that a violation is about to occur, 
or that the general circumstances of the matter under investigation or 
case under criminal or administrative charges demonstrate a likelihood 
of future violations.'' Id. As to the likelihood of future violations, 
BIS may show that ``the violation under investigation or charges is 
significant, deliberate, covert and/or likely to occur again, rather 
than technical and negligent[.]'' Id. A ``lack of information 
establishing the precise time a violation may occur does not preclude a 
finding that a violation is imminent, so long as there is sufficient 
reason to believe the likelihood of a violation.'' Id.

B. Findings

    As part of its initial TDO request, BIS presented evidence that on 
or about May 1, 2009, Orion Air re-exported a BAE 146-300 aircraft 
(tail number EC-JVO), an item subject to the Regulations because the 
aircraft contains greater than a 10 percent de minimis of U.S.-origin 
content, to Syria and specifically to Syrian Pearl Airways without the 
U.S. Government authorization required by General Order No. 2 of 
Supplement 1 to Part 736 of the EAR. This re-export took place after 
Orion Air had been directly informed of the export licensing 
requirements by the U.S. Government, and thus had actual as well as 
constructive notice of those licensing requirements, and occurred 
despite assurances made by Orion Air that it would put the transaction 
on hold based on the U.S. Government's concerns. BIS has also produced 
evidence that the re-exported aircraft bears the livery, colors and 
logos of Syrian Pearl Airlines, a national of Syria, a Country Group 
E:1 destination. The aircraft currently remains in Syria under the 
control of Syrian Pearl Airways and is flight capable. These facts, in 
addition to Orion's conscious disregard of U.S. Government warnings, 
heighten the concerns of further violations in connection with this 
aircraft should the TDO not be renewed.
    Additionally, BIS argued that future violations of the EAR remain 
imminent based on previous statements by Orion Air to the U.S. 
Government that Orion Air had planned to re-export an additional BAE 
146-300 aircraft, currently located in the United Kingdom, to Syria and 
specifically to Syrian Pearl Airlines. Evidence indicates that the 
issuance of the original TDO prevented this unlicensed reexport to 
Syria, and to date neither Orion nor Syrian Pearl has presented BIS 
with evidence of an alternative disposition of the second aircraft that 
is in compliance with the Regulations. Therefore, absent renewal of the 
TDO, there remains a risk that this aircraft would be reexported 
contrary to U.S. export control laws.
    I find the facts and circumstances here, including those which led 
to the initial TDO, show that renewal of the

[[Page 57627]]

TDO for an additional 180 days is necessary and in the public interest 
to prevent an imminent violation of the EAR. Furthermore, renewal of 
the Order is needed to give notice to persons and companies in the 
United States and abroad that they should cease dealing with the 
Respondents in export transactions involving items subject to the EAR.
    It is therefore ordered:
    FIRST, that, Orion Air, S.L., Canada Real de Merinas, 7 Edificio 5, 
3'A, Eissenhower business center, 28042 Madrid, Spain, and Ad. de las 
Cortes Valencianas no 37, Esc.A Puerta 4546015 Valencia, Spain; and 
Syrian Pearl Airlines, Damascus International Airport, Damascus, Syria. 
(each a ``Denied Person'' and collectively the ``Denied Persons'') 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 Export Administration 
Regulations (``EAR''), or in any other activity subject to the EAR 
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 EAR, or in any other activity 
subject to the EAR; 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 EAR, or in any other activity subject to the EAR.
    SECOND, that no person may, directly or indirectly, do any of the 
following:
    A. Export or reexport to or on behalf of any Denied Person any item 
subject to the EAR;
    B. Take any action that facilitates the acquisition or attempted 
acquisition by any Denied Person of the ownership, possession, or 
control of any item subject to the EAR that has been or will be 
exported from the United States, including financing or other support 
activities related to a transaction whereby any 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 any Denied Person of any item subject to 
the EAR that has been exported from the United States;
    D. Obtain from any Denied Person in the United States any item 
subject to the EAR 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 EAR 
that has been or will be exported from the United States and which is 
owned, possessed or controlled by any Denied Person, or service any 
item, of whatever origin, that is owned, possessed or controlled by any 
Denied Person if such service involves the use of any item subject to 
the EAR 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 EAR, any other person, firm, corporation, or 
business organization related to any of the Respondents 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 EAR where the only items involved that 
are subject to the EAR are the foreign-produced direct product of U.S.-
origin technology.
    In accordance with the provisions of Section 766.24(e) of the EAR, 
the Respondents may, at any time, appeal this Order by filing a full 
written statement in support of the appeal with the Office of the 
Administrative Law Judge, U.S. Coast Guard ALJ Docketing Center, 40 
South Gay Street, Baltimore, Maryland 21202-4022.
    In accordance with the provisions of Section 766.24(d) of the EAR, 
BIS may seek renewal of this Order by filing a written request not 
later than 20 days before the expiration date. The Respondents may 
oppose a request to renew this Order by filing a written submission 
with the Assistant Secretary for Export Enforcement, which must be 
received not later than seven days before the expiration date of the 
Order.
    A copy of this Order shall be served on the Respondents and shall 
be published in the Federal Register.
    This Order is effective upon issuance and shall remain in effect 
for 180 days.

    Entered this 2nd day of November 2009.
Kevin Delli-Colli,
Acting Assistant Secretary of Commerce for Export Enforcement.
[FR Doc. E9-26946 Filed 11-6-09; 8:45 am]
BILLING CODE 3510-DT-P