[Federal Register Volume 76, Number 125 (Wednesday, June 29, 2011)]
[Notices]
[Pages 38177-38178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16226]


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FEDERAL MARITIME COMMISSION

[Docket No. 11-10]


Falcon Shipping Inc., Abdiel Falcon--Application for a License as 
an Ocean Transportation Intermediary Order To Show Cause

    Falcon Shipping Inc. (Falcon Shipping) and Mr. Abdiel Falcon 
submitted an application to operate as both a non-vessel-operating 
common carrier (NVOCC) and as a freight forwarder (FF) on March 8, 
2011. Incorporated in Florida on February 18, 2008, Falcon Shipping is 
currently located at 4458 NW. 74th Avenue, Miami, FL 33166. Abdiel 
Falcon is the sole owner, president and secretary of Falcon Shipping, 
as well as the qualifying individual identified in the license 
application.
    In response to a question on his OTI application, Mr. Falcon 
answered in the affirmative that he had been arrested, charged, 
convicted, or forfeited collateral for any felony, misdemeanor or other 
violation. As documented by the Bureau of Certification and Licensing 
(BCL) in considering the Falcon Shipping application, on December 29, 
2010, Mr. Falcon entered a plea of guilty in the United States District 
Court for the Southern District of Florida to one felony count of 
unlawful importation of goods (smuggling), in violation of 18 U.S.C 
545.\1\ See Case No. 1:10-20719-CR-ALTONAGA-2.
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    \1\ 18 U.S.C. 545 states:
    Whoever knowingly and willfully, with intent to defraud the 
United States, smuggles, or clandestinely introduces or attempts to 
smuggle or clandestinely introduce into the United States any 
merchandise which should have been invoiced, or makes out or passes, 
or attempts to pass, through the customhouse any false, forged, or 
fraudulent invoice, or other document or paper; or Whoever 
fraudulently or knowingly imports or brings into the United States, 
any merchandise contrary to law, or receives, conceals, buys, sells, 
or in any manner facilitates the transportation, concealment, or 
sale of such merchandise after importation, knowing the same to have 
been imported or brought into the United States contrary to law 
shall be fined under this title or imprisoned not more than 20 
years, or both.
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    On May 18, 2011, BCL issued a letter notifying Mr. Falcon of the 
Commission's intent to deny Falcon's license application. As reflected 
in BCL's letter, that action stems from Mr. Falcon's recent felony 
conviction. Under 46 CFR 515.15, denial of an OTI license is 
appropriate when the Commission cannot rely upon the character or 
integrity of the applicant, or its principals, to the extent necessary 
to ensure future conduct within the requirements of the Shipping Act 
and the Commission's regulations. BCL concluded that Falcon Shipping 
and its qualifying individual, Abdiel Falcon, lacked the requisite 
character to be licensed as an OTI.
    In response to BCL's letter of May 18, 2011, Mr. Falcon timely sent 
an e-mail to Glenda Singleton of BCL requesting a hearing on the denial 
of his license

[[Page 38178]]

application. Pursuant to such request,\2\ this Order directs 
Respondents Falcon Shipping, Inc. and Mr. Abdiel Falcon, its qualifying 
individual, to show cause, pursuant to 46 CFR 502.66, why the BCL's 
determination to deny the OTI license application should not be upheld 
inasmuch as Mr. Falcon was convicted of a felony charge of unlawful 
importation of goods in violation of 18 U.S.C. 545 and is still serving 
probation on such conviction.
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    \2\ While transmitted only to BCL, Mr. Falcon's e-mail request 
is deemed sufficient under 46 CFR 515.15 to entitle Falcon Shipping 
to a hearing with respect to his OTI application.
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    Section 19 of the Shipping Act of 1984, 46 U.S.C. 40901, provides 
that the Commission shall issue an OTI license to a person that the 
Commission determines to be qualified by experience and character. The 
Commission's regulations at 46 CFR 515.15 implement the standards for 
licensing under section 19, and state that:

    If the Commission determines, as a result of its investigation, 
that the applicant: (a) Does not possess the necessary experience or 
character to render intermediary services; (b) Has failed to respond 
to any lawful inquiry of the Commission; or (c) Has made any 
materially false or misleading statement to the Commission; then a 
letter of intent to deny the application shall be sent to the 
applicant * * *

    The Commission's regulations thus require denial of an application 
for an OTI license if the applicant does not possess the necessary 
character to render OTI services.
    It is well established that the burden of proof in a licensing 
proceeding is on the applicant. Independent Ocean Freight Forwarder 
Application--Lesco Packing Co. Inc., 19 FMC 132, 136 (FMC 1976). The 
Commission has previously found that commission of a federal crime 
rises to the level of the ``most egregious circumstances'' warranting 
revocation or suspension (and, by analogy, denial) of a license. In the 
Matter of Ocean Transportation License in the Name of Apparel 
Logistics, Inc., Petition for Appeal from Staff Action or in the 
Alternative for Initiation of an Investigation, 30 S.R.R. 567, 570 (FMC 
2004) (``Prior decisions have held that revoking or suspending an OTI 
license should be limited to the most egregious circumstances, such as 
OTIs violating the Shipping Act or Commission regulations, committing 
other federal offenses, or materially misrepresenting information 
regarding their qualifications.''), citing Stallion Cargo, Inc.--
Possible Violations of Sections 10(a)(1) and 10 (b) (1) of the Shipping 
Act of 1984, 29 S.R.R. 665, 683-84 (FMC 2001); AAA NordStar Line Inc.--
Revocation of License No. 12234, 29 S.R.R. 663, 663-64 (FMC 2002); 
Commonwealth Shipping Ltd., Cargo Carriers Ltd., Martyn C. Merritt and 
Mary Anne Merritt--Submission of Materially False or Misleading 
Statements to the Federal Maritime Commission And False Representation 
of Common Carrier Vessel Operations, 29 S.R.R. 1408, 1412-1414 (FMC 
2003).
    Now therefore, it is ordered That pursuant to sections 11 and 19 of 
the Shipping Act of 1984, Falcon Shipping, Inc. and Abdiel Falcon are 
hereby directed to show cause why the BCL's determination to deny the 
OTI license application should not be upheld.
    It is further ordered That this proceeding is limited to the 
submission of facts and memoranda of law;
    It is further ordered That Falcon Shipping, Inc. and Abdiel Falcon 
are named as Respondents in this proceeding. Affidavits of fact and 
memoranda of law shall be filed by Respondents in support of its 
application no later than July 13, 2011;
    It is further ordered That the Commission's Bureau of Enforcement 
is made a party to this proceeding;
    It is further ordered That reply affidavits and memoranda of law 
shall be filed by the Bureau of Enforcement in opposition to 
Respondents no later than July 28, 2011;
    It is further ordered, That notice of this Order be published in 
the Federal Register, and a copy be served on parties of record;
    It is further ordered That all documents submitted by any party of 
record in this proceeding shall be filed in accordance with Rule 2 of 
the Commission's Rules of Practice and Procedure, 46 CFR 502.2, as well 
as being mailed (or e-mailed) directly to all parties of record;
    Finally, it is ordered That pursuant to the terms of Rule 61 of the 
Commission's Rules of Practice and Procedure, 46 CFR 502.61, the final 
decision of the Commission in this proceeding shall be issued by 
December 23, 2011.

    By the Commission.
Karen V. Gregory,
Secretary.
[FR Doc. 2011-16226 Filed 6-28-11; 8:45 am]
BILLING CODE 6730-01-P