[Federal Register Volume 79, Number 195 (Wednesday, October 8, 2014)]
[Notices]
[Pages 60807-60809]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-23993]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
In the Matter of: Ming Xie, a/k/a Michael Xie, 16 Nathan Drive,
Towaco, New Jersey 07082, Respondent; Horizon RX Systems, 16 Nathan
Drive, Towaco, New Jersey 07082, Related Person; Order Denying Export
Privileges
A. Denial of Export Privileges of Ming Xie a/k/a Michael Xie
On May 22, 2013, in the U.S. District Court for the District of New
Jersey, Ming Xie, a/k/a Michael Xie (``Xie''), was convicted of
violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778
(2012)) (``AECA'') and the International Emergency Economic Powers Act
(50 U.S.C. 1701, et seq. (2006 & Supp. IV 2010)) (``IEEPA'').
Specifically, Xie knowingly and willfully exported and caused to be
exported from the United States power amplifiers, defense articles of
United States origin, without first obtaining from the U.S. Department
of State a license or other export authorization for such export, in
violation of the AECA. Xie also knowingly and willfully exported from
the United States to the People's Republic of China power amplifiers,
items subject to the Export Adminstration Regulations, without first
obtaining the required export license or other authorization from the
U.S.
[[Page 60808]]
Department of Commerce, in violation of IEEPA. Xie was sentenced to
probation for two years, 300 hours of community service, and a $20,000
fine. Xie also is listed on the U.S. Department of State's Debarred
List.
Section 766.25 of the Export Administration Regulations (``EAR'' or
``Regulations'') \1\ provides, in pertinent part, that ``[t]he Director
of the Office of Exporter Services, in consultation with the Director
of the Office of Export Enforcement, may deny the export privileges of
any person who has been convicted of a violation of the EAA, the EAR,
of any order, license or authorization issued thereunder; any
regulation, license, or order issued under the International Emergency
Economic Powers Act (50 U.S.C. 1701-1706); 18 U.S.C. 793, 794 or 798;
section 4(b) of the Internal Security Act of 1950 (50 U.S.C. 783(b)),
or section 38 of the Arms Export Control Act (22 U.S.C. 2778).'' 15 CFR
766.25(a); see also Section 11(h) of the EAA, 50 U.S.C. app. Sec.
2410(h). The denial of export privileges under this provision may be
for a period of up to ten (10) years from the date of the conviction.
15 CFR 766.25(d); see also 50 U.S.C. app. Sec. 2410(h). In addition,
Section 750.8 of the Regulations states that the Bureau of Industry and
Security's Office of Exporter Services may revoke any Bureau of
Industry and Security (``BIS'') licenses previously issued in which the
person had an interest in at the time of his conviction.
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\1\ The Regulations are currently codified in the Code of
Federal Regulations at 15 CFR parts 730-774 (2014). The Regulations
are issued pursuant to the Export Administration Act of 1979 (50
U.S.C. app. Sec. Sec. 2401-2420 (2000)) (``the EAA'' or ``the
Act''). Since August 21, 2001, the EAA 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 7, 2014
(79 Fed. Reg. 46959 (August 11, 2014)), has continued the
Regulations in effect under the International Emergency Economic
Powers Act (50 U.S.C. 1701, et seq. (2006 & Supp. IV 2010)).
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BIS received notice of Xie's conviction for violating the AECA and
IEEPA, and has provided notice and an opportunity for Xie to make a
written submission to BIS, as provided in Section 766.25 of the
Regulations. BIS received a submission from Xie. Based upon my review
and consideration of that submission, and consultations with BIS's
Office of Export Enforcement, including its Director, and the facts
available to BIS, I have decided to deny Xie's export privileges under
the Regulations for a period of ten (10) years from the date of Xie's
conviction. I have also decided to revoke all licenses issued pursuant
to the Act or Regulations in which Xie had an interest at the time of
his conviction.
B. Denial of Export Privileges of Related Person Horizon RX Systems
Pursuant to Sections 766.25(h) and 766.23 of the Regulations, the
Director of BIS's Office of Exporter Services, in consultation with the
Director of BIS's Office of Export Enforcement, may, in order to
prevent evasion of a denial order, make a denial order applicable not
only to the respondent, but also to other persons related to the
respondent by ownership, control, position of responsibility,
affiliation, or other connection in the conduct of trade or business.
As provided in Section 766.23 of the Regulations, BIS gave notice
to Horizon that its export privileges under the Regulations could be
denied for up to ten (10) years due to its relationship with Xie and
that BIS believed that naming Horizon as a person related to Xie would
be necessary to prevent evasion of a denial order imposed against Xie.
In providing such notice, BIS gave Horizon an opportunity to oppose its
addition to the Xie Denial Order as a related party.
Having received and reviewed a submission from Xie, I have decided,
following consideration of that submission and consultations with BIS's
Office of Export Enforcement, including its Director, to include name
Horizon as a Related Person and make this Denial Order applicable to
Horizon, thereby denying its export privileges for ten (10) years from
the date of Xie's conviction. I have also decided to revoke all
licenses issued pursuant to the Act or Regulations in which Horizon had
an interest at the time of Xie's conviction. The 10-year denial period
is scheduled to end on May 22, 2023.
Xie is the president of Horizon. Therefore, Horizon is related to
Xie within the meaning of Section 766.23. BIS also has reason to
believe that Horizon should be added as a related person in order to
prevent evasion of this Denial Order. Xie conducted the unlawful export
activities involved in his conviction through Horizon.
Accordingly, it is hereby ordered:
First, from the date of this Order until May 22, 2023, Ming Xie a/
k/a Michael Xie, with a last known address of 16 Nathan Drive, Towaco,
New Jersey 07082, and when acting for or on his behalf, his successors,
assigns, employees, agents, or representatives, and Horizon RX Systems,
with a last known address of 16 Nathan Drive, Towaco, New Jersey 07082,
and when acting for or on its behalf, its successors, assigns,
directors, officers, employees, agents, or representatives (each as
``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 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, no person may, directly or indirectly, do any of the
following:
A. Export or reexport to or on behalf of a Denied Person any item
subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted
acquisition by a 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 a 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 a Denied Person of any item subject to
the Regulations that has been exported from the United States;
D. Obtain from a 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 a Denied Person, or
service any item, of whatever origin, that is owned, possessed or
controlled by a Denied Person, if such service involves the use of any
item subject to the Regulations that has been
[[Page 60809]]
or will be exported from the United States. For purposes of this
paragraph, servicing means installation, maintenance, repair,
modification or testing.
Third, in addition to the Related Person named above, after notice
and opportunity for comment as provided in section 766.23 of the
Regulations, any other individual, firm, corporation, or other
association or organization or other person related to a Denied Person
by ownership, control, position of responsibility, affiliation, or
other connection in the conduct of trade or business may also be made
subject to the provisions of this Order if necessary to prevent evasion
of this Order.
Fourth, in accordance with Part 756 and Section 766.25(g) of the
Regulations, Xie may file an appeal of the issuance of this Order
against him with the Under Secretary of Commerce for Industry and
Security. The appeal must be filed within 45 days from the date of this
Order and must comply with the provisions of Part 756 of the
Regulations.
Fifth, in accordance with Part 756 and Section 766.23(c) of the
Regulations, Horizon RX Systems may file an appeal of its naming as a
related person in this Order with the Under Secretary of Commerce for
Industry and Security. This appeal must be filed within 45 days from
the date of this Order and must comply with the provisions of Part 756
of the Regulations.
Sixth, Xie shall have an opportunity to request reinstatement of
his export privileges in whole or part by seeking termination or
modification, as applicable, of this Order, provided that Xie has first
been removed from the U.S. Department of State's Debarred List, and
provided that Xie has committed no violation of the Act, or any
regulation, order, or license issued thereunder prior to the submission
of his request for reinstatement. BIS shall in its sole unreviewable
discretion determine whether to grant or deny, in whole or in part,
such a request for reinstatement of Xie's export privileges. If BIS
reinstates Xie's export privileges in whole or in part under the Denial
Order, Horizon's export privileges shall be reinstated to the same
extent, provided that it has remained named to the Denial Order as a
related person, rather than as a respondent, and otherwise has
committed no violation of the Act, or any regulation, order, or license
issued thereunder.
Seventh, a copy of this Order shall be provided to Ming Xie and
Horizon RX Systems and shall be published in the Federal Register.
Eighth, this Order is effectively immediately and shall remain in
effect until May 22, 2023.
Issued this 30th day of September, 2014.
Karen H. Nies-Vogel,
Acting Director, Office of Exporter Services.
[FR Doc. 2014-23993 Filed 10-7-14; 8:45 am]
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