[Federal Register Volume 86, Number 217 (Monday, November 15, 2021)]
[Notices]
[Pages 62988-62989]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24805]



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 DEPARTMENT OF COMMERCE

Bureau of Industry and Security


Order Denying Export Privileges; In the Matter of: Robert Herman 
Fleischer, 20003 N. 23rd Avenue, Apt. 250, Phoenix, AZ 85027

    On August 4, 2017, in the U.S. District Court for the District of 
Arizona, Robert Herman Fleischer (``Fleischer'') was convicted of 
violating Section 38 of the Arms Export Control Act, 22 U.S.C. 2778 
(2012)(``AECA''), by intentionally attempting to willfully and 
knowingly export and cause to be exported from the United States to 
Mexico 2,999 rounds of 7.62 x 39mm caliber ammunition, manufactured by 
Igman Arsenal, which are designated as defense articles on the United 
States Munitions List, without the required U.S. Department of State 
licenses. Fleischer was sentenced to 21 months in prison, with credit 
for time served, three years of supervised release, and a special 
assessment of $100. Fleischer was also placed on the U.S. Department of 
State Debarred List.
    The Export Administration Regulations (``EAR'' or ``Regulations'') 
are administered and enforced by the U.S. Department of Commerce's 
Bureau of Industry and Security (``BIS'').\1\ Section 766.25 of the 
Regulations provides, in pertinent part, that the ``Director of [BIS's] 
Office of Export Enforcement, in consultation with the Director of 
[BIS's] Office of Exporter Services, may deny the export privileges of 
any person who has been convicted of a violation of any of the statues 
set forth at 50 U.S.C. 4819 (e)(1)(B),'' \2\ including Section 38 of 
the AECA. 15 CFR 766.25(a).\3\ The denial of export privileges under 
this provision may be for a period of up to 10 years from the date of 
the conviction. 15 CFR 766.25(d). In addition, pursuant to Section 
750.8 of the Regulations, BIS's Office of Exporter Services may revoke 
any BIS-issued licenses in which the person has an interest at the time 
of his/her conviction.\4\
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    \1\ The Regulations are currently codified in the Code of 
Federal Regulations at 15 CFR Parts 730-774 (2021). The Regulations 
originally issued under the Export Administration Act of 1979, as 
amended, 50 U.S.C. 4601-4623 (Supp. III 2015) (``EAA''), which 
lapsed on August 21, 2001. The President, through Executive Order 
13,222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which was 
extended by successive Presidential Notices, continued the 
Regulations in full force and effect under the International 
Emergnecy Economic Powers Act (50 U.S.C. 1701, et seq.) (``IEEPA''). 
On August 13, 2018, the President signed into law the John S. McCain 
National Defense Authorization Act for Fiscal Year 2019, which 
includes the Export Control Reform Act of 2018, 50 U.S.C. 4801-4852 
(``ECRA''). While Section 1766 of ECRA repeals the provisions of the 
EAA (except for three sections which are inapplicable here), Section 
1768 of ECRA provides, in pertinent part, that all rules and 
regulations that were made or issued under the EAA, including as 
continued in effect pursuant to IEEPA, and were in effect as of 
ECRA's date of enactment (August 13, 2018), shall continue in effect 
according to their terms until modified, superseded, set aside, or 
revoked through action undertaken pursuant to the authority provided 
under ECRA.
    \2\ The Director, Office of Export Enforcement, is now the 
authorizing official for issuance of denial orders, pursuant to 
recent amendments to the Regulations (85 FR 73411, November 18, 
2020).
    \3\ As codified at the time of the underlying conviction at 
issue, Section 11(h)(1) of the EAA, as amended, provided that: ``No 
person convicted of a violation of this chapter (or any regulation, 
license, or older issued under this chapter), any regulation, 
license, or order issued under the International Emergnecy Economic 
Powers Act [50 U.S.C. 1701, et seq.], section 793, 794 or 798 of 
title 18, section 783(b) of this title, or section 2778 of title 22 
shall be eligible, at the discretion of the Secretary, to apply for 
or use any export license under this chapter for a period of up to 
10 years from the date of conviction. The Secretary may revoke any 
export license under this chapter in which such person has an 
interest at the time of conviction.'' 50 U.S.C. 4610(h)(1).
    \4\ See notes 1 and 3, supra.
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    BIS received notice of Fleischer's conviction for violating Section 
38 of the AECA, and pursuant to Section 766.25 of the Regulations, has 
provided notice and an opportunity for Fleischer to make a written 
submission to BIS. BIS has not received a written submission from 
Fleischer.
    Based upon my review of the record and consultations with BIS's 
Office of Exporter Services, including its Director, and the facts 
available to BIS, I have decided to deny Fleischer's export privileges 
under the Regulations for a period of seven years from the date of 
Fleischer's conviction. The Office of Exporter Services has also 
decided to revoke any BIS-issued license in which Fleischer had an 
interest at the time of his conviction.
    Accordingly, it is hereby ordered:
    First, from the date of this Order until August 4, 2024, Robert 
Herman Fleischer, with a last known address of 20003 N. 23rd Avenue, 
Apt. 250, Phoenix, AZ 85027, and when acting for or on his behalf, his 
successors, assigns, employees, agents or representatives (``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, 
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 engaging 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 from 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 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.
    Third, after notice and opportunity for comment as provided in 
Section 766.23 of the Regulations, any other person, firm, corporation, 
or business organization related to Fleischer 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 in order to prevent evasion of this Order.

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    Fourth, in accordance with Part 756 of the Regulations, Fleischer 
may file an appeal of this Order 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, a copy of this Order shall be delivered to Fleischer and 
shall be published in the Federal Register.
    Sixth, this Order is effective immediately and shall remain in 
effect until August 4, 2024.

John Sonderman,
Director, Office of Export Enforcement.
[FR Doc. 2021-24805 Filed 11-12-21; 8:45 am]
BILLING CODE 3510-DT-P