[Federal Register Volume 72, Number 216 (Thursday, November 8, 2007)]
[Notices]
[Pages 63163-63164]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-5590]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
[Docket Nos. 04-BIS-15]
In the Matters of: S.P. Equipamentos de Protecao ao Trabalho
Ltda., Rua Visconde de Inhauma, 386-Saude 04146-030 Sao Paulo, Brazil,
Respondent; Decision and Order on Petition to Set Aside Default Order
On February 26, 2007, the Acting Under Secretary of Commerce for
[[Page 63164]]
Industry and Security issued a Final Decision and Order, pursuant to
his authority under Section 766.22 of the Export Administration
Regulations (hereinafter ``Regulations''), in which he affirmed the
findings of fact and conclusions of law as recommended by an
Administrative Law Judge (ALJ) that Respondent was in default on an
administrative proceedings initiated against it under the Regulations.
Respondent has petitioned me to set aside the default order using
my authority under Section 366.7(b) of the Regulations. For the reasons
stated below, I grant the Petition.
The relevant facts in this matter are as follows. In a charging
letter filed on September 13, 2004, the Bureau of Industry and Security
(``BIS'') alleged that Respondent committed two violations of the
Regulations,\1\ issued under the Export Administration Act of 1979, as
amended (50 U.S.C. app 2401-2420 (2000)).\2\
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\1\ The violations charged occurred in 2002. The Regulations
governing the violations at issue are found in the 2002 version of
the Code of Federal Regulations (15 CFR parts 730-774 (2002)). The
2007 Regulations establish the procedures that apply to this matter.
\2\ 50 U.S.C. app. Sec. Sec. 2401-2420 (2000)). 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 the
International Emergency Economic Powers Act (50 U.S.C. 1701-1706
(2000)) (``IEEPA'').
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On September 13, 2004, BIS mailed the notice of issuance of the
charging letter by registered to the Respondent at its last known
address. The file indicates that the notice of issuance of a charging
letter was received by the Respondent on or about September 24, 2004,
and counsel, who no longer represents the Respondent, filed a Notice of
Appearance on February 7, 2005. Respondent, or its former counsel, did
not file an answer to the charging letter with the ALJ, as required by
Section 766.6 of the Regulations, but there is evidence in the file
that the opposing counsel engaged in settlement negotiations regarding
these charges for about one year before BIS filed a Motion for Default
Order on or about November 9, 2006. The former counsel for the
Respondent states in a declaration to accompany this Petition that
counsel did not receive notice of the BIS decision to file a Motion for
Default Order, nor was counsel served with the motion that was filed.
On January 31, 2007, based on the record before him, the ALJ issued
a recommended decision in which he found that the Respondent was in
default. On February 26, 2007, the Acting Under Secretary for Industry
and Security issued a Final Decision and Order affirming the ALJ's
recommended decision, and imposing a ten-year denial of Respondent's
export privileges.
On September 7, 2007, Respondent filed its Petition asserting among
other things, that good cause exists to set aside the default. On
October 24, 2007, BIS filed a response to the Petition in which it did
not oppose the finding that goop cause exists to set aside the default.
The Regulations provide me with the authority to set aside a
default order. Section 766.7(b)(1) of the Regulations states: ``[U]pon
petition filed by a respondent against whom a default order has been
issued, which petition is accompanied by an answer meeting the
requirements of Sec. 766.6(b) of this part, the Under Secretary may,
after giving all parties an opportunity to comment, and for good cause
shown, set aside the default and vacate the order entered thereon and
remand the matter to the administrative law judge for further
proceedings.''
The Petition and its supporting materials justify a finding that
good cause exists to grant this Petition and there is no opposition to
this finding.
Accordingly, I find good cause has been shown to set aside the
Final Decision and Order, dated February 26, 2007, and the Order is
hereby vacated and this matter is remanded to the ALJ for further
proceedings.
This Order, which constitutes the final agency action on this
Petition, is effective immediately.
Dated: November 5, 2007.
Mario Mancuso,
Under Secretary for Industry and Security
[FR Doc. 07-5590 Filed 11-7-07; 8:45 am]
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