[Federal Register Volume 75, Number 88 (Friday, May 7, 2010)]
[Notices]
[Pages 25202-25203]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-10812]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
Action Affecting Export Privileges; Orion Air, S.L. and Syrian
Pearl Airlines; Order Renewing Order Temporarily Denying Export
Privileges
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
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. (``Orion
Air'') 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, then-Acting Assistant Secretary of Commerce for
Export Enforcement Kevin Delli-Colli 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\ Thereafter, on November 2, 2009,
Acting Assistant Secretary Delli-Colli issued an Order renewing the TDO
for an additional 180 days.\2\ The current Order would expire on May 1,
2010, unless renewed in accordance with section 766.24 of the
Regulations.
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\1\ 74 FR 24,786.
\2\ The November 2, 2009 renewal Order was effective immediately
and was published in the Federal Register on November 9, 2009 (74 FR
57626).
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On April 9, 2010, BIS, through its Office of Export Enforcement
(``OEE''), filed a written request for renewal of the TDO against the
Respondents for an additional 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
``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) to Syria, and specifically to Syrian Pearl
Airlines, without the U.S. Government authorization required by General
Order No. 2 of Supplement 1 to Part 736 of the EAR. The aircraft is
subject to the Regulations because it contains greater than a 10-
percent de minimis amount of U.S.-origin content. Orion Air engaged in
this re-export transaction despite having been directly informed of the
export licensing requirements by the U.S. Government. Moreover, Orion
Air not only engaged in this conduct after having received actual as
well as constructive notice of the applicable license requirements, but
then sought to evade the Regulations and U.S. export controls by giving
the U.S. Government false assurances that it would put the transaction
on hold due to the U.S. Government's concerns.
BIS also produced evidence that the re-exported aircraft bore the
livery, colors and logos of Syrian Pearl Airlines, a national of Syria,
a Country Group E:1 destination; was flight capable; and under the
terms of the lease agreement was to be based in and operated out of
Syria during the lease term. The record also shows that the re-exported
aircraft currently remains in Syria under the control of Syrian Pearl
Airlines.
In addition to the unauthorized re-export described above, Acting
Assistant Secretary Delli-Colli also concluded that additional
violations were imminent based on statements by Orion Air to the U.S.
Government in May 2009 that Orion Air planned to re-export an
additional BAE 146-300 aircraft (tail number EC-JVJ) to Syria, and
specifically to Syrian Pearl Airlines. This second aircraft was at the
time undergoing maintenance in the United Kingdom, and remains located
there. Moreover, the agreement between Orion Air and Syrian Pearl
Airlines involved both aircraft. Based on my review of the record, I
find that the facts and circumstances that led to the issuance of the
initial TDO and the November 2009 renewal Order continue to show that
renewal of the TDO for an additional 180 days is necessary and in the
public interest to prevent an imminent violation of the EAR. Absent
renewal of the TDO, there remains a substantial continued risk that the
second aircraft will be re-exported contrary to the Regulations, given
that, inter alia, Orion Air acted with actual knowledge and took
deceptive and evasive action. This finding alone would justify renewal.
There also would be a substantial risk that, absent renewal of the TDO,
the first aircraft, which remains in Syria, would
[[Page 25203]]
be operated or disposed of in violation of the Regulations.
Furthermore, renewal of the TDO 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.
Issued this 29th day of April 2010.
David W. Mills,
Assistant Secretary of Commerce for Export Enforcement.
[FR Doc. 2010-10812 Filed 5-6-10; 8:45 am]
BILLING CODE 3510-DT-P