[Federal Register Volume 76, Number 79 (Monday, April 25, 2011)]
[Notices]
[Pages 22865-22867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9932]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
Action Affecting Export Privileges; Orion Air, S.L. and Syrian
Pearl Airlines
In the Matter of:
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 45 46015 Valencia, Spain; and
Syrian Pearl Airlines, Damascus International Airport, Damascus,
Syria, Respondents.
Order Renewing Temporary Denial of Export Privileges
Pursuant to Section 766.24 of the Export Administration
Regulations, 15 CFR parts 730-774 (2011) (``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, Acting Assistant
Secretary Delli-Colli issued an Order on November 2, 2009, renewing the
TDO for an additional 180 days, and I similarly issued a 180-day
renewal Order on April 29, 2010.\2\
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\1\ 74 FR 24,786.
\2\ The November 2, 2009 renewal Order was published in the
Federal Register on November 9, 2009 (74 FR 57,626). The April 29,
2010 renewal Order was published in the Federal Register on May 7,
2010 (75 FR 25,002).
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Most recently, on October 22, 2010, I renewed the TDO against the
Respondents for an additional 180 days. This renewal was effective upon
issuance and was published in the Federal Register on October 29,
2010.\3\ The current Order would expire on April 20, 2011, unless
renewed in accordance with Section 766.24 of the Regulations.
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\3\ 75 FR 66,728 (October 29, 2010).
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On March 28, 2011, 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. A copy of this request was
delivered to 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.
[[Page 22866]]
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 being re-exported to Syria for Syrian
Pearl Airlines' use and benefit.
On December 10, 2010, pursuant to Section 764.3(a)(2) of the
Regulations, BIS authorized Orion Air and Syrian Pearl Airlines to
enter into a three-way release agreement with a third party that would
terminate the original lease agreement between Orion Air and Syrian
Pearl Airlines and allow the third party to take legal and physical
control of both aircraft. Additionally, BIS authorized the performance
of maintenance needed to make both aircraft flight-worthy, and
authorized the third party to remove aircraft EC-JVO from Syria to any
country not listed in Country Group E:1 \4\ of Supplement 1 to Part 740
of the Regulations. Evidence obtained by BIS indicates that in the more
than four months since this authorization was granted, aircraft EC-JVO
has not been removed from Syria and remains in Syria under Syrian
control. Thus, a significant risk remains that absent renewal of the
TDO, this aircraft will be operated or disposed of in violation of the
Regulations. Moreover, in spite of the authorization, there has been no
change regarding aircraft EC-JVJ, which remains in the same status in
the United Kingdom. Absent renewal of the TDO, there remains a
substantial continued risk that aircraft EC-JVJ will be re-exported
contrary to the Regulations, given that, inter alia, Orion Air acted
with actual knowledge and took deceptive and evasive action, as
discussed supra.
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\4\ Group E:1 destinations are currently Syria, Iran, Cuba,
Sudan and North Korea. See Supplement No. 1 to 15 CFR part 740
(2011).
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Based on my review of the record, I find that the facts and
circumstances here, including those that led to the issuance of the
initial TDO and subsequent renewal Orders, 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.
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
when acting for or on its behalf, any of its successors, assigns,
agents, or employees; and Syrian Pearl Airlines, Damascus International
Airport, Damascus, Syria, and when acting on its behalf, any of its
successors, assigns, agents, or employees (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. Benefitting 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 re-export 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, re-export, 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.
BIS may seek renewal of this Order by filing a written request with
the Assistant Secretary of Commerce for Export Enforcement in
accordance with the provisions of Section 766.24(d) of the Regulations,
which currently provides that such a written renewal request must be
submitted not later than 20 days before the expiration date. The
Respondents may oppose a request to renew this Order by doing so in
accordance with Section 766.24(d), including filing a written
submission with the Assistant Secretary for Export Enforcement,
supported by appropriate evidence. Any opposition ordinarily must be
received not later than seven days before the expiration date of the
Order.
Notice of the issuance of this Order shall be given to Respondents
in accordance with Sections 766.5(b). This Order also shall be
published in the
[[Page 22867]]
Federal Register. This Order is effective upon issuance and shall
remain in effect for 180 days.
Issued this 18th day of April 2011.
David W. Mills,
Assistant Secretary of Commerce for Export Enforcement.
[FR Doc. 2011-9932 Filed 4-22-11; 8:45 am]
BILLING CODE 3510-DT-P