18716 Federal Register / Vol. 76, No. 65 / Tuesday, April 5, 2011 / Notices 

1 I received the certified record from the ALJ, 

including the original copy of the RDO, for my 

review on March 1, 2011. The RDO is dated 

February 28, 2011, and incorporates the ALJ’s 

October 12, 2010 Order Partially Granting BIS’s 

Motion for Summary Decision. As discussed further 

infra, BIS moved for summary decision as to Charge 

Two of the Charging Letter in July 2010. The Order 

Partially Granting BIS’s Motion for Summary 

Decision granted BIS summary decision on Charge 

Two, but reserved ruling as to the recommended 

sanction because Charge One was still pending. In 

order to expedite resolution of this matter, BIS 

withdrew Charge One in November 2010. The 

Order Partially Granting BIS’s Motion for Summary 

Decision is part of the RDO, but where that Order 

is cited, for ease of reference, the citations are made 

directly to the pertinent pages of that Order, rather 

than citing it as an attachment to the RDO. 

2See note 1, supra. 

3The Regulations, which are currently codified at 

15 CFR parts 730–774 (2010), were issued pursuant 

to the Export Administration Act of 1979, as 

amended (50 U.S.C. app. 2401–2420 (2000)) (the 

‘‘Act’’). Since August 21, 2001, the Act has been in 

lapse and the President, through Executive Order 

13,222 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 12, 2010 (75 FR 50,681 (Aug. 16, 2010)), has 

continued the Regulations in effect under the 

International Emergency Economic Powers Act (50 

U.S.C. 1701, et seq.). The violation remaining at 

issue in this case occurred in 2004. The Regulations 

governing the violation at issue are found in the 

2004 version of the Code of Federal Regulations (15 

CFR parts 730–774 (2004)). The 2010 Regulations 

govern the procedural aspects of this case. 

4As referenced supra at note 1 and as discussed 

further infra, BIS withdrew Charge One after BIS 

had moved for and been granted summary decision 

as to Charge Two. 

Forest and other near-by lands 

including the communities of Chenega, 

Cordova, Tatitlek, Valdez and Whittier. 

The RAC is responsible for approving 

projects with funds made available from 

years 2008–2012. 

The public is welcome to attend the 

April 22–23 RAC meeting. Committee 

discussion is limited to Forest Service 

staff and Committee members. However, 

public input opportunity will be 

provided and individuals will have the 

opportunity to address the Committee at 

that time. 

Persons who wish to bring related 

matters to the attention of the 

Committee may file written statements 

with the Committee staff before or after 

the meeting. Public input sessions will 

be provided and individuals who made 

written requests by April 21st will have 

the opportunity to address the 

Committee at those sessions. 

Dated: March 23, 2011. 

Teresa M. Benson, 

District Ranger. 

[FR Doc. 2011–8001 Filed 4–4–11; 8:45 am] 

BILLING CODE 3410–11–P 

DEPARTMENT OF COMMERCE 

Bureau of Industry and Security 

[10–BIS–0001] 

Manoj Bhayana, Respondent; Final 

Decision and Order 

This matter is before me upon a 

Recommended Decision and Order 

(‘‘RDO’’) of an Administrative Law Judge 

(‘‘ALJ’’), as further described below.1

I. Background 

As discussed in the RDO, the 

allegations in this case stem from an 

investigation by the Bureau of Industry 

and Security (‘‘BIS’’) of a sale and 

(unlicensed) export of graphite rods and 

pipes from the United States to 

Pakistan, via the United Arab Emirates 

(‘‘UAE’’), in which Respondent Manoj 

Bhayana directly participated. See RDO, 

at 2, 4. During the investigation, BIS 

sought to determine, inter alia, the type 

of graphite that had been exported by 

SparesGlobal, Inc. (‘‘SparesGlobal’’), of 

Pittsburgh, Pennsylvania, and the 

ultimate end-user of the items. 

Respondent was SparesGlobal’s primary 

sales representative for the transaction, 

working directly with the U.S. supplier 

(Ameri-Source, Inc.) and freight 

forwarder (K.C. International Transport, 

Inc.), and with SparesGlobal’s customer 

(Taif Trading, LLC), a trading company 

located in Dubai, UAE. See RDO, at 4– 

5; Order Partially Granting BIS’s Motion 

for Summary Decision, at 3, 5.2

The transaction documentation 

included a mill test certificate certifying 

that the graphite being exported met the 

specifications for a type of graphite (CS 

grade extruded graphite) produced by 

UCAR Carbon Company, doing business 

as GrafTech International Ltd. (‘‘UCAR/ 

GrafTech’’). As he later admitted, 

Respondent Bhayana knew that the 

exported graphite items were not UCAR 

graphite and had not been produced by 

UCAR/Graftech. He also knew that the 

mill test certificate, which was on 

UCAR/GrafTech letterhead, had been 

created at Ameri-Source, Inc. (‘‘AmeriSource’’), not by UCAR/GrafTech. 

Respondent sent the mill test certificate 

to the freight forwarder to facilitate the 

export, which occurred in December 

2003. RDO, at 4–5. 

During the course of BIS’s 

investigation of this matter, in a 

September 7, 2004 e-mail to a BIS 

Special Agent, Respondent denied 

having any knowledge of the origin of 

the mill test certificate. Following 

months of additional investigation, BIS 

executed a search warrant at 

SparesGlobal in November 2004. 

Bhayana was present and was 

interviewed by BIS Special Agents. 

During that interview, Respondent 

provided the mill test certificate in 

response to the Special Agents’ 

questions about the exported items, 

knowing, but not informing the agents, 

that the certificate contained false and 

misleading information. See RDO, at 5– 

6. 

In a Charging Letter issued on January 

15, 2010, BIS alleged that Respondent 

Bhayana had committed two violations 

of the Export Administration 

Regulations (‘‘EAR’’ or ‘‘Regulations’’).3

Charge One alleged that Respondent had 

violated Section 764.2(b) of the 

Regulations when he caused, aided or 

abetted the submission of a false and 

misleading SED. In Charge Two, the 

remaining charge at issue here,4 BIS 

alleged that respondent violated Section 

764.2(g) by making false and misleading 

statements to BIS Special Agents during 

the course of a BIS investigation. 

Charge Two alleged, in full, as 

follows: 

Charge 2: 15 CFR 764.2(g): False Statement 

Made to BIS During an Investigation 

Bhayana made false and misleading 

representations and statements in the course 

of a BIS investigation. On or about September 

8, 2004, a BIS Special Agent asked about the 

mill certificate relating to the Shipper’s 

Export Declaration (SED) filed on December 

2, 2003, and referenced in Charge 1 above. In 

an e-mailed response to the Special Agent, 

Bhayana stated: ‘‘The test certificate was 

provided by [our supplier] to us. We do not 

have any knowledge about its origin.’’ On or 

about November 3, 2004, Bhayana was again 

asked about the mill certificate during an inperson interview with BIS Special Agents, 

and again provided copies of this forged mill 

certificate to the Special Agents. During this 

interview, Bhayana also gave the BIS Special 

Agents a signed written statement referencing 

the mill test certificate specifications or 

‘‘specs,’’ in which, he indicated, ‘‘These specs 

which are being submitted here [to the 

Special Agents] are the material specs which 

were shipped under this shipment.’’ In fact, 

Bhayana had worked with others to create 

the forged mill certificate falsifying the type 

of graphite rod being exported and knew that 

the certificate contained false information 

when he provided it to the Special Agents. 

When confronted later in the same interview 

by the Special Agents with evidence that the 

certificate had been forged, Bhayana signed 

a second written statement. In this second 

signed statement, Bhayana admitted that his 

earlier statements to the Special Agents were 

false. Specifically, Bhayana admitted that 

SparesGlobal’s supplier, Ameri-Source, Inc., 

which was not the actual manufacturer or 

distributor of GrafTech’s UCAR graphite, 

‘‘suppl[ied] * * * the certificate on 

[GrafTech] UCAR letterhead showing the 

[false] specs and mill test reports,’’ and then 

‘‘prepared some certificate and faxed it to us 

for the approval.’’ In so doing, Bhayana 

committed one violation of Section 764.2(g) 

of the Regulations. 


srobinson on DSKHWCL6B1PROD with NOTICES
Federal Register / Vol. 76, No. 65 / Tuesday, April 5, 2011 / Notices 18717 

5As a result of the investigation, criminal charges 

were brought against SparesGlobal, which in 

October 2007, pled guilty in the United States 

District Court for the Western District of 

Pennsylvania to conspiracy under 18 U.S.C. 371. 

BIS filed administrative charges against AmeriSource (Case No. 08–BIS–15) and Ameri-Source 

director Thomas Diener (Case No. 08–BIS–16) in 

December 2008. Ameri-Source and Mr. Diener 

settled those charges shortly after they were filed, 

with the final settlement orders issuing on February 

6, 2009. 

6As noted supra, BIS filing the Charging Letter 

in January 2010, and the record also indicates that 

BIS issued a Proposed Charging Letter to 

Respondent in January 2009. 

Charging Letter, at 2.5

Respondent has been represented by 

counsel throughout this litigation. In 

response to requests for admission 

served by BIS, Respondent made a 

series of admissions, including that he 

knew throughout the investigation that 

the exported graphite rods and pipes 

were not UCAR graphite and had not 

been produced by UCAR/GrafTech; that 

the mill test certificate had been created 

at Ameri-Source, not by UCAR/ 

GrafTech or any UCAR/GrafTech 

affiliate; and that when he was 

interviewed by BIS Special Agents in 

November 2004, he knew, but did not 

inform the agents, that the mill test 

certificate he handed to them contained 

false and misleading information. See 

Order Partially Granting BIS’s Motion 

for Summary Decision, at 6–7, 9–10. 

BIS moved for summary decision as to 

Charge Two on July 30, 2010, and as 

part of that motion requested that the 

ALJ recommend that Respondent’s 

export privileges be denied for a period 

of at least two years. As set forth in his 

October 12, 2010 Order Partially 

Granting BIS’s Motion for Summary 

Decision, the ALJ determined that 

Charge Two had been proven by BIS 

and granted the motion for summary 

decision as to that violation of Section 

764.2(g), but reserved ruling on a 

recommended sanction because Charge 

One was still pending. 

On November 12, 2010, BIS withdrew 

Charge One of the Charging Letter in 

order to expedite resolution of this case. 

A briefing schedule was established on 

the issue of sanctions, and on November 

23, 2010, Respondent filed his 

Memorandum Regarding Possible 

Sanctions, contending at bottom that no 

sanction should be imposed against 

him. In his sanctions memorandum, 

Respondent asserted, inter alia, that he 

had started an ‘‘export business’’ after he 

had left SparesGlobal in November 

2008, but that he could not afford to 

implement an effective export 

compliance program. See RDO, at 13–14 

(discussing and citing Respondent’s 

Memorandum Regarding Possible 

Sanctions, filed November 23, 2010, at 

11). In response, on December 6, 2010, 

BIS renewed its request for a denial 

order of at least two years in order, in 

sum, to sanction Respondent’s violation 

of Section 764.2(g) appropriately and to 

prevent or deter future violations. 

On February 28, 2011, based on the 

entire record (including the findings 

and conclusions set forth in the Order 

Partially Granting BIS’s Motion for 

Summary Decision), the ALJ issued the 

RDO to the parties, in which he 

recommended that a denial period of 

two years be assessed against 

Respondent Bhayana. The RDO contains 

a detailed review of the facts and 

applicable law relating to both merits 

and sanctions issues in this case. 

Based on the record, the ALJ 

determined, inter alia, that Respondent 

knowingly and willfully made false and 

misleading statements during the course 

of a BIS investigation and that those 

statements impeded and hampered the 

investigation. See RDO, at 8 

(‘‘Respondent willfully committed a 

violation of the EAR’’ and ‘‘knowingly 

tried to hide the fact that [the] mill test 

certificate contained false and 

misleading information when 

questioned on it by BIS investigators.’’); 

id., at 9 (Respondent ‘‘imped[ed] an 

export control investigation’’); id., at 10 

(‘‘Respondent’s violation * * * was an 

intentional decision to provide 

misleading and false information rather 

than comply with the requirements of 

the law and regulations’’); id., at 11 

(‘‘Respondent’s actions hampered BIS’s 

investigation.’’); and id., at 14 (a twoyear denial order is an appropriate 

sanction in this case and ‘‘necessary for 

deterring persons from providing false 

and misleading information that 

frustrates enforcing compliance with the 

regulations.’’). 

The ALJ determined that Respondent 

had demonstrated a serious disregard 

for his export compliance 

responsibilities when he made the false 

and misleading statements at issue. See 

RDO, at 9, 13–14. The ALJ also 

determined that the record shows that 

Respondent admittedly does not have 

the resources to implement an effective 

compliance program in connection with 

the ‘‘export business’’ that Respondent 

claims to have started after he left 

SparesGlobal in late 2008.6 Id. at 13–14 

(quoting and citing Respondent’s 

Memorandum Regarding Possible 

Sanctions, at 11). The ALJ found, 

furthermore, that compliance with the 

export control laws still is not a priority 

for Respondent and that Respondent’s 

continued efforts to excuse his 

misconduct ‘‘demonstrate[] 

Respondent’s attitude towards ensuring 

compliance with the regulations still 

takes a backseat to personal factors.’’ Id. 

(emphasis added). 

The ALJ rejected Respondent’s 

repeated attempts to attribute his false 

statements to an asserted lack of export 

experience, training, or knowledge of 

the Regulations. The ALJ ruled that even 

accepting Respondent’s assertions as 

true, his unlawful conduct did not 

result from such factors. ‘‘Respondent’s 

violation was not the result of a 

misinterpretation [of the Regulations], 

but instead was an intentional decision 

to provide misleading and false 

information rather than comply with the 

requirements of the law and 

regulations.’’ RDO, at 10; see also id., at 

12 (‘‘Respondent’s actions were not an 

unintentional or unknowing violation of 

the [R]egulations.’’); see generally id., at 

9–13. 

The ALJ also rejected Respondent’s 

efforts to attribute responsibility for his 

statements to his ‘‘low level’’ position at 

SparesGlobal or justify his misconduct 

based on his asserted fear that he would 

lose his job or work visa, concluding as 

follows: 

Even if this [assertion] is accepted as 

accurate, it does not provide a defense to 

making false statements to Government 

officials during a formal investigation. * * * 

When a person provides information or 

statements during an investigation, the law 

allows persons to either provide truthful 

statements or make an assertion of privilege. 

This applies equally to all individuals, even 

‘‘lower’’ level employees, during the course of 

investigations so [that] violations at all levels 

can be effectively investigated. In summary, 

Respondent chose to mislead the 

investigators and appease his bosses, instead 

of being truthful with BIS and complying 

with the regulations. Such a decision does 

not show a good-faith misinterpretation of 

the rules and is not a valid basis for 

mitigation of sanctions. 

RDO, at 12–13. 

II. Review Under Section 766.22 

The RDO, together with the entire 

record in this case, has been referred to 

me for final action under Section 766.22 

of the Regulations. I find that the record 

supports the ALJ’s findings of fact and 

conclusions of law that Respondent 

violated Section 764.2(g) by making 

false and misleading statements and 

representations to BIS during the course 

of an investigation. In addition to other 

evidence submitted by BIS, Respondent 

effectively admitted the violation during 

discovery in response to BIS’s requests 

for admission. Moreover, Respondent 

has not asserted in his response to the 

RDO that the ALJ committed any error 

as to the merits or that any of the ALJ’s 

findings or conclusions on the merits is 

erroneous. 


srobinson on DSKHWCL6B1PROD with NOTICES
18718 Federal Register / Vol. 76, No. 65 / Tuesday, April 5, 2011 / Notices 

7See, e.g., Guidance on Charging and Penalty 

Determinations in Settlement of Administrative 

Enforcement Cases (‘‘Penalty Guidance’’), 

Supplement No. 1 to part 766 of the Regulations, 

at ¶ III.A (Degree of Willfulness) (in cases involving 

a knowing or willful violation, a denial of export 

privileges is appropriate, and/or a greater monetary 

penalty than BIS typically would seek); see also id. 

(even in cases involving simple negligence, a denial 

order may be appropriate where, for example, the 

violation involves essential interests protected by 

the Regulations, the violation is of such a nature 

that a monetary penalty is an insufficient sanction, 

or the nature of the violation indicates that a denial 

order is needed to prevent future violations). 

Although focused on the settlement context, the 

Penalty Guidance can be instructive where 

considered and applied consistent with the factual 

context of a litigated case. 

8See, e.g., Penalty Guidance, Supp. No. 1 to part 

766, at ¶ IV.B (‘‘An otherwise appropriate denial or 

exclusion order will be suspended on the basis of 

adverse economic consequences only if it is found 

that future export control violations are unlikely 

and if there are adequate measures (usually a 

substantial civil penalty) to achieve the necessary 

deterrent effect.’’) (parenthetical in original). 

9The RDO inadvertently included (as Attachment 

B) an outdated version of Section 766.22(e) of the 

Regulations, regarding a possible appeal of the Final 

Decision and Order. Section 766.22(e) recently was 

deleted. See Export Administration Regulations; 

Technical Amendments, 75 FR 33,682 (June 15, 

2010). Thus, Respondent should disregard 

Attachment B of the RDO. 

I also find that the two-year denial 

order recommended by the ALJ upon 

his review of the entire record is 

appropriate, given the nature of the 

violations, the facts of this case, and the 

importance of deterring Respondent and 

others from seeking, through the 

provision of false and misleading 

information to BIS Special Agents, to 

thwart or impede BIS’s enforcement of 

the Regulations.7 Those who make false 

or misleading statements to BIS Special 

Agents during the course of an 

investigation strike at the heart of BIS’s 

efforts to protect and promote the 

national security. A denial order also is 

appropriate here given the ALJ’s 

findings, which are fully supported by 

the record, that Respondent does not 

possess the resources or the necessary 

commitment to meet his compliance 

obligations under the export control 

laws.8

Accordingly, based on my review of 

the entire record, I affirm the findings of 

fact and conclusions of law in the RDO 

without modification, but with one 

clarification. The RDO states at one 

point that ‘‘[w]hile it may not fit clearly 

within Mitigation Factor 4 [of the EAR’s 

Penalty Guidance], the fact that 

sensitive materials were not involved is 

given some weight in mitigation’’ and 

that ‘‘since Respondent’s representation 

seems to concern a non-sensitive item, 

that is a factor that can be considered 

toward mitigation.’’ Id. at 11. I note first 

that the violation at issue is for making 

false statements during an investigation, 

not for making or causing an unlicensed 

export. Moreover, the false statements 

made by Respondent went directly to 

the type and specifications of the items 

that had been exported, information that 

was crucial for BIS to assess whether the 

export at issue required a license and 

the extent to which it could harm the 

national security. Although the 

mitigation credit discussion quoted 

above did not affect the outcome of this 

case, I want to clarify that a respondent 

who makes false statements to BIS 

during an investigation cannot properly 

claim, and should not be accorded, 

mitigation credit relating to the subject 

of those false statements. 

In short, a respondent should not be 

allowed to reap any benefit from such 

false or misleading statements. With this 

clarification, I affirm the RDO.9

Accordingly, it is therefore ordered, 

First, that, for a period of two (2) years 

from the date that this Order is 

published in the Federal Register, 

Manoj Bhayana, of 65 W. Manila 

Avenue, Pittsburgh, Pennsylvania 

15220, and his representatives, assigns, 

agents or employees (hereinafter 

collectively referred to as ‘‘Denied 

Person’’) may not participate, directly or 

indirectly, 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, that 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, that, after notice and 

opportunity for comment as provided in 

Section 766.23 of the Regulations, any 

person, firm, corporation, or business 

organization related to Manoj Bhayana 

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 Regulations 

where the only items involved that are 

subject to the Regulations are the 

foreign-produced direct product of U.S.- 

origin technology. 

Fifth, that this Order shall be served 

on Manoj Bhayana and on BIS, and shall 

be published in the Federal Register. In 

addition, the ALJ’s Recommended 

Decision and Order, except for the 

section related to the Recommended 

Order, shall also be published in the 

Federal Register. 

This Order, which constitutes the 

final agency action in this matter, is 

effective upon publication in the 

Federal Register. 


srobinson on DSKHWCL6B1PROD with NOTICES
Federal Register / Vol. 76, No. 65 / Tuesday, April 5, 2011 / Notices 18719 

10The Export Administration Regulations, 15 

CFR parts 730–744, are issued under the Export 

Administration Act of 1979 (EAA). The Act is 

codified at 50 U.S.C. app. §§ 2401–20 (2000), as 

amended by the Notice on August 13, 2009 (74 FR 

41,325 (Aug. 14, 2009)). 

11The EAA and all regulations promulgated there 

under expired on August 20, 2001. See 50 U.S.C. 

App. 2419. Three days before its expiration, on 

August 17, 2001, the President declared the lapse 

of the EAA constitutes a national emergency. See 

Exec. Order. No. 13222, reprinted in 3 CFR at 783– 

784, 2001 Comp. (2002). Exercising authority under 

the International Emergency Economic Powers Act 

(‘‘IEEPA’’), 50 U.S.C. 1701–1706 (2002), the 

President maintained the effectiveness of the EAA 

and its underlying regulations throughout the 

expiration period by issuing Exec. Order. No. 13222 

on August 17, 2001. Id. The effectiveness of the 

export control laws and regulations were further 

extended by successive Notices issued by the 

President; the most recent being that of August 15, 

2007. See Notice: Continuation of Emergency 

Regarding Export Control Regulations, 72 FR 46, 

137 (August 15, 2007). Courts have held that the 

continuation of the operation and effectiveness of 

the EAA and its regulations through the issuance 

of Executive Orders by the President constitutes a 

valid exercise of authority. See Wisconsin Project 

on Nuclear Arms Control v. United States Dep’t of 

Commerce, 317 F.3d 275, 278–79 (DC Cir. 2003); 

Times Publ’g Co. v. U.S. Department of Commerce, 

236 F.3d 1286, 1290 (11th Cir. 2001). 

Dated: March 28, 2011. 

Eric L. Hirschhorn, 

Under Secretary of Commerce for Industry 

and Security. 

Certificate of Service 

I hereby certify that, on this 29st day 

of March, 2011, I have served the 

foregoing DECISION AND ORDER 

signed by Eric L. Hirschhorn, Under 

Secretary of Commerce for Industry and 

Security, in the matter of Manoj 

Bhayana (Docket No: 10–BIS–0001) to 

be send via United Parcel Service 

postage pre-paid to: 

Louis W. Emmi, Esquire, Attorney At 

Law, 201 Lebanon Shops, 300 Mt. 

Lebanon Boulevard, Pittsburg, PA 

15234, (fax): 412–341–8464 (By 

Facsimile and United Parcel Service). 

Adrienne Frazier, Joseph Jest, John 

Masterson, Attorneys for Bureau of 

Industry and Security, Office of Chief 

Counsel for Industry and Security, 

U.S. Department of Commerce, Room 

HCHB 3839, 14th Street and 

Constitution Ave., NW., Washington, 

DC 20230, (fax): 202–482–0085 

(Served via hand delivery). 

Honorable Michael J. Devine, U.S. Coast 

Guard, U.S. Customs House, 40 South 

Gay Street, Room 412, Baltimore, MD 

20102, (fax): 410–962–5155, (By 

Facsimile and United Parcel Service). 

ALJ Docketing Center, Attention: 

Hearing Docket Clerk, 40 S. Gay 

Street, Room 412, Baltimore, 

Maryland 20212–4022 (By Untied 

Parcel Service). lllllllllllllllllllll

Andrea A. Monroe 

Office of the Under Secretary for Industry 

and Security 

United States of America Department of 

Commerce Bureau of Industry and 

Security 

IN THE MATTER OF: Manoj Bhayana, 

Respondent. 

Docket No. 10–BIS–0001 

Recommended Decision and Order 

Issued: February 28, 2011 

Issued By: Hon. Michael J. Devine Presiding 

Appearances 

For the Bureau of Industry and Security 

Adrienne Frazier, Esq., Office of Chief 

Counsel for Industry & Security, U.S. 

Department of Commerce, Room H– 

3839, 14th Street & Constitution Ave., 

NW, Washington, DC 20230. 

For Respondent Manoj Bhayana 

Louis W. Emmi, Esq., 201 Lebanon Shops, 

300 Mt. Lebanon Boulevard, Pittsburgh, 

PA 15234. 

I. Preliminary Statement 

This case arises from Manoj 

Bhayana’s (Respondent) violation of the 

Export Administration Regulations 

(EAR or Regulations).10 On January 15, 

2010, the Bureau of Industry and 

Security (BIS or Agency) issued a 

Charging Letter against Respondent. In 

that Letter, BIS alleged Respondent 

committed two (2) violations of the 

Export Administration Act of 1979 

(Act), as amended and codified at 50 

U.S.C. App. §§ 2401–20 (2000), and the 

Export Administration Regulations 

(EAR or Regulations), as amended and 

codified at 15 CFR parts 730–74 (2000 

& 2007) 11 while working for 

SparesGlobal, Inc (SparesGlobal). The 

charges read as follows: 

Charge 1 15 CFR 764.2(b)—Causing, Aiding 

or Abetting a Violation of the Regulations 

On or about December 2, 2003, Bhayana, 

while employed as a sales representative at 

SparesGlobal, Inc., caused, aided, abetted 

and permitted the submission of false and 

misleading representations and statements to 

the U.S. Government in connection with the 

preparation and submission of a Shipper’s 

Export Declaration (SED), an export control 

document. The SED falsely represented and 

stated that the item being exported from the 

United States was ‘‘UCAR–GRAPHITE’’ and 

that the ultimate consignee was located in 

the United Arab Emirates (UAE). Bhayana 

and others created a forged mill certificate to 

indicate that the item was ‘‘UCAR– 

GRAPHITE.’’ Bhayana submitted the 

fraudulent mill certificate to the freight 

forwarder and told the freight forwarder that 

the ultimate consignee was in the UAE, when 

the actual ultimate consignee was in 

Pakistan. Based on the information provided 

by Bhayana, the freight forwarder filed the 

SED stating that the item was ‘‘UCAR 

GRAPHITE’’ and the ultimate consignee was 

in the UAE. In so doing, Bhayana committed 

one violation of Section 764.2(b) of the 

regulations. 

Charge 2 15 CFR 764.2(g)—False Statement 

Made to BIS During an Investigation 

Bhayana made false and misleading 

representations and statements in the course 

of a BIS investigation. On or about September 

8, 2004, a BIS Special Agent asked about the 

mill certificate relating to the Shipper’s 

Export Declaration (SED) filed on December 

2, 2003, and referenced in Charge 1 above. In 

an emailed response to the Special Agent, 

Bhayana stated: ‘‘The test certificate was 

provided by [our supplier] to us. We do not 

have any knowledge about its origin.’’ On or 

about November 3, 2004, Bhayana was asked 

again about the mill certificate during an inperson interview with BIS Special Agents, 

and again provided copies of this forged mill 

certificate to the Special Agents. During this 

interview Bhayana also gave the BIS Special 

Agents a signed written statement referencing 

the mill test certificate specifications or 

‘‘specs,’’ in which he indicated, ‘‘These specs 

which are being submitted here [to Special 

Agents] are the material specs which were 

shipped under this shipment.’’ In fact, 

Bhayana had worked with others to create 

the forged mill certificate falsifying the type 

of graphite rod being exported and knew that 

the certificate contained false information 

when he provided it to the Special Agents. 

When confronted later in the same interview 

by the Special Agents with evidence that the 

certificate had been forged, Bhayana signed 

a second written statement. In this second 

signed statement, Bhayana admitted that his 

earlier statements to the Special Agents were 

false. Specifically, Bhayana admitted that 

SparesGlobal’s supplier, Ameri-Source, Inc., 

which was not the actual manufacturer or 

distributer of GrafTech’s UCAR graphite, 

‘‘suppl[ied] * * * the certificate on 

[GrafTech] UCAR letterhead showing the 

[false] specs and mill test reports,’’ and the 

‘‘prepared some certificate and faxed it to us 

for the approval.’’ In so doing, Bhayana 

committed one violation of Section 764.2(g) 

of the Regulations. 

On July 30, 2010, BIS filed a Motion 

for Summary Decision (BIS Motion) on 

Charge 2, asserting it was entitled to 

summary decision as a matter of law. 

Attached to its motion were fifteen (15) 

exhibits marked Government Exhibit 

(Gov’t Ex.) 1–15. In support of the 

Motion BIS argued there were no 

genuine issues as to any material fact 

because of Bhayana’s statements to BIS 

Special Agents during the course of a 

BIS investigation and due to Bhayana’s 

admissions regarding the false mill 

certificate in the transaction that is the 

subject of this matter. BIS’s Motion did 

not address Charge 1. 

On October 12, 2010, the undersigned 

issued an Order Partially Granting BIS’s 

Motion for Summary Decision. In that 

Order, the undersigned found Charge 2 

had been proven, but reserved ruling as 

to the recommended sanction for the 

violation because Charge 1 remained 


srobinson on DSKHWCL6B1PROD with NOTICES
18720 Federal Register / Vol. 76, No. 65 / Tuesday, April 5, 2011 / Notices 

12The legal analysis for the determination to 

grant the Motion for Summary Decision is 

contained in the discussion section of that Order. 

See Attachment A. 

13The Order Partially Granting BIS’s Motion for 

Summary Decision issued by this court on October 

12, 2010 is Attachment A of this recommended 

pending. That Order included Findings 

of Fact and Ultimate Findings of Fact 

and Conclusions of Law and is included 

as Attachment A of this Recommended 

Decision and Order. 

On November 5, 2010, a prehearing 

conference was held to discuss 

scheduling concerns in light of the 

Order Partially Granting Summary 

Decision. During that prehearing 

conference call, BIS informed the 

undersigned and Respondent they 

intended to withdraw Charge 1. On 

November 12, 2010, BIS filed its Notice 

of Withdrawal of Charge 1. 

With the withdrawal of Charge 1, the 

only issue remaining is the appropriate 

sanction for the violation found proved 

in Charge 2. On November 23, 2010, 

Respondent filed his final written brief 

and closing arguments. On December 6, 

2010, BIS submitted their final written 

brief and closing arguments. The 

following recommended findings of fact 

and recommended decision is based on 

a careful review of the facts and record 

as a whole including the parties final 

briefs, the facts found in the Order 

Partially Granting the BIS Motion for 

Summary Decision and the applicable 

law and regulations. 

II. Recommended Findings of Fact 

1. SparesGlobal, Inc., of Pittsburgh, PA, 

exported graphite rods and pipes from 

the United States on or about December 

2, 2003. (BIS Motion—Ex. 5 at 3–4; Ex. 

6). 

2. Respondent was SparesGlobal’s primary 

sales contact for this transaction. (BIS 

Motion—Ex. 5 at 1). 

3. During the transaction, Respondent was in 

contact with the U.S. company that 

supplied the graphite rods and pipes for 

the transaction, Ameri-Source, Inc.; the 

freight forwarder for the transaction, K.C. 

International Transport, Inc.; and 

SparesGlobal’s customer Taif Trading, 

LLC, located in Dubai, UAE. (BIS 

Motion—Ex. 5 at 4–5). 

4. The transaction documentation included a 

mill test certificate certifying that the 

graphite being exported met the 

specifications for a type of graphite (CS 

grade extruded graphite) produced by 

UCAR Carbon Company and Respondent 

sent this certificate to the freight 

forwarder, K.C. International Transport, 

Inc. to facilitate the export transaction at 

issue. (BIS Motion—Ex. 5 at 4–5; Ex. 8) 

5. Respondent admitted that the exported 

graphite rods were not UCAR graphite 

and were not produced by UCAR/ 

GrafTech. (BIS Motion—Ex. 5 at 5). 

6. Respondent knew the mill test certificate 

had been created by Ameri-Source, Inc., 

and that it had been created using 

UCAR/GrafTech letterhead. (BIS 

Motion—Ex. 5 at 6–8). 

7. During a BIS investigation concerning this 

export transaction, in a September 7, 

2004 email that he sent to a BIS Special 

Agent, Respondent denied having any 

knowledge of the origin of the mill test 

certificate. (BIS Motion—Ex. 5 at 7). 

8. As part of BIS’s investigation, Respondent 

was interviewed by BIS Special Agents 

at SparesGlobal’s offices on or about 

November 3, 2004. (BIS Motion—Ex. 5 at 

7–8). 

9. During the interview, Respondent handed 

the BIS Special Agents his file relating to 

this export transaction, which included 

the fraudulent mill test certificate. (BIS 

Motion—Ex. 5 at 7–8).12

III. Recommended Ultimate Findings of 

Fact and 

Conclusions of Law 

1. Respondent and the subject matter of this 

proceeding are properly within the 

jurisdiction of the BIS in accordance 

with the Export Administration Act of 

1979 (50 U.S.C. App. §§ 2401–2420) and 

the Export Administration Regulations 

(15 CFR parts 730–774). 

2. When Respondent handed the file and the 

mill test certificate to the BIS Special 

Agents on or about November 3, 2004, he 

knew the certificate had been created at 

Ameri-Source and not by UCAR/ 

GrafTech or any UCAR/GrafTech 

affiliate. (BIS Motion—Ex. 5 at 7–8). 

3. When Respondent handed the BIS Special 

Agents the file and mill test certificate on 

or about November 3, 2004, Bhayana 

knew the certificate contained false and 

misleading information. (Id.). 

4. When Respondent handed the file and 

certificate to the BIS Special Agents on 

or about November 3, 2004, he knew, but 

did not inform the agents that some of 

the information in the file contained 

false, inaccurate, and/or misleading 

information. (Id.). 

5. Respondent is found to have made false 

and misleading representations to BIS 

Special Agents during the course of an 

investigation subject to the EAR, a 

violation of 15 CFR 764.2(g). 

IV. Recommended Sanction 

A. Regulations 

Section 764.3 of the EAR establishes 

the sanctions that BIS may seek for the 

violations charged in this proceeding. 

The sanctions permitted include: (1) A 

civil penalty, (2) a denial of export 

privileges under the Regulations, and (3) 

an exclusion from practice. See 15 CFR 

764.3. Supplement Number 1 to 15 CFR 

part 766 (Supplement No. 1) provides 

published nonbinding guidance on what 

BIS considers in making penalty 

determinations in considering 

settlement of civil administrative 

enforcement cases. Various factors are 

considered by BIS including the degree 

of willfulness, the destination involved, 

whether there were any related 

violations, and the timing of any 

settlement. Both parties have referenced 

Supplement No. 1 in their final 

arguments and briefs in support of their 

position in this matter. 

Both general factors and specific 

mitigating and aggravating factors are 

discussed in Supplement No. 1. Certain 

factors may be given greater weight than 

other factors. The Mitigating Factors 

include: 

1. The party self-disclosed the violations 

(given great weight). 

2. The party created an effective export 

compliance program (given great 

weight). 

3. The violations resulted from a good-faith 

misinterpretation. 

4. The export would likely have been granted 

upon request. 

5. The party does not have a history of past 

export violations. 

6. The party cooperated to an exception 

degree during the investigation. 

7. The party provided substantial assistance 

in the BIS investigation. 

8. The violation did not involve harm of the 

nature the regulations were intended to 

protect. 

9. The party had little export experience and 

was not familiar with the requirement. 

15 CFR part 766, Supp No. 1, at § III(B). 

The Aggravating Factors include: 

1. The party deliberately hid the violations 

(given great weight). 

2. The party seriously disregarded export 

responsibilities (given great weight). 

3. The violation was significant in view of 

the sensitivity of the item (given great 

weight). 

4. The violation was likely to involve harm 

of the nature the regulations intended to 

protect. 

5. The value of the exports was high, 

resulting in need to serve an adequate 

penalty for deterrence. 

6. Other violations of law and regulations 

occurred. 

7. The party has a history of past export 

violations. 

8. The party lacked a systematic export 

compliance effort. 

15 CFR part 766, Supp No. 1, at § III(B). 

By examining the basic factors 

associated with the violations and by 

considering the appropriate mitigating 

and aggravating circumstances, an 

appropriate penalty is determined. A 

review of the factors and circumstances 

specific to this case are discussed 

below. 

B. Respondent’s Violations 

In this case, Respondent is found to 

have provided false or misleading 

statements to a BIS Special Agent 

during the course of an investigation. 

(Order Partially Granting BIS’s Motion 

for Summary Decision (Order)).13 As set 


srobinson on DSKHWCL6B1PROD with NOTICES
Federal Register / Vol. 76, No. 65 / Tuesday, April 5, 2011 / Notices 18721 

decision and order. In that Order, Respondent was 

found to have violated Charge 2—providing false or 

misleading statements to a BIS Special Agent 

during the course of an investigation. 

forth in the Ultimate Findings of Fact 

and Conclusions of Law, Respondent 

handed BIS Special Agents a file and 

mill test certificate that Respondent 

knew contained false and misleading 

information. (Order at 4). When 

Respondent handed the file and 

certificate to the BIS Special Agents, he 

knew, but did not inform the agents that 

some of the information in the file 

contained false, inaccurate, and/or 

misleading information. (Id.). Upon 

further investigation by BIS, Respondent 

admitted to his false statements. (Order 

at 6). 

Aggravating Factors 

As addressed within the Ultimate 

Findings of Fact and Conclusions of 

Law, Respondent willfully committed a 

violation of the EAR. While Respondent 

has presented argument asserting his 

excuses for providing false information 

to BIS, he nevertheless knowingly and 

willfully provided misleading 

information. An aggravating factor that 

is given great weight is a party’s 

deliberateness in hiding a violation, 

Aggravating Factor 1. 15 CFR part 766, 

Supp No. 1, at § III(B). In this case, 

Respondent knowingly tried to hide the 

fact that a mill test certificate contained 

false and misleading information when 

questioned on it by BIS investigators. 

The court finds Respondent attempted 

to deliberately hide a violation. It was 

only after further investigation and 

confrontation with BIS Special Agents 

that Respondent eventually admitted to 

his attempt to hide the true facts. 

An additional aggravating factor is 

when a party demonstrates a serious 

disregard for export compliance 

responsibilities, Aggravating Factor 2. 

Id. One such responsibility is to provide 

truthful statements to BIS Special 

Agents as they work to enforce our 

country’s export control laws. In this 

case, Respondent seriously disregarded 

his export compliance responsibilities. 

While working as an exporter, 

Respondent is found to have misled BIS 

during the course of an investigation to 

enforce export controls. Respondent’s 

explanation for his actions included his 

assertions that he was just a low level 

employee, that the value of the 

shipment was low, and that he might 

lose his job if he told the truth. Even if 

considered as accurate, Respondent’s 

justifications for impeding an export 

control investigation demonstrate that 

compliance with his export 

responsibilities was of secondary 

importance. If an individual intends to 

engage in the export of goods, 

compliance with export controls is 

mandatory, and maintaining 

employment is not an excuse for 

violating the regulations. 

No other aggravating factors seem 

applicable in this case. No evidence was 

presented that would establish 

Respondent’s violation had 

circumstances that fit within one of the 

other aggravating factors. While 

Respondent admits his current company 

has not created a systematic export 

compliance effort, no evidence was 

presented that shows he was 

responsible for or lacked a systematic 

export compliance effort at the time of 

the violation. However, as discussed 

above, two aggravating factors are found 

to exist that are given great weight when 

determining an appropriate sanction. 

First, Respondent made a deliberate 

attempt to hide or conceal the violation 

and second, Respondent’s conduct 

demonstrated a serious disregard for 

export compliance responsibilities. 

Mitigating Factors 

Within Respondent’s Memorandum 

Regarding Possible Sanctions for his 

Violation (Memorandum), Respondent 

argues that several mitigating factors are 

relevant in his case. First, he suggests 

the violation was an isolated occurrence 

or the result of a good-faith 

misinterpretation. (See Memorandum at 

7). This mitigation factor follows the 

general principle that while ignorance 

of the law is typically not an excuse for 

non-compliance, willful violations often 

receive higher penalties than 

unintentional violations. See Cheek v. 

U.S., 498 U.S. 192, 199 (1991); See also 

Iran Air v. U.S., 996 F.2d 1253 (DC Cir. 

1993). To support this assertion, 

Respondent states he was a low level 

employee, worked long hours and did 

not take vacations, and felt great 

pressure to obey his superior’s orders. 

However, this does not present a goodfaith misinterpretation of the 

regulations. Instead, this argument 

highlights the fact Respondent knew he 

was misleading investigators. Even if his 

assertions are accepted as accurate, it 

demonstrates only that he decided to 

commit a violation because he felt 

pressure from the company to do so. 

Respondent’s violation was not the 

result of a misinterpretation, but instead 

was an intentional decision to provide 

misleading and false information rather 

than comply with the requirements of 

the law and regulations. 

Respondent’s second argument for 

mitigation is based upon the assertion 

that the product he lied about did not 

require a license to ship, thus falling 

within Mitigation Factor 4. See 15 CFR 

part 766, Supp No. 1, at § III(B). The 

record does not contain any evidence 

that shows the exported goods (graphite) 

were a prohibited item. BIS asserts this 

mitigation factor should not apply, since 

the items in question were materials 

subject to the EAR (15 CFR 734.3(a)) and 

Respondent was charged with making a 

false statement, not with making an 

unlicensed export. It appears the export 

transaction that formed the basis of the 

misrepresentation and violation would 

likely have been granted anyway. While 

it may not fit clearly within Mitigation 

Factor 4, the fact that sensitive materials 

were not involved is given some weight 

in mitigation. If Respondent had made 

false statements about a highly sensitive 

and controlled item, such as nuclear 

material, that would certainly be an 

aggravating factor. Likewise, since 

Respondent’s misrepresentation seems 

to concern a non-sensitive item, that is 

a factor considered towards mitigation. 

Respondent’s third argument for 

mitigation is that he has not been found 

to have committed any past export 

violations, Mitigation Factor 5. See id. 

No evidence has been provided showing 

Respondent has violated the EAR in the 

past. As such, Mitigation Factor 5 

applies in this case. 

Respondent’s fourth argument for 

mitigation is that he cooperated to an 

exceptional degree with BIS’s efforts to 

investigate SparesGlobal’s conduct, 

Mitigation Factor 6 and 7. See id. This 

argument is not persuasive. The central 

violation relevant to this case revolves 

around Respondent making false and 

misleading statements to BIS during the 

course of an investigation. Attempting 

to mislead the investigator does not 

equate to providing an exceptional 

degree of cooperating with BIS’s 

investigation. To the contrary, 

Respondent’s actions hampered BIS’s 

investigation. 

Respondent’s fifth argument for 

mitigation is that at the time of the 

violation he had little or no export 

experience and was not familiar with 

export practices, Mitigation Factor 9. 

See id. This mitigation factor is 

seemingly in place to account for 

individuals who unknowingly violate 

an export regulation, despite their good 

intentions to follow the regulations. In 

this case, even if Respondent had little 

export experience, it has been found he 

knowingly mislead investigators. 

Respondent’s actions were not an 

unintentional or unknowing violation of 

the regulations. To the contrary, 

Respondent made a conscious effort to 

mislead in an attempt to appease his 

bosses. Since Respondent’s violation is 

not a result of his inexperience with 


srobinson on DSKHWCL6B1PROD with NOTICES
18722 Federal Register / Vol. 76, No. 65 / Tuesday, April 5, 2011 / Notices 

14The issues of selective prosecution or abuse of 

discretion in proceeding in this matter have not 

been raised in this matter. 

export regulations, Mitigation Factor 9 

is found not to apply to this case. 

Finally, Respondent also asserts 

throughout his pleadings that because 

he was a low level employee, seemingly 

more important people should be more 

culpable. Even if this is accepted as 

accurate, it does not provide a defense 

to making false statements to 

Government officials during a formal 

investigation. Allowing lower level 

employees to escape liability based on 

ignorance would provide an avenue to 

frustrate enforcement of legal export 

requirements. Additionally, violations 

by other persons or entities and actions 

against other persons or entities for 

violating the law are a collateral matter 

that is not demonstrated to be relevant 

to these proceedings. In response to 

Respondent’s assertions, BIS contends 

the administrative proceedings against 

Respondent were apparently part of an 

enforcement effort against Respondent’s 

employer, SparesGlobal.14 The Court’s 

decision is limited to the matters 

properly presented in the record. When 

a person provides information or 

statements during an investigation, the 

law allows persons to either provide 

truthful statements or make an assertion 

of a privilege. This applies equally to all 

individuals, even ‘‘lower’’ level 

employees, during the course of 

investigations so violations at all levels 

can be effectively investigated. In 

summary, Respondent chose to mislead 

the investigators and appease his bosses, 

instead of being truthful with BIS and 

complying with the regulations. Such a 

decision does not show a good-faith 

misinterpretation of the rules and is not 

a valid basis for mitigation of sanctions. 

C. Denial of Export Privileges 

In addition to the above mitigating 

factors, Respondent also argues that 

adverse financial hardships would 

result from a denial of export privileges. 

Respondent asserts that his only source 

of income is from his exporting 

business, which made $29,450 last year. 

(Memorandum at 14). Furthermore, he 

states if he is prevented from working in 

the export field, he would lose his 

Green Card status and would be forced 

to return to India with his family. 

(Memorandum at 15). 

In accordance with the regulations, 

the financial impact of a denial of 

export privileges can be considered in 

determining if such a denial should be 

suspended. 15 CFR part 766, Supp No. 

1, at § IV(B). However, a denial of export 

privileges will only be suspended if it 

is found that future export control 

violations are unlikely and if there are 

adequate measures to achieve a 

necessary deterrent, usually a 

substantial civil penalty. Id. Here, since 

Respondent asserts he has limited 

means, providing a suspended civil 

penalty would not provide the intended 

future deterrence. 

Additionally, while Respondent has 

apparently accepted the court’s ruling in 

regards to Charge Two, Respondent’s 

arguments minimize his responsibility 

for his own lapse of judgment. In his 

Response, Respondent continues to 

attempt to excuse his actions by 

describing his lower level position with 

the company and excusing the behavior 

on the outside pressures he felt. The 

desire for continued employment is not 

a valid excuse for providing false and 

misleading information to investigators. 

Second, Respondent now runs his own 

company; however, he has not 

developed an effective export 

compliance program. (Memorandum at 

11). Respondent excuses his failure to 

develop an effective export compliance 

program because ‘‘[h]e is not currently 

in a financial position * * *’’ to do so. 

(Id.) Such a response demonstrates 

Respondent’s attitude towards ensuring 

compliance with the regulations still 

takes a backseat to personal factors. 

There could be pressure from a 

company he is working with to violate 

the regulations and the pressure to do so 

to maintain a profit would seem to be 

no different that the pressure from 

SparesGlobal to keep his job. Finally, 

the reference to any offers discussed 

during settlement negotiations by either 

party is generally inappropriate. 

While Respondent has pointed to 

mitigating factors that apply, including 

his otherwise clean exporting history 

and the non-sensitive nature of the parts 

he was exporting, I find that a two (2) 

year denial of export privileges as 

suggested by BIS is appropriate. 

Respondent seems to have many 

personal factors affecting his ability to 

comply with the export regulations. 

And, while the court is sympathetic to 

Respondent’s predicament, the court’s 

determination in this matter is limited 

to issuing a decision in keeping with the 

law and regulations to ensure 

compliance with the export regulations. 

The court finds the argument of BIS 

persuasive. An appropriate sanction is 

necessary for deterring persons from 

providing false and misleading 

information that frustrates enforcing 

compliance with the regulations. In this 

case, a two (2) year denial of export 

privileges is deemed appropriate. 

Respondent may continue to seek 

administrative clemency from the 

Undersecretary in keeping with 15 CFR 

§ 766.17(c) and 766.22. 

V. Recommended Order 6

Redacted Section (Pages 15 to 18) 

Within thirty (30) days after receipt of 

this Recommended Decision and Order, 

the Under Secretary shall issue a written 

order, affirming, modifying, or vacating 

the Recommended Decision and Order. 

See 15 CFR 766.22(c). A copy of the 

Agency regulations for Review by the 

Under Secretary can be found as 

Attachment B. 

Hon. Michael J. Devine, 

Administrative Law Judge. 

Done and dated February 28, 2011 at 

Baltimore, Maryland. 

Attachment A: Summary Decision Order of 

October 12, 2010. 

Attachment B: Notice of Review and Appeal 

rights 15 CFR 766.22. 

Attachment B 

Notice of Review by Under Secretary 

15 CFR 766.22 Review by Under 

Secretary. 

(a) Recommended decision. For 

proceedings not involving violations 

relating to part 760 of the EAR, the 

administrative law judge shall 

immediately refer the recommended 

decision and order to the Under 

Secretary. Because of the time limits 

provided under the EAA for review by 

the Under Secretary, service of the 

recommended decision and order on the 

parties, all papers filed by the parties in 

response, and the final decision of the 

Under Secretary must be by personal 

delivery, facsimile, express mail or 

other overnight carrier. If the Under 

Secretary cannot act on a recommended 

decision and order for any reason, the 

Under Secretary will designate another 

Department of Commerce official to 

receive and act on the recommendation. 

(b) Submissions by parties. Parties 

shall have 12 days from the date of 

issuance of the recommended decision 

and order in which to submit 

simultaneous responses. Parties 

thereafter shall have eight days from 

receipt of any response(s) in which to 

submit replies. Any response or reply 

must be received within the time 

specified by the Under Secretary. 

(c) Final decision. Within 30 days 

after receipt of the recommended 

decision and order, the Under Secretary 

shall issue a written order affirming, 

modifying or vacating the recommended 

decision and order of the administrative 

law judge. If he/she vacates the 

recommended decision and order, the 

Under Secretary may refer the case back 

to the administrative law judge for 

further proceedings. Because of the time 


srobinson on DSKHWCL6B1PROD with NOTICES
Federal Register / Vol. 76, No. 65 / Tuesday, April 5, 2011 / Notices 18723 

limits, the Under Secretary’s review will 

ordinarily be limited to the written 

record for decision, including the 

transcript of any hearing, and any 

submissions by the parties concerning 

the recommended decision. 

(d) Delivery. The final decision and 

implementing order shall be served on 

the parties and will be publicly 

available in accordance with § 766.20 of 

this part. 

(e) Appeals. The charged party may 

appeal the Under Secretary’s written 

order within 15 days to the United 

States Court of Appeals for the District 

of Columbia pursuant to 50 U.S.C. app. 

§ 2412(c)(3). 

[FR Doc. 2011–7847 Filed 4–4–11; 8:45 am] 

BILLING CODE 3510–DT–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

Proposed Information Collection; 

Comment Request; Weather 

Modification Activities Reports 

AGENCY: National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice. 

SUMMARY: The Department of 

Commerce, as part of its continuing 

effort to reduce paperwork and 

respondent burden, invites the general 

public and other Federal agencies to 

take this opportunity to comment on 

proposed and/or continuing information 

collections, as required by the 

Paperwork Reduction Act of 1995. 

DATES: Written comments must be 

submitted on or before June 6, 2011. 

ADDRESSES: Direct all written comments 

to Diana Hynek, Departmental 

Paperwork Clearance Officer, 

Department of Commerce, Room 6616, 

14th and Constitution Avenue, NW., 

Washington, DC 20230 (or via the 

Internet at dHynek@doc.gov). 

FOR FURTHER INFORMATION CONTACT: 

Requests for additional information or 

copies of the information collection 

instrument and instructions should be 

directed to Karen Williams, (301) 734– 

1196 or karen.williams@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Abstract 

Section 6(b) of Public Law 92–205 

requires that persons who engage in 

weather modification activities (e.g., 

cloud seeding) provide reports prior to 

and after the activity. They are also 

required to maintain certain records. 

The requirements are detailed in 15 CFR 

part 908. NOAA uses the data for 

scientific research, historical statistics, 

international reports and other 

purposes. 

II. Method of Collection 

Respondents have a choice of either 

electronic or paper forms. Methods of 

submittal include e-mail of electronic 

forms, mail and facsimile transmission 

of paper forms. 

III. Data 

OMB Control Number: 0648–0025. 

Form Number: NOAA Forms 17–4 

and 17–4A. 

Type of Review: Regular submission. 

Affected Public: Business or other forprofit organizations. 

Estimated Number of Respondents: 

55. 

Estimated Time Per Response: 30 

minutes per report (2 reports each). 

Estimated Total Annual Burden 

Hours: 55. 

Estimated Total Annual Cost to 

Public: $275. 

IV. Request for Comments 

Comments are invited on: (a) Whether 

the proposed collection of information 

is necessary for the proper performance 

of the functions of the agency, including 

whether the information shall have 

practical utility; (b) the accuracy of the 

agency’s estimate of the burden 

(including hours and cost) of the 

proposed collection of information; (c) 

ways to enhance the quality, utility, and 

clarity of the information to be 

collected; and (d) ways to minimize the 

burden of the collection of information 

on respondents, including through the 

use of automated collection techniques 

or other forms of information 

technology. 

Comments submitted in response to 

this notice will be summarized and/or 

included in the request for OMB 

approval of this information collection; 

they also will become a matter of public 

record. 

Dated: March 31, 2011. 

Gwellnar Banks, 

Management Analyst, Office of the Chief 

Information Officer. 

[FR Doc. 2011–8002 Filed 4–4–11; 8:45 am] 

BILLING CODE 3510–KD–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

Proposed Information Collection; 

Comment Request; Southeast Region 

Gulf of Mexico Red Snapper IFQ 

Program 

AGENCY: National Oceanic and 

Atmospheric Administration (NOAA). 

ACTION: Notice. 

SUMMARY: The Department of 

Commerce, as part of its continuing 

effort to reduce paperwork and 

respondent burden, invites the general 

public and other federal agencies to take 

this opportunity to comment on 

proposed and/or continuing information 

collections, as required by the 

Paperwork Reduction Act of 1995. 

DATES: Written comments must be 

submitted on or before June 6, 2011. 

ADDRESSES: Direct all written comments 

to Diana Hynek, Departmental 

Paperwork Clearance Officer, 

Department of Commerce, Room 6616, 

14th and Constitution Avenue, NW., 

Washington, DC 20230 (or via the 

Internet at dHynek@doc.gov). 

FOR FURTHER INFORMATION CONTACT: 

Requests for additional information or 

copies of the information collection 

instrument and instructions should be 

directed to Rich Malinowski, (727) 824– 

5305 or Rich.Malinowski@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Abstract 

This request is for an extension of a 

currently approved information 

collection. National Marine Fisheries 

Service (NMFS) Southeast Region 

manages the Unites States (U.S.) 

fisheries of the exclusive economic zone 

(EEZ) off the South Atlantic, Caribbean, 

and Gulf of Mexico under the Fishery 

Management Plans (FMP) for each 

Region. The Regional Fishery 

Management Councils prepared the 

FMPs pursuant to the MagnusonStevens Fishery Conservation and 

Management Act. NMFS manages the 

red snapper fishery in the waters of the 

Gulf of Mexico under the Reef Fish 

FMP. The Individual Fishing Quota 

(IFQ) program was implemented to 

reduce the overcapacity in the fishery 

and end the derby fishing conditions 

that resulted from that 

overcapitalization. 

The recordkeeping and reporting 

requirements at 50 CFR part 622 form 

the basis for this collection of 

information. NMFS Southeast Region 

requests information from fishery 

participants. This information, upon 


srobinson on DSKHWCL6B1PROD with NOTICES