[Federal Register Volume 69, Number 236 (Thursday, December 9, 2004)]
[Notices]
[Pages 71397-71398]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27059]


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Notices
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains documents other than rules 
or proposed rules that are applicable to the public. Notices of hearings 
and investigations, committee meetings, agency decisions and rulings, 
delegations of authority, filing of petitions and applications and agency 
statements of organization and functions are examples of documents 
appearing in this section.

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Federal Register / Vol. 69, No. 236 / Thursday, December 9, 2004 / 
Notices

[[Page 71397]]



DEPARTMENT OF COMMERCE

Bureau of Industry and Security


In the Matters of Technology Options (India) Pvt. Ltd. and 
Shivram Rao

    On Wednesday, December 1, 2004, the Federal Register published the 
November 24, 2004 Decision and Order issued by the Under Secretary of 
Commerce, Bureau of Industry and Security (BIS), United States 
Department of Commerce, in the above-referenced matters (69 FR 69887). 
This notice corrects certain errors in connection with the publication 
of the Decision and Order. There is a minor error in the address listed 
for the respondents, Technology Options (India) Pvt. Ltd. and Shivram 
Rao, on pages 69887-69888. The correct address for both the respondents 
is ``Plot <greek-i>168, Behind Maria Mansion, CST Road, Kalina, Mumbai 
400 098 India'' rather than ``Pilot <greek-i>168, Behind Maria Mansion, 
CST Road, Kalina, Mumbai 400 098 India.''
    In addition, this notice corrects two additional publication errors 
that appear on page 69887. In the first sentence of the second 
paragraph of the Decision and Order, the correct spelling of ``Indira 
Ghandi Centre for Atomic Research'' is ``Indira Gandhi Centre for 
Atomic Research.'' Also in the same sentence, the correct spelling of 
``mechanical fatigue rest system'' is ``mechanical fatigue test 
system.''
    While the Administrative Law Judge's (ALJ) October 27, 2004 
Recommended Decision and Order concerning Technology Options (India) 
Pvt. Ltd. (Docket <greek-i> 04-BIS-02) was published as an attachment 
to the Under Secretary's Decision and Order, the October 27, 2004 
Recommended Decision and Order of the ALJ concerning the second 
respondent, Shivram Rao (Docket <greek-i> 04-BIS-03), was inadvertently 
not published. The Recommended and Decision Order of the ALJ related to 
Shivrm Rao, a portion of which has been redacted, shall hereby be 
published in the Federal Register.

    Dated: December 3, 2004.
Kenneth I. Juster,
Under Secretary for Industry and Security.

Recommended Decision and Order on Motion for Default Order

[Docket No. 04-BIS-03]

    On February 2, 2004, the Bureau of Industry and Security, United 
States Department of Commerce (BIS), issued a charging letter 
initiating this administrative enforcement proceeding against Shivram 
Rao (``RAO''). The charging letter alleged that Rao committed one 
violation of Section 764.2(d), one violation of Section 764.2(g), and 
two violations of Section 764.2(h) of the Export Administration 
Regulations (currently codified at 15 CFR Parts 730-774 (2004)) (the 
``Regulations''),\1\ issued under the Export Administration Act of 
1979, as amended (50 USC app. Sec. Sec.  2401-2420 (2000)) (the 
``Act'').\2\ In accordance with Section 766.7 of the Regulations, BIS 
moved for the issuance of an Order of Default against Rao, as Rao has 
not answered or otherwise responded to the charging letter as required 
by the Regulations.
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    \1\ The violations charged occurred in 2000 and 2001. The 
Regulations governing the violations at issue are found in the 2000 
and 2001 versions of the Code of Federal Regulations (15 CFR parts 
730-774 (2000-2001)). The 2004 Regulations establish the procedures 
that apply to this matter.
    \2\ From August 21, 1994 through November 12, 2000, the Act was 
in lapse. During that period, the President, through Executive Order 
12924, which had been extended by successive Presidential Notices, 
the last of which was August 3, 2000 (3 CFR, 2000 Comp. 397 (2001)), 
continued the Regulations in effect under the International 
Emergency Economic Powers Act (50 U.S.C. 1701-1706 (2000)) (IEEPA). 
On November 13, 2000, the Act was reauthorized and it remained in 
effect through August 20, 2001. Executive Order 13222 of August 17, 
2001 (3 CFR, 2001 Comp., p. 783 (2002)), which has been extended by 
successive Presidential Notices, the most recent being that of 
August 6, 2004 (69 FR, 48763, August 10, 2004), has continued the 
Regulations in effect under IEEPA.
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A. Legal Basis for Issuing an Order of Default

    Section 766.7 of the Regulations state that BIS may file a Motion 
for an Order of Default if a respondent fails to file a timely Answer 
to a charging letter. That section, entitled ``Default,'' provides in 
pertinent part:

Failure of the respondent to file an answer within the time provided 
constitutes a waiver of the respondent's right to appear and contest 
the allegations in the charging letter. In such event, the 
administrative law judge, on BIS's motion and without further notice 
to the respondent, shall find the facts to be as alleged in the 
charging letter and render an initial or recommended decision 
containing findings of fact and appropriate conclusions of law and 
issue or recommend an order imposing appropriate sanctions.

    15 CFR Part 766.7 (2004):

    Pursuant to Section 766.7 of the Regulations, a respondent must 
file an Answer to the charging letter ``within 30 days after being 
served with notice of the issuance of the charging letter'' initiating 
the proceeding.

B. Service of the Charging Letter

    Section 766.3(b)(1) of the Regulations provides that notice of 
issuance of a charging letter shall be served on a respondent by 
mailing copy via registered or certified mail addressed to the 
respondent at the respondent's last known address. In accordance with 
that section, on February 2, 2004, BIS sent a notice of issuance of the 
charging letter by registered mail to Respondent Rao, at his last known 
address: Technology Options (India) Pvt. Ltd., Plot <greek-i>168, 
Behind Maria Mansion, CST Road, Kalina, Mumbai 400 098, India. BIS also 
submitted evidence establishing that on February 2, 2004, BIS submitted 
evidence establishing that on February 16, 2004, Technology Options 
received the notice of issuance of a charging letter. These actions 
constitute service under the Regulations.
    Section 766.6(a) of the regulations provides, in pertinent part, 
that ``[t]he respondent must answer the charging letter within 30 days 
after being served with notice of issuance of the charging letter[.]'' 
Since service was effected on February 16, 2004, Rao's Answer to the 
charging letter was due no later than March 16, 2004. Rao did not file 
an Answer to the Charging letter nor did Rao request an extension of 
time to answer the Charging letter under Section 766.16(b)(2). 
Accordingly, because Rao failed to answer or otherwise respond to the 
charging letter within thirty days from the date he received the notice 
of issuance of the charging letter, as required by Section 766.66 of 
the Regulations, Rao is in default.

[[Page 71398]]

C. Summary of Violations

    The charging letter filed by BIS included a total of four charges. 
Specifically, the charging letter alleged that from on or about April 
1, 2000, through on or about August 31, 2001, Rao conspired with 
others, known and unknown, to export from the United States to the 
Indira Gandhi Centre for Atomic Research (``IGCAR'') a thermal 
mechanical fatigue test system (``fatigue test system'') and a 
universal testing machine, both items subject to the Regulations, 
without a BIS export license as required by Section 744.11 of the 
Regulations. See Gov't Ex. 3. At all relevant times, IGCAR was an 
organization listed on the Entity List set forth at Supplement No. 4 to 
Part 744 of the Regulations (``Entity List'').\3\ In furtherance of the 
conspiracy, false documentation was submitted to the United States 
exporter that provided that a party other than IGCAR was the ultimate 
consignee for the items to be exported from the United States.
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    \3\ The persons on the Entity List are end-users who have been 
determined to present an unacceptable risk of diversion to the 
development of weapons of mass destruction or the missiles used to 
delivery such weapons.
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    The charging letter further alleged that on or about June 13, 2000, 
in connection with the export of the fatigue test system and attempted 
export of the universal testing machine, Rao took actions to evade the 
Regulations. Specifically, Rao, with others, known and unknown, 
developed and employed a scheme by which the company with which Rao was 
affiliated, Technology Options (India) Pvt. Ltd. (``Technology 
Options''), would receive the export of the fatigue test system from 
the United States without a BIS license and then divert it to the true 
ultimate consignee, IGCAR, in violation of the Regulation.
    The charging letter also alleged that on or about August 16, 2001, 
through on or about April 8, 2002, in connection with the export of the 
fatigue test system references above, Rao made false statements to the 
U.S. Government regarding its knowledge of an involvement in the 
export. Specifically, Rao made misleading and false statements to U.S. 
Foreign Commercial Service officers regarding the end user of the 
fatigue test system.
    Pursuant to the default procedures set forth in Section 766.7 of 
the Regulations, I find the facts to be as alleged in the charging 
letter, and hereby determine that those facts establish that Rao 
committed one violations of Section 764.2(d), one violation of Section 
764(g), and two violations of 764.2(h) of the regulations.
    Section 764.3 of the Regulations estalbishes the sanctions that BIS 
may seek for the violations charged in this proceeding. The applicable 
sanctions are a civil monetary penalty, suspension from practice before 
the Department of Commerce, and a denial of export privileges under the 
Regulations. See 15 CFR Part 764.3 (2004).
    Because Rao violated the Regulations by conspiring and engaging in 
transactions to evade the Regulations, BIS requests that I recommend to 
the Under Secretary of Commerce for Industry and Security\4\ that Rao's 
export privileges be denied for fifteen (15) years. BIS has suggested 
this sanction because Rao has demonstrated a severe disregard for U.S. 
export control laws. Further, BIS believes that imposition of a civil 
penalty in this case may be ineffective, given the difficulty of 
collecting payment against a party outside of the United States. In 
light of these circumstances, BIS believes that the denial of Rao's 
export privileges for fifteen (15) years is an appropriate sanction.
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    \4\ Pursuant to Seciton 13(c)(1) of the Act and Section 
766.17(b)(2) of the Regulations, in export control enforcement 
cases, the Administrative Law Judge makes recommended findings of 
fact and conclusions of law that the Under Secretary must affirm, 
modify or vacate. The Under Secretary's actions is the final 
decision for the agency.
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    Given the foregoing, I concur with BIS and recommend that the Under 
Secretary enter an Order denying Rao's export privileges for a period 
of fifteen (15) years.
    The terms of the denial of export privileges against Rao should be 
consistent with the standard language used by BIS in such order. The 
language is:
[Portions of this Recommended Decision have been REDACTED]
    Accordingly, I am referring this Recommended Decision and Order to 
the Under Secretary for review and final action for the agency, without 
further notice to the Respondent, as provided in Section 766.7 of the 
Regulations.
    Within 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).

    Done and dated this 27th of October at Baltimore, MD.

Joseph N. Ingolia,
Chief Administrative Law Judge.

Certificate of Service

    I hereby certify that I served the Recommended Decision and Order 
by Federal Express to the following person:
    Shivram Rao, Technology Options (India) Pvt. Ltd., Pilot 
<greek-i>168, Behind Maria Mansion, CST Road, Kalina, Mumbai 400 098, 
India.

    Done and dated this 28th day of October 2004, at Baltimore, 
Maryland.
Alyssa L. Paladino,
Law Clerk, ALJ Docketing Center, U.S. Coast Guard.
[FR Doc. 04-27059 Filed 12-8-04; 8:45 am]
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