[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