[Federal Register Volume 61, Number 116 (Friday, June 14, 1996)]
[Notices]
[Pages 30216-30219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15074]



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DEPARTMENT OF COMMERCE

Bureau of Export Administration
[Docket Nos. AB3-95; AB2-95]


Serfilco, Ltd. and Jack H. Berg, Respondents; Final Decision and 
Order

I. Summary

    Before me for decision is the appeal of respondents, Serfilco Ltd. 
(Serfilco) and Jack H. Berg (Berg), from the decision and order of the 
Administrative Law Judge (ALJ). The ALJ found that Berg and Serfilco, a 
company wholly owned by Berg, each committed nine violations of 
Sec. 769.2(d) of the Export Administration Regulations (15 C.F.R. 
Sec. 769.2(d)). The charges were based on their responding to seven of 
the eight questions contained in a boycott questionnaire (the 
``Annex''), and providing two additional items of prohibited 
information in a cover letter transmitting the answers to the Annex. 
The ALJ imposed a civil penalty of $10,000 for each of these 
violations, for a total of $180,000. In addition, Serfilco was found to 
have committed seven violations of Sec. 769.6 of the regulations for 
failure to report its receipt of seven boycott-related requests. The 
ALJ imposed a civil penalty of $4,000 for each of these violations, for 
a total of $28,000. The civil penalties totaled $90,000 against Berg 
and $118,000 against Serfilco or $208,000 against the two. Finally, the 
ALJ imposed on respondents a one year denial of export privileges to 
Bahrain, Iraq, Kuwait, Lebanon, Libya, Oman, Qatar, Saudi Arabia, 
Syria, United Arab Emirates, and the Republic of Yemen.
    I have affirmed the findings of the ALJ that the respondents 
committed the violations in question. I have, however, reduced the 
amounts of some of the civil penalties. I have set the penalties at 
$80,000 for Berg and $38,000 for Serfilco. The total of the civil 
penalties against the two is now $118,000. I have also affirmed the 
periods of denial of export privileges to the countries specified for 
each respondent.

II. Introduction

    On August 24, 1995, the Office of Antiboycott Compliance, Bureau of 
Export Administration, United States Department of Commerce (``agency'' 
herein) issued charging letters to the respondents, Serfilco, Ltd. and 
Jack H. Berg. The agency charged that Berg, the President of Serfilco, 
and Serfilco each committed nine violations of Sec. 769.2(d) of the 
Export Administration Regulations and that Serfilco committed seven 
violations of Sec. 769.6 of the Export Administration Regulations. (All 
references to regulations in this decision are to the Export 
Administration Regulations in 15 CFR) \1\ The respondents and the 
agency jointly stipulated to, or the respondents requested and 
received, an extension of the due date for the respondents' answer to 
the charging letters on nine occasions. On March 27, 1995, the 
respondents answered the charging letters and requested a hearing. The 
hearing was held on August 23, 1995 in Washington, D.C. Post-hearing 
briefs and proposed findings and conclusions were filed by the parties 
on October 12, 1995; replies were filed on November 9, 1995. The 
Administrative Law Judge issued his Decision and Order on December 5, 
1995. The respondents filed their appeal on January 4, 1996. The 
agency's reply brief was filed on February 16, 1996, pursuant to an 
extension of time I granted.
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    \1\ On March 25, 1996, the Bureau issued revised Export 
Administration Regulations (61 Fed. Reg. 12714). While those 
revisions made significant changes to export licensing procedures, 
they do not affect the result of this case. References in this 
Decision and Order are to the part numbers used in the Export 
Administration Regulations prior to March 25.
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III. Findings of Fact

    When the alleged violations occurred, Serfilco was a corporation 
located in Glenview, Illinois and incorporated in Illinois. All of the 
violations occurred during 1988, 1989, and 1990 when Berg resided in 
the United States. Berg wholly owned Serfilco; he was its president, 
treasurer, and chief executive officer. Serfilco was a United States 
person, as defined in Sec. 769.1(d), during the time of the alleged 
violations. At the time of the alleged violations, Serfilco 
manufactured and exported commercial

[[Page 30217]]

filtration and pumping equipment. Berg also owned independent operating 
companies, under the Serfilco name, in Canada and England. In 1989, 
Serfilco's export sales represented approximately 17 or 18 percent of 
its total sales. Its sales in the Middle East were a fraction of 
overall sales. Serfilco also filled Middle East orders for its products 
from its facility in England. The record does not reflect whether the 
sales estimates include sales from England. Serfilco has an 
international department at its Illinois headquarters.
    On December 16, 1987, Berg wrote to the U.S. Chamber of Commerce, 
attaching correspondence, and inquired whether the Chamber of Commerce 
knew of any reason why his English company should not sell Serfilco 
pumps to Iran. During the period 1988-1990, Berg was trying to obtain 
business in Iraq. Between January 1989 and June 1989, Berg sought a 
distributor in Iraq for his commercial filtration equipment and 
industrial pumps. As part of that effort, on January 4, 1989, Berg 
wrote to the senior commercial officer at the U.S. Embassy in Baghdad 
at the suggestion of M. A. Al-Hantaway, a potential agent for 
Serfilco's products in Iraq. Berg explained in his letter to the 
embassy that the Al-Hantaway Bureau in Baghdad would represent 
Serfilco's products and he sought embassy approval. On January 29, 
1989, Russell Y. Smith, the Commercial Attache at the American Embassy 
in Baghdad, sent Berg a facsimile explaining that ``Iraqi agency law 
require[s] you to answer questions about your relations with a country 
boycotted by Iraq.'' The embassy advised Berg that ``U.S. law 
prohibiting U.S. persons from answering such suggestions may apply.'' 
Smith told Berg to call 202-377-2381 or 4550, the Office of Antiboycott 
Compliance, to find out about the requirements of U.S. law.
    Also on January 29, 1989, Smith wrote to Berg, reminded him that 
the United States had an antiboycott law and ``that the Iraqi Agency 
Law of 1983 may require responses to a series of questions (contained 
on one sheet) concerning your relations with Israel.'' Smith told Berg 
that:

    A U.S. person is prohibited from responding to these questions 
under American law. If you are not familiar with the antiboycott law 
* * * please contact the Office of Antiboycott Compliance in 
Washington at (202) 377-4550 or (202) 377-2381. They will be happy 
to advise you how to comply with the law and also to suggest 
alternative actions you may take.

    Smith also sent Berg the Office of Antiboycott Compliance 
publication ``Restrictive Trade Practices or Boycotts Including 
Enforcement and Administrative Proceedings,'' which included the 
antiboycott regulations. Berg filed Smith's correspondence in his 
``Iraqi folder.''
    Between May 14, 1989 and June 6, 1989, Berg received a May 14, 1989 
letter from M. A. Al-Hantaway, Director of Al-Hantaway Bureau, 
Commissioning Agency, Baghdad, Iraq. The letter was a request to Berg 
that he ``approve 6 copies of the (Sales Policy) each with its attached 
annex * * * and then send them all to us for further process here in 
Iraq.'' The annex was a single page list of eight questions about 
respondents' relationships with Israel.
    The annex questions were as follows:
    1. We do not have now & ever have a branch or main company factory 
or assembly plant in Israel.
    2. We do not have now or ever have general Agencies or offices in 
Israel for our middle eastern international operations.
    3. We have never granted the right using name, trade-marks, 
royalty, patent, copyright or any of our subsidiaries to Israeli 
persons or firms.
    4. We do not participate or own or ever participate or own shares 
in Israeli firm or business.
    5. We do not render now or ever have rendered any consultance 
servic[e] or technical assistance to any Israeli firm business.
    6. We do not represent now or ever represented any Israeli firm or 
business in Israel or abroad.
    7. (What companies in whose capital are you shareholders? [P]lease 
state the name and nationality of each company and the percent of share 
to their total capital.)
    8. (What companies are shareholding in your capital, please state 
the name and nationality of each company and the percentage of share to 
your total capital.)
    On June 6, 1989, Berg answered all of the questions except number 
five and sent those answers to Al-Hantaway. In his letter to Al-
Hantaway accompanying his responses he volunteered:

    Please note that we presently receive orders from Israel, and 
have also received orders in the past. We have sales dealers or 
representatives in Israel, same as you. We will continue the above 
sales.

    Berg suggested to Al-Hantaway that he might prefer dealing with 
Serfilco's office in England. Berg stated that his statement to Al-
Hantaway was meant to convey the company's policy to sell its products 
all over the world without prejudice. Berg maintains that he was not 
aware of any boycott of Israel when he responded.
    Al-Hantaway responded to Berg's June 6, 1989 letter on June 27, 
1989 and pointed out that since Berg could not ``sign for all the eight 
items concerning Israel,'' it would be useless to continue negotiation. 
Al-Hantaway explained that it would be necessary for Serfilco to ``stop 
relations with Israelian dealers and representatives and promise to 
avoid any relation with Israel in the future.'' If Serfilco were to do 
this, he said, he would then ask the Iraqi authorities to allow him to 
represent Serfilco. Al-Hantaway's refusal to represent Serfilco, 
resulted in Berg calling the Office of Antiboycott Compliance, as 
Commercial Attache Smith had suggested in January.
    On July 20, 1989, Berg telephoned the Office of Antiboycott 
Compliance. Berg told Joyce Shephard of that office that he had 
received a letter from Commercial Attache Smith about selling to Iraq. 
he said that a company in Iraq wanted to represent Serfilco but that 
the company wanted him to sign an agreement about the boycott of 
Israel. According to a report of that conversation that Shephard wrote, 
Berg wanted to know if he could ship from his facility in England or 
Canada and avoid violating the antiboycott law. He also wanted to know 
whether he would have to agree to boycott Israel. Berg told Shephard 
that in his absence she should talk with Shirley Futterman, A Serfilco 
employee. On July 21, 1989, Berg sent Shephard the January 1989 letter 
from Commercial Attache Smith and his correspondence with Al-Hantaway. 
Berg told Shephard he wanted to know if there were alternative actions 
that Serfilco could take that would permit the company to continue its 
business in Israel and also trade with Iraq. Berg explained to Shepard 
that Smith had sent him a package containing materials which included a 
publication called ``Restrictive Trade Practices or Boycotts Including 
Enforcement and Administrative Proceedings.''
    About November 13, 1988, Serfilco received a request for a 
quotation, with attachments, from Faisal A. Alarfaj, Managing Director, 
Grace Trading Est. Grace Trading requested that Serfilco include the 
manufacturer's name and address ``for Israeli Boycott Office 
verification.'' Berg responded on December 2, 1988 and stated that the 
manufacturer of the pump offered was Serfilco's subsidiary, ASM 
Industries, Leola, Pennsylvania.
    About May 14, 1989, Serfilco received an inquiry from Ahmad Jassim 
Heleyel, Commercial Director, State Enterprise for Mechanical 
Industries Republic of Iraq. The inquiry contained ``General Terms and 
Conditions'' which were

[[Page 30218]]

found in Serfilco's files. Among the conditions was the requirement 
that ``commercial invoices indicat[e] the name of exporter, 
manufacturer & that he or his principal is not a branch, mother, sister 
or partner to establishment included in Israeli boycott'' and the 
exporter would need to certify that Israeli labor, capital or raw 
materials were not used, that the ship is not blacklisted and that the 
ship will not call at any Israeli port. Shirley Futterman on behalf of 
William H. Smyth, a Serfilco Sales Application Engineer, responded to 
the letter from Heleyel on June 27, 1989. Futterman sent Heleyel a copy 
of Serfilco's catalogue and explained that Serfilco had reviewed the 
Heleyel's requirements but that Serfilco did not have anything to 
offer.
    About May 30, 1989, Serfilco received a request for a quotation 
from Al-Jubail Fertilizer Company (SAMAD) of Saudi Arabia which 
attached a document entitled ``Instructions to Bidders.'' Those 
instructions stated that among the elements to be considered in the 
evaluating the quotation would be the ``Manufacturer's name and address 
(for boycott verification).'' The document entitled ``Request for 
Quotation'' which preceded the instructions also stated that all 
quotations must contain the manufacturer's name and address for boycott 
verification purposes. On June 13, 1989, Futterman responded to SAMAD 
with a quotation for the part sought. She signed on behalf of 
Serfilco's Export Department.
    On or about March 5, 1990, Serfilco, Ltd. received a request for a 
quotation from Arthur Goveas, Thuwainy Trading Co., W.L.L. in Kuwait, 
with an attached document from the purchasing department of the Kuwait 
Oil Company. The Kuwait Oil Company document was called an ``Enquiry'' 
and provided the following specifications for bidders:

    (K) A Boycott Certificate from the IBO Kuwait or Declaration 
letter from bidder, should be supplied with the bid confirming that 
the manufacturer is neither boycotted nor warned, otherwise bid will 
not be considered.

On or about March 21, 1990, Shirley Futterman on behalf of William H. 
Smyth, International Sales Application, Serfilco, Ltd. responded to the 
request from Thuwainy Trading Co.
    About April 22, 1990, Serfilco, Ltd. received a request for 
quotation from Abdullatif Abdalla Almihri, President, Middle East 
Group--Trading & Contracting W.L.L., with an attached document entitled 
``SCHEDULE OF PRICES.'' The request for quotation required the bidder 
to comply with the following requirement:

    Complete name & address of manufacturer/s must be stated on the 
offer sheet for clearance from the Israeli Boycott Office--Kuwait, 
without which your offer will be rejected by the authorities.

    By letter dated May 10, 1990, Mark Glodoski, International Sales 
Appl., Serfilco, Ltd. responded to the request from the Middle East 
Group--Trading & Contracting W.L.L.
    Serfilco did not institute an antiboycott compliance program until 
``right after 1992.''

IV. Analysis \2\

A. Furnishing Prohibited Information (Sec. 769.2(d))

    While it is beyond doubt that respondents furnished prohibited 
information, the 18 charges under Sec. 769.2(d) (nine against Berg and 
nine against his corporation, Serfilco) and $180,000 penalty pertain to 
two documents--the annex and the cover letter. Government counsel 
correctly argues that applicable agency law establishes that the 
``proper unit of prosecution'' is each item of prohibited information 
within a transmission. The ALJ also correctly concluded that he did not 
have authority to reduce the number of charges. That authority is 
vested only in the Under Secretary.
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    \2\ Arguments raised by Respondents not discussed below have 
been considered and rejected as being without merit or as being 
immaterial to the final decision. The conclusions reached are based 
on consideration of the record as a whole.
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    Under the longstanding policy and practice of this agency, charges 
are initiated and penalties are imposed based upon items of information 
improperly furnished. Here, each charge under Sec. 769.2(d) was based 
upon a separate piece of information whose transmission could assist in 
the administration of the boycott. It was appropriate to initiate 
charges and exact penalties on each of these. I will not exercise my 
discretion to reduce the number of these charges.
    I also concur with the ALJ's finding that Berg and Serfilco are 
separate entities and are each legally responsible for the violations 
committed.
1. The Annex
    The record clearly demonstrates that respondent Berg was 
specifically warned that he would be receiving a boycott request and 
that responding to the request was prohibited. Additionally, he was 
furnished a copy of the applicable regulations. Therefore, the 
imposition of the maximum $10,000 penalty against Berg for completing 
each question in the Annex is appropriate. However, mindful that 
Serfilco is a small, closely held company whose actions were under the 
control of respondent Berg, I have exercised my discretion and reduced 
the penalties against it to $2,500 for each of the seven violations 
relating to the annex.
2. The Cover Letter
    Having completed the Annex, Berg apparently realized that it could 
create the false impression that he did not do business in Israel. In a 
misguided attempt to make it clear that he did such business in Israel 
and intended to continue to do so, Berg provided the additional items 
of information in his cover letter which form the basis for the second 
set of Sec. 769.2(d) violations (two against him and two against 
Serfilco). The body of Berg's letter reads, in its entirety:

    Thank you for your letter of May 16th.
    I have read the attached annex and indicated my answers.
    Please not that we presently receive orders from Israel, and 
have received orders in the past. We have sales dealers and 
representatives in Israel, same as you.
    We will continue the above sales, and will be pleased to work 
with you on the same arrangement. Please advise if this is 
agreeable. We'll then forward copies of the sales policy to your 
embassy.

    As noted above, I believe that this cover letter constitutes two 
separate violations of Sec. 769.2(d) for each respondent. I do not, 
however, believe that imposition of the maximum penalty is appropriate. 
As a mitigating factor in assessing a penalty for this violation, the 
record establishes that Berg's objective was to make clear his 
intention to continue to do business in Israel. Moreover, it should be 
noted that in his responses to the Annex and in this letter he 
furnished information only on his firm. Thus, the only furtherance of 
the boycott resulting from his response was the likely inclusion of his 
firm on the ``blacklist,'' a result more harmful to himself than 
supportive of the boycott. Therefore, I have decided to impose two 
$5,000 penalties against Berg and two $1,000 penalties against Serfilco 
for furnishing the information contained in the cover letter.

B. Reporting Violations (Sec. 769.6)

1. Grace Trading Co.
    This request was dated November 13, 1988, before Serfilco received 
specific warnings about the antiboycott laws. Serfilco presented 
credible evidence that it did not read the ``fine print'' when it did 
not stock and product in question, but instead responded with a form 
letter. Since this apparently was Serfilco's first exposure to the Arab 
boycott of Israel, I give credence to this

[[Page 30219]]

argument in mitigation and reduce the $4,000 penalty imposed by the ALJ 
to $2,000.
2. Al-Hantaway
    The two reporting violations involving Al-Hantaway cover the same 
subject matter as the previously discussed Sec. 769.2(d) violations. 
Specifically, Serfilco is charged with failing to report the request to 
complete the Annex and a subsequent letter from Al-Hantaway informing 
Serfilco that it must stop its ``relations with Israelian dealers and 
representatives and promise to avoid any relation with Israel in 
future.'' While the record is subject to interpretation concerning 
Serfilco's motivation in contacting the Office of Antiboycott 
Compliance (OAC) concerning this matter, it does clearly establish that 
Serfilco provided the OAC, within the prescribed time period, copies of 
all relevant correspondence. However, Serfilco did not submit the 
required form. Under these circumstances, I must conclude that Serfilco 
committed two violations of Sec. 769.6. In view of the mitigating 
factors noted above, I have decided that the penalty for each of these 
two violations should be $250.
3. The Four Later Reporting Violations
    The record clearly establishes that Serfilco received reportable 
requests from the State Enterprise for Mechanical Industries, Republic 
of Iraq; the Al-Jubail Fertilizer Company; the Thunwainy Trading Co.; 
and the Middle East Group; and failed to report any of them. These four 
violations all occurred after Serfilco received specific warning about 
the antiboycott laws, and I affirm the ALJ's imposition of a $4,000 
penalty for each.

V. Order

    A $10,000 penalty is imposed against Berg for each of the seven 
Sec. 769.2(d) violations related to the annex. A $5,000 penalty is 
imposed against Berg for each of the two Sec. 769.2(d) violations 
involving the cover letter. A $2,500 penalty is imposed against 
Serfilco for each of the seven Sec. 769.2(d) violations related to the 
annex. A $1,000 penalty is imposed against Serfilco for each of the two 
Sec. 769.2(d) violations involving the cover letter. A $2,000 penalty 
is imposed against Serfilco for the Sec. 769.6 violation regarding 
Grace Trading. A $250 penalty is imposed against Serfilco for each of 
the two Sec. 769.6 violations involving Al-Hantaway. A $4,000 penalty 
is imposed against Serfilco for each of the remaining four Sec. 769.6 
violations. The total penalties imposed thus are $80,000 against Berg 
and $38,000 against Serfilco. The ALJ's imposition, against each 
respondent, of a one year denial of export privileges to Bahrain, Iraq, 
Kuwait, Lebanon, Libya, Oman, Qatar, Saudi Arabia, Syria, United Arab 
Emirates, and the Republic of Yemen, is sustained. The period of denial 
shall begin on the date of this final decision and order. Respondents 
shall pay these civil penalties within 30 days of the date of this 
order in accordance with the attached instructions.

    Dated: June 10, 1996.
William A. Reinsch,
Under Secretary for Export Administration.

Instruction for Payment of Civil Penalty

    1. The civil penalty check should be made payable to: U.S. 
Department of Commerce.
    2. The check should be mailed to U.S. Department of Commerce, 
Bureau of Export Administration, Office of Budget and Financial 
Management, Room H-3889, 14th Street and Constitution Avenue, N.W., 
Washington, D.C. 20230. Attn: Victor Micit.

[FR Doc. 96-15074 Filed 6-13-96; 8:45 am]
BILLING CODE 3510-DT-M