[Federal Register Volume 75, Number 209 (Friday, October 29, 2010)]
[Notices]
[Pages 66728-66729]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27351]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security


Action Affecting Export Privileges; Orion Air, S.L. and Syrian 
Pearl Airlines: Orion Air, S.L., Canada Real de Merinas, 7 Edificio 5, 
3'A, Eissenhower Business Center, 28042 Madrid, Spain; and Ad. de las 
Cortes Valencianas no 37, Esc. A Puerta 45 46015 Valencia, Spain; and 
Syrian Pearl Airlines, Damascus International Airport, Damascus, Syria, 
Respondents

Order Renewing Temporary Denial of Export Privileges

    Pursuant to Section 766.24 of the Export Administration 
Regulations, 15 CFR Parts 730-774 (2010) (``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\
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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 
57,626).
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    On April 29, 2010, I renewed the TDO against the Respondents for an 
additional 180 days. That renewal was effective upon issuance and was 
published in the Federal Register on May 7, 2010.\3\ The current Order 
would expire on October 26, 2010, unless renewed in accordance with 
Section 766.24 of the Regulations.
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    \3\ 75 FR 25,202.
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    On October 5, 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. A copy of this request was 
delivered to the Respondents in accordance with Section 766.5 of the 
Regulations. No opposition to renewal of the TDO has been received from 
either Orion Air or Syrian Pearl Airlines.

II. Discussion

A. Legal Standard

    Pursuant to section 766.24(d)(3) of the EAR, the sole issue to be 
considered in determining whether to continue a TDO is whether the TDO 
should be renewed to prevent an imminent violation of the EAR, as 
``imminent'' violation is defined in Section 766.24. ``A violation may 
be `imminent' either in time or in degree of likelihood.'' 15 CFR 
766.24(b)(3). BIS may show ``either that a violation is about to occur, 
or that the general circumstances of the matter under investigation or 
case under criminal or administrative charges demonstrate a likelihood 
of future violations.'' Id. As to the likelihood of future violations, 
BIS may show that ``the violation under investigation or charges is 
significant, deliberate, covert and/or likely to occur again, rather 
than technical and negligent[.]'' Id. A ``lack of information 
establishing the precise time a violation may occur does not preclude a 
finding that a violation is imminent, so long as there is sufficient 
reason to believe the likelihood of a violation.'' Id.

 B. Findings

    As part of its initial TDO request, BIS presented evidence that on 
or about May 1, 2009, Orion Air re-exported a BAE 146-300 aircraft 
(tail number EC-JVO) to Syria, and specifically to Syrian Pearl 
Airlines, without the U.S. Government authorization required by General 
Order No. 2 of Supplement 1 to Part 736 of the EAR. The aircraft is 
subject to the Regulations because it contains greater than a 10-
percent de minimis amount of U.S.-origin content. Orion Air engaged in 
this re-export transaction despite having been directly informed of the 
export licensing requirements by the U.S. Government. Moreover, Orion 
Air not only engaged in this conduct after having received actual as 
well as constructive notice of the applicable license requirements, but 
then sought to evade the Regulations and U.S. export controls by giving 
the U.S. Government false assurances that it would put the transaction 
on hold due to the U.S. Government's concerns.
    BIS also produced evidence that the re-exported aircraft bore the 
livery, colors and logos of Syrian Pearl Airlines, a national of Syria, 
a Country Group E:1 destination; was flight capable; and under the 
terms of the lease agreement was to be based in and operated out of 
Syria during the lease term. The record also shows that the re-exported 
aircraft currently remains in Syria under the control of Syrian Pearl 
Airlines.
    In addition to the unauthorized re-export described above, Acting 
Assistant Secretary Delli-Colli also concluded that additional 
violations were imminent based on statements by Orion Air to the U.S. 
Government in May 2009 that Orion Air planned to re-export an 
additional BAE 146-300 aircraft (tail number EC-JVJ) to Syria, and 
specifically to Syrian Pearl Airlines. This second aircraft was at the 
time undergoing maintenance in the United Kingdom, and remains located 
there. Moreover, the agreement between Orion Air and Syrian Pearl 
Airlines involved both aircraft being re-exported to Syria for Syrian 
Pearl Airlines' use and benefit.
    Based on my review of the record, I find that the facts and 
circumstances that led to the issuance of the initial TDO and 
subsequent renewal Orders continue to show that renewal of the TDO for 
an additional 180 days is necessary and in the public interest to 
prevent an imminent violation of the EAR. 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. Additionally, 
there remains a substantial risk that, absent renewal of the TDO, the 
first aircraft, which remains in Syria, would 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

[[Page 66729]]

States and abroad that they should cease dealing with the Respondents 
in export transactions involving items subject to the EAR.
    It is therefore ordered:
    First, that, Orion Air, S.L., Canada Real de Merinas, 7 Edificio 5, 
3'A, Eissenhower business center, 28042 Madrid, Spain, and Ad. de las 
Cortes Valencianas no 37, Esc.A Puerta 4546015 Valencia, Spain, and 
when acting for or on its behalf, any of its successors, assigns, 
agents, or employees; and Syrian Pearl Airlines, Damascus International 
Airport, Damascus, Syria, and when acting on its behalf, any of its 
successors, assigns, agents, or employees (each a ``Denied Person'' and 
collectively the ``Denied Persons'') may not, directly or indirectly, 
participate in any way in any transaction involving any commodity, 
software or technology (hereinafter collectively referred to as 
``item'') exported or to be exported from the United States that is 
subject to the Export Administration Regulations (``EAR''), or in any 
other activity subject to the EAR including, but not limited to:
    A. Applying for, obtaining, or using any license, license 
exception, or export control document;
    B. Carrying on negotiations concerning, or ordering, buying, 
receiving, using, selling, delivering, storing, disposing of, 
forwarding, transporting, financing, or otherwise servicing in any way, 
any transaction involving any item exported or to be exported from the 
United States that is subject to the EAR, or in any other activity 
subject to the EAR; or
    C. Benefitting in any way from any transaction involving any item 
exported or to be exported from the United States that is subject to 
the EAR, or in any other activity subject to the EAR.
    Second, that no person may, directly or indirectly, do any of the 
following:
    A. Export or re-export to or on behalf of any Denied Person any 
item subject to the EAR;
    B. Take any action that facilitates the acquisition or attempted 
acquisition by any Denied Person of the ownership, possession, or 
control of any item subject to the EAR that has been or will be 
exported from the United States, including financing or other support 
activities related to a transaction whereby any Denied Person acquires 
or attempts to acquire such ownership, possession or control;
    C. Take any action to acquire from or to facilitate the acquisition 
or attempted acquisition from any Denied Person of any item subject to 
the EAR that has been exported from the United States;
    D. Obtain from any Denied Person in the United States any item 
subject to the EAR with knowledge or reason to know that the item will 
be, or is intended to be, exported from the United States; or
    E. Engage in any transaction to service any item subject to the EAR 
that has been or will be exported from the United States and which is 
owned, possessed or controlled by any Denied Person, or service any 
item, of whatever origin, that is owned, possessed or controlled by any 
Denied Person if such service involves the use of any item subject to 
the EAR that has been or will be exported from the United States. For 
purposes of this paragraph, servicing means installation, maintenance, 
repair, modification or testing.
    Third, that after notice and opportunity for comment as provided in 
section 766.23 of the EAR, any other person, firm, corporation, or 
business organization related to any of the Respondents by affiliation, 
ownership, control, or position of responsibility in the conduct of 
trade or related services may also be made subject to the provisions of 
this Order.
    Fourth, that this Order does not prohibit any export, re-export, or 
other transaction subject to the EAR where the only items involved that 
are subject to the EAR are the foreign-produced direct product of U.S.-
origin technology.
    In accordance with the provisions of Section 766.24(e) of the EAR, 
the Respondents may, at any time, appeal this Order by filing a full 
written statement in support of the appeal with the Office of the 
Administrative Law Judge, U.S. Coast Guard ALJ Docketing Center, 40 
South Gay Street, Baltimore, Maryland 21202-4022.
    BIS may seek renewal of this Order by filing a written request with 
the Assistant Secretary of Commerce for Export Enforcement in 
accordance with the provisions of Section 766.24(d) of the Regulations, 
which currently provides that such a written renewal request must be 
submitted not later than 20 days before the expiration date. The 
Respondents may oppose a request to renew this Order by doing so in 
accordance with Section 766.24(d), including filing a written 
submission with the Assistant Secretary for Export Enforcement, 
supported by appropriate evidence. Any opposition ordinarily must be 
received not later than seven days before the expiration date of the 
Order.
    Notice of the issuance of this Order shall be given to Respondents 
in accordance with Sections 766.5(b). This Order also shall be 
published in the Federal Register.
    This Order is effective upon issuance and shall remain in effect 
for 180 days.

    Issued this 22nd day of October 2010.
David W. Mills,
Assistant Secretary of Commerce for Export Enforcement.
[FR Doc. 2010-27351 Filed 10-28-10; 8:45 am]
BILLING CODE 3510-DT-P