24788 Federal Register / Vol. 74, No. 99 / Tuesday, May 26, 2009 / Notices 

under the provisions of the Paperwork 

Reduction Act (44 U.S.C. Chapter 35). 

Agency: United States Patent and 

Trademark Office (USPTO). 

Title: National Medal of Technology 

and Innovation Nomination 

Application. 

Form Number(s): None. 

Agency Approval Number: 0651– 

0060. 

Type of Request: Revision of a 

currently approved collection. 

Burden: 1,600 hours. 

Number of Respondents: 40 

responses. 

Avg. Hours per Response: 40 hours. 

This includes time to gather the 

necessary information, create the 

documents, and submit the completed 

request to the USPTO. 

Needs and Uses: The public uses the 

National Medal of Technology and 

Innovation Nomination Application to 

recognize through nomination an 

individual’s or company’s extraordinary 

leadership and innovation in 

technological achievement. The 

application must be accompanied by at 

least six letters of recommendation or 

support from individuals who have 

first-hand knowledge of the cited 

achievement(s). 

Affected Public: Business or other forprofit; not-for-profit institutions. 

Frequency: On occasion. 

Respondent’s Obligation: Voluntary. 

OMB Desk Officer: Nicholas A. Fraser, 

e-mail: 

Nicholas_A_Fraser@omb.eop.gov . 

Once submitted, the request will be 

publically available in electronic format 

through the Information Collection 

Review page at http://www.reginfo.gov. 

Paper copies can be obtained by: 

• E-mail: Susan.Fawcett@uspto.gov. 

Include ‘‘0651–0060 National Medal of 

Technology and Innovation Nomination 

Application copy request’’ in the subject 

line of the message. 

• Fax: 571–273–0112, marked to the 

attention of Susan K. Fawcett. 

• Mail: Susan K. Fawcett, Records 

Officer, Office of the Chief Information 

Officer, Administrative Management 

Group, U.S. Patent and Trademark 

Office, P.O. Box 1450, Alexandria, VA 

22313–1450. 

Written comments and 

recommendations for the proposed 

information collection should be sent on 

or before June 25, 2009 to Nicholas A. 

Fraser, OMB Desk Officer, via e-mail at 

Nicholas_A_Fraser@omb.eop.gov or by 

fax to (202) 395–5167, marked to the 

attention of Nicholas A. Fraser. 

Susan K. Fawcett, 

Records Officer, USPTO, Office of the Chief 

Information Officer, Administrative 

Management Group. 

[FR Doc. E9–12290 Filed 5–22–09; 8:45 am] 

BILLING CODE 3510–16–P 

DEPARTMENT OF COMMERCE 

Bureau of Industry and Security 

[08–B IS–0005] 

In the Matter of: Micei International, 

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. 

In a charging letter filed on July 1, 

2008, and amended on January 9, 2009, 

the Bureau of Industry and Security 

(‘‘BIS’’) alleged that Respondent Micei 

International (‘‘Micei’’) committed 

fourteen violations of the Export 

Administration Regulations (currently 

codified at 15 CFR Parts 730–774 (2009) 

(‘‘Regulations’’)), issued pursuant to the 

Export Administration Act of 1979, as 

amended (50 U.S.C. app. 2401–2420) 

(the ‘‘EAA’’ or ‘‘Act’’),1 stemming from 

its knowing participation in seven 

export transactions using an individual 

subject to a Denial Order as an 

employee or agent to negotiate for and/ 

or purchase items in the United States 

for export from the United States to 

Micei in Macedonia. The charges are as 

follows: 

1. 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 July 23, 2008 

(73 FR 43,603, July 25, 2008), has 

continued the Regulations in effect 

under the International Emergency 

Economic Powers Act (50 U.S.C. 1701– 

1707). 

Charges 1–7; 15 CFR 764.2(b): Causing, 

Aiding, Abetting, Inducing and/or 

Permitting a Violation of a Denial 

Order 

As described in further detail in the 

attached schedule of violations, which 

is incorporated herein by reference, on 

seven occasions between on or about 

July 2, 2003, and on or about October 8, 

2003, Micei caused, aided, abetted, 

induced and/or permitted acts 

prohibited by the Regulations, namely, 

the violations by Yuri Montgomery 

(‘‘Montgomery’’) of a BIS order denying 

Montgomery’s export privileges under 

Section 766.25 of the Regulations (the 

‘‘Denial Order’’). Specifically, Micei 

authorized, requested, and/or arranged 

for Montgomery to negotiate for and/or 

make certain purchases for or on behalf 

of Micei of items subject to the 

Regulations for export from the United 

States to Micei in Macedonia. To further 

facilitate these purchases, Micei also 

contacted Montgomery and provided 

information on the items to be ordered 

and their approximate cost, and 

identified the vendors from which to 

order them. With Micei’s knowledge 

and/or permission, Montgomery 

operated or held himself out as Micei’s 

employee or agent, including indicating 

in an e-mail to a U.S. supplier that 

Micei had a U.S. regional office in 

Seattle, Washington, where Montgomery 

was located, and that Micei was 

interested in forming a distributorship 

relationship with the supplier. That email was copied to Micei’s president 

and signed by Montgomery with ‘‘Micei 

Int’l Reg[ional] Off[ice].’’ As part of 

these actions, Montgomery carried on 

negotiations concerning, ordered, 

bought, sold and/or financed various 

items that were subject to the 

Regulations and were exported or to be 

exported from the United States to 

Micei in Macedonia, and Montgomery 

benefitted from these transactions, in 

violation of the Denial Order. 

The Denial Order is dated September 

11, 2000, and was published in the 

Federal Register on September 22, 2000 

(65 FR 57,313). Under the terms of the 

Denial Order, Montgomery ‘‘may not 

directly or indirectly, participate in any 

way in 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, including 

[c]arrying 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 * * * [b]enefitting 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.’’ The Denial 

Order is effective until January 22, 2009, 

and continued in force at the time of the 

aforementioned actions. In so doing, 

Micei committed seven violations of 

Section 764.2(b) of the Regulations. 

Federal Register / Vol. 74, No. 99 / Tuesday, May 26, 2009 / Notices 24789 

Charges 8–14; 15 CFR 764.2(e): Acting 

with Knowledge of a Violation 

As described in further detail in the 

attached schedule of violations, which 

is incorporated herein by reference, on 

seven occasions between on or about 

July 2, 2003 and on or about October 8, 

2003, Micei ordered, bought, sold, used 

and/or financed various items subject to 

the Regulations with knowledge that 

violations of an order issued under the 

Regulations had occurred, was about to 

occur, or was intended to occur in 

connection with the items, namely, the 

violations by Yuri Montgomery 

(‘‘Montgomery’’) of a BIS order denying 

Montgomery’s export privileges under 

Section 766.25 of the Regulations (the 

‘‘Denial Order’’). Operating as Micei’s 

employee or agent or otherwise for or on 

its behalf during these transactions, 

Montgomery carried on negotiations 

concerning, ordered, bought, sold and/ 

or financed various items that were 

subject to the Regulations and were 

exported or to be exported from the 

United States to Micei in Macedonia, 

and also benefitted from these 

transactions, in violation of the Denial 

Order. The Denial Order is dated 

September 11, 2000, and was published 

in the Federal Register on September 

22, 2000 (65 FR 57,313). At the time of 

these actions, Montgomery’s export 

privileges were denied by the Denial 

Order. Micei knew that Montgomery 

was subject to the Denial Order because, 

inter alia, on November 6 and 13, 2003, 

Iii Malinkovski, then identified as a vice 

president of Micei, told BIS Special 

Agents that he was aware of the Denial 

Order on Montgomery and that 

Montgomery was subject to the Denial 

Order until January 2009. In so doing, 

Micei committed seven violations of 

Section 764.2(e) of the Regulations. 

January 9, 2009; Amended Charging 

Letter at 1–2 

In sum, Charges 1–7 alleged that on 

seven occasions between on or about 

July 2, 2003 and on or about October 8, 

2003, Micei caused, aided, abetted and/ 

or induced violations of a BIS denial 

order in violation of Section 764.2(b); in 

connection with those same transactions 

and items, Charges 8–14 allege that, in 

violation of Section 764.2(e), Micei 

acted with knowledge that the 

violations of the denial order had 

occurred, were about to occur, or were 

intended to occur. 

The Respondent filed a lengthy 

motion to dismiss on September 17, 

2008, which raised several jurisdictional 

challenges, including whether the 

Regulations were in effect at the time of 

the violations and whether the 

Regulations apply extraterritorially. 

After briefing on the motion was 

completed, in an order dated December 

22, 2008, the ALJ ruled that a motion to 

dismiss is not provided for in the 

Regulations, but gave the Respondent 

the benefit of the doubt and reviewed 

the motion as if it were a motion for 

summary decision, which is provided 

for by Section 766.8 of the Regulations. 

ALJ Order Denying Motion To Dismiss; 

RDO at 4–5. The ALJ ruled that the 

motion was without merit and did not 

meet the requirements for summary 

decision under Section 766.8 of the 

Regulations, and set a deadline of 

January 12, 2009 for the Respondent to 

file an answer. Id. 

On January 9, 2009, BIS filed an 

amended Charging Letter that was 

served by Federal Express, registered 

mail, fax, and e-mail, which under the 

Regulations extended Respondent’s time 

to answer arguably until February 12, 

2009 (pursuant to the delivery by 

Federal Express), and certainly no later 

than February 19, 2009 (pursuant to the 

registered mail delivery). This 

amendment included limited additional 

allegations concerning the same 

transactions, items, and violations as 

alleged in the initial Charging Letter 2. 

2. The items involved in the 

transactions were as follows: boots in 

Charges 1 and 8; firing range clearing 

devices in Charges 2 and 9; boots in 

Charges 3 and 10; shoes and remote 

strobe tubes in Charges 4 and 11; shirts 

in Charges 5 and 12; a load binder, 

ratchet strap, binder chain and safety 

shackle in Charges 6 and 13; and the 

items in order number 25473620/017 in 

Charges 7 and 14. 

Respondent did not file anything 

further until February 23, 2009, when it 

filed not an answer, but what it styled 

a motion for a more definite statement. 

BIS filed a motion for a default order on 

March 24, 2009, arguing that 

Respondent had not filed an answer 

within the time provided by the 

Regulations (and the ALJ’s Order 

Denying Motion To Dismiss), and had 

waived its right to contest the 

allegations pursuant to Section 766.7 of 

the Regulations. Although BIS is not 

required under Section 766.7 to give 

notice of its motion for default order, 

BIS served its motion (and opposition to 

Respondent’s motion for a more definite 

statement) by Federal Express, fax, and 

e-mail. 

Respondent has not filed an answer to 

the amended Charging Letter dated 

January 9, 2009, and did not file an 

answer to the initial Charging Letter 

dated July 1, 2008. It also did not 

respond to BIS’s motion for default 

order. 

On April 14, 2009, the ALJ issued the 

RDO, denying Respondent’s motion for 

a more definite statement and granting 

BIS’s motion for a default order. Even 

though the ALJ did not specifically state 

that the Regulations provide for the 

filing of a motion for a more definite 

statement, the Regulations do not, in 

fact, provide for such a motion, just as 

they do not provide for a motion to 

dismiss. 15 CFR Part 766; In the Matter 

of Yuri Montgomery, ALJ Brudzinski’s 

Order Denying Respondent’s Motion for 

More Definite Statement at 6 (March 23, 

2009) (‘‘The regulations at 15 CFR Part 

766 do not provide for motions for a 

more definite statement or for hearings 

thereon.’’). Further, the Respondent’s 

motion was frivolous in that the 

Charging Letter clearly met all of the 

requirements of Section 766.3 of the 

Regulations, including setting forth the 

essential facts about the alleged 

violations, referring to the specific 

regulatory and other provisions 

involved, and giving notice of the 

available sanctions. 15 CFR 766.3(a). 

The Respondent’s motion for a more 

definite statement was, in fact, just 

another vehicle through which 

Respondent sought to avoid answering 

the charges, and instead repeated the 

arguments put forth in its motion to 

dismiss, which had previously been 

denied. The ALJ determined that the 

Respondent ‘‘ha[d] been given several 

opportunities to participate in the 

process’’ and contest the charges in this 

matter, but had demonstrated ‘‘a pattern 

of declining to file an answer.’’ RDO at 

12. 

3. Under the Federal Rules of Civil 

Procedure, Federal courts will only 

grant such a motion when the complaint 

is ‘‘so vague or ambiguous that a party 

cannot reasonably prepare a response.’’ 

Fed. R. Civ. P. 12(e); Brown v. Aramark 

Corp., 591 F. Supp. 2d 68 at 76 n. 5 

(D.D.C. 2008) (the basis for granting a 

motion for a more definite statement 

under Rule 12(e) is ‘‘unintelligibility, 

not mere lack of detail’’). 

Pursuant to Section 766.7 of the 

Regulations, the ALJ found the facts to 

be as alleged in the Charging Letter and 

concluded that Micei committed seven 

violations of 764.2(b) when it caused, 

aided and abetted Montgomery’s 

violations of the Denial Order as alleged 

in Charges 1–7, and committed seven 

violations of 764.2(e) when, as alleged 

in Charges 8–14, it acted with 

knowledge of those violations of the 

Denial Order. The ALJ also 

recommended that Micei be assessed a 

monetary penalty of $126,000 and a 

denial of its export privileges for five 

years, given, inter alia, that Micei 

deliberately participated in multiple 

24790 Federal Register / Vol. 74, No. 99 / Tuesday, May 26, 2009 / Notices 

export transactions of items from the 

United States to Macedonia involving 

violations of a BIS Denial Order, and 

given its failure to contest the charged 

violations or meet the deadlines 

provided in the Regulations and orders 

issued in this matter. 

The RDO, together with the entire 

record in this case, has been referred to 

me for final action under § 766.22 of the 

Regulations. I find that the record 

supports the ALJ’s findings of fact and 

conclusions of law. 

In doing so, I have determined that 

the ALJ properly found that the items at 

issue were located in the United States 

and were exported or (on one occasion) 

intended to be exported from the United 

States to Micei in Macedonia. Findings 

of Fact, RDO at 69. The ALJ also 

correctly concluded that the items at 

issue are subject to the Regulations. 

Conclusions of Law, RDO at 17. 

In the Discussion section of the RDO 

(pages 9–16 of the RDO), the ALJ cited 

to both Sections 734.3(a)(1) (‘‘all items 

in the United States’’) and 734.3(a)(2) 

(‘‘all U.S. origin items wherever 

located’’). RDO at 9. In that section, the 

ALJ also subsequently referred to the 

items as being ‘‘of U.S. origin.’’ RDO at 

10, 15. I have not determined as part of 

this decision whether the items were 

manufactured in the United States, and 

thus were ‘‘of U.S. origin,’’ and such a 

determination is not necessary because 

jurisdiction over the items is established 

in this matter under Section 734.3(a)(1), 

given the location of these items in the 

United States. Indeed, all of the items 

were purchased, or attempted to be 

purchased, in the United States for 

export from the United States to Micei 

in Macedonia, as found in the RDO. 

Thus, my determinations are entirely 

consistent with the allegations 

contained in the Charging Letter and the 

findings and conclusions contained in 

the RDO. 

The jurisdictional challenges raised 

by Respondent have been considered 

and denied in prior matters, but there is 

value in repeating the central points. 

The continuation of the operation and 

effectiveness of the FAA 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. U.S. Dep’t of Commerce, 317 

F.3d 275, 278–79 (D.C. Cir. 2003), and 

Times Publ’g Co. v. U.S. Dep’t of 

Commerce, 235 F.3d 1286, 1290 (11th 

Cir. 2001)). Therefore, as the ALJ stated, 

‘‘the laws and regulations underlying 

this enforcement action and the 

corresponding procedural requirements 

were in full force on the dates of the 

charged violations and have remained 

in effect pursuant to the authority 

exercised by the President.’’ Order 

Denying Motion to Dismiss at 4. 

Respondent’s arguments challenging 

the extraterritorial reach of the FAA and 

the Regulations may be irrelevant in 

light of the allegations of its substantial 

contacts with the United States, 

including those contacts carried out 

through Montgomery acting, with 

Micei’s knowledge and permission, as 

Micei’s employee or agent. 

Nevertheless, to the extent that this 

matter concerns the extraterritorial 

application of the FAA and the 

Regulations, the ALJ correctly 

determined that both apply to persons 

extraterritorial so long as items subject 

to the Regulations are involved, and 

regardless of the person’s nationality or 

locality. RDO at 10; In the Matter of 

Mahdi, 68 FR 57406 (Oct. 3, 2003)); 

accord In the Matter of Petrom GmbH 

International Trade, 70 FR 32743 (June 

6, 2005) and In the Matter of 

Petrochemical Commercial Co. Ltd., 71 

FR 23983 (May 6, 2005). The 

Respondent is therefore subject to the 

Regulations based on its actions 

involving items subject to the 

Regulations that at the least were 

located in and purchased (or attempted 

to be purchased) from the United States 

and then exported from the United 

States to the Respondent. United States 

v. McKeeve, 131 F.3d 1 (1st Cir. 1997) 

(the First Circuit cited Section 

1702(a)(1) when it rejected an 

extraterritorial challenge to an IEEPA 

conspiracy conviction brought by a 

foreign national in the context of a 

conspiracy involving foreign nationals 

to export computer equipment to Libya. 

The computer equipment was stored in 

Massachusetts and therefore 

‘‘unquestionably subject to the 

jurisdiction of the United States’’). 

I also find that the penalty 

recommended by the ALJ based 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 future 

unauthorized exports or attempted 

exports. Micei deliberately participated 

in multiple export transactions of items 

from the United States to Macedonia 

involving violations of a BIS Denial 

Order, and its blatant disregard for U.S. 

export control laws is further 

highlighted by its conduct during this 

enforcement action. 

Based on my review of the entire 

record, I affirm the findings of fact and 

conclusions of law in the RDO. 

Accordingly, it is therefore ordered, 

First, that a civil penalty of 

$126,000.00 is assessed against Micei 

International, which shall be paid to the 

U.S. Department of Commerce within 

(30) thirty days from the date of entry 

of this Order. 

Second, pursuant to the Debt 

Collection Act of 1982, as amended (31 

U.S.C. 370 1–3720E (2000)), the civil 

penalty owed under this Order accrues 

interest as more fully described in the 

attached Notice, and, if payment is not 

made by the due date specified herein, 

Micei International will be assessed, in 

addition to the full amount of the civil 

penalty and interest, a penalty charge 

and administrative charge. 

Third, for a period of five (5) years 

from the date that this Order is 

published in the Federal Register, Micei 

International, Kamnik bb, 1000 Skopje, 

Republic of Macedonia, its successors or 

assigns, and when acting for or on 

behalf of Micei, its representatives, 

agents, officers 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. Benefiting 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. 

Fourth, 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; 

Federal Register / Vol. 74, No. 99 / Tuesday, May 26, 2009 / Notices 24791 

1The EAA and all regulations promulgated 

thereunder 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. 170 1–1706 

(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 July 23, 2008. See Notice: 

Continuation of Emergency Regarding Export 

Control Regulations, 73 FR 43603 (July, 23, 2008). 

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. U.S. Dep’t of Commerce, 317 F.3d 

275, 278–79 (D.C. Cir. 2003); Times Publ’g Co. v. 

U.S. Dep’t of Commerce, 236 F.3d 1286, 1290 (11th 

Cir. 2001). 

2The EAR and EAA are currently in full force and 

effect and have been at all relevant times with 

respect to this case. See discussion supra n.1 

wherein the history of these laws and regulations 

is examined. 

3Note that the attorney initially representing 

Respondent requested to withdraw and that the 

Continued 

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. 

Fifth, that, after notice and 

opportunity for comment as provided in 

§ 766.23 of the Regulations, any person, 

firm, corporation, or business 

organization related to the Denied 

Person 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 the Order. 

Sixth, 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. 

Seventh, that the final Decision and 

Order shall be served on Micei 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. 

Dated: May 14, 2009. 

Daniel Hill, 

Acting Under Secretary of Commerce for 

Industry and Security. 

REDACTED COPY 

United States of America, Department 

of Commerce, Bureau of Industry and 

Security. 

In the Matter of: MICEI International, 

Respondent. 

Docket No.: 08–BIS–0005. 

Recommended Decision and Order 

Granting Motion for Default. 

Issued: April 14, 2009. 

Issued by: Hon. Michael J. Devine. 

I. Summary of Decision 

This case arises from Respondent 

Micei International’s (Micei) use of an 

individual subject to a Denial Order as 

an employee or agent to negotiate for 

Respondent Micei and facilitate exports 

from the United States. The charging 

letter identifies Yuri Montgomery 

(‘‘Montgomery’’), as the individual 

involved in transactions with Micei 

which violate the terms of a previously 

issued Denial Order in connection with 

his (Montgomery’s) exporting various 

goods from the United States to 

Macedonia in 2003. Micei International, 

Inc. (‘‘Micei’’ or ‘‘Respondent’’), has 

been charged causing, aiding, or 

abetting Montgomery to violate the 

Denial Order and acting with knowledge 

of the violation. The Bureau of Industry 

Security, United States Department of 

Commerce (‘‘BIS’’ or ‘‘Bureau’’) has 

alleged that Micei’s conduct in 

connection with Montgomery violating 

his Denial Order constitutes fourteen 

(14) violations of the Export 

Administration Act of 1979 (‘‘Act’’ or 

‘‘EAA’’) and the Export Administration 

Regulations (‘‘EAR’’). 50 U.S.C. app. 

2401–20 (1991), amended by Public Law 

106–508, 114 Stat. 2360 (Supp. 2002) 

(EAA); 15 CFR Parts 730–74 (1997– 

1999) (EAR or Regulations). 

Montgomery is not a party to this 

enforcement action against Micei 

International. 

The EAA and its underlying 

regulations establish a ‘‘system of 

controlling exports by balancing 

national security, foreign policy and 

domestic supply needs with the interest 

of encouraging export to enhance * * * 

the economic well being’’ of the United 

States. Times Publ’g Co. v. United States 

Dep’t of Commerce, 236 F.3d 1286, 1290 

(11th Cir. 2001); see also 50 U.S.C. app. 

240120.1

Here, BIS alleges that Micei 

committed fourteen (14) violations of 

the EAR and seeks a denial of the 

Respondent’s export privileges from the 

United States for a period of five (5) 

years as well as assessment of $126,000 

in civil penalties. 

As discussed infra, Micei filed a 

Motion to Dismiss the charges and 

various briefs and materials in support 

of that motion, including a declaration 

by Iki Malinkovski. However, Micei has 

not filed an Answer or other appropriate 

responsive pleadings in this case. After 

the time for an Answer passed, BIS filed 

a Motion for Default. This Order finds 

that Respondent Micei is in default and 

that the fourteen (14) violations of the 

EAA and EAR alleged in the Amended 

Charging Letter are proven by default. 

Finally, this Order recommends 

imposing a five (5) year denial of export 

privileges and a $126,000.00 civil 

penalty upon Respondent. 

II. Background 

On July 2, 2008, BIS filed a Charging 

Letter with the Docketing Center 

alleging that Micei committed fourteen 

(14) violations of the Export 

Administration Regulations (‘‘EAR’’) 

and the Export Administration Act of 

1979 (‘‘EAA’’).2

Specifically, BIS alleges that on seven 

(7) occasions between on or about July 

2, 2003, and on or about October 8, 

2003, Micei caused, aided, abetted, and/ 

or induced an Montgomery to violate a 

BIS Order which denied that 

individual’s export privileges under 15 

CFR 766.25. These charges involve 

alleged illegal exportation of various 

goods from the United States to 

Macedonia. 

BIS further alleges that these acts 

created seven (7) additional violations 

of the EAR because Micei committed 

them with knowledge that a violation of 

an order issued under the EAR had 

occurred, was about to occur, or was 

intended to occur in connection with 

the transactions. 

On September 17, 2008, Respondent 

through counsel 3 filed Respondent’s 

24792 Federal Register / Vol. 74, No. 99 / Tuesday, May 26, 2009 / Notices 

company president step in as a non attorney 

representative until replacement counsel could be 

obtained. As noted in the file, the Respondent’s 

counsel was not permitted to withdraw until after 

the Motion to Dismiss was resolved. On December 

11, 2008, Mr. Vasko Tomanovic filed a Notice of 

Appearance of Respondent’s Substitute Counsel. It 

is unclear whether Mr. Tomanovic is now the sole 

representative or whether the company president 

who has been serving as a non attorney 

representative retains any involvement as a 

representative. Unless the Court is notified to the 

contrary, Mr. Tomanovic and the company 

president will be treated as joint representatives in 

this case. 

4Note that BIS’s November 25, 2008 filing is a 

corrected version of a previous filing. For 

simplicity, BIS’s November 25, 2008 filing will be 

discussed as if it were BIS sole opposition to 

Respondent’s Motion to Dismiss. 

5A Notice of Filing Corrected Version of 

Respondent’s Reply Memorandum of Points and 

Authorities in Support of Memorandum to Dismiss 

was submitted by Vasko Tomanovic on behalf of 

Respondent Micei on December 18, 2008. This also 

included a declaration in support of the motion by 

Iki Malinkovski which contains various asserted 

‘‘facts’’ regarding the Micei company and its 

interaction with his Uncle Yuri Montgomery. Since 

the motion was denied and no responsive Answer 

or pleading has been filed by Micei, none of the 

matters asserted in support of the motion will be 

considered either as admissions or as a basis for 

Micei to deny or contest the charged violations. 

Motion to Dismiss and Demand for a 

Hearing on the Motion to Dismiss. With 

said filing, Respondent submitted a 

Memorandum of Points and Authorities 

in support of its Motion to Dismiss 

wherein Respondent made numerous 

arguments and included extensive 

discussion. After prehearing scheduling 

matters, including various filings, and 

interim Orders which need not be 

discussed here, BIS filed its Opposition 

to Respondent’s Motion to Dismiss on 

November 25, 2008,4 BIS addressed 

Respondent’s Motion to Dismiss and the 

arguments and authorities contained 

therein. On December 16, 2008 

Respondent submitted its Reply to BIS’s 

Opposition to Respondent’s Motion to 

Dismiss.5

On December 22, 2008, this Court 

issued an Order denying Respondent’s 

Motion to Dismiss and Demand for 

Hearing on the Motion to Dismiss. 

Respondent’s demand for a hearing on 

the Motion to Dismiss was denied 

because the Regulations do not provide 

for such a procedural step and because 

the parties already fully briefed the 

Court on the Motion to Dismiss, thus 

rendering a hearing on the matter 

unnecessary. After extensive briefing by 

the parties, Respondent’s Motion to 

Dismiss was similarly denied because 

the Regulations do not provide for this 

procedural step, it was not sufficient to 

be a Motion for Summary Decision, and 

because there was no merit to 

Respondent’s position. At the core of 

Respondent’s argument was an assertion 

that this Court somehow lacked 

jurisdiction to adjudicate the case based 

on a Federal Civil Procedure process for 

civil lawsuits that does not apply to 

administrative regulation matters. This 

argument was rejected with an 

explanation of BIS’s and the Court’s 

jurisdiction along with a brief 

restatement of how administrative law 

functions. 

Respondent’s Motion to Dismiss 

could have been considered as non 

responsive and subject to default 

because it was not in proper form to be 

considered either as an Answer to the 

Charges or as a Motion permitted by the 

regulations. Since Respondent’s Motion 

to Dismiss was not sufficient as an 

Answer, it was considered and analyzed 

as if it were a Motion for Summary 

Decision. The Motion was insufficient 

as a Motion for Summary Decision as 

well in that it failed to establish that 

there was no genuine issue of material 

fact and that based on the facts 

Respondent was entitled to judgment as 

a matter of law. The Motion was denied 

on December 22, 2008 and a Scheduling 

Order was issued that directed 

Respondent to file an Answer by 

January 12, 2009. 

On January 9, 2009, BIS filed a Notice 

of Amended Charging Letter containing 

limited additional allegations involving 

the same charged violation. The 

amendments asserted additional 

support for the allegations that 

Respondent conducted itself with 

knowledge that a violation of 

Montgomery’s Denial Order would 

occur. This amendment was allowed by 

rule because Respondent had yet to file 

an answer at that time. 15 CFR 766.3(a). 

An Answer to the Amended Charging 

Letter was due on February 10, 2009 in 

keeping with the regulations that 

require an Answer within 30 days of 

notice of the amendment to the charges. 

15 CFR 766.6(a). 

On February 23, 2009, Respondent 

filed a Motion for a More Definite 

Statement and Demand for Hearing. 

This motion repeats much of the 

argument asserted in the Motion to 

Dismiss that was denied by the Order of 

December 22, 2008. 

On March 24, 2009, BIS filed a 

Motion for Default Order and 

Opposition to Respondent’s Motion for 

a More Definite Statement. BIS sought a 

civil penalty of $126,000 and a five (5) 

year denial of export privileges for 

Micei. On April 1, 2009, BIS filed a 

Motion to Stay Further Running of the 

Court’s Scheduling Order. As discussed 

below, Respondent’s Motion for a More 

Definite Statement is denied and BIS’s 

Motion for Default is granted. This 

Order fully resolves this matter, 

therefore BIS’s Motion to Stay Further 

Running of the Court’s Scheduling 

Order is moot. Likewise any other 

Motions pending in this case are moot. 

III. Recommended Findings of Fact 

In light of the Respondent’s failure to 

file an answer within the time provided, 

the facts alleged in the Amended 

Charging Letter are found proven. 15 

CFR 766.7(a). The facts found proven 

include the following: 

1. Micei International is a company of 

Skopje, Macedonia. 

2. Micei has a regional office in 

Seattle, WA. 

3. The supplier at issue in this case is 

a U.S. supplier. 

4. Iki Malinkovski was the vice 

president of Micei at all relevant times. 

5. Yuri Montgomery is an individual 

subject to a BIS Denial Order at all 

relevant times. 

6. The Denial Order regarding Yuri 

Montgomery dated September 11, 2000, 

was published in the Federal Register 

on September 22, 2000 (65 FR 57,313), 

and has been and continued to be 

effective until January 22, 2009. 

7. Under the terms of the Denial 

Order, Montgomery ‘‘may not directly or 

indirectly, participate in any way in 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, including 

[c]arrying 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 * * * [b]enefiting in any 

way from the 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.’’ 

8. On July 2, 2003, Micei authorized, 

requested, and/or arranged for 

Montgomery to negotiate for and/or 

purchase 61 pair of Magnum boots 

valued at $3,355 for or on behalf of 

Micei for export from the United States 

to Micei in Macedonia. On the same day 

and acting through its employee or 

agent Montgomery, Micei Ordered, 

bought, sold, used and/or financed this 

purchase with knowledge that 

Montgomery would be violating his 

Denial Order. Montgomery participated 

in and benefited from this transaction. 

9. On July 18, 2003, Micei authorized, 

requested, and/or arranged for 

Montgomery to negotiate for and/or 

purchase 2 firing range clearing devices 

Federal Register / Vol. 74, No. 99 / Tuesday, May 26, 2009 / Notices 24793 

valued at $1,136 for or on behalf of 

Micei for export from the United States 

to Micei in Macedonia. On the same day 

and acting through its employee or 

agent Montgomery, Micei Ordered, 

bought, sold, used and/or financed this 

purchase with knowledge that 

Montgomery would be violating his 

Denial Order. Montgomery participated 

in and benefited from this transaction. 

10. On August 5, 2003, Micei 

authorized, requested, and/or arranged 

for Montgomery to negotiate for and/or 

purchase 10,800 pair of boots with an 

undetermined value for or on behalf of 

Micei for export from the United States 

to Micei in Macedonia. On the same day 

and acting through its employee or 

agent Montgomery, Micei Ordered, 

bought, sold, used and/or financed this 

purchase with knowledge that 

Montgomery would be violating his 

Denial Order. Montgomery participated 

in and benefited from this transaction. 

11. On August 5, 2003, Micei 

authorized, requested, and/or arranged 

for Montgomery to negotiate for and/or 

purchase 45 pair of Oxford shoes and 5 

remote strobe tubes valued at $2,562 for 

or on behalf of Micei for export from the 

United States to Micei in Macedonia. 

On the same day and acting through its 

employee or agent Montgomery, Micei 

Ordered, bought, sold, used and/or 

financed this purchase with knowledge 

that Montgomery would be violating his 

Denial Order. Montgomery participated 

in and benefited from this transaction. 

12. On August 13, 2003, Micei 

authorized, requested, and/or arranged 

for Montgomery to negotiate for and/or 

purchase 150 shirts valued at $1,744 for 

or on behalf of Micei for export from the 

United States to Micei in Macedonia. 

On the same day and acting through its 

employee or agent Montgomery, Micei 

Ordered, bought, sold, used and/or 

financed this purchase with knowledge 

that Montgomery would be violating his 

Denial Order. Montgomery participated 

in and benefited from this transaction. 

13. On September 9, 2003, Micei 

authorized, requested, and/or arranged 

for Montgomery to negotiate for and/or 

purchase 2 load binders, 1 ratchet strap, 

1 binder chain, and 1 safety shackle for 

or on behalf of Micei for export from the 

United States to Micei in Macedonia. 

On the same day and acting through its 

employee or agent Montgomery, Micei 

Ordered, bought, sold, used and/or 

financed this purchase with knowledge 

that Montgomery would be violating his 

Denial Order. Montgomery participated 

in and benefited from this transaction. 

14. On October 8, 2003, Micei 

authorized, requested, and/or arranged 

for Montgomery to negotiate for and/or 

purchase Items in Order # 25473620/ 

017 for or on behalf of Micei for export 

from the United States to Micei in 

Macedonia. On the same day and acting 

through its employee or agent 

Montgomery, Micei Ordered, bought, 

sold, used and/or financed this 

purchase with knowledge that 

Montgomery would be violating his 

Denial Order. Montgomery participated 

in and benefited from this transaction. 

15. To further facilitate these 

purchases, Micei contacted Montgomery 

and provided information on the items 

to be ordered and their approximate 

cost, and identified the vendors from 

which to order them. With Micei’s 

knowledge and/or permission, 

Montgomery operated or held himself 

out as Micei’s employee or agent, 

including indicating in an e-mail to a 

U.S. supplier that Micei had a U.S. 

regional office in Seattle, Washington, 

where Montgomery was located, and 

that Micei was interested in forming a 

distributorship relationship with the 

supplier. That e-mail was copied to 

Micei’s president and signed by 

Montgomery with ‘‘Micei Int’l 

Reg[ional] Office].’’ 

IV. Discussion 

A. Application of EAR and EAA to 

Respondent and to Montgomery 

Throughout this enforcement 

proceeding, Micei has repeatedly 

contended that the Bureau lacks 

jurisdiction over Micei and the relevant 

transactions at issue in this case. These 

arguments are rejected and have been 

fully discussed in a previous Order. The 

jurisdictional grounds for this 

enforcement action are nevertheless 

briefly outlined below. 

The authority delegated by Congress 

to the President of the United States 

under the EAA is extensive. The EAA 

gives the President authority to regulate 

or prohibit the export of goods, 

technology, and information ‘‘to the 

extent necessary to further the foreign 

policy of the United States or fulfill its 

international obligation.’’ 50 U.S.C. app. 

2405(a)(1). 

1. BIS Authority Over These Items 

The instant case involves various 

goods supplied to Micei through a U.S. 

supplier for shipment abroad to 

Macedonia. Based on the above 

referenced authority, the Regulations 

specify that ‘‘all U.S. origin items 

wherever located’’ are subject to the 

EAR and are therefore ‘‘items * * * 

over which BIS exercises regulatory 

jurisdiction under the EAR.’’ 15 CFR 

734.3(a)(1)–(a)(2). The Regulations 

further specify that ‘‘item’’ simply 

means ‘‘commodity,’’ which is defined 

as ‘‘[a]ny article, material, or supply.’’ 

15 CFR 772.1. This case involves the 

materials noted in the charges as being 

exported to Macedonia by the action of 

Micei and its agents or employees, 

including: Boots, firing range clearing 

devices, shoes, remote strobe tubes, 

shirts, load binders, a ratchet strap, a 

binder chain, a safety shackles, and 

other items included in order 

#25473620/017. The various goods at 

issue in this case are clearly articles, 

materials, and supplies and are 

therefore commodities, and thus are 

‘‘items’’ under the regulations. Since 

their supplier was located in the U.S., 

they were of U.S. origin and therefore 

subject to the EAR, giving BIS regulatory 

authority. 

2. BIS Authority Over Micei and 

Montgomery 

At the time in question, the EAR 

affirmatively stated that no ‘‘person’’ 

may engage in a variety of prohibited 

acts. 15 CFR 764.2(b), (e). The EAR 

defines a person as a ‘‘natural person, 

including a citizen or national of the 

United States or of any foreign country; 

any firm;* * * and any other 

association or organization whether or 

not organized for profit.’’ 15 CFR 772.1. 

From the plain language of the export 

laws and Regulations, it is clear that the 

EAA and EAR were intended to apply 

to natural persons and companies 

extraterritorially, regardless of a 

person’s or company’s nationality or 

locality, so long as items subject to the 

EAR are involved. In the Matter of 

Mahdi, 68 FR 57406–02 (Oct. 3, 2003). 

Thus, it is immaterial whether Micei 

and/or Montgomery are of a foreign 

county. To hold otherwise would 

contravene existing law and regulations, 

and would completely undermine the 

effectiveness of the EAA and the EAR. 

Both Micei and Montgomery are persons 

subject to the EAR through their actions 

in exporting activity, giving BIS 

regulatory authority over them. 

B. Default 

Generally, the Agency has the burden 

of proving the allegations in the 

Charging Letter by reliable, probative, 

and substantial evidence. 5 U.S.C. 

556(d). When the respondent fails to file 

an answer within the time provided, 

however, this ‘‘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 

24794 Federal Register / Vol. 74, No. 99 / Tuesday, May 26, 2009 / Notices 

conclusions of law and issue or 

recommend an order imposing 

appropriate sanctions.’’ 15 CFR 766.7(a). 

In the instant case, BIS filed its 

original Charging Letter on July 1, 2008. 

As previously discussed, Respondent 

did not file an Answer as required 

under the Regulations, but instead filed 

a Motion to Dismiss on September 17, 

2008. This Motion was denied, but in 

giving Respondent the benefit of the 

doubt, this filing was treated as a 

Motion for Summary Decision and 

Respondent’s time to file an Answer 

was extended to January 12, 2009. Prior 

to this deadline on January 9, 2009, BIS 

filed an Amended Charging Letter 

adding limited additional allegations 

serving the same on Respondents via 

courier and facsimile. This amendment 

was allowed by rule since Respondent 

had not yet filed an Answer. 15 CFR 

766.3(a). Pursuant to 15 CFR 766,6(a), a 

Respondent must answer ‘‘within 30 

days of notice of any supplement or 

amendment to a charging letter, unless 

time is extended under § 766.16 of this 

part.’’ Since there have been no 

extensions given under § 766.16, 

Respondent’s Answer to the Amended 

Charging Letter would have been due on 

February 9, 2009. 

Respondent submitted its next filing 

in this case on February 23, 2009. In 

addition to the fact that this filing was 

submitted 14 days after the due date for 

Respondent to file an Answer, it was not 

an Answer in form or substance. 

Instead, it was titled Respondent’s 

Motion for a More Definite Statement 

and Demand for Hearing. In this filing, 

Respondent again asserted its previous 

argument that BIS and the Court lack 

jurisdiction in this case. Furthermore, 

this filing was not at all responsive to 

BIS’s Amended Charging Letter and did 

not admit or deny specifically each 

separate allegation of the Amended 

Charging Letter as required under the 

Regulations. 15 CFR 766.6(b). 

On March 5, 2009, Respondent made 

three additional filings—Response to 

BIS’s Request for Admissions by 

Respondent Micei International, 

Response to BIS’s First set of 

Interrogatories and Requests for 

production of Documents by 

Respondent Micei International, and 

Response to BIS’s Second set of 

Interrogators and Requests for 

Production of Documents by 

Respondent Micei International. Similar 

to Respondent’s previous filing, these 

three filings were submitted well after 

Respondent’s time to file an Answer to 

BIS’s Amended Charging Letter and 

cannot be construed to constitute an 

Answer in form or substance. Instead, 

these filings amount to a continuation of 

Respondent’s pattern of declining to 

follow the regulatory requirement of 

filing an Answer in this case. This filing 

was not at all responsive to BIS’s 

Amended Charging Letter and did not 

admit or deny specifically each separate 

allegation of the Amended Charging 

Letter. 15 CFR 766.6(b). Respondent has 

instead restated the previously rejected 

argument that no jurisdiction exists in 

this case and fell short of satisfying its 

regulatory requirement to file an 

Answer to BIS’s Amended Charging 

Letter. The Respondent has previously 

been provided with copies of the 

procedural regulations and has been 

given several opportunities to 

participate in the process provided by 

the regulations to contest these charges. 

Respondent has declined to take 

advantage of this opportunity. 

On March 24, 2009, BIS filed a 

Motion for Default Order arguing that 

Respondent has yet to file an Answer as 

required under the Regulations. BIS 

argued that Respondent’s Answer was 

actually due on February 9, 2009, but 

due not later then February 19, 2009 

under any conceivable construction of 

the Regulations. I agree. 

As of the date of this Order (April 14, 

2009) Respondent has still failed to file 

an Answer (or any other permitted 

responsive pleading under the 

Regulations) to BIS’s Amended Charging 

Letter. In light of the fact that 

Respondent has still not filed an 

Answer after being given multiple 

opportunities to properly contest this 

case within the process provided by the 

Regulations, BIS’s Motion is granted and 

Respondent is held to be in default. As 

such, the findings of fact contained in 

this Order are found as alleged in the 

Amended Charging Letter. 15 CFR 

766.7(a). Appropriate conclusions of 

law and the recommended sanctions 

will be based thereon. Id. 

C. Violations of the EAA and EAR 

Micei has been charged with seven (7) 

counts of counseling, aiding, and 

abetting Montgomery to violate a BIS 

Denial Order, and with seven (7) counts 

of acting with knowledge of a violation. 

1. Causing, Aiding or Abetting the 

Violation of a Denial Order, 15 CFR 

764.2(b) 

‘‘No person may cause or aid, abet, 

counsel, command, induce, procure, or 

permit the doing of any act prohibited, 

or the omission of any act required, by 

the EAA, the EAR, or any order, license 

or authorization issued thereunder.’’ 15 

CFR 764.2(b). As with most of the 764.2 

provisions, 764.2(b) of the Regulations 

is a strict liability offense. See 15 CFR 

764.2; Iran Air v. Kugelman, 996 F.2d 

1253, 1258–9 (D.C. Cir. 1993) 

(upholding the Department of 

Commerce’s reading of the Regulations 

as allowing for strict liability charges); 

In the Matter of Kabba & Amir 

Investments, Inc., d.b.a. Int’l Freight 

Forwarders, 73 FR 25649, 25652 (May 7, 

2008) (concluding that Section 764.2(b) 

is a strict liability offense), aff’d by 

Under Secretary, 73 FR 25648; see also 

In the Matter of Petrom GmbH Int’l 

Trade, 70 FR 32743, 32754 (June 6, 

2005). Micei can be found to have 

counseled, aided, or abetted 

Montgomery to violate his Denial Order 

by the Agency demonstrating that Micei 

participated in the transactions noted in 

Charges 1–7 and that Montgomery was 

a ‘‘person denied export privileges’’ and 

subject to a BIS Denial Order. That is, 

these charges can be found proven 

against Micei if the actions that 

Montgomery was taking in connection 

with Micei would constitute a violation 

of an active Denial Order. Here, the 

Respondent is in default and the facts 

alleged in the charges are deemed 

proven. I find that the alleged conduct 

would violate the Denial Order. 

On September 22, 2000, Montgomery 

became a ‘‘person denied export 

privileges’’ when BIS issued a Denial 

Order against him effective until 

January 22, 2009. The Denial Order was 

published in the Federal Register on 

September 22, 2000 (65 FR 57313) and 

was in continuous effect from 

September 22, 2000 to January 22, 2009 

and continued in force at the time of the 

actions alleged in the charges. 

The Amended Charging Letter alleges 

that Montgomery’s Denial Order 

mandates that Montgomery ‘‘may not 

directly or indirectly, participate in any 

way in 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, including 

[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 * * * [b]enefiting in any 

way from the 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.’’ 

As previously discussed, in view of 

Respondent Micei’ s failure to answer 

the charges, Micei has waived the right 

to contest the facts as alleged in the 

Amended Charging Letter in keeping 

Federal Register / Vol. 74, No. 99 / Tuesday, May 26, 2009 / Notices 24795 

with 15 CFR 766.7(a). The Amended 

Charging Letter clearly alleges that 

Montgomery directly and indirectly 

participated in at least seven (7) 

transactions involving items to be 

exported from the United States to 

Macedonia. This occurred when 

Montgomery negotiated to be a 

purchasing agent for Micei for the boots, 

firing range clearing devices, shoes, 

remote strobe tubes, shirts, load binders, 

a ratchet strap, a binder chain, safety 

shackles, and other items included in 

order #25473620/017. These goods are 

subject to the Regulations because they 

are items of U.S. origin. The Amended 

Charging Letter goes on to allege that 

Montgomery participated in and 

benefited from these transactions. 

There is no doubt that the facts 

alleged in the Amended Charging Letter 

are sufficient to show that Montgomery 

was subject to an active Denial Order 

and that his actions constituted a 

violation of said Denial Order on each 

of the seven (7) transactions alleged in 

the Amended Charging Letter. Clearly 

then, Micei’s authorizing, requesting, 

and/or arranging Montgomery’s actions 

to purchase boots, firing range clearing 

devices, shoes, remote strobe tubes, 

shirts, load binders, a ratchet strap, a 

binder chain, safety shackles, and other 

items included in order #25473620/017 

constitute causing, aiding, abetting, 

counseling, commanding, inducing, 

procuring, or permitting Montgomery to 

violate said Denial Order. Since 

knowledge is not a required element for 

the first seven (7) charges, these facts 

alone are sufficient to find that Micei’s 

actions constitute seven (7) violations of 

the EAR as charged. 

2. Acting With Knowledge of a Violation 

15 CFR 764.2(e) 

BIS has also charged Respondent with 

seven (7) charges alleging that Micei 

was acting with knowledge of a 

violation with regard to Montgomery’s 

violation of his Denial Order. As 

discussed above, Montgomery was 

subject to an active BIS Denial Order 

and that his actions and attempted 

actions were in direct contradiction or 

violation of the Denial Order. The 

question then is whether Micei’s actions 

in regard to Montgomery’s violation of 

the Denial Order were taken ‘‘with 

knowledge’’ of a violation. I find that 

they were and that knowledge of a 

violation was present. 

The Regulations mandate that ‘‘[n]o 

person may order, buy, remove, conceal, 

store, use, sell, loan, dispose of, transfer, 

transport, finance, forward, or otherwise 

service, in whole or in part, any item 

exported or to be exported from the 

United States, or that is otherwise 

subject to the EAR, with knowledge that 

a violation of the EAA, the EAR, or any 

order, license or authorization issued 

thereunder, has occurred, is about to 

occur, or is intended to occur in 

connection with the item.’’ 

In the Amended Charging Letter, BIS 

alleged that Micei had actual and 

constructive knowledge that a violation 

of Montgomery’s Denial Order has 

occurred, is about to occur, or is 

intended to occur in connection with 

the items and transactions at issue in 

this case. Specifically, BIS alleged that 

shortly after the alleged transactions 

occurred, Micei, through its vice 

president, told BIS special investigators 

that Micei was aware of Montgomery’s 

Denial Order. BIS goes on to allege that 

Montgomery’s Denial Order was 

published in the Federal Register 

imputing knowledge to Micei that 

Montgomery was a ‘‘person denied 

export privileges’’ at all relevant times. 

It is therefore clear that the allegations 

are adequate to support the charges that 

Micei acted ‘‘with knowledge’’ that 

Montgomery was subject to a Denial 

Order. In keeping with 15 CFR 766.7(a), 

the facts as alleged are therefore 

sufficient to prove the seven (7) 

additional violations in connection with 

the negotiations and transactions by 

Montgomery and Micei at issue in this 

case. 

V. Recommended Conclusions of Law 

1. The boots, firing range clearing 

devices, shoes, remote strobe tubes, 

shirts, load binders, a ratchet strap, a 

binder chain, safety shackles, and other 

items included in order #25473620/017 

at issue in this case are items subject to 

the Regulations, giving BIS regulatory 

authority. 

2. Both Montgomery and Micei are 

‘‘persons’’ subject to the Regulations, 

giving BIS regulatory authority. 

3. Micei has failed to file an Answer 

to BIS’s Amended Charging Letter as 

required by the Regulations and upon 

BIS’s Motion, Micei is found to be in 

default. 

4. Because Micei has been found to be 

in default, the facts have been found as 

alleged in the Amended Charging Letter. 

5. At all relevant times, Montgomery 

was subject to a BIS Denial Order and 

violated said Denial Order seven (7) 

times between on or about July 2, 2003 

and on or about October 8, 2003. 

6. On seven (7) occasions between on 

or about July 2, 2003 and on or about 

October 8, 2003 Micei caused, aided, or 

abetted Montgomery to violate a 

standing BIS Denial Order. 

7. On seven (7) occasions between on 

or about July 2, 2003 and on or about 

October 8, 2003 Micei acted with 

knowledge of a violation when it 

caused, aided, or abetted Montgomery to 

violate a standing BIS Denial Order. 

VI. Recommended Sanction 

BIS has proposed a sanction against 

Micei of a five- (5)-year denial of U.S. 

export privileges under 15 CFR 

764.3(a)(2) and a $126,000.00 civil 

penalty under 15 CFR 764.3(a)(1). BIS 

argues that this penalty is appropriate 

because Micei has deliberately 

participated in multiple export 

transactions of items from the United 

States to Macedonia involving 

violations of a BIS Denial Order with 

knowledge of the violations. BIS goes on 

to assert that Micei has demonstrated a 

‘‘severe and blatant disregard for U.S. 

export control laws’’ and that this is 

highlighted by Respondent’s conduct 

during the various phases of this 

Enforcement Action. 

BIS cites several previous export 

enforcement cases wherein similar 

conduct and violations were assessed a 

penalty comparable to that which has 

been proposed in this case. In the Matter 

of Suburban Guns (Pty) Ltd., Docket No. 

05–BIS–02, 70 FR 69,314 (Nov. 15, 

2005). In Suburban Guns, the ALJ found 

that Respondent ordered firearm parts 

and accessories from a U.S. supplier and 

had them exported from the U.S. to its 

location in South Africa on two 

occasions in violation of a standing 

Denial Order. The ALJ recommended a 

five- (5)-year denial of export privileges 

and a civil penalty of $44,000. However, 

each case is determined separately 

based on the individual facts and 

circumstances presented. 

While Micei’s conduct in the instant 

case is, to some extent, analogous to that 

of the respondents in the above 

mentioned cases, the information in the 

record could support an assertion that 

the violations are intentional and that 

could justify a significantly harsher 

penalty than that which BIS proposes. 

Micei has failed to contest for the 

charged violation of U.S. export laws 

and regulations in declining to follow 

the Regulations provided and failing to 

meet the deadlines provided in the 

Regulations and by the Orders issued in 

this matter. However, since the record 

in this matter is limited because it is 

being decided on a default motion, and 

Micei has also waived an opportunity to 

present any mitigating evidence it may 

have, I do not recommend increasing 

the penalty proposed by BIS. Therefore, 

I recommend that BIS’s proposed 

penalty of a five- (5)-year denial of 

export privileges and a $126,000 civil 

penalty are deemed appropriate. 

24796 Federal Register / Vol. 74, No. 99 / Tuesday, May 26, 2009 / Notices 

VII. Recommended Order 

[REDACTED SECTION] 

[REDACTED SECTION] 

The Recommended Decision and 

Order is being referred to the Under 

Secretary for review and final action. As 

provided by Section 766.17(b)(2) of the 

EAR, the recommended decision and 

order is being served by express mail. 

Because the Under Secretary must 

review the decision in a short time 

frame, all papers filed with the Under 

Secretary in response to the 

recommended decision and order must 

be sent by personal delivery, facsimile, 

express mail, or other overnight carrier 

as provided in Section 766.22(a) of the 

EAR. Submissions by the parties must 

be filed with the Under Secretary for 

Export Administration, Bureau of 

Industry and Security, U.S. Department 

of Commerce, Room H–3898, 14th Street 

and Constitution Avenue, NW., 

Washington, DC 20230, within 12 days 

from the date of issuance of this 

Recommended Decision and Order. 

Thereafter, the parties have eight days 

from receipt of any response(s) in which 

to submit replies. 

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). 

PLEASE TAKE NOTE THAT 

Respondent has one year from the date 

of entry of this Order to file a petition 

to vacate this default order. 15 CFR 

766.7(b). 

Administrative Law Judge in Norfolk, 

Virginia. 

Done and dated April 14, 2009. 

Norfolk, VA. 

Hon. Michael J. Devine, 

Administrative Law Judge, U.S. Coast 

Guard. 

6. United States Coast Guard 

Administrative Law Judges perform 

adjudicatory functions for the Bureau of 

Industry and Security with approval 

from the Office of Personnel 

Management pursuant to a 

memorandum of understanding between 

the Coast Guard and the Bureau of 

Industry and Security. 

Certificate of Service 

I hereby certify that I have served the 

foregoing Scheduling Order upon the 

following parties (or designated 

representatives) at the address indicated 

below: 

Eric Clark, Attorney-Advisor and Parvin 

Huda, Senior Counsel, and Joseph 

Jest, Chief of Enforcement and 

Litigation, Attorneys for Bureau of 

Industry and Security, Office of Chief 

Counsel for Industry and Security. 

U.S. Department of Commerce, Room 

H–3839, 14th Street & Constitution 

Avenue, NW., Washington, DC 20230. 

Fax: 202–482–0085. Sent by Facsimile 

and Federal Express. 

Vasko Tomanovic, Counsel for 

Respondent, ‘‘Kaminik’’ b.b., 1000 

Skopje, Republic of Macedonia. Tel: 

389–70–436068. Fax: 41–44–567– 

1892. Sent by Facsimile and Federal 

Express. 

ALJ Docketing Center, Attn: Hearing 

Docket Clerk, United States Coast 

Guard, 40 South Gay Street, Rm. 412, 

Baltimore, MD 21202. Fax: 410–962– 

1746. Sent by Facsimile and Federal 

Express. 

Mr. Iki Malinkovski, Micei 

International, Kaminik b.b., 1000 

Skopje, Republic of Macedonia. Fax: 

011–389–2252–2039. Sent by 

Facsimile and Federal Express. 

Done and dated April 14, 2009. 

Janice L. Parker, 

Paralegal Assistant to the 

Administrative Law Judge. 

Notice to the Parties Regarding 

Review by Under Secretary. 

Title 15—Commerce and Foreign Trade. 

Subtitle B—Regulations Relating to 

Commerce and Foreign Trade. 

Chapter VII—Bureau of Industry and 

Security, Department of Commerce. 

Subchapter C—Export Administration 

Regulations. 

Part 766—Administrative Enforcement 

Proceedings. 

15 CFR 766.22. 

§ 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 

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. E9–11885 Filed 5–22–09; 8:45 am] 

BILLING CODE M 

DEPARTMENT OF COMMERCE 

International Trade Administration 

A–552–802 

Certain Frozen Warmwater Shrimp 

from the Socialist Republic of Vietnam: 

Final Results of the Second New 

Shipper Review 

AGENCY: Import Administration, 

International Trade Administration, 

Department of Commerce. 

SUMMARY: The Department of Commerce 

(‘‘Department’’) is conducting a new 

shipper review of BIM Seafood Joint 

Stock Company (‘‘BIM Seafood’’) and 

the antidumping duty order on certain 

frozen warmwater shrimp from the 

Socialist Republic of Vietnam 

(‘‘Vietnam’’). See Notice of Amended 

Final Determination of Sales at Less 

Than Fair Value and Antidumping Duty 

Order: Certain Frozen Warmwater 

Shrimp From the Socialist Republic of 

Vietnam, 70 FR 5152 (February 1, 2005) 

(‘‘Shrimp Order.’’) We preliminarily 

found that BIM Seafood did not sell 

subject merchandise at less than normal 

value (‘‘NV’’) and thus assigned a zero 

margin for the period of review 

(‘‘POR’’), February 1, 2007, through 

January 31, 2008. See Certain Frozen