Daily Rules, Proposed Rules, and Notices of the Federal Government
On February 2, 2004, the Bureau of Industry and Security, United States Department of Commerce (BIS), issued a charging letter initiating this administrative enforcement proceeding against Shivram Rao ("RAO"). The charging letter alleged that Rao committed one violation of Section 764.2(d), one violation of Section 764.2(g), and two violations of Section 764.2(h) of the Export Administration Regulations (currently codified at 15 CFR Parts 730-774 (2004)) (the "Regulations"),
Section 766.7 of the Regulations state that BIS may file a Motion for an Order of Default if a respondent fails to file a timely Answer to a charging letter. That section, entitled "Default," provides in pertinent part:
Pursuant to Section 766.7 of the Regulations, a respondent must file an Answer to the charging letter "within 30 days after being served with notice of the issuance of the charging letter" initiating the proceeding.
Section 766.3(b)(1) of the Regulations provides that notice of issuance of a charging letter shall be served on a respondent by mailing copy via registered or certified mail addressed to the respondent at the respondent's last known address. In accordance with that section, on February 2, 2004, BIS sent a notice of issuance of the charging letter by registered mail to Respondent Rao, at his last known address: Technology Options (India) Pvt. Ltd., Plot #168, Behind Maria Mansion, CST Road, Kalina, Mumbai 400 098, India. BIS also submitted evidence establishing that on February 2, 2004, BIS submitted evidence establishing that on February 16, 2004, Technology Options received the notice of issuance of a charging letter. These actions constitute service under the Regulations.
Section 766.6(a) of the regulations provides, in pertinent part, that "[t]he respondent must answer the charging letter within 30 days after being served with notice of issuance of the charging letter[.]" Since service was effected on February 16, 2004, Rao's Answer to the charging letter was due no later than March 16, 2004. Rao did not file an Answer to the Charging letter nor did Rao request an extension of time to answer the Charging letter under Section 766.16(b)(2). Accordingly, because Rao failed to answer or otherwise respond to the charging letter within thirty days from the date he received the notice of issuance of the charging letter, as required by Section 766.66 of the Regulations, Rao is in default.
The charging letter filed by BIS included a total of four charges. Specifically, the charging letter alleged that from on or about April 1, 2000, through on or about August 31, 2001, Rao conspired with others, known and unknown, to export from the United States to the Indira Gandhi Centre for Atomic Research ("IGCAR") a thermal mechanical fatigue test system ("fatigue test system") and a universal testing machine, both items subject to the Regulations, without a BIS export license as required by Section 744.11 of the Regulations.
The charging letter further alleged that on or about June 13, 2000, in connection with the export of the fatigue test system and attempted export of the universal testing machine, Rao took actions to evade the Regulations. Specifically, Rao, with others, known and unknown, developed and employed a scheme by which the company with which Rao was affiliated, Technology Options (India) Pvt. Ltd. ("Technology Options"), would receive the export of the fatigue test system from the United States without a BIS license and then divert it to the true ultimate consignee, IGCAR, in violation of the Regulation.
The charging letter also alleged that on or about August 16, 2001, through on or about April 8, 2002, in connection with the export of the fatigue test system references above, Rao made false statements to the U.S. Government regarding its knowledge of an involvement in the export. Specifically, Rao made misleading and false statements to U.S. Foreign Commercial Service officers regarding the end user of the fatigue test system.
Pursuant to the default procedures set forth in Section 766.7 of the Regulations, I find the facts to be as alleged in the charging letter, and hereby determine that those facts establish that Rao committed one violations of Section 764.2(d), one violation of Section 764(g), and two violations of 764.2(h) of the regulations.
Section 764.3 of the Regulations estalbishes the sanctions that BIS may seek for the violations charged in this proceeding. The applicable sanctions are a civil monetary penalty, suspension from practice before the Department of Commerce, and a denial of export privileges under the Regulations.
Because Rao violated the Regulations by conspiring and engaging in transactions to evade the Regulations, BIS requests that I recommend to the Under Secretary of Commerce for Industry and Security
Given the foregoing, I concur with BIS and recommend that the Under Secretary enter an Order denying Rao's export privileges for a period of fifteen (15) years.
The terms of the denial of export privileges against Rao should be consistent with the standard language used by BIS in such order. The language is:
Accordingly, I am referring this Recommended Decision and Order to the Under Secretary for review and final action for the agency, without further notice to the Respondent, as provided in Section 766.7 of the Regulations.
Within 30 days after receipt of this Recommended Decision and Order, the Under Secretary shall issue a written order affirming, modifying, or vacating the Recommended Decision and Order.
I hereby certify that I served the Recommended Decision and Order by Federal Express to the following person:
Shivram Rao, Technology Options (India) Pvt. Ltd., Pilot #168, Behind Maria Mansion, CST Road, Kalina, Mumbai 400 098, India.
On Wednesday, December 1, 2004, the
In addition, this notice corrects two additional publication errors that appear on page 69887. In the first sentence of the second paragraph of the Decision and Order, the correct spelling of "Indira Ghandi Centre for Atomic Research" is "Indira Gandhi Centre for Atomic Research." Also in the same sentence, the correct spelling of "mechanical fatigue rest system" is "mechanical fatigue test system."
While the Administrative Law Judge's (ALJ) October 27, 2004 Recommended Decision and Order concerning Technology Options (India) Pvt. Ltd. (Docket # 04-BIS-02) was published as an attachment to the Under Secretary's Decision and Order, the October 27, 2004 Recommended Decision and Order of the ALJ concerning the second respondent, Shivram Rao (Docket # 04-BIS-03), was inadvertently not published. The Recommended and Decision Order of the ALJ related to Shivrm Rao, a portion of which has been redacted, shall hereby be published in the