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Notice

Bureau of Political-Military Affairs; Statutory Debarment Under the International Traffic in Arms Regulations

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AGENCY:

Department of State.

ACTION:

Notice.

SUMMARY:

Notice is hereby given that the Department of State has imposed statutory debarment pursuant to § 127.7(c) of the International Traffic in Arms Regulations (“ITAR”) (22 CFR 120 to 130) on persons convicted of violating or conspiring to violate section 38 of the Arms Export Control Act (“AECA”) (22 U.S.C. 2778).

EFFECTIVE DATE:

Date of conviction as specified for each person. Start Printed Page 10034

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FOR FURTHER INFORMATION CONTACT:

David Trimble, Chief, Compliance Division, Office of Defense Trade Controls, Bureau of Political-Military Affairs, Department of State (202) 633-2700.

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SUPPLEMENTARY INFORMATION:

Section 38 (g)(4) of the AECA, 22 U.S.C. 2778, prohibits licenses and other approvals for the export of defense articles or defense services to be issued to a person, or any party to the export, who has been convicted of violating certain U.S. criminal statutes, including the AECA.

In implementing this section of the AECA, the Assistant Secretary of State for Political-Military Affairs is authorized by § 127.7 of the ITAR to prohibit any person who has been convicted of violating or conspiring to violate the AECA from participating directly or indirectly in the export of defense articles, including technical data or in the furnishing of defense services for which a license or approval is required. This prohibition is referred to as “statutory debarment”.

Statutory debarment is based solely upon conviction in a criminal proceeding, conducted by a United States court, and as such the administrative debarment proceedings outlined in part 128 of the ITAR are not applicable.

The period for debarment will normally be three years from the date of conviction. At the end of the debarment period, licensing privileges may be reinstated at the request of the debarred person following the necessary interagency consultations, after a thorough review of the circumstances surrounding the conviction, and a finding that appropriate steps have been taken to mitigate any law enforcement concerns, as required by section 38(g)(4) of the AECA and in accordance with section 127.11(b) of the ITAR. Unless licensing privileges are reinstated, the person/entity will remain debarred.

Department of State policy permits debarred persons to apply to the Director of the Office of Defense Trade Controls for an exception from the period of debarment beginning one year after the date of the debarment, in accordance with section 38(g)(4)(A) of the AECA and § 127.11(b) of the ITAR. Any decision to grant an exception can be made only after the statutory requirements under section 38(g)(4) of the AECA have been satisfied. If the exception is granted, the debarment will be suspended.

Debarred persons are generally ineligible to participate in activity regulated under the ITAR (see e.g., sections 120.1(c) and (d), 126.7, 127.1(c), and 127.11(a)). The Department of State will not consider applications for licenses or requests for approvals that involve any person or any party to the export who has been convicted of violating or of conspiring to violate the AECA during the period of statutory debarment. Persons who have been statutorily debarred may appeal to the Under Secretary for Arms Control and International Security for reconsideration of the ineligibility determination. A request for reconsideration must be submitted in writing within 30 days after a person has been informed of the adverse decision, in accordance with 22 CFR 127.7(d) and 128.13(a).

Pursuant to section 38 of the AECA and section 127.7 of the ITAR, the following persons have been statutorily debarred by the Assistant Secretary of State for Political-Military Affairs for a period of three years following their conviction for AECA:

(1) A & C International Trade, Inc., April 13, 2000, U.S. District Court of Washington, D.C., Docket # 99-CR-21-ALL.

(2) John Raymond Thompson, October 28, 1999, U.S. District Court, Central District of California, Western Division, Docket # 98-CR-708-ALL.

(3) Daniel A. Malloy, March 4, 1999, U.S. District Court of Newark, New Jersey, Docket # 98-CR-177-ALL.

(4) Shalom Shaphyr, October 4, 1999, U.S. District Court, Eastern District of Virginia (Alexandria), Docket # 99-CR-288-ALL.

(5) Siraj International, Inc., February 17, 2000, U.S. District Court, Eastern District of Wisconsin (Milwaukee), Docket # 98-CR-189-ALL.

(6) Gia An Du a.k.a. Anthony Huynh, a.k.a. Simon Du, a.k.a. Gia Simon Du, March 2, 1999, U.S. District Court, District of Maryland (Baltimore), Docket #98-CR-462-ALL.

(7) Michael Nathan Kitundu, November 10, 1999, U.S. District Court, Eastern District of Virginia (Alexandria), Docket # 99-CR-278-ALL.

(8) Morris Rothenberg & Son, Inc. d.b.a. Rothco, July 19, 1999, U.S. District Court, Eastern District of New York (Uniondale), Docket # 99-CR-564-ALL.

(9) Far East Trading Company, Inc. a.k.a. FETCO, Inc., U.S. District Court, Eastern District of Virginia (Alexandria) Docket # 01-CR-119-ALL.

This notice is provided in order to make the public aware that the persons listed above are prohibited from participating directly or indirectly in any brokering activities and in any export from or temporary import into the United States of defense articles, related technical data, or defense services in all situations covered by the ITAR. Specific case information may be obtained from the Office of the Clerk for each respective US District Court, citing the court docket number where provided.

Exceptions may be made to this denial policy on a case-by-case basis at the discretion of the Office of Defense Trade Controls pursuant to 22 CFR 126.3. However, such an exception would be granted only after a full review of all circumstances, paying particular attention to the following factors: whether an exception is warranted by overriding U.S. foreign policy or national security interest; whether an exception would further law enforcement concerns which are not inconsistent with the foreign policy or national security interests of the United States; or whether other compelling circumstances exist which are not inconsistent with the foreign policy or national security interests of the United States, and which do not conflict with law enforcement concerns.

This notice involves a foreign affairs function of the United States encompassed within the meaning of the military and foreign affairs exclusion of the Administrative Procedure Act. Because the exercise of this foreign affair function is discretionary, it is excluded from review under the Administrative Procedure Act.

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Dated: January 3, 2002.

William J. Lowell,

Director, Office of Defense Trade Controls, Bureau of Political-Military Affairs, Department of State.

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[FR Doc. 02-5202 Filed 3-4-02; 8:45 am]

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