Hubert Maassen, Individually and Doing Business as HM-EDV With an address at: Hirmerweg 4, D800 Munich, Federal Republic of Germany Respondents; Decision and Order

DEPARTMENT OF COMMERCE

Bureau of Export Administration

Hubert Maassen, Individually and Doing Business as HM-EDV With an

address at: Hirmerweg 4, D800 Munich, Federal Republic of Germany

Respondents; Decision and Order

[Docket Nos. 3105-01; 3105-02]

On June 27, 1995, the Administrative Law Judge (ALJ) entered his

Recommended Decision and Default Order in the above-referenced matter.

The Recommended Decision and Default Order, a copy of which is attached

hereto and made part hereof, has been referred to me for final action.

After describing the facts of the case and his findings based on those

facts, the ALJ found that the Respondents on three separate occasions

violated Sec. 787.6 of the Export Administration Regulations (EAR) by

reexporting from the Federal Republic of Germany through Austria to

Hungary U.S.-origin computer equipment without obtaining the required

reexport authorization from the Department of Commerce. The ALJ further

found that the Respondents violated Sec. 787.5(a) of the EAR by

indirectly making a false or misleading representation concerning the

ultimate destination of U.S.-computer equipment in connection with the

preparation, submission, or use of an export license application.

The ALJ found that the appropriate penalty for the violations

should be that the Respondents and all successors, assignees, officers,

representatives, agents and employees be denied for a period of twenty

years from this date all privileges of participating, directly or

indirectly, in any manner or capacity, in any transaction in the United

States or abroad involving commodities or technical data exported or to

be exported from the United States and subject to the Export

Administration Regulations.

Based on my review of the entire record, I affirm the Recommended

Decision and Default Order of the Administrative Law Judge.

This constitutes final agency action in this matter.

Dated: July 12, 1995.

William A. Reinsch,

Under Secretary for Export Administration.

Recommended Decision and Default Order

On May 4, 1993, the Office of Export Enforcement, Bureau of Export

Administration, United States Department of Commerce (Department),

issued a charging letter initiating administrative proceedings against

Hubert Maassen, individually and doing business as HM-EDV (collectively

referred to hereinafter as Maassen). The charging letter alleged that

Maassen committed four violations of the Export Administration

Regulations (currently codified at 15 CFR parts 768-799 (1995)) (the

Regulations),\1\ issued pursuant to the Export Administration Act of

1979, as amended (currently codified at 50 U.S.C.A. app.

Sec. Sec. 2401-2420 (1991, Supp. 1993, and Pub. L. No. 103-277, July 5,

1994) (the Act).\2\

\1\ The alleged violations occurred during 1988 and 1989. The

Regulations governing the violations at issue are found in the 1988

version of the Code of Federal Regulations, codified at 15 CFR Parts

368-399 (1988), and the 1989 version of the Code of Federal

Regulations, codified at 15 CFR Parts 768-799 (1989). Effective

October 1, 1988, the Regulations were redesignated as 15 CFR Parts

768-799 (53 FR 37751, September 28, 1988). The redesignation merely

changed the first number of each part from ``3'' to ``7.''

\2\ The Act expired on August 20, 1994. Executive Order 12924

(59 Fed. Reg. 43437, August 23, 1994) continued the Regulations in

effect under the International Emergency Economic Powers Act (50

U.S.C.A. Sec. Sec. 1701-1706 (1991)).

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Specifically, the charging letter alleged that Maassen, on three

separate occasions, reexported from the then-Federal Republic of

Germany through Austria to Hungary U.S.-origin computer equipment,

without obtaining from the Department the reexport authorization

required by Sec. 774.1 of the Regulations. The charging letter further

alleged that Maassen indirectly made a false or misleading

representation concerning the ultimate destination of U.S.-origin

computer equipment, a material fact, in connection with the

preparation, submission, or use of an export license application, an

export control document. Accordingly, the Department alleged that

Maassen committed three violations of Sec. 787.6 and one violation of

Sec. 787.5(a) of the Regulations.

On May 26, 1995, in light of the fact that Maassen had not answered

the

[[Page 36775]]

charging letter in accordance with the requirements of Sec. 787.7 of

the Regulations, I ordered the Department to file a default submission,

together with supporting evidence for the allegations made, by June 26,

1995.

On the basis of the Department's submission and all of the

supporting evidence presented, I have determined that Maassen violated

Sec. 787.6 and 787.5(a) of the Regulations by reexporting from the FRG

through Austria to Hungary U.S.-origin computer equipment without

obtaining from the Department the reexport authorization required by

Sec. 774.1 of the Regulations, and by indirectly making a false or

misleading representation concerning the ultimate destination of U.S.-

origin computer equipment, a material fact, in connection with the

preparation, submission, or use of an export license application, an

export control document, as the Department alleges.

For those violations, the Department urges as a sanction that

Maassen's export privileges be denied for 20 years. I concur in the

Department's recommendation.

Accordingly, it is therefore ordered, First, that all outstanding

individual validated licenses in which Hubert Maassen, individually and

doing business as HM-EDV, appears or participates, in any manner or

capacity, are hereby revoked and shall be returned forthwith to the

Office of Exporter Services for cancellation. Further, all of Maassen's

privileges of participating, in any manner or capacity, in any special

licensing procedure, including, but not limited to, distribution

licenses, are hereby revoked.

Second, Hubert Maassen, individually and doing business as HM-EDV,

with an address at Hirmerweg 4, D8000 Munich, Federal Republic of

Germany (collectively referred to hereinafter as Maassen), and all

successors, assigns, officers, representatives, agents, and employees,

shall, for a period of 20 years from the date of final agency action,

be denied all privileges of participating, directly or indirectly, in

any manner or capacity, in any transaction in the United States or

abroad involving any commodity or technical data exported or to be

exported from the United States, and subject to the Regulations.

A. Without limiting the generality of the foregoing, participation,

either in the United States or abroad, shall include participation,

directly or indirectly, in any manner or capacity: (i) as a party or as

a representative of a party to any export license application submitted

to the Department; (ii) in preparing or filing with the Department any

export license application or request for reexport authorization, or

any document to be submitted therewith; (iii) in obtaining from the

Department or using any validated or general export license, reexport

authorization, or other export control document; (iv) in carrying on

negotiations with respect to, or in receiving, ordering, buying,

selling, delivering, storing, using, or disposing of, in whole or in

part, any commodities or technical data exported or to be exported from

the United States and subject to the Regulations; and (v) in financing,

forwarding, transporting, or other servicing of such commodities or

technical data.

B. After notice and opportunity for comment as provided in

Sec. 788.3(c) of the Regulations, any person, firm, corporation, or

business organization related to Maassen by affiliation, ownership,

control, or position of responsibility in the conduct of trade or

related services may also be subject to the provisions of this Order.

C. As provided by Sec. 787.12(a) of the Regulations, without prior

disclosure of the facts to and specific authorization of the Office of

Exporter Services, in consultation with the Office of Export

Enforcement, no person may directly or indirectly, in any manner or

capacity: (i) apply for, obtain, or use any license, Shipper's Export

Declaration, bill of lading, or other export control document relating

to an export of reexport of commodities or technical data by, to, or

for another person then subject to an order revoking or denying his

export privileges or then excluded from practice before the Bureau of

Export Administration; or (ii) order, buy, receive, use, sell, deliver,

store, dispose of, forward, transport, finance, or otherwise service or

participate: (a) in any transaction which may involve any commodity or

technical data exported or to be exported from the United States; (b)

in any reexport thereof; or (c) in any other transaction which is

subject to the Export Administration Regulations, if the person denied

export privileges may obtain any benefit or have any interest in,

directly or indirectly, any of these transactions.

Third, that a copy of this Order shall be served on Maassen and on

the Department.

Fourth, that this Order, as affirmed or modified, shall become

effective upon entry of the final action by the Under Secretary for

Export Administration, in accordance with the Act (50 U.S.C.A. app.

Sec. 2412(c)(1)) and the Regulations (15 CFR Sec. 788.23).

Dated: June 27, 1995.

Edward J. Kuhlmann,

Administrative Law Judge.

To be considered in the 30 day statutory review process which is

mandated by Section 13(c) of the Act, submissions must be received in

the Office of the Under Secretary for Export Administration, U.S.

Department of Commerce, 14th & Constitution Ave., N.W., Room 3898B,

Washington, D.C., 20230, within 12 days. Replies to the other party's

submission are to be made within the following 8 days. 15 C.F.R.

Sec. 788.23(b), 50 Fed. Reg. 53134 (1985). Pursuant to Section 13(c)(3)

of the Act, the order of the final order of the Under Secretary may be

appealed to the U.S. Court of Appeals for the District of Columbia

within 15 days of its issuance.

[FR Doc. 95-17575 Filed 7-17-95; 8:45 am]

BILLING CODE 3510-DT-M