Recommended Decision and Order

DEPARTMENT OF COMMERCE

Bureau of Export Administration

In the Matter of: Ben H. Attia, also known as Adnan Attia,

individually with an address at 1614 Nine Island Boulevard, Miami

Beach, FL 33134 and doing business as General Polyphase, Inc., with

an address at 15 Rue de Kamel Attaturk 1001 Tunis, Tunisia,

(Respondents).

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Recommended Decision and Order

Decision and Order

The Administrative Law Judge (ALJ) has entered a Recommended

Decision and Order in the above-referenced matter. As provided by

Section 766.22 of the Export Administration Regulations (15 CFR Parts

730-774 (1997)) (the Regulations),\1\ issued pursuant to the Export

Administration Act of 1979, as amended (50 U.S.C.A. App. 2401-2420

(1991 & Supp. 1997)) (the Act),\2\ the Recommended Decision and Order

has been referred to me for final action.

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\1\ The Regulations were restructured and reorganized effective

April 24, 1996 (61 FR 12714, March 25, 1996). Those Regulations, now

codified at 15 CFR Parts 730-774, establish the procedures that

apply to this matter.

\2\ The Act expired on August 20, 1994. Executive Order 12924 (3

CFR, 1994 Comp., p. 917 (1995)), extended by Presidential Notices of

August 15, 1995 (3 CFR, 1995 Comp. 501 (1996)), August 14, 1996 (3

CFR, 1996 Comp. 298 (1997)), and August 13, 1997 (62 FR 43629,

August 15, 1997) continued the Regulations in effect under the

International Emergency Economic Powers Act (50 U.S.C.A.

Sec. Sec. 1701-1706 (1991 & Supp. 1997)).

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On April 16, 1996, the Office of Export Enforcement, Bureau of

Export Administration, United States Department of Commerce (BXA),

issued a charging letter initiating an administrative proceeding

against Ben H. Attia, also known as Adnan Attia, individually and doing

business as General Polyphase, Inc. (hereinafter collectively referred

to as Attia). The charging letter alleged that Attia committed three

violations of the former Regulations.\3\

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\3\ The Regulations governing the violations at issue are found

in the 1992 version of the Code of Federal Regulations (15 CFR Parts

768-799 (1992)). Those Regulations define the violations that BXA

alleges occurred and are referred to hereinafter as the former

Regulations.

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Specifically, the charging letter alleged that, on or about July

31, 1992, Attia exported 22 ballistic shields from the United States to

Tunisia without obtaining from BXA the validated license Attia knew or

had reason to know was required, in violation of Sections 787.4(a) and

787.6 of the former Regulations, and that in connection with the

unauthorized export described above, Attia made false or misleading

statements of material fact to a U.S. Government agency in connection

with the preparation, submission, issuance, use or maintenance of a

Shipper's Export Declaration, defined by the former Regulations as an

export control document, in violation of Section 787.5(a) of the former

Regulations.

The charging letter was served on Attia on April 20, 1996. Attia

failed to answer or otherwise respond to the charging letter within 30

days, as required by Section 787.2 of the former Regulations.\4\

Pursuant to the default procedures set forth in Section 766.7 of the

Regulations, BXA moved that the ALJ find the facts to be as alleged in

the charging letter and render a Recommended Decision and Order.

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\4\ At the time BXA issued its charging letter against Attia,

the former Regulations applied to administrative proceedings. Since

that time, as noted in footnote 1, BXA published revised

regulations, effective April 24, 1996, which govern the procedures

now applicable to the matters set forth in the charging letter.

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Following BXA's motion, the ALJ issued a Recommended Decision and

Order in which he found the facts to be as alleged in the charging

letter served on Attia. The ALJ also found, based on those facts, that

Attia violated Sections 787.4(a), 787.5(a), and 787.6 of the former

Regulations by exporting ballistic shields from the United States to

Tunisia without obtaining from the Department the validated license

Attia knew or had reason to know was required by the Regulations, and

by making false or misleading statements of material fact to a U.S.

government agency in connection with the preparation, submission,

issuance, use or maintenance of an export control document.

The ALJ also recommended that the appropriate penalty to be imposed

against Attia for these violations is a denial, for a period of 15

years, of all of Attia's privileges of participating, directly or

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

States or abroad involving commodities, software or technology exported

or to be exported from the United States and subject to the

Regulations.

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

fact and conclusions of law in the Recommended Decision and Order of

the Administrative Law Judge.

Accordingly, it is therefore ordered:

First, that, for a period of 15 years from the date of this Order,

Ben H. Attia, also known as Adnan Attia, individually with an address

at 1614 Nine Island Boulevard, Miami Beach, FL 33134, and doing

business as General Polyphase, Inc., with an address at 15 rue de Kamel

Attaturk, 1001 Tunis, Tunisia, and all successors, assignees, officers,

representatives, agents and employees, may not, directly or indirectly,

participate in any way in any transaction involving any commodity,

software or technology (hereinafter collectively referred to as

``item'') exported or to be exported from the United States that is

subject to the 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.

Second, 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;

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 that 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 it 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.

Third, that, after notice and opportunity for comment as provided

in

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Section 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

this Order.

Fourth, 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.

Fifth, that a copy of this Order shall be served on Attia and on

BXA, and shall be published in the Federal Register.

This Order, which constitutes the final agency action in this

matter, is effective immediately.

Dated: October 30, 1997.

William A. Reinsch,

Under Secretary for Export Administration.

[FR Doc. 97-29144 Filed 11-3-97; 8:45 am]

BILLING CODE 3510-DT-M