Action Affecting Export Privileges; Nancy Ann Harvey; Decision and Order

DEPARTMENT OF COMMERCE

Bureau of Export Administration

[Docket No. 98-BXA-08]

Action Affecting Export Privileges; Nancy Ann Harvey; Decision

and Order

In the Matter of: Nancy Ann Harvey, 4542 Indian Earth Court NE,

Salem, Oregon 97305, Respondent.

On August 3, 1998, the Office of Export Enforcement, Bureau of

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

issued a charging letter initiating an administrative proceeding

against Nancy Ann Harvey (formerly known as Nancy Ann Mahler (nee

Reamer)) (Harvey). The charging letter alleged that Harvey committed

three violations of the Export Administration Regulations (currently

codified at 15 CFR Parts 730-774 (1999) (the Regulations),\1\ issued

pursuant to the Export Administration Act of 1979, as amended (50

U.S.C.A. app. Secs. 2401-2420 (1991 & Supp. 1999)) (the Act).\2\

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\1\ The violations at issue occurred in 1993. The Regulations

governing those violations are found in the 1993 version of the Code

of Federal Regulations (15 CFR Parts 768-799 (1993)) and are

referred to hereinafter as the former Regulations. Since that time,

the Regulations have been reorganized and restructured; the

restructured Regulations establish the procedures that apply to his

matter.

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

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

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

CFR, 1996 Comp. 298 (1997)), August 13, 1997 (3 CFR, 1997 Comp. 306

(1998)) and August 13, 1998 (CFR, 1998 Comp. 294 (1999)), continued

the Regulations in effect under the International Emergency Economic

Powers Act (50 U.S.C.A. Secs. 1701-1706 (1991 & Supp.1999)).

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

4, 1993, Harvey exported U.S.-origin shotguns (with barrel lengths of

18 inches and over) and shotgun shells to the Republic of South Africa,

concealing them in a 40 foot container and representing on a bill of

lading that the items in the container were ``used household goods and

personal effect,'' without obtaining from BXA the validated export

license Harvey knew or had reasons to know was required by Section

772.1(b) of he former Regulations. BXA alleged that, by exporting U.S.-

origin commodities to any person or to any destination in violation or

contrary to the provisions of the Act or any regulation, order or

[[Page 40822]]

license issued thereunder, Harvey violated Section 787.6 of the former

Regulations. BXA also alleged that, by selling, transferring, or

forwarding commodities export or to be exported from the United States

with knowledge of reason to know that a violation of the Act, or any

regulation, order or license issued thereunder occurred, was about to

occur, or was intended to occur with respect to the shipment, Harvey

violated Section 787.4(a) of the former Regulations.

Further, the charging letter alleged that, in connection with the

August 4, 1993 transaction, Harvey represented on a bill of lading, an

export control document as defined in Section 770.2 of the former

Regulations, that the container that she was shipping to the Republic

of South Africa held ``used household goods and personal effects.'' In

fact, the container also held shotguns (with barrel lengths of 18

inches and over) and shotgun shells that she had concealed among the

household items. BXA alleged that, by making false or misleading

representations of material fact directly or indirectly to a United

States government agency in connection with the preparation, submitted

or use of an export control document, Harvey violated Section 787.5(a)

of the former Regulations.

BXA presented evidence that Harvey received the charging letter but

failed to answer the charging letter, as required by Section 766.7 of

the Regulations, and is therefore in default. Thus pursuant to Section

766.7 of the Regulations, BXA moved that the Administrative Law Judge

(hereinafter the ALJ) find he facts to be alleged in the charging

letter and render a Recommended Decision and Order.

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, and concluded that those facts constituted three violations of

the former Regulations by Harvey, as BXA alleged. The ALJ also agreed

with BXA's recommendation that the appropriate penalty to be imposed

for those violations is a denial, for a period of three years, of all

of Harvey's export privileges. As provided by Section 766.22 of The

Regulations, the Recommended Decision and Order has been referred to me

for final action.

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 ALJ.

Accordingly, it is therefore ordered,

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

Order, Nancy Ann Harvey, 4542 Indian Earth Court NE, Salem, Oregon,

97305, 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 subjects 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 if such service involves the uses 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 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 provision 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 this Order shall be served on Harvey and on BXA, and

shall be published in the Federal Register.

This Order, which constitutes the final agency action in this

matter, is effectively immediately.

Dated: July 12, 1999.

William A. Reinsch,

Under Secretary for Export Administration.

[FR Doc. 99-19249 Filed 7-27-99; 8:45 am]

BILLING CODE 3510-DT-M