E9-18428. Action Affecting Export Privileges; Micei International; In the Matter of: Micei International, Respondent; Order Staying Enforcement of Final Decision and Order Pending Appeal

The Acting Under Secretary of Commerce for Industry and Security (“Acting Under Secretary”) issued a Final Decision and Order (the “Order”) in this administrative enforcement proceeding against Respondent Micei International (“Micei”) on May 14, 2009, which was effective upon publication in the Federal Register on May 26, 2009. 74 FR 24788 (May 26, 2009). The Order affirmed the Administrative Law Judge's Recommended Decision and Order finding, in accordance with Section 766.7 (Default Order) of the Export Administration Regulations (the “Regulations”),^[1] that Micei had waived its right to contest the allegations contained in the (amended) charging letter issued by the Bureau of Industry and Security (“BIS”), and that Micei had, as alleged, committed 14 violations of the Regulations. The allegations involved Micei's knowing participation in seven export transactions using an individual subject to a Denial Order as an employee or agent to negotiate for and purchase items in the United States for export from the United States to Micei in Macedonia. The Order also affirmed the recommended sanctions of a civil penalty of $126,000, and a denial of Micei's export privileges for a period of five years.

On May 19, 2009, Micei filed a Petition for Immediate Stay of Publication and Enforcement of Final Decision and Order Pending Outcome of Respondent's Petition To Set Aside Default and Vacate Final Decision and Order or Alternatively Pending Appeal (“Stay Petition”).^[2] On June 30, 2009, Micei filed a Motion for Stay Pending Appeal (“Stay Motion”) with the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”), seeking a stay of the Order pending appeal.^[3]

In its June 30 filing with the DC Circuit, Micei made a number of assertions and presented documentary materials that were not part of the Stay Petition it had filed with BIS. BIS is continuing to evaluate and investigate questions surrounding the accuracy and foundation of those assertions, but nonetheless does not wish further delay in addressing and resolving the merits of Micei's petition for review. In addition, Micei has recently hired new U.S-based counsel and there are some indications that Micei may be prepared to more meaningfully engage on the issues.

Based on the circumstances here, I have decided, in performing duties delegated to me by the Acting Under Secretary, to stay enforcement of the Order pending resolution of the DC Circuit appeal.^[4]

Accordingly, it is hereby ordered that enforcement of the Final Decision and Order against Micei International, dated May 14, 2009, and effective on May 26, 2009, is henceforth stayed pending resolution of the petition for review currently before the United States Court of Appeals for the District of Columbia Circuit.

This Order is effective immediately and shall be published in the Federal Register.

Dated: July 24, 2009.

Gay Shrum,

Acting Deputy Under Secretary of Commerce for Industry and Security.

Footnotes

1.  The Regulations are currently codified in the Code of Federal Regulations at 15 CFR parts 730-774 (2009). The violations at issue, which occurred in 2003, are governed by the 2003 version of the Code of Federal Regulations. 15 CFR parts 730-774 (2003). The 2009 Regulations govern the procedural aspects of this case.

2.  On May 19, 2009, Micei also filed with BIS a Petition To Set Aside Default and Vacate Final Decision and Order. On June 26, 2009, Micei filed a notice with BIS to withdraw that petition, but did not address the Stay Petition it had filed with BIS.

3.  Micei had previously filed a Notice of Appeal to the DC Circuit on May 29, 2009. Micei subsequently filed a second Notice of Appeal on June 29, 2009, petitioning for review of the Order.

4.  This determination does not constitute a finding or conclusion that BIS agrees with the assertions or evidentiary materials included in Micei's Stay Motion (or Stay Petition).