[Federal Register Volume 70, Number 189 (Friday, September 30, 2005)]
[Pages 57349-57350]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19642]



[Public Notice 5196]

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

ACTION: Notice.


SUMMARY: Notice is hereby given that the Department of State has 
imposed statutory debarment pursuant to Section 127.7(c) of the 
International Traffic in Arms Regulations (``ITAR'') (22 CFR Parts 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.

FOR FURTHER INFORMATION CONTACT: David Trimble, Director, Office of 
Defense Trade Controls Compliance, Bureau of Political-Military 
Affairs, Department of State (202) 663-2700.

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 persons, or any party to 
the export, who have been convicted of violating certain statutes, 
including the AECA.
    In implementing this section of the AECA, the Assistant Secretary 
for Political-Military Affairs is authorized by Section 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 other 
approval is required. This prohibition is referred to as ``statutory 
    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 be determined by the Assistant 
Secretary for Political-Military Affairs based on the underlying nature 
of the violations, but will generally be for three years from the date 
of conviction. At the end of the debarment period, licensing privileges 
may be reinstated only 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. It should be 
noted, however, that unless licensing privileges are reinstated, the 
person remains debarred.
    Department of State policy permits debarred persons to apply to the 
Director of Defense Trade Controls Compliance for reinstatement 
beginning one year after the date of the debarment, in accordance with 
Section 38(g)(4) of the AECA and Section 127.11(b) of the ITAR. Any 
decision to grant reinstatement can be made only after the statutory 
requirements under Section 38(g)(4) of the AECA have been satisfied.
    Exceptions, also known as transaction exceptions, may be made to 
this debarment determination on a case-by-base basis at the discretion 
of the Directorate of Defense Trade Controls. 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 interests; whether an exception would further law 
enforcement concerns that are consistent with the foreign policy or 
national security interests of the United States; or whether other 
compelling circumstances exist that are consistent with the foreign 
policy or national security interests of the United States, and that do 
not conflict with law enforcement concerns. Even if exceptions are 
granted, the debarment continues until subsequent reinstatement.
    Pursuant to Section 38 of the AECA and Section 127.7 of the ITAR, 
the Assistant Secretary of State for Political-Military Affairs has 
statutorily debarred the following persons for a period of three years 
following the date of their AECA conviction:
    (1) Equipment & Supply, Inc., August 6, 2004, U.S. District Court, 
Eastern District of Wisconsin (Milwaukee), Case 02-Cr-262.
    (2) Klaus Ernst Buhler, June 21, 2003, U.S. District Court, Middle 
District of Florida (Jacksonville), Case : 3:02-Cr-13-J-12TEM.
    (3) Rotair Industries, Inc., July 29, 2004, U.S. District Court, 
District of Connecticut (New Haven), Case : 3:04Cr 149 JBA.
    As noted above, at the end of the three-year period, the above 
named persons/entities remain debarred unless licensing privileges are 
    Debarred persons are generally ineligible to participate in 
activity regulated under the ITAR (see e.g., sections 120.1(c) and (d), 
and 127.11(a)). The Department of State will not consider applications 
for licenses or requests for approvals that involve any person 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

[[Page 57350]]

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).
    This notice is provided for purposes of making 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 the U.S. District Courts mentioned above and by citing 
the court case number where provided.
    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 affairs function is discretionary, it is 
excluded from review under the Administrative Procedure Act.

    Dated: September 22, 2005.
Rose M. Likins,
Acting Assistant Secretary for Political-Military Affairs, Department 
of State.
[FR Doc. 05-19642 Filed 9-29-05; 8:45 am]