[Federal Register Volume 84, Number 62 (Monday, April 1, 2019)]
[Notices]
[Pages 12197-12198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06185]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
In the Matter of: Mohan L. Nirala, 8005 Moss Bank Drive, Laurel,
MD 20724; Order Denying Export Privileges
On March 13, 2017, in the U.S. District Court for the Eastern
District of Virginia, Mohan L. Nirala (``Nirala'') was convicted of
violating Section 793(e) of the Espionage Act (18 U.S.C. 792-799
(2012)) (``the Espionage Act''). Nirala was convicted of having
unauthorized possession of a document relating to the national defense,
namely, a forty-seven page classified document containing emails,
exhibits, and PowerPoint slides, each individually marked as being
classified, and willfully retaining the document and failing to deliver
it to the officer and employee of the United States entitled to receive
it. Nirala was sentenced to twelve (12) months and one (1) day in
prison, supervised released for one (1) year and an assessment of $100.
The Export Administration Regulations (``EAR'' or ``Regulations'')
are administered and enforced by the U.S. Department of Commerce's
Bureau of Industry and Security (``BIS'').\1\ Section 766.25 of the
Regulations provides, in pertinent part, that the ``Director of [BIS's]
Office of Exporter Services, in consultation with the Director of
[BIS's] Office of Export Enforcement, may deny the export privileges of
any person who has been convicted of a violation of . . . 18 U.S.C.
793, 794 or 798.'' 15 CFR 766.25(a). The denial of export privileges
under this provision may be for a period of up to 10 years from the
date of the conviction. 15 CFR 766.25(d).\2\ In addition, pursuant to
Section 750.8 of the Regulations, BIS's Office of Exporter Services may
revoke any BIS-issued licenses in which the
[[Page 12198]]
person had an interest at the time of his/her conviction.\3\
---------------------------------------------------------------------------
\1\ The Regulations are currently codified in the Code of
Federal Regulations at 15 CFR parts 730-774 (2018). The Regulations
originally issued under the Export Administration Act of 1979, as
amended, 50 U.S.C. 4601-4623 (Supp. III 2015) (``EAA''), which
lapsed on August 21, 2001. The President, through Executive Order
13,222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has
been extended by successive Presidential Notices, the most recent
being that of August 8, 2018 (83 FR 39,871 (Aug. 13, 2018)),
continued the Regulations in full force and effect under the
International Emergency Economic Powers Act, 50 U.S.C. 1701, et seq.
(2012) (``IEEPA''). On August 13, 2018, the President signed into
law the John S. McCain National Defense Authorization Act for Fiscal
Year 2019, which includes the Export Control Reform Act of 2018,
Title XVII, Subtitle B of Public Law 115-232, 132 Stat. 2208
(``ECRA''). While Section 1766 of ECRA repeals the provisions of the
EAA (except for three sections which are inapplicable here), Section
1768 of ECRA provides, in pertinent part, that all rules and
regulations that were made or issued under the EAA, including as
continued in effect pursuant to IEEPA, and were in effect as of
ECRA's date of enactment (August 13, 2018), shall continue in effect
according to their terms until modified, superseded, set aside, or
revoked through action undertaken pursuant to the authority provided
under ECRA.
\2\ See also Section 11(h) of the EAA, 50 U.S.C. 4610(h) (Supp.
III 2015); Sections 1760(e) and 1768 of ECRA, Title XVII, Subtitle B
of Public Law 115-232, 132 Stat. 2208, 2225 and 2233 (Aug. 13,
2018); and note 1, supra.
\3\ See notes 1 and 2, supra.
---------------------------------------------------------------------------
BIS has received notice of Nirala's conviction for violating the
Espionage Act, and has provided notice and an opportunity for Nirala to
make a written submission to BIS, as provided in Section 766.25 of the
Regulations. BIS has received a submission from Nirala.
Based upon my review of the record, including Nirala's submission
and the facts available to BIS, and my consultations with BIS's Office
of Export Enforcement, including its Director, I have decided to deny
Nirala's export privileges under the Regulations for a period of 10
years from the date of Nirala's conviction. I have also decided to
revoke all BIS-issued licenses in which Nirala had an interest at the
time of his conviction.
Accordingly, it is hereby ordered:
First, from the date of this Order until March 13, 2027, Mohan L.
Nirala, with a last known address of 8005 Moss Bank Drive, Laurel, MD
20724, and when acting for or on his behalf, his successors, assigns,
employees, agents or representatives (``the Denied Person''), 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, 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 engaging in any
other activity subject to the Regulations; or
C. Benefitting 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 from any other activity subject to the Regulations.
Second, 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 which 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 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, after notice and opportunity for comment as provided in
Section 766.23 of the Regulations, any other person, firm, corporation,
or business organization related to Nirala by ownership, control,
position of responsibility, affiliation, or other connection in the
conduct of trade or business may also be made subject to the provisions
of this Order in order to prevent evasion of this Order.
Fourth, in accordance with Part 756 of the Regulations, Nirala may
file an appeal of this Order with the Under Secretary of Commerce for
Industry and Security. The appeal must be filed within 45 days from the
date of this Order and must comply with the provisions of Part 756 of
the Regulations.
Fifth, a copy of this Order shall be delivered to Nirala and shall
be published in the Federal Register.
Sixth, this Order is effective immediately and shall remain in
effect until March 13, 2027.
Issued this 25th day of March, 2019.
Karen H. Nies-Vogel,
Director, Office of Exporter Services.
[FR Doc. 2019-06185 Filed 3-29-19; 8:45 am]
BILLING CODE 3510-33-P