Carlos Dominguez and his Madrid-based company Elint SA have been administratively debarred by the Directorate of Defense Trade Controls in connection with his unauthorized re-exports and re-transfers of night vision equipment shipped to him from the United States pursuant to DDTC licenses. The unauthorized re-exports and re-transfers were discovered by so-called Blue Lantern checks conducted by foreign embassy staff at the request of the DDTC to determine the ultimate disposition of items exported from the United States pursuant to DDTC licenses. (Interestingly, the cables requesting the Blue Lantern transfers had been previously disclosed when they were leaked by WikiLeaks.)

As a result of the unfavorable Blue Lantern checks, DDTC first imposed in 2009 a policy of denial on Dominguez and Elint. In 2010, DDTC followed up by sending a directed disclosure demand to Elint and Dominguez. A directed disclosure is a DDTC demand that the recipient investigate its export practices and provide to DDTC a list of all its export violations, a request that Dominguez and Elint not surprisingly ignored. A charging letter followed, also ignored, which led to a finding of default by an administrative law judge and the instant order of debarment.

Although section 127.7 of the ITAR specifies that such administrative debarments are “generally” for a period of three years, the order against Dominguez and Elint mentions no time period and is, presumably, permanent. It is safe to say that DDTC is not amused with Dominguez, and this appears to be in large part because of considerable evidence alleged by DDTC that Dominguez tried to evade the policy of denial by setting up shell companies and acting through third parties.

Interestingly, DDTC claims that it has the authority to issue “directed disclosures” under section 122.5(b) of the ITAR, which is, at best, a rather fanciful construction of that section. That section requires that records “maintained” under section 122.5 must be made available to DDTC, but says nothing about any obligation to create new records at the request of DDTC and then provide them. More interestingly, section 122.5 applies to “persons required to register” under Part 122. That obligation is imposed on persons who engage “in the United States in the business of manufacturing or exporting” defense articles. That, of course, does not cover foreign end users of U.S. exports, so it is not at all clear how DDTC can justify issuing the directed disclosure to Dominguez under section 122.5(b).

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