[Federal Register Volume 67, Number 222 (Monday, November 18, 2002)]
[Notices]
[Pages 69505-69506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-29192]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
[Case No. 02-BXA-07]
Action Affecting Export Privileges; Oerlikon Schweisstechnik AG
Order
The Bureau of Industry and Security, United States Department of
Commerce (``BIS''), has notified Oerlikon Schweisstechnik AG (also
known in Switzerland as Oerlikon-Welding Ltd.) (``Oerlikon''), of its
intention to initiate an administrative proceeding against it pursuant
to Section 13(c) of the Export Administration Act of 1979, as amended
(50 U.S.C. app. 2401-2420 (1994 & Supp. V 1999)) (``Act''),\1\ and the
Export Administration Regulations (currently codified at 15 CFR parts
730-774 (2002)) (``Regulations''),\2\ based on allegations in a
charging letter issued to Oerlikon that alleged that Oerlikon committed
three violations of the Regulations. Specifically, the charges are that
Oerlikon violated Sections 764.2(c), 764.2(d), and 764.2(e) of the
Regulations by soliciting the export of cellulose from the U.S. to Iran
and conspiring to export cellulose from the U.S. to Iran without the
required authorization from the Office of Foreign Assets Control,
Department of the Treasury, as required by the Regulations, and taking
an action that Oerlikon knew to be a violation of the Regulations.
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\1\ From August 21, 1994 through November 12, 2000, the Act was
in lapse. During that period, the President, through Executive Order
12924, which had been extended by successive Presidential Notices,
the last of which was issued on August 3, 2000 (3 CFR 2000 Comp. 397
(2001)), continued the Regulations in effect under the International
Emergency Economic Powers Act (50 U.S.C. 1701-1706 (1994 & Supp. V
1999)) (IEEPA). On November 13, 2000, the Act was reauthorized and
it remained in effect through August 20, 2001. Since August 21,
2001, the Act has been in lapse and the President, through Executive
Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), as
extended by the Notice of August 14, 2002 (67 FR 53721 (August 16,
2002)), has continued the Regulations in effect under IEEPA.
\2\ The Regulations are currently codified in the Code of
Federal Regulations at 15 CFR parts 730-774 (2002). The violations
charged occurred in 2000. The Regulations governing the violations
are codified at 15 CFR parts 730-774 (2000). They are substantially
the same as the 2002 version of the Regulations which govern the
procedural aspects of this case.
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BIS and Oerlikon having entered into a Settlement Agreement
pursuant to Section 766.18(b) of the Regulations whereby they agreed to
settle this matter in accordance with the terms and conditions set
forth therein, and the terms of the Settlement Agreement having been
approved by me;
It is therefore ordered:
First, that, for a period of one year from the date of this Order,
Oerlikon Schweisstechnik AG (also known in Switzerland as Oerlikon-
Welding Ltd.), Neumbrunnerstrasse 50, CH-8050 Zurich, Switzerland,
shall be denied its U.S. export privileges as described herein
(hereinafter the ``denial period''). Oerlikon, and all of its
successors, assigns, officers, representatives, agents, and employees,
may not participate, directly or indirectly, 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 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 EAR, or in any other activity
subject to the EAR; 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 EAR, or in any other activity subject to the EAR.
Second, that no person may, directly or indirectly, do any of the
following:
A. Export or reexport to or on behalf of a person subject to this
order any item subject to the EAR;
B. Take any action that facilitates the acquisition or attempted
acquisition by a person subject to this order of the ownership,
possession, or control of any item subject to the EAR that has been or
will be exported from the United States, including financing or other
support activities related to a transaction whereby a person subject to
this order 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 a person subject to this order of any
item subject to the EAR that has been exported from the United States;
D. Obtain from a person subject to this order in the United States
any items subject to the EAR 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 EAR
that has
[[Page 69506]]
been or will be exported from the United States and which is owned,
possessed or controlled by a person subject to this order, or service
any item, or whatever origin, that is owned, possessed or controlled by
a person subject to this order if such service involves the use of any
item subject to the EAR 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 EAR, any other 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 provisions of
this order.
Fourth, that this order does not prohibit any export, reexport, or
other transaction subject to the EAR where the only items involved that
are subject to the EAR are the foreign-produced direct product of U.S.-
orgin technology.
Fifth, that, as authorized by Section 766.18(c) of the Regulations,
the final six months of the denial period set forth above shall be
suspended for one year from the date of entry of this Order, and shall
thereafter be waived, provided that, during the period of suspension,
Oerlikon has not committed a violation of the Act or any regulation,
order or license issued thereunder.
Sixth, that a civil penalty of $33,000 is assessed against Oerlikon
which shall be paid to the U.S. Department of Commerce within thirty
days from the date of entry of this Order. Payment shall be made in the
manner specified in the attached instructions.
Seventh, that, pursuant to the Debt Collection Act of 1982, as
amended (31 U.S.C. 3701-3720E (1993 and Supp. 2000)), the civil penalty
owned under this Order accrues interest as more fully described in the
attached Notice, and, if payment is not made by the due date specified
herein, Oerlikon will be assessed, in addition to the full amount of
the civil penalty and interest, a penalty charge and an administrative
charge, as more fully described in the attached Notice.
Eighth, that the timely payment of the civil penalty set forth
above is hereby made a condition to the granting, restoration, or
continuing validity of any export license, license exception,
permission, or privilege granted, or to be granted, to Oerlikon.
Accordingly, if Oerlikon should fail to pay the civil penalty in a
timely manner, the undersigned may enter an Order denying all of
Oerlikon's export privileges for a period of one year from the date of
entry of this Order.
Ninth, that the charging letter, the Settlement Agreement, and this
Order shall be made available to the public.
Tenth, that a copy of this Order shall be delivered to the United
States Coast Guard ALJ Docketing Center, 40 Gay Street, Baltimore,
Maryland 21202-4022, notifying that office that case number 02-BXA-07
naming Oerlikon as a respondent is withdrawn from adjudication, as
provided by Section 766.18(b) of the Regulations.
This Order, which constitutes the final agency action in this
matter, is effective immediately.
Entered this 12th day of November 2002.
Michael J. Garcia,
Assistant Secretary of Commerce for Export Enforcement.
[FR Doc. 02-29192 Filed 11-15-02; 8:45 am]
BILLING CODE 3510-DT-M