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”), and the Export Administration Regulations (currently codified at 15 CFR parts 730-774 (2002)) (“Regulations”), 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.
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 Start Printed Page 69506been 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.Start Signature
Entered this 12th day of November 2002.
Michael J. Garcia,
Assistant Secretary of Commerce for Export Enforcement.
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.Back to Citation
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.Back to Citation
[FR Doc. 02-29192 Filed 11-15-02; 8:45 am]
BILLING CODE 3510-DT-M