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Notice

Action Affecting Export Privileges; Valtex International Corporation; In the Matter of Valtex International Corporation, 1000 San Antonio Road, Palo Alto, CA 94303, Respondent; Order Relating to Valtex International Corporation

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The Bureau of Industry and Security, United States Department of Commerce (“BIS”) has notified Valtex International Corporation (“Valtex”) of its intention to initiate an administrative proceeding against Valtex pursuant to Section 766.3 of the Export Administration Regulations (currently codified at 15 CFR parts 730-774 (2004)) Start Printed Page 3675(“Regulations”),[1] and Section 13(c) of the Export Administration Act of 1979, as amended (50 U.S.C. app. §§ 2401-2420 (2000)) (“Act”),[2] by issuing a proposed charging letter to Valtex that alleged that Valtex committed seven violations of the Regulations, Specifically, the charges are:

1. 15 CFR 764.2(c)—Attempted Export of Germanium Coated Polymide File to the People's Republic of China Without the Required Department of Commerce License: On or about October 28, 2002, Valtex attempted to violate the Regulations by attempting to export Germanium coated polymide file (“film”), an item subject to the Regulations (ECCN 1A003),[3] from the United States to the People's Republic of China without obtaining the Department of Commerce license required by Section 742.4 of the Regulations.

2. 15 CFR 764.2(e)—Buying an Item With Knowledge a Violation of the Regulations Would Occur: On or about September 12, 2002, Valtex bought the film referenced in Paragraph One with knowledge that a violation of the Regulations would occur. Specifically, Valtex bought the film from a U.S. manufacturer when Valtex knew that it would attempt to export the film to the People's Republic of China without obtaining the required Department of Commerce license.

3. 15 CFR 764.2(c)—Attempted False Statement On a Shipper's Export Declaration Concerning Authority to Export: On or about October 28, 2002, in connection with the attempted export referenced in Paragraph One, Valtex attempted a violation of the Regulations by attempting to file or cause to be filed a Shipper's Export Declaration with the United States Government that stated the film qualified for export from the United States as G-DEST.[4] This statement was false because, as described in Paragraph One, a Department of Commerce license was required to export this item to the People's Republic of China.

4. 15 CFR 764.2(e)—Knowingly Attempting to Make a False Statement on a Shipper's Export Declaration: On or about October 28, 2002, in connection with the transaction referenced in Paragraph One, Valtex engaged in conduct prohibited by the Regulations by attempting to export the film with knowledge that a violation of the Regulations would occur. Specifically, Valtex completed a Shipper's Export Declaration and attempted to file it with the United States Government that falsely stated the film qualified for export from the United States as G-DEST. At all times relevant hereto, Valtex knew that a Department of Commerce license was required to export the film to the People's Republic of China.

5. 15 CFR 764.2(c)—Attempted False Statement on a Shipper's Export Declaration Concerning Identity of Ultimate Consignee: On or about October 28, 2002, in connection with the attempted export referenced in Paragraph One, Valtex attempted to file or cause to be filed a Shipper's Export Declaration with the United States Government that falsely state the true identity of the ultimate consignee. Specifically, Valtex attempted to file a Shipper's Export Declaration that stated the ultimate consignee was the China Great Wall Industry Corporation in the People's Republic of China. This statement was false because the actual ultimate consignee in the transaction was the Chinese Academy of Space and Technology in the People's Republic of China.

6. 15 CFR 764.2(e)—Knowingly Attempting to Make a False Statement on a Shipper's Export Declaration: On or about October 28, 2002, in connection with the attempted export referenced in Paragraph One, Valtex engaged in conduct prohibited by the Regulations by attempting to export the film with knowledge that a violation of the Regulations would occur. Specifically, Valtex completed a Shipper's Export Declaration and attempted to file it with the United States Government that falsely stated the identity of the ultimate consignee for the transaction as described in Paragraph Five. At all times relevant hereto, Valtex knew that the ultimate consignee for the film was the Chinese Academy of Space and Technology, not the China Great Wall Industry Corporation.

7. 15 CFR 764.2(c)—Attempting to File a Shipper's Export Declaration that Failed to Provide Required Information: On or about October 28, 2002, in connection with the attempted export referenced in Paragraph One, Valtex attempted to file or cause to be filed a Shipper's Export Declaration with the United States Government that failed to show the ECCN as required by part 758 of the Regulations.

Whereas, BIS and Valtex having entered into a Settlement Agreement pursuant to Section 766.18(a) 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 a civil penalty of $77,000 is assessed against Valtex which shall be paid to the U.S. Department of Commerce within 30 days from the date on which Valtex enters a plea of guilty to related criminal charges at a Rule 11 hearing in the United States District Court for the District of Minnesota. Payment shall be made by wire transfer as specified in the attached instructions.

Second, that, pursuant to the Debt Collection Act of 1982, as amended (31 U.S.C. 3701-3720E (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, Valtex 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.

Third, 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 Valtex. Accordingly, if Valtex should fail to pay the civil penalty in a timely manner, the undersigned may enter an Order denying all of Valtex's export privileges for a period of one year from the date of entry of this Order.

Fourth, Valtex shall implement an Export Management System not later than 12 months from the date of entry of the Order. Said Export Management System shall be in substantial compliance with the Export Managewmnet Systems Guidelines, which are available from the GIS Web site at http://www.bis.doc.gov/​Start Printed Page 3676ExportManagementSystems/​EMSGuidelines.html, which are incorporated herein by reference. A copy of said Export Management System shall be transmitted to the Office of Export Enforcement, U.S. Department of Commerce, High Point Plaza, 4415 West Harrison Street, Hillside, Illinois 60162, not later than December 31, 2005.

Fifth, that for a period of five years from the date of this Order, Valtex International Corporation, 1000 San Antonio Road, Palo Alto, California 94303 (“Valtex”), its successors or assigns, and, when acting for or on behalf of Valtex, its officers, representatives, agents, or employees (“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”) that is subject to the Regulations and that is exported or to be exported from the United States to the People's Republic of China, or in any other activity subject to the Regulations that involves the People's Republic of China, or in any other activity subject to the Regulations that involves the People's Republic of China, including, but not limited to:

A. Applying for, obtaining, or using any license, License Exception, or export control document that involves exports to the People's Republic of China;

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 that is subject to the Regulations and that is exported or to be exported from the United States to the People's Republic of China, or in any other activity subject to the Regulations that involves the People's Republic of China; or

C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States to the People's Republic of China that is subject to the Regulations, or in any other activity subject to the Regulations that involves the People's Republic of China.

Sixth, that no person may, directly or indirectly, do any of the actions described below with respect to an item that is subject to the Regulations and that has been, will be, or is intended to be exported or reexported to the People's Republic of China:

A. Export or reexport to or on behalf of the denied person any item subject to the Regulations from the United States to the People's Republic of China;

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 to the People's Republic of China, 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 to the People's Republic of China;

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 to the People's Republic of China; 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 to the People's Republic of China 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 to the People's Republic of China. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.

Seventh, that after notice and opportunity for comment as provided in Section 766.23 of the Regulations, any person, firm, corporation, or business organization related to Valtex by affiliation, ownership, control, or position of responsibility in the conduct of trade or related services may also be subject to the provisions of this Order.

Eighth, that this Order shall be served on the Denied Person and on BIS, and shall be published in the Federal Register.

Ninth, that the proposed charging letter, the Settlement Agreement, and this Order shall be made available to the public.

This Order, which constitutes the final agency action in this matter, is effective immediately.

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Entered this 14th day of January 2005.

Wendy L. Wysong,

Acting Assistant Secretary of Commerce for Export Enforcement.

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Footnotes

1.  The charged violations occurred in 2002. The Regulations governing the violations at issue are found in the 2002 version of the Code of Federal Regulations (15 CFR parts 730-774 (2002)). The 2004 Regulations set forth the procedures that apply to this matter.

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2.  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 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 (2000)) (“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 6, 2004 (59 F.R. 48763 (August 10, 2004)), has continued the Regulations in effect under the IEEPA.

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3.  The term “ECCN” refers to an Export control Classification Number. See Supp. 1 to 15 CFR 774.

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4.  The term “G-DEST” was a term used in pre-1997 regulations and was a provision authorizing exports of items that appeared on the Commerce Control List but that did not required a validated license. See 15 CFR 771.3 (1996).

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[FR Doc. 05-1363 Filed 1-25-05; 8:45 am]

BILLING CODE 3510-DT-M