In the Matter of: William Kovacs, 24 Georgetown Road, Boxford, MA 01921, Respondent; Final Decision and Order, 8967-8969 [07-905]
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Federal Register / Vol. 72, No. 39 / Wednesday, February 28, 2007 / Notices
Signed at Washington, DC, this 12th day of
February 2007.
David M. Spooner,
Assistant Secretary of Commerce for Import
Administration.
Alternate Chairman Foreign–Trade Zones
Board.
Attest:
Andrew McGilvray,
Executive Secretary.
[FR Doc. E7–3428 Filed 2–27–07; 8:45 am]
BILLING CODE 3510–DS–S
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
[Docket No. 05–BIS–10
In the Matter of: William Kovacs, 24
Georgetown Road, Boxford, MA 01921,
Respondent; Final Decision and Order
sroberts on PROD1PC70 with NOTICES
This matter is before me upon a
Recommended Decision and Order of an
Administrative Law Judge (‘‘ALJ’’), as
further described below.
In a charging letter filed on June 28,
2005, the Bureau of Industry and
Security (‘‘BIS’’) alleged that
Respondent, William Kovacs,
committed six violations of the Export
Administration Regulations
(‘‘Regulations’’)1, issued under the
Export Administration Act of 1979, as
amended (50 U.S.C. app. 2401–2420
(2000)) (the ‘‘Act’’),2 related to the
illegal export of an industrial furnace to
the Beijing Research Institute of
Materials and Technology (‘‘BRIMT’’) in
the People’s Republic of China. The
export of the furnace, which took place
in 1999, required a license because the
exporter, Elatec (Kovacs’ company),
knew or had reason to know at the time
of the export that the item would be
1 The charged violations occurred from 1998,
1999 and 2001. The Regulations governing the
violations at issue are found in the 1998, 1999 and
2001 versions of the Code of Federal Regulations
(15 CFR parts 730–774 (1998–1999, 2001)). Actions
taken during this administrative enforcement
proceeding are governed by the Regulations in
effect at the time such actions take place.
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)), which has been extended
by successive Presidential Notices, the most recent
being that of August 3, 2006, (71 FR 44,551 (August
7, 2006)), has continued the Regulations in effect
under IEEPA.
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17:43 Feb 27, 2007
Jkt 211001
used in the design, development,
production, or use of missiles in or by
China, as described in 744.3(a)(2) of the
Regulations. A license application
submitted for the export was explicitly
denied by BIS before the export
occurred, and no license for the export
was ever obtained.
The charging letter alleged that
Kovacs sold, transferred, forwarded
and/or disposed of the furnace with
knowledge that a violation would
subsequently occur, that Kovacs
conspired to export the furnace without
a license, that Kovacs caused the
furnace to be exported without a
license, and that Kovacs took actions
with the intent to evade the Regulations
in connection with the furnace export.
Further, the charging letter alleged that
Kovacs made two false statements to the
U.S. Government during the
investigation of the illegal export.
In accordance with 766.3(b)(1) of the
Regulations, on June 28, 2005, BIS
mailed the notice of issuance of the
charging letter by certified mail to
Kovacs at his last known address. The
notice of issuance of a charging letter
was received and signed for by Kovacs
on July 5, 2005. To date, Kovacs has not
filed an answer to the charging letter
with the ALJ, as required by the
Regulations.
In accordance with 766.7 of the
Regulations, BIS filed a Motion for
Default Order on January 11, 2007. This
Motion for Default Order recommended
that Kovacs be denied export privileges
under the Regulations for a period of 5
years and be assessed a monetary
penalty of $66,000. Under 766.7(a) of
the Regulations, ‘‘[f]ailure of the
respondent to file an answer within the
time provided constitutes a waiver of
the respondent’s right to appear,’’ and
‘‘on BIS’s motion and without further
notice to the respondent, ]the ALJ] shall
find the facts to be as alleged in the
charging letter.’’ Based upon the record
before him, the ALJ held Kovacs in
default.
On January 26, 2007, the ALJ issued
a Recommended Decision and Order in
which he found that Kovacs committed
one violation each of § 764.2(b), (d), (e)
and (h) of the Regulations, and two
violations of § 764.2(g) of the
Regulations. The ALJ also recommended
the penalty of denial of Kovacs’ export
privileges for five years and a monetary
penalty of $66,000.
The ALJ’s Recommended Decision
and Order, together with the entire
record in this case, has been referred to
me for final action under § 766.22 of the
Regulations.
I find that the record supports the
ALJ’s findings of fact and conclusions of
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8967
law. I also find that the penalty
recommended by the ALJ is appropriate,
given the nature of the violations and
the facts of this case, and the
importance of preventing future
unauthorized exports.
Based on my review of the entire
record, I affirm the findings of fact and
conclusions of law contained in the
ALJ’s Recommended Decision and
Order.
Accordingly, it is therefore ordered,
First, that a civil penalty of $66,000 is
assessed against Kovacs which shall be
paid to the Department of Commerce
within 30 days from the date of entry of
this Order. Payment shall be made in
the manner 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 owed 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,
Kovacs will be assessed, in addition to
the full amount of the civil penalty and
interest, a penalty charge and an
administrative charge, as further
described in the attached Notice.
Third, that, for a period of five years
from the date of this Order, William
Kovacs, 24 Georgetown Road, Boxford,
MA 01921, and when acting for or on
behalf of Kovacs, his representatives,
agents, assigns and employees
(hereinafter collectively referred to as
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, 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 Regulations, or 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 in
any other activity subject to the
Regulations.
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8968
Federal Register / Vol. 72, No. 39 / Wednesday, February 28, 2007 / Notices
Fourth, that 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
Untied 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 that 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.
Fifth, that, after notice and
opportunity for comment as provided in
§ 766.23 of the Regulations, any 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.
Sixth, that this Order does not
prohibit any export, reexport, or other
transaction subject to the Regulations
where the only items involved that are
subject to the Regulations are the
foreign-produced direct product of U.S.origin technology.
Seventh, that this Order shall be
served on the Denied Person and on
BIS, and shall be published in the
Federal Register. In addition, the ALJ’s
Recommended Decision and Order,
except for the section related to the
Recommended Order, shall be
published in the Federal Register.
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16:08 Feb 27, 2007
Jkt 211001
This Order, which constitutes the
final agency action in this matter, is
effective immediately.
Dated: February 22, 2007.
Mark Foulon,
Acting Under Secretary of Commerce for
Industry and Security.
Attachments
Notice
The Order to which this Notice is
attached describes the reasons for the
assessment of the civil monetary
penalty. It also specifies the amount
owed and the date by which payment of
the civil penalty is due and payable.
Under the Debt Collection Act of
1982, as amended (31 U.S.C. 3701–
3720E (2000)), and the Federal Claims
Collection Standards (31 CFR parts 900–
904 (2002)), interest accrues on any and
all civil monetary penalties owed and
unpaid under the Order, from the date
of the Order until paid in full. The rate
of interest assessed respondent is the
rate of the current value of funds to the
U.S. Treasury on the date that the Order
was entered. However, interest is
waived on any portion paid within 30
days of the date of the Order. See 31
U.S.C.A. 3717 and 31 CFR 901.9.
The civil monetary penalty will be
delinquent if not paid by the due date
specified in the Order. If the penalty
becomes delinquent, interest will
continue to accrue on the balance
remaining due and unpaid, and
respondent will also be assessed both an
administrative charge to cover the cost
of processing and handling the
delinquent claim and a penalty charge
of 6 percent per year. However,
although the penalty charge will be
computed from the date that the civil
penalty becomes delinquent, it will be
assessed only on sums due and unpaid
for over 90 days after that date. See 31
U.S.C.A. 3717 and 31 CFR 901.9.
The foregoing constitutes the initial
written notice and demand to
respondent in accordance with
§ 901.2(b) of the Federal Claims
Collection Standards (31 CFR 901.2(b)).
Instructions for Payment of Civil
Penalty
1. The civil penalty check should be
made payable to: U.S. Department of
Commerce.
2. The check should be mailed to:
U.S. Department of Commerce, Bureau
of Industry and Security, Room H–6622,
14th Street and Constitution Avenue,
NW., Washington, DC. Attn: Jennifer
Kuo.
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Recommended Decision and Order
On June 28, 2005, the Bureau of
Industry and Security (‘‘BIS’’), U.S.
Department Commerce, issued a
Charging Letter initiating this
administrative enforcement proceeding
against William Kovacs (‘‘Kovacs’’). The
Charging Letter alleged that Kovacs
committed six violations of the Export
Administration Regulations (currently
codified at 15 CFR parts 730–774
(2006)) (‘‘Regulations’’),1 issued under
the Export Administration Act of 1979,
as amended (50 U.S.C. App. 2401–2420
(2000)) (‘‘Act’’).2 In accordance with
§ 766.7 of Regulations, BIS moved for
the issuance of an Order of Default
against Kovacs for his failure to file an
answer to the allegations in the
Charging letter issued by BIS within the
time period required by law.
A. Legal Authority for Issuing an Order
of Default
Section 766.7 of the Regulations states
that BIS may file a motion for an order
of default if a respondent fails to file a
timely answer to a charging letter. That
section, entitled Default, provides in
pertinent part:
Failure of the respondent to file an answer
within the time provided constitutes a waiver
of the respondent’s right to appear and
contest the allegations in the charging letter.
In such event, the administrative law judge,
on BIS’s motion and without further notice
to the respondent, shall find the facts to be
as alleged in the charging letter and render
an initial or recommended decision
containing findings of fact and appropriate
conclusions of law and issue or recommend
an order imposing appropriate sanctions.
15 CFR 766.7 (2005).
Pursuant to § 766.6 of the Regulations,
a respondent must file an answer to the
charging letter ‘‘within 30 days after
being served with notice of the issuance
of the charging latter * * *’’ initiating
the proceeding.
1 The charged violations occurred during 1998,
1999 and 2001. The Regulations governing the
violations at issue are found in the 1998, 1999 and
2001 versions of the Code of Federal Regulations
(15 CFR parts 730–774 (1998–1999, 2001)). The
2006 Regulations establish the procedures that
apply to this matter.
2 From August 21, 1994 through November 12,
2000, the Act was in lapse. During that period, the
President, through Executive Order 12,924, 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 13,222 of August 17, 2001, 3 CFR,
2001 Comp. 783 (2002), as extended by the Notice
of August 3, 2006, 71 FR 44551 (Aug. 7, 2006), has
continued the Regulations in effect under the
IEEPA.
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8969
Federal Register / Vol. 72, No. 39 / Wednesday, February 28, 2007 / Notices
B. Service of the Notice of Issuance of
Charging Letter
In the case, BIS served notice of
issuance of the Charging Letter in
accordance with § 766.3(b)(1) of the
Regulations when it sent a copy of the
Charging Letter by certified mail to
Kovacs at his last known address on
June 28, 2005. The notice of issuance of
a charging letter was received and
signed for by Kovacs on July 5, 2005.
C. Summary of Violations Charged
The Charging Letter issued by BIS
included a total of six (6) charges related
to the illegal export of a manufacturing
furnace to the Beijing Research Institute
of Materials and Technology (‘‘BRIMT’’)
in the People’s Republic of China. The
export of the furnace, which took place
in 1999, required a license because the
exporter, Elatec (Kovacs’ company),
knew or had reason to know at the time
of the export that the item would be
used in the design, development,
production, or use of missiles in or by
China, as described in § 744.39a)(2) of
the Regulations. A license application
submitted for the export was explicitly
denied by BIS before the export
occurred, and no license for the export
was over obtained.
The Charging Letter alleged that
Kovacs sold, transferred, forwarded
and/or disposed of the furnace with
knowledge that a violation would
subsequently occur, that Kovacs
conspired to export the furnace without
a license, that Kovacs caused the
furnace to be exported without a
license, and that Kovacs took actions
with the intent to evade the Regulations
in connection with the furnace export.
Furthermore, the Charging Letter alleged
that Kovacs made two false statements
to the U.S. Government during the
investigation of the illegal export.
D. Penalty Recommendation
to conduct administrative reviews of
various antidumping and countervailing
duty orders and findings with January
anniversary dates. In accordance with
the Department’s regulations, we are
initiating those administrative reviews.
[Redacted Section]
EFFECTIVE DATE:
E. Conclusion
Accordingly, I am referring this
Recommended Decision and Order to
the Under Secretary of Commerce for
Industry and Security for review and
final action for the agency, without
further notice to the Respondent, as
provided in § 766.7 of the Regulations.
Within 30 days after receipt of this
Recommended Decision and Order, the
Under Secretary shall issue a written
order affirming, modifying, or vacating
the Recommended Decision and Order.
See 15 CFR 766.22(c).
FOR FURTHER INFORMATION CONTACT:
Dated: January 26, 2007.
The Honorable Joseph N. Ingolia,
Chief Administrative Law Judge.
[FR Doc. 07–905 Filed 2–27–07; 8:45 am]
BILLING CODE 3510–DT–M
DEPARTMENT OF COMMERCE
International Trade Administration
Initiation of Antidumping and
Countervailing Duty Administrative
Reviews
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce
(the Department) has received requests
AGENCY:
February 28,2007.
Sheila E. Forbes, Office of AD/CVD
Operations, Customs Unit, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, N.W., Washington, D.C. 20230,
telephone: (202) 482–4697.
SUPPLEMENTARY INFORMATION:
Background
The Department has received timely
requests, in accordance with 19 CFR
351.213(b)(2004), for administrative
reviews of various antidumping and
countervailing duty orders and findings
with January anniversary dates. With
respect to the antidumping duty order
on Wooden Bedroom Furniture from the
People’s Republic of China, the
initiation of the antidumping duty
administrative review for that case is
being published in a separate initiation
notice.
Initiation of Reviews:
In accordance with section 19 CFR
351.221(c)(1)(i), we are initiating
administrative reviews of the following
antidumping and countervailing duty
orders and findings. We intend to issue
the final results of these reviews not
later than January 31, 2008.
Antidumping Duty Proceedings
Period to be Reviewed
THE PEOPLE’S REPUBLIC OF CHINA: Folding Gift Boxes1.
A–570–866 .................................................................................................................................................................
Red Point Paper Products Co., Ltd./Red Point Paper Products.
Factory (Dongguan Shilong)/Silver Team Trading Ltd..
THE PEOPLE’S REPUBLIC OF CHINA: Wooden Bedroom Furniture2.
A–570–890 .................................................................................................................................................................
Countervailing Duty Proceedings.
None..
Suspension Agreements.
RUSSIA: Certain Cut–to-Length Carbon Steel Plate.
A–821–808 .................................................................................................................................................................
Joint Stock Company Severstal.
1/1/06 - 12/31/06
1/1/06 - 12/31/06
1/1/06 - 12/31/06
sroberts on PROD1PC70 with NOTICES
1 If one of the above named companies does not qualify for a separate rate, allother exporters of Folding Gift Boxes from the People’s Republic of China who have not qualified for a separate rate are deemed to be covered by this review as part of the single PRC entity of which the
named exporters are a part.
2 The administrative review for the above referenced case will be published in a separate initiation notice.
During any administrative review
covering all or part of a period falling
between the first and second or third
and fourth anniversary of the
publication of an antidumping duty
order under section 351.211 or a
VerDate Aug<31>2005
16:08 Feb 27, 2007
Jkt 211001
determination under section
351.218(f)(4) to continue an order or
suspended investigation (after sunset
review), the Secretary, if requested by a
domestic interested party within 30
days of the date of publication of the
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notice of initiation of the review, will
determine, consistent with FAG Italia v.
United States, 291 F.3d 806 (Fed. Cir.
2002), as appropriate, whether
antidumping duties have been absorbed
by an exporter or producer subject to the
E:\FR\FM\28FEN1.SGM
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]]>Agencies
[Federal Register Volume 72, Number 39 (Wednesday, February 28, 2007)]
[Notices]
[Pages 8967-8969]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-905]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
[Docket No. 05-BIS-10
In the Matter of: William Kovacs, 24 Georgetown Road, Boxford, MA
01921, Respondent; Final Decision and Order
This matter is before me upon a Recommended Decision and Order of
an Administrative Law Judge (``ALJ''), as further described below.
In a charging letter filed on June 28, 2005, the Bureau of Industry
and Security (``BIS'') alleged that Respondent, William Kovacs,
committed six violations of the Export Administration Regulations
(``Regulations'')\1\, issued under the Export Administration Act of
1979, as amended (50 U.S.C. app. 2401-2420 (2000)) (the ``Act''),\2\
related to the illegal export of an industrial furnace to the Beijing
Research Institute of Materials and Technology (``BRIMT'') in the
People's Republic of China. The export of the furnace, which took place
in 1999, required a license because the exporter, Elatec (Kovacs'
company), knew or had reason to know at the time of the export that the
item would be used in the design, development, production, or use of
missiles in or by China, as described in 744.3(a)(2) of the
Regulations. A license application submitted for the export was
explicitly denied by BIS before the export occurred, and no license for
the export was ever obtained.
---------------------------------------------------------------------------
\1\ The charged violations occurred from 1998, 1999 and 2001.
The Regulations governing the violations at issue are found in the
1998, 1999 and 2001 versions of the Code of Federal Regulations (15
CFR parts 730-774 (1998-1999, 2001)). Actions taken during this
administrative enforcement proceeding are governed by the
Regulations in effect at the time such actions take place.
\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)), which has
been extended by successive Presidential Notices, the most recent
being that of August 3, 2006, (71 FR 44,551 (August 7, 2006)), has
continued the Regulations in effect under IEEPA.
---------------------------------------------------------------------------
The charging letter alleged that Kovacs sold, transferred,
forwarded and/or disposed of the furnace with knowledge that a
violation would subsequently occur, that Kovacs conspired to export the
furnace without a license, that Kovacs caused the furnace to be
exported without a license, and that Kovacs took actions with the
intent to evade the Regulations in connection with the furnace export.
Further, the charging letter alleged that Kovacs made two false
statements to the U.S. Government during the investigation of the
illegal export.
In accordance with 766.3(b)(1) of the Regulations, on June 28,
2005, BIS mailed the notice of issuance of the charging letter by
certified mail to Kovacs at his last known address. The notice of
issuance of a charging letter was received and signed for by Kovacs on
July 5, 2005. To date, Kovacs has not filed an answer to the charging
letter with the ALJ, as required by the Regulations.
In accordance with 766.7 of the Regulations, BIS filed a Motion for
Default Order on January 11, 2007. This Motion for Default Order
recommended that Kovacs be denied export privileges under the
Regulations for a period of 5 years and be assessed a monetary penalty
of $66,000. Under 766.7(a) of the Regulations, ``[f]ailure of the
respondent to file an answer within the time provided constitutes a
waiver of the respondent's right to appear,'' and ``on BIS's motion and
without further notice to the respondent, ]the ALJ] shall find the
facts to be as alleged in the charging letter.'' Based upon the record
before him, the ALJ held Kovacs in default.
On January 26, 2007, the ALJ issued a Recommended Decision and
Order in which he found that Kovacs committed one violation each of
Sec. 764.2(b), (d), (e) and (h) of the Regulations, and two violations
of Sec. 764.2(g) of the Regulations. The ALJ also recommended the
penalty of denial of Kovacs' export privileges for five years and a
monetary penalty of $66,000.
The ALJ's Recommended Decision and Order, together with the entire
record in this case, has been referred to me for final action under
Sec. 766.22 of the Regulations.
I find that the record supports the ALJ's findings of fact and
conclusions of law. I also find that the penalty recommended by the ALJ
is appropriate, given the nature of the violations and the facts of
this case, and the importance of preventing future unauthorized
exports.
Based on my review of the entire record, I affirm the findings of
fact and conclusions of law contained in the ALJ's Recommended Decision
and Order.
Accordingly, it is therefore ordered,
First, that a civil penalty of $66,000 is assessed against Kovacs
which shall be paid to the Department of Commerce within 30 days from
the date of entry of this Order. Payment shall be made in the manner
specified in the attached instructions.
Second, that pursuant to the Debt Collection Act of 1982, as
amended (31 U.S.C. Sec. Sec. 3701-3720E (2000)), the civil penalty
owed 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, Kovacs will be assessed, in addition to the full amount of the
civil penalty and interest, a penalty charge and an administrative
charge, as further described in the attached Notice.
Third, that, for a period of five years from the date of this
Order, William Kovacs, 24 Georgetown Road, Boxford, MA 01921, and when
acting for or on behalf of Kovacs, his representatives, agents, assigns
and employees (hereinafter collectively referred to as 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, 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 Regulations, or 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 in any other activity subject to the Regulations.
[[Page 8968]]
Fourth, that 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 Untied 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 that 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.
Fifth, that, after notice and opportunity for comment as provided
in Sec. 766.23 of the Regulations, any 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.
Sixth, that this Order does not prohibit any export, reexport, or
other transaction subject to the Regulations where the only items
involved that are subject to the Regulations are the foreign-produced
direct product of U.S.-origin technology.
Seventh, that this Order shall be served on the Denied Person and
on BIS, and shall be published in the Federal Register. In addition,
the ALJ's Recommended Decision and Order, except for the section
related to the Recommended Order, shall be published in the Federal
Register.
This Order, which constitutes the final agency action in this
matter, is effective immediately.
Dated: February 22, 2007.
Mark Foulon,
Acting Under Secretary of Commerce for Industry and Security.
Attachments
Notice
The Order to which this Notice is attached describes the reasons
for the assessment of the civil monetary penalty. It also specifies the
amount owed and the date by which payment of the civil penalty is due
and payable.
Under the Debt Collection Act of 1982, as amended (31 U.S.C. 3701-
3720E (2000)), and the Federal Claims Collection Standards (31 CFR
parts 900-904 (2002)), interest accrues on any and all civil monetary
penalties owed and unpaid under the Order, from the date of the Order
until paid in full. The rate of interest assessed respondent is the
rate of the current value of funds to the U.S. Treasury on the date
that the Order was entered. However, interest is waived on any portion
paid within 30 days of the date of the Order. See 31 U.S.C.A. 3717 and
31 CFR 901.9.
The civil monetary penalty will be delinquent if not paid by the
due date specified in the Order. If the penalty becomes delinquent,
interest will continue to accrue on the balance remaining due and
unpaid, and respondent will also be assessed both an administrative
charge to cover the cost of processing and handling the delinquent
claim and a penalty charge of 6 percent per year. However, although the
penalty charge will be computed from the date that the civil penalty
becomes delinquent, it will be assessed only on sums due and unpaid for
over 90 days after that date. See 31 U.S.C.A. 3717 and 31 CFR 901.9.
The foregoing constitutes the initial written notice and demand to
respondent in accordance with Sec. 901.2(b) of the Federal Claims
Collection Standards (31 CFR 901.2(b)).
Instructions for Payment of Civil Penalty
1. The civil penalty check should be made payable to: U.S.
Department of Commerce.
2. The check should be mailed to: U.S. Department of Commerce,
Bureau of Industry and Security, Room H-6622, 14th Street and
Constitution Avenue, NW., Washington, DC. Attn: Jennifer Kuo.
Recommended Decision and Order
On June 28, 2005, the Bureau of Industry and Security (``BIS''),
U.S. Department Commerce, issued a Charging Letter initiating this
administrative enforcement proceeding against William Kovacs
(``Kovacs''). The Charging Letter alleged that Kovacs committed six
violations of the Export Administration Regulations (currently codified
at 15 CFR parts 730-774 (2006)) (``Regulations''),\1\ issued under the
Export Administration Act of 1979, as amended (50 U.S.C. App. 2401-2420
(2000)) (``Act'').\2\ In accordance with Sec. 766.7 of Regulations,
BIS moved for the issuance of an Order of Default against Kovacs for
his failure to file an answer to the allegations in the Charging letter
issued by BIS within the time period required by law.
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\1\ The charged violations occurred during 1998, 1999 and 2001.
The Regulations governing the violations at issue are found in the
1998, 1999 and 2001 versions of the Code of Federal Regulations (15
CFR parts 730-774 (1998-1999, 2001)). The 2006 Regulations establish
the procedures that apply to this matter.
\2\ From August 21, 1994 through November 12, 2000, the Act was
in lapse. During that period, the President, through Executive Order
12,924, 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
13,222 of August 17, 2001, 3 CFR, 2001 Comp. 783 (2002), as extended
by the Notice of August 3, 2006, 71 FR 44551 (Aug. 7, 2006), has
continued the Regulations in effect under the IEEPA.
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A. Legal Authority for Issuing an Order of Default
Section 766.7 of the Regulations states that BIS may file a motion
for an order of default if a respondent fails to file a timely answer
to a charging letter. That section, entitled Default, provides in
pertinent part:
Failure of the respondent to file an answer within the time
provided constitutes a waiver of the respondent's right to appear
and contest the allegations in the charging letter. In such event,
the administrative law judge, on BIS's motion and without further
notice to the respondent, shall find the facts to be as alleged in
the charging letter and render an initial or recommended decision
containing findings of fact and appropriate conclusions of law and
issue or recommend an order imposing appropriate sanctions.
15 CFR 766.7 (2005).
Pursuant to Sec. 766.6 of the Regulations, a respondent must file
an answer to the charging letter ``within 30 days after being served
with notice of the issuance of the charging latter * * *'' initiating
the proceeding.
[[Page 8969]]
B. Service of the Notice of Issuance of Charging Letter
In the case, BIS served notice of issuance of the Charging Letter
in accordance with Sec. 766.3(b)(1) of the Regulations when it sent a
copy of the Charging Letter by certified mail to Kovacs at his last
known address on June 28, 2005. The notice of issuance of a charging
letter was received and signed for by Kovacs on July 5, 2005.
C. Summary of Violations Charged
The Charging Letter issued by BIS included a total of six (6)
charges related to the illegal export of a manufacturing furnace to the
Beijing Research Institute of Materials and Technology (``BRIMT'') in
the People's Republic of China. The export of the furnace, which took
place in 1999, required a license because the exporter, Elatec (Kovacs'
company), knew or had reason to know at the time of the export that the
item would be used in the design, development, production, or use of
missiles in or by China, as described in Sec. 744.39a)(2) of the
Regulations. A license application submitted for the export was
explicitly denied by BIS before the export occurred, and no license for
the export was over obtained.
The Charging Letter alleged that Kovacs sold, transferred,
forwarded and/or disposed of the furnace with knowledge that a
violation would subsequently occur, that Kovacs conspired to export the
furnace without a license, that Kovacs caused the furnace to be
exported without a license, and that Kovacs took actions with the
intent to evade the Regulations in connection with the furnace export.
Furthermore, the Charging Letter alleged that Kovacs made two false
statements to the U.S. Government during the investigation of the
illegal export.
D. Penalty Recommendation
[Redacted Section]
E. Conclusion
Accordingly, I am referring this Recommended Decision and Order to
the Under Secretary of Commerce for Industry and Security for review
and final action for the agency, without further notice to the
Respondent, as provided in Sec. 766.7 of the Regulations.
Within 30 days after receipt of this Recommended Decision and
Order, the Under Secretary shall issue a written order affirming,
modifying, or vacating the Recommended Decision and Order. See 15 CFR
766.22(c).
Dated: January 26, 2007.
The Honorable Joseph N. Ingolia,
Chief Administrative Law Judge.
[FR Doc. 07-905 Filed 2-27-07; 8:45 am]
BILLING CODE 3510-DT-M
