[Federal Register Volume 69, Number 92 (Wednesday, May 12, 2004)]
[Notices]
[Pages 26360-26361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-10767]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

[Docket No. 01-BXA-19]


Action Affecting Export Privileges; Suntek Microwave, Inc.

    In the Matter of: Suntek Microwave, Inc., 8698 Thorton Avenue, 
Newark, California 94560, Respondent

Order

    The Bureau of Industry and Security, United States Department of 
Commerce (``BIS'') having initiated an administrative proceeding 
against Suntek Microwave, Inc. (``Suntek'') pursuant to Section 766.3 
of the Export Administration Regulations (currently codified at 15 CFR 
parts 730-774 (2003)) (``Regulations''),\1\ and section 13(c) of the 
Export Administration Act of 1979, as amended (50 U.S.C. app. 
Sec. Sec.  2401-2420 (2000)) (``Act''),\2\ based on the charging letter 
issued to Suntek that alleged that Suntek committed 25 violations of 
the Regulations. Specifically, the charges are:
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    \1\ The Regulations governing the violations at issue are found 
in the 1996, 1997, 1998, 1999 and 2000 versions of the Code of 
Federal Regulations, (15 CFR parts 768-799 (1996), as amended (61 FR 
12714, March 25, 1996) (hereinafter ``the former Regulations'')), 
and 15 CFR parts 768-799 (1997, 1998, 1999 and 2000)). The March 25, 
1996 Federal Register publication redesignated, but did not 
republish, the then-existing Regulations as 15 CFR parts 768A-799A. 
As an interim measure that was part of the transition to newly 
restructured and reorganized the Regulations, the March 25, 1996 
Federal Register publication also restructured and reorganized the 
Regulations, designating them as an interim rule at 15 CFR parts 
730-774, effective April 24, 1996. The former Regulations and the 
Regulations define the various violations that BIS alleges occurred. 
The 2003 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 
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 (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 7, 2003 (68 FR 47833, August 11, 2003)), has 
continued the Regulations in effect under IEEPA.
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    1. One Violation of 15 CFR 787A.2--Aiding and Abetting a 
Violation--Aiding and Abetting an Unlicensed Export: On or about 
December 1, 1996, Suntek aided and abetted the unlicensed export of 
detector log video amplifiers, items subject to the Regulations, by 
selling them to Silicon Valley Scientific Instruments Corporation 
(SVSIC) who then exported them to the Peoples Republic of China (PRC) 
without a validated license as required by Section 771A.1 of the former 
Regulations.
    2. One Violation of 15 CFR 764.2(e)--Acting with Knowledge--
Transfer of Controlled Commodity Knowing That It Will be Exported 
Without a License: On or about January 27, 1997, Suntek transferred 
detector log video amplifiers to SVSIC knowing or having reason to know 
that SVSIC would export them to the PRC without a license as required 
by Sections 742.4 and 742.5 of the Regulations. SVSIC subsequently 
exported the detector log video amplifiers to the PRC.
    3. Nine Violations of 15 CFR 764.2(a)--Engaging in Prohibited 
Conduct--Release of U.S.-Origin Technology to Foreign Nationals in the 
United States: From on or about November 1996 through on or about April 
2000, Suntek released U.S.-origin technology subject to the former 
Regulations and the Regulations to citizens of the PRC, not citizens or 
permanent resident aliens of the United States, without licenses from 
BIS. Suntek's release of the technology within the United States to 
citizens of the PRC constituted exports under 734.2(b) of the 
Regulations and required licenses under Sections 742.4 and 742.5 of the 
Regulations.
     4. Four Violations of 15 CFR 764.2(g)--Misrepresentation and 
Concealment of Facts--False Statements on License Application: On or 
about July 25, 1997, Suntek filed an application for a license with BIS 
to export detector log video amplifiers to the PRC. On the application, 
Suntek stated that the purchaser, intermediate consignee, ultimate 
consignee, and end-user were China Electronic Science & Technical 
University when, in fact, China Electronic Science & Technical 
University was not the purchaser,

[[Page 26361]]

intermediate consignee, ultimate consignee, or end-user.
     5. Five Violations of 15 CFR 764.2(a)--Engaging in Prohibited 
Conduct--Export Without Licenses: On or about February 4, 1998, 
February 26, 1998, April 28, 1998, May 7, 1998, and June 8, 1998, 
Suntek exported detector log video amplifiers from the United States to 
the PRC without obtaining the BIS licenses required under Sections 
742.4 and 742.5 of the Regulations.
     6. Five Violations of 15 CFR 764.2(e)--Acting with Knowledge--
Exporting Without Licenses: In connection with the five exports of 
detector log video amplifiers set forth in subparagraph 5. above, 
Suntek sold or transferred with knowledge that the licenses were 
required for the exports and that the required licenses were not 
obtained.
     BIS and Suntek 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 a civil penalty of $275,000 is assessed against 
Suntek, which shall be paid to the U.S. 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, Suntek 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, for a period 20 years from the date of entry of the Order, 
Suntek Microwave, Inc., 8698 Thorton Avenue, Newark, California 94560, 
its successors and assigns, and when acting for or on behalf of Suntek, 
its officers, representatives, agents, or employees (``Denied Person'') 
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 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.
    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 United 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 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. For purposes of this paragraph, servicing means 
installation, maintenance, repair, modification or testing.
    Fifth, 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 a 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 
the 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, as authorized by Section 766.18(c) of the 
Regulations, the civil penalty set forth above shall be suspended in 
its entirety for one year from the date of this Order, and shall 
thereafter be waived, provided that during the period of suspension, 
Suntek has committed no violation of the Act or any regulation, order 
or license issued thereunder.
    Eighth, that the charging letter, the Settlement Agreement, and 
this Order, in addition to the record of the case, shall be made 
available to the public.
    This Order, which constitutes the final agency action in this 
matter, is effective immediately.

    Entered this 6th day of May 2004.
Julie L. Myers,
Assistant Secretary of Commerce for Export Enforcement.
[FR Doc. 04-10767 Filed 5-11-04; 8:45 am]
BILLING CODE 3510-DT-M