[Federal Register Volume 74, Number 20 (Monday, February 2, 2009)]
[Notices]
[Pages 5815-5816]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-2168]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
[08-BIS-0008]
Action Affecting Export Privileges; Well Being Enterprise Co.,
Ltd.; In the Matter of: Well Being Enterprise Co., Ltd. 9 F, No. 170
Min Chuan E. Rd., Sec. 3 Taipei 10542 Taiwan Respondent; Order Relating
to Well Being Enterprise Co., Ltd.
The Bureau of Industry and Security, U.S. Department of Commerce
(``BIS'') has initiated an administrative proceeding against Well Being
Enterprise Co., Ltd. (hereinafter referred to as ``Well Being'')
pursuant to Section 766.3 of the Export Administration Regulations
(``Regulations'') \1\ and Section 13(c) of the Export Administration
Act of 1979, as amended (``Act''),\2\ through issuance of a charging
letter to Well Being that alleged that Well Being committed 25
violations of the Regulations. Specifically, the charges are:
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\1\ The Regulations are currently codified in the Code of
Federal Regulations at 15 CFR parts 730-774 (2008). The charged
violations occurred in 2003 through 2006. The Regulations governing
the violations at issue are found in the 2003 through 2006 versions
of the Code of Federal Regulations (15 CFR parts 730-774 (2003-
2006)). The 2008 Regulations govern the procedural aspects of this
case.
\2\ 50 U.S.C. app. Sec. Sec. 2401-2420 (2000). 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 July 23, 2008 (73 FR 43,603 (July 25, 2008)),
has continued the Regulations in effect under the International
Emergency Economic Powers Act (50 U.S.C. 1701-1706 (2000)).
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Charge 1 15 CFR 764.2(d)--Conspiracy to Export Items from the United
States to Taiwan without the Required License
Beginning in or about 2003 and continuing through on or about July
29, 2006, Well Being conspired and acted in concert with others, known
and unknown, to violate the Regulations and to bring about an act that
constitutes a violation of the Regulations. The purpose of the
conspiracy was to export items from the United States to Taiwan without
the required U.S. Government authorization. Pursuant to Sections 742.2
or 742.3 of the Regulations, authorization was required from the
Department of Commerce before certain chemicals, metals, and electronic
components, items subject to the Regulations and classified under
Export Control Classification Numbers (``ECCNs'') 1C227, 1C299, 1C231,
1C234, 1C240, and 1C350, could be exported from the United States to
Taiwan. In furtherance of the conspiracy, the conspirators, including
Well Being, participated in a scheme in which Well Being requested that
an affiliated U.S. company procure specific items from U.S. suppliers
and export them to Taiwan. Well Being instructed the affiliated U.S.
company not to tell U.S. suppliers that the affiliated U.S. company
would export the items. Pursuant to this instruction, the affiliated
U.S. company procured the items and exported them to Taiwan without the
required license. In so doing, Well Being committed one violation of
Section 764.2(d) of the Regulations.
Charge 2 15 CFR 764.2(h)--Evasion
On or about October 20, 2005, Well Being engaged in a transaction
or took other action with intent to evade the provisions of the
Regulations. Specifically, Well-Being provided electronic instruction
to an affiliated U.S. company stating that the affiliated U.S. company
should not use its correct name when placing an order for nickel powder
with a specific U.S. supplier because Well Being thought that the U.S.
supplier knew that there was a relationship between Well Being and the
affiliated U.S. company. Well Being conveyed this instruction to the
affiliated U.S. company for the purpose of obtaining the nickel powder,
which was subject to the Regulations and classified under ECCN 1C240,
without obtaining the required U.S. government authorization. In so
doing, Well Being committed one violation of Section 764.2(h) of the
Regulations.
Charges 3-24 15 CFR 764.2(b): Commanding and/or Inducing an Act
Prohibited by the Regulations
On 22 occasions between on or about August 13, 2003 and on or about
May 13, 2006, Well Being commanded or induced the doing of an act
prohibited by the Regulations by instructing an affiliated U.S. company
to procure and export to Taiwan certain chemicals, metals, and
electronic components, items subject to the Regulations and classified
under ECCNs 1C227, 1C299, 1C231, 1C234, and 1C240, without the
Department of Commerce licenses required by Section 742.3 of the
Regulations. Specifically, Well Being instructed an affiliated U.S.
company, whose sole officer was also the president of Well Being, to
procure items for Well Being and export them to Well Being in Taiwan.
In so doing, Well Being committed 22 violations of Section 764.2(b) of
the Regulations.
Charge 25 15 CFR 764.2(b): Commanding and/or Inducing an Act Prohibited
by the Regulations
On one occasion on or about April 15, 2006, Well Being commanded or
induced the doing of an act prohibited by the Regulations by
instructing an affiliated U.S. company to procure and export to Taiwan
sodium fluoride, an item subject to the Regulations and classified
under ECCN 1C350, without the Department of Commerce license required
by Section 742.2 of the Regulations. Specifically, Well Being
instructed an affiliated U.S. company, whose sole officer was also the
president of Well Being, to procure sodium fluoride for Well Being and
export it to Well Being in Taiwan. In so doing, Well Being committed
one violation of Section 764.2(b) of the Regulations.
Whereas, BIS and Well Being have 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
Whereas, I have approved of the terms of such Settlement Agreement;
It is therefore ordered:
First, that a civil penalty of $250,000 is assessed against Well
Being. Well Being shall pay $30,000 to the U.S. Department of Commerce
within 30 days of from the date of entry of this Order. Payment shall
be made in the manner specified in the attached instructions. Payment
of the remaining $220,000 shall be suspended for a
[[Page 5816]]
period of five years from the date of entry of this Order and
thereafter shall be waived, provided that during the period of
suspension, Well Being has committed no violation of the Act, or any
regulation, order, or license issued thereunder and has made the
payment of $30,000, described above, in a timely manner. Additionally:
A. 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 Well Being. Accordingly, if
Well Being should fail to pay the civil penalty in a timely manner, the
undersigned may enter an Order denying all of Well Being's export
privileges for a period of five years from the date of entry of this
Order.
Second, that for a period of twenty years from the date of entry of
this Order, Well Being Enterprise Co., Ltd., 9 F, No. 170 Min Chuan E.
Rd., Sec. 3, Taipei 10542, Taiwan, (``Well Being''), its successors or
assigns, and, when acting for or on behalf of Well Being, its officers,
representatives, agents or employees (``Denied Person(s)'') 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 and listed on the
Commerce Control List, set forth in Supplement No. 1 to 15 CFR part
774, or in any other activity subject to the Regulations that involves
an item listed on the Commerce Control List, including, but not limited
to:
A. Applying for, obtaining, or using any license, License
Exception, or export control document that involves an item that is
subject to the Regulations and listed on the Commerce Control List;
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 and listed on the
Commerce Control List, or in any other activity subject to the
Regulations that involves an item listed on the Commerce Control List;
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 Regulations and listed on the Commerce Control List, or in any
other activity subject to the Regulations that involves an item listed
on the Commerce Control List.
Third, 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 listed on the Commerce Control List that has been, will
be, or is intended to be exported or reexported from the United States:
A. Export or reexport to or on behalf of a Denied Person any item
subject to the Regulations and listed on the Commerce Control List;
B. Take any action that facilitates the acquisition or attempted
acquisition by a Denied Person of the ownership, possession, or control
of any item subject to the Regulations and listed on the Commerce
Control List that has been or will be exported from the United States,
including financing or other support activities related to a
transaction whereby a 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 a Denied Person of any item subject to
the Regulations and listed on the Commerce Control List that has been
exported from the United States;
D. Obtain from a Denied Person in the United States any item
subject to the Regulations and listed on the Commerce Control List 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 and listed on the Commerce Control List that has been or
will be exported from the United States and that is owned, possessed or
controlled by a Denied Person, or service any item, of whatever origin,
that is owned, possessed or controlled by a Denied Person if such
service involves the use of any item subject to the Regulations and
listed on the Commerce Control List that has been or will be exported
from the United States. For purposes of this paragraph, servicing means
installation, maintenance, repair, modification or testing.
Fourth, 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 Well Being 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.
Fifth, that the charging letter, amended charging letter, the
Settlement Agreement, and this Order, and the record of the cases as
defined by Section 766.20 of the Regulations shall be made available to
the public.
Sixth, that the Administrative Law Judge shall be notified that
this case is withdrawn from adjudication.
Seventh, that this Order shall be served on the Denied Person and
on BIS, and shall be published in the Federal Register.
This Order, which constitutes the final agency action in this
matter, is effective immediately.
Entered this 26th day of January, 2009.
Kevin Delli-Colli,
Acting Assistant Secretary for Export Enforcement.
[FR Doc. E9-2168 Filed 1-30-09; 8:45 am]
BILLING CODE 3510-DT-P