[Federal Register Volume 64, Number 38 (Friday, February 26, 1999)]
[Notices]
[Pages 9470-9471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-4758]
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DEPARTMENT OF COMMERCE
Bureau of Export Administration
[Docket No. 97-BXA-20]
Aluminum Company of America Respondent; Decision and Order
This is an export control administrative enforcement action here
for final decision by the Under Secretary pursuant to Sec. 766.22 of
the Export Administration Regulations (15 CFR 730, et seq.) In a
recommended decision and order dated December 21, 1998, the Honorable
Parlen L. McKenna, Administrative Law Judge (ALJ), found that the
Aluminum Company of America (ALOCA) committed 100 violations of the
Export Administration Regulations and proposed a civil
[[Page 9471]]
penalty of $10,000 per violation for a total penalty of $1,000,000.
After reviewing the record of this case, including the briefs of the
parties filed before me, I approve the ALJ's recommended findings and
decision subject to my comments below.
I approve the ALJ's findings of fact and his conclusions of law.
The ALJ correctly found that the former EAR Sec. 787.5(a) (15 CFR
787.5(a)) does not require a showing of knowledge on intent on the part
of the respondent. The ALJ correctly determined that ALCOA committed
100 violations of the EAR.
With respect to the penalty, I generally agree with the ALJ's
assessment of the factors that bear on the penalty. The ALJ is correct,
for example, that the results in prior settlement cases are not
precedent for a penalty in this contested case. A willingness to settle
on the government's terms is a concrete sign that a violator has
admitted his wrongdoing and is making amends. That factor, which is not
present in this case, can significantly mitigate the penalty. I also
disagree with respondent's counsel that the result in this case will
have a chilling effect on voluntary disclosures. ALCOA did not make a
voluntary disclosure under the meaning of EAR 764.5 in this case. This
penalty should send the message that there are significant advantages
to having an internal compliance program that catches and reports
problems quickly.
I have made my own assessment of the penalty in light of the
findings and conclusions of the ALJ. I approve the ALJ's recommended
penalty of $10,000 for each of the 50 Sec. 787.6 violations for
exporting without the required validated export license. With respect
to the penalty for the false statement violations under Sec. 787.5(a),
however, I am reducing the penalty to $5,000 per violation.
Accordingly, I approve a total penalty of $750,000.
It is therefore ordered that the Aluminum Company of America,
having been found by a preponderance of the evidence to have committed
100 violations of the Export Administration Regulations, pay a civil
penalty in the amount of $10,000 for each of the 50 charges of
violation of former Sec. 787.6 of the EAR and a civil penalty of $5,000
for each of 50 charges of violation of former 787.5(a) of the EAR, for
a total penalty of $750,000.
It is further ordered that ALCOA shall pay the penalty assessed
herein within 30 days from the date of this order and in accordance
with the ``instructions for Payment of Civil Penalty'' attached to the
ALJ's recommended decision and order. Pursuant to the Debt Collection
Act of 1982, as amended (31 U.S.C. 3701-3720E (1983 and Supp. 1998)),
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, respondent will be assessed, in addition to
interest, a penalty charge and an administrative charge, as more fully
described in the attached notice.
It is further ordered that this decision and order and the
recommended decision and order of the ALJ shall be served on the
parties and published in the Federal Register.
Entered this 19th day of February, 1999.
William A. Reinsch,
Under Secretary for Export Administration.
Notice
The Order to which this Notice is attached describes the reasons
for the assessment of the civil monetary penalty and the rights, if
any, the respondent may have to seek review, both within the U.S.
Department of Commerce and the courts. 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.A.
Secs. 3701-3720E (1983 and Supp. 1998)), and the Federal Claims
Collection Standards (4 CFR parts 101-105 (1997)), 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. Sec. 3717 and 4 CFR 102.13.
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 six 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. Sec. 3717 and
4 CFR 102.13
The foregoing constitutes the initial written notice and demand to
respondent in accordance with section 102.2(b) of the Federal Claims
Collection Standards (4 CFR 102.2(b)).
[FR Doc. 99-4758 Filed 2-25-99; 8:45 am]
BILLING CODE 3510-DT-M
