06-7622. Action Affecting Export Privileges; In the Matter of: Thomas Campbell Butler, 4611 10th Street, Lubbock, TX 79416, Respondent; Order

The Bureau of Industry and Security, U.S. Department of Commerce (“BIS”) has notified Thomas Campbell Butler (“Butler”) of its intention to initiate an administrative proceeding against Butler pursuant to Section 766.3 of the Export Administration Regulations (currently codified at 15 CFR Parts 730-774 (2006)) (“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 Butler that alleged that Butler committed four violations of the Regulations. Specifically, the charges are:

1. One violation of 15 CFR 764.2(a)—Engaging in Unauthorized Export to Tanzania: On or around September 9, 2002, Butler engaged in conduct prohibited by the Regulations when he exported the human pathogen Yersinia pestis is subject to the Regulations and classified under Export Control Classification Number (ECCN) 1C351. Section 742.2 or the Regulations requires a Department of Commerce license to be obtained for exports of Yersinia pestis to Tanzania.

2. One violation of 15 CFR 743.2(e)—Transferring, Forwarding and/or Disposing of Items with Knowledge that a Violation Would Occur: On or around September 9, 2002, Butler transferred, forwarded, and/or disposed of items subject to the Regulations with knowledge that a violation of the Regulations was about to occur in connection with the items. Specifically, Butler transferred, forwarded, and/or disposed of the human pathogen Yersinia pestis (Plague) to Tanzania, as described in Charge One, knowing that the item would be exported without the required Department of Commerce license.

3. One violation of 15 CFR 764.2(h)—Taking an Action with Intent to Evade the Provisions of the Act or Regulations: On or around September 9, 2002, Butler took action with intent to evade the provisions of the Regulations in connection with the export described in Charge One above. Specifically, Butler described the human pathogen Yersinia pestis (Plague) as “Laboratory Materials” on the waybill, undervalued the shipment, neglected to fill out the section of the waybill regarding Shipper's Export Declaration requirements, and signed his name under a statement claiming that the commodities in question were being shipped in accordance with the Regulations. He did this to disguise the fact that the export required a license.

4. One violation of 15 CFR 764.2(h)—Taking an Action with Intent to Evade the Provisions of the Act or Regulations: On or around September 9, 2002, Butler took action with intent to evade the provisions of the Regulations in connection with the export described in Charge One above. Specifically, Butler failed to file a Shipper's Export Declaration for the export of the human pathogen Yersinia pestis (Plague). He did this to disguise the fact that the export required a license.

Whereas, BIS and Butler have 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

Whereas, I have approved the terms of such Settlement Agreement; It is therefore ordered:

First, that a civil penalty of $37,400 is assessed against Butler, which shall be paid to the U.S. Department of Commerce no later than 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. §§ 3701-3702E (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, Butler 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 Butler. Accordingly, if Butler should fail to pay the civil penalty in a timely manner, the undersigned may enter an Order denying all of Butler's export privileges under the Regulations for a period of one year from the date of entry of this Order.

Fourth, that for a period of 10 years from the date of entry of this Order, Thomas Campbell Butler, 4611 10th Street, Lubbock, Texas 79416, and, when acting on his behalf, his 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”) 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. 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, or in any other activity subject to the Regulations.

Fifth, 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, or 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.

Sixth, 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 Butler by affiliation, worship, control, or position of responsibility in the conduct of trade or related services may also be made subject to the provisions of the Order.

Seventh, 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.

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

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

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

Entered this 1st day of September 2006.

Darryl W. Jackson,

Assistant Secretary of Commerce for Export Enforcement.

Footnotes

1.  The violations charged 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 2006 Regulations establish the procedures that apply to this matter.

2.  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 44551 (August 7, 2006)), has continued the Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706 (2000)) (“IEEPA”).