05-22782. Action Affecting Export Privileges; Performance Medical Supplies; In the Matter of: Performance Medical Supplies, 16 Gardenia Cresent, Cheltenham, Victoria 3192, Australia; Respondent; Order Relating to Performance Medical Supplies

The Bureau of Industry and Security, U.S. Department of Commerce (“BIS”) has initiated an administrative proceeding against Performance Medical Supplies (“Performance Medical Supplies”) pursuant to Section 766.3 of the Export Administration Regulations (currently codified at 15 CFR Parts 730-774 (2005)) (“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] through issuance of a charging letter to Performance Medical Supplies that alleged that Performance Medical Supplies committed 10 violations of the Regulations. Specifically, the charges are:

1. One violation of 15 CFR 764.2(d)—Conspiracy to Export Physical Therapy Equipment to Iran Without the Required U.S. Government Authorizations: In or about April 2000, Performance Medical Supplies conspired and acted in concert with others, known and unknown, to bring about acts that constitute violations of the Regulations by knowingly participating in the export of physical therapy equipment from the United States, via Australia, to Iran without the required U.S. Government authorization. Pursuant to Section 746.7 of the Regulations, authorization was required from the Office of Foreign Assets Control, U.S. Department of the Treasury (“OFAC”) before the physical therapy equipment, items subject to the Regulations and the Iranian Transactions Regulations, could be exported from the United States to Iran. In furtherance of conspiracy, Performance Medical Supplies and its co-conspirator devised and employed a scheme under which Performance Medical Supplies would purchase the items from its co-conspirator in the United States and would then forward the items to Iran.

2. Three violations of 15 CFR 764.2(b)—Aiding the Export of Physical Therapy Equipment to Iran Without the Required U.S. Government Authorization: From on or about March 28, 2000 through and including April 7, 2000, Performance Medical Supplies engaged in conduct prohibited by Regulations when it, on three occasions, aided the export of physical therapy equipment from the United States to Iran, via Australia, without the required U.S. Government authorization. Pursuant to Section 746.7 of the Regulations, authorization from OFAC was required for the export of physical therapy equipment, items subject to the Regulations and the Iranian Transactions Regulations, from the United States to Iran. The U.S. exporter did not have OFAC authorization for the export.

3. Three violations of 15 CFR 764.2(e)—Ordering Physical Therapy Equipment With Knowledge That a Violation of the Regulations Was to Occur: On three occasions, Performance Medical Supplies ordered physical therapy equipment with knowledge that violations of the Regulations would occur. At all times relevant hereto, Performance Medical Supplies knew that prior authorization was required from the U.S. Government to export the physical therapy equipment, items subject to the Regulations and the Iranian Transactions Regulations, from the United States to Iran. Performance Medical Supplies ordered the items knowing that they would be exported to Iran without the required U.S. Government authorization.

4. Three Violations of 15 CFR 764.2(h)—Actions to Evade the Requirements of the Regulations: On three occasions, Performance Medical Supplies took actions to evade the U.S. Government's licensing requirements for the export of physical therapy equipment to Iran. Specifically, Performance Medical Supplies participated in the routing of sales to Iran through Australia to conceal the fact that the physical therapy equipment was destined for Iran.

Whereas, BIS and Performance Medical Supplies 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, for a period of five years from the date of entry of the Order, Performance Medical Supplies, 16 Gardenia Cresent, Cheltenham, Victoria 3192, Australia, its successors or assigns, and when acting for or on behalf of Performance Medical Supplies, 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.

Second, 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 acquired 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.

Third, that, to prevent evasion of this Order, BIS, after notice and opportunity for comment as provided in Section 766.23 of the Regulations, may make any person, firm, corporation, or business organization related to Performance Medical Supplies by affiliation, ownership, control, or position of responsibility in the conduct of trade or related services subject to the provisions of this Order.

Fourth, 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.

Fifth, that the charging letter, the Settlement Agreement, this Order, and the record of this case 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.

This Order, which constitutes the final agency action in this matter, is effective upon publication in the Federal Register.

Entered this 9th day of November 2005.

Darryl W. Jackson,

Assistant Secretary of Commerce, for Export Enforcement.

Footnotes

1.  The violations charged occurred in 2000. The Regulations governing the violations at issue are found in the 2000 version of the Code of Federal Regulations (15 CFR Parts 730-774 (2000)). The 2005 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 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 2, 2005 (70 FR 45273, August 5, 2005), has continued the Regulations in effect under IEEPA.