UTair Aviation JSC, Khanty-Mansiysk Airport, Tyumen Region, Russia 628012; Order Temporarily Denying Export Privileges

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Published

April 12, 2022

Issuing agencies

Commerce DepartmentIndustry and Security Bureau

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<title>Federal Register, Volume 87 Issue 70 (Tuesday, April 12, 2022)</title>
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[Federal Register Volume 87, Number 70 (Tuesday, April 12, 2022)]
[Notices]
[Pages 21616-21619]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-07770]

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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

UTair Aviation JSC, Khanty-Mansiysk Airport, Tyumen Region,
Russia 628012; Order Temporarily Denying Export Privileges

Pursuant to Section 766.24 of the Export Administration
Regulations, 15 CFR parts 730-774 (2021) (``EAR'' or ``the
Regulations''),\1\ the Bureau of Industry and Security (``BIS''), U.S.
Department of Commerce, through its Office of Export Enforcement
(``OEE''), has requested the issuance of an Order temporarily denying,
for a period of 180 days, the export privileges under the Regulations
of: UTair Aviation JSC (``UTair''). OEE's request and related
information indicates that UTair is headquartered at Khanty-Mansisyk
Airport, located in Khanty-Mansisyk, Russia, with domestic hubs at
Surgut Airport and Vnukovo Airport.
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\1\ On August 13, 2018, the President signed into law the John
S. McCain National Defense Authorization Act for Fiscal Year 2019,
which includes the Export Control Reform Act of 2018, 50 U.S.C.
4801-4852 (``ECRA''). While Section 1766 of ECRA repeals the
provisions of the Export Administration Act, 50 U.S.C. app. 2401 et
seq. (``EAA'') (except for three sections which are inapplicable
here), Section 1768 of ECRA provides, in pertinent part, that all
orders, rules, regulations, and other forms of administrative action
that were made or issued under the EAA, including as continued in
effect pursuant to the International Emergency Economic Powers Act,
50 U.S.C. 1701 et seq. (``IEEPA''), and were in effect as of ECRA's
date of enactment (August 13, 2018), shall continue in effect
according to their terms until modified, superseded, set aside, or
revoked through action undertaken pursuant to the authority provided
under ECRA. Moreover, Section 1761(a)(5) of ECRA authorizes the
issuance of temporary denial orders. 50 U.S.C. 4820(a)(5).
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I. Legal Standard

Pursuant to Section 766.24, BIS may issue an order temporarily
denying a respondent's export privileges upon a showing that the order
is necessary in the public interest to prevent an ``imminent
violation'' of the Regulations, or any order, license or authorization
issued thereunder. 15 CFR 766.24(b)(1) and 766.24(d). ``A violation

[[Page 21617]]

may be `imminent' either in time or degree of likelihood.'' 15 CFR
766.24(b)(3). BIS may show ``either that a violation is about to occur,
or that the general circumstances of the matter under investigation or
case under criminal or administrative charges demonstrate a likelihood
of future violations.'' Id. As to the likelihood of future violations,
BIS may show that the violation under investigation or charge ``is
significant, deliberate, covert and/or likely to occur again, rather
than technical or negligent[.]'' Id. A ``lack of information
establishing the precise time a violation may occur does not preclude a
finding that a violation is imminent, so long as there is sufficient
reason to believe the likelihood of a violation.'' Id.

II. OEE's Request for a Temporary Denial Order (``TDO'')

The U.S. Commerce Department, through BIS, responded to the Russian
Federation's (``Russia's'') further invasion of Ukraine by implementing
a sweeping series of stringent export controls that severely restrict
Russia's access to technologies and other items that it needs to
sustain its aggressive military capabilities. These controls primarily
target Russia's defense, aerospace, and maritime sectors and are
intended to cut off Russia's access to vital technological inputs,
atrophy key sectors of its industrial base, and undercut Russia's
strategic ambitions to exert influence on the world stage. Effective
February 24, 2022, BIS imposed expansive controls on aviation-related
(e.g., Commerce Control List Categories 7 and 9) items to Russia,
including a license requirement for the export, reexport or transfer
(in-country) to Russia of any aircraft or aircraft parts specified in
Export Control Classification Number (ECCN) 9A991 (Section 746.8(a)(1)
of the EAR).\2\ BIS will review any export or reexport license
applications for such items under a policy of denial. See Section
746.8(b). Effective March 2, 2022, BIS excluded any aircraft registered
in, owned, or controlled by, or under charter or lease by Russia or a
national of Russia from being eligible for license exception Aircraft,
Vessels, and Spacecraft (AVS) (Section 740.15 of the EAR).\3\
Accordingly, any U.S.-origin aircraft or foreign aircraft that includes
more than 25% controlled U.S.-origin content, and that is registered
in, owned, or controlled by, or under charter or lease by, Russia or a
national of Russia, is subject to a license requirement before it can
travel to Russia.
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\2\ 87 FR 12,226 (Mar. 3, 2022).
\3\ 87 FR 13,048 (Mar. 8, 2022).
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OEE's request is based upon facts indicating that UTair engaged in
recent conduct prohibited by the Regulations by operating aircraft
subject to the EAR and classified under ECCN 9A991.b, on flights into
Russia after March 2, 2022, without the required BIS authorization.
Further, since March 2, 2022, UTair has continued to operate aircraft
subject to the EAR through domestic flights without the required BIS
authorization.
Specifically, OEE's investigation, including publicly available
flight tracking information, indicates that after March 2, 2022, UTair
operated multiple U.S.-origin aircraft subject to the EAR, including,
but not limited to, those identified below, on flights into and out of
Moscow and other cities in Russia from/to: Khujand and Dushanbe,
Tajikistan; Yerevan, Armenia; Baku and Ganja, Azerbaijan; Jeddah, Saudi
Arabia, and Tashkent, Uzbekistan, respectively. Pursuant to Section
746.8 of the EAR, all of these flights would have required export or
reexport licenses from BIS. UTair flights would not be eligible to use
license exception AVS. No BIS authorizations were either sought or
obtained by UTair for these exports or reexports to Russia. As noted
below, a number of the aircraft continued to operate on international
routes to and from Russia after the aircraft's first unlicensed
reexport in further violation of the EAR. The information about those
flights includes the following:

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Departure/arrival
Tail No. Serial No. Aircraft type cities Dates
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VQ-BQP........................... 37553 737-8GU (B738)..... Khujand, TJ/Surgut, March 3, 2022.
RU.
VQ-BQP........................... 37553 737-8GU (B738)..... Khujand, TJ/Surgut, March 5, 2022.
RU.
VQ-BQR........................... 36386 737-8GU (B738)..... Khujand, TJ/Surgut, March 10, 2022.
RU.
RA-73063......................... 27534 737-524 (B735)..... Khujand, TJ/Surgut, March 17, 2022.
RU.
RA-73081......................... 30435 767-224 (ER) (B762) Dushanbe, TJ/ March 27, 2022.
Moscow, RU.
RA-73081......................... 30435 767-224 (ER) (B762) Dushanbe, TJ/ March 29, 2022.
Moscow, RU.
RA-73081......................... 30435 767-224 (ER) (B762) Dushanbe, TJ/ March 30, 2022.
Moscow, RU.
RA-73081......................... 30435 767-224 (ER) (B762) Dushanbe, TJ/ March 31, 2022.
Moscow, RU.
VQ-BQQ........................... 37552 737-8GU (B738)..... Yerevan, AM/Tyumen, March 6 ,2022.
RU.
RA-73082......................... 30437 767-224 (ER) (B762) Yerevan, AM/Moscow, March 9, 2022.
RU.
RA-73082......................... 30437 767-224 (ER) (B762) Yerevan, AM/Moscow, March 10, 2022.
RU.
RA-73082......................... 30437 767-224 (ER) (B762) Yerevan, AM/Moscow, March 11, 2022.
RU.
RA-73061......................... 28907 737-524 (B735)..... Yerevan, AM/Tyumen, March 13, 2022.
RU.
RA-73081......................... 30435 767-224 (ER) (B762) Yerevan, AM/Moscow, March 16, 2022.
RU.
RA-73062......................... 28908 737-524 (B735)..... Yerevan, AM/Moscow, March 25, 2022.
RU.
RA-73061......................... 28907 737-524 (B735)..... Yerevan, AM/Tyumen, March 29, 2022.
RU.
RA-73061......................... 28907 737-524 (B735)..... Yerevan, AM/Tyumen, March 30, 2022.
RU.
RA-73035......................... 27315 737-524 (B735)..... Yerevan, AM/Moscow, March 31, 2022.
RU.
VQ-BQR........................... 36386 737-8GU (B738)..... Baku, AZ/Surgut, RU March 9, 2022.
RA-73035......................... 27315 737-524 (B735)..... Baku, AZ/Moscow, RU March 29, 2022.
RA-73061......................... 28907 737-524 (B735)..... Baku, AZ/Moscow, RU March 31, 2022.
RA-73035......................... 27315 737-524 (B735)..... Ganja, AZ/Moscow, March 30, 2022.
RU.
VQ-BQS........................... 36387 737-8GU (B738)..... Jeddah, SA/Grozny, March 5, 2022.
RU.
VP-BAI/RA-73082.................. 30437 767-224 (ER) (B762) Tashkent, UZ/ March 28, 2022.
Moscow, RU.
VP-BAI/RA-73082.................. 30437 767-224 (ER) (B762) Tashkent, UZ/ March 29, 2022.
Moscow, RU.
VP-BAI/RA-73082.................. 30437 767-224 (ER) (B762) Tashkent, UZ/ March 30, 2022.
Moscow, RU.
VP-BAI/RA-73082.................. 30437 767-224 (ER) (B762) Tashkent, UZ/ March 31, 2022.
Moscow, RU.
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[[Page 21618]]

Based on this information, there are heightened concerns of future
violations of the EAR, given that any subsequent actions taken with
regard to any of the listed aircraft, or other UTair aircraft illegally
exported or reexported to Russia after March 2, 2022, may violate the
EAR. Such actions include, but are not limited to, refueling,
maintenance, repair, or the provision of spare parts or services. See
General Prohibition 10 of the EAR at 15 CFR 736.2(b)(10).\4\ Even
UTair's continued use of such U.S.-origin aircraft only on domestic
routes within Russia runs afoul of General Prohibition 10, which (among
other restrictions) prohibits the continued use of an item that was
known to have been exported or reexported in violation of the EAR. For
example, publicly available flight tracking data shows that on March 25
and March 28, 2022, aircraft RA-73063 (SN 27534) flew on flights into
and out of Surgut, Russia to/from Samara, Russia and, on March 26 and
March 28, 2022, aircraft RA-73061 (SN 28907) flew on flights into and
out of Moscow, Russia to/from Syktykar, Russia and Ukhta, Russia.
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\4\ Section 736.2(b)(10) of the EAR provides: General
Prohibition Ten--Proceeding with transactions with knowledge that a
violation has occurred or is about to occur (Knowledge Violation to
Occur). You may not sell, transfer, export, reexport, finance,
order, buy, remove, conceal, store, use, loan, dispose of,
transport, forward, or otherwise service, in whole or in part, any
item subject to the EAR and exported or to be exported with
knowledge that a violation of the Export Administration Regulations,
the Export Administration Act or any order, license, License
Exception, or other authorization issued thereunder has occurred, is
about to occur, or is intended to occur in connection with the item.
Nor may you rely upon any license or License Exception after notice
to you of the suspension or revocation of that license or exception.
There are no License Exceptions to this General Prohibition Ten in
part 740 of the EAR. (emphasis in original).
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Moreover, additional concerns of future violations of the
Regulations are raised by public information indicating efforts by
UTair to have aircraft re-registered in Russia and assigned Russian
tail numbers. These efforts suggest that UTair intends not only to
maintain control over the aircraft, but also to continue operating them
in likely violation of the EAR. Public information available as of the
signing of this order on UTair's own website also indicates that its
fleet consists of 63 aircraft, of which 48 are U.S.-origin; the
remainder are manufactured outside of Russia and may be subject to the
EAR based on containing more than 25% U.S.-origin controlled
content.\5\ UTair's website indicates that it currently operates
international flights to Tajikistan, Turkey, Azerbaijan, and Armenia,
and that while flights to the south of Russia are limited, there are
cities that can be reached with UTair.\6\ Given BIS's review policy of
denial under Section 746.8(a) of the Regulations for exports and
reexports to Russia, it is foreseeable that UTair will attempt to evade
the Regulations in order to obtain new or additional aircraft parts or
service its existing aircraft that were exported or reexported to
Russia in violation of Section 746.8 of the Regulations.
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\5\ <a href="https://www.utair.ru/en/about/aircrafts/">https://www.utair.ru/en/about/aircrafts/</a>.
\6\ <a href="https://media.utair.ru/spring-in-russia">https://media.utair.ru/spring-in-russia</a>.
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III. Findings

Under the applicable standard set forth in Section 766.24 of the
Regulations and my review of the entire record, I find that the
evidence presented by BIS convincingly demonstrates that UTair took
actions in apparent violation of the Regulations by exporting or
reexporting the aircraft cited above, among many others, on flights
into Russia after March 2, 2022, without the required BIS
authorization. Moreover, the continued operation of these aircraft by
UTair, even on domestic routes within Russia, and the company's on-
going need to acquire replacement parts and components, many of which
are U.S.-origin, presents a high likelihood of imminent violations
warranting imposition of a TDO. I further find that such apparent
violations have been significant and deliberate. Therefore, issuance of
the TDO is necessary in the public interest to prevent imminent
violation of the Regulations and to give notice to companies and
individuals in the United States and abroad that they should avoid
dealing with UTair in connection with export and reexport transactions
involving items subject to the Regulations and in connection with any
other activity subject to the Regulations.
This Order is being issued on an ex parte basis without a hearing
based upon BIS's showing of an imminent violation in accordance with
Section 766.24 and 766.23(b) of the Regulations.

IV. Order

It is therefore ordered:
FIRST, UTair Aviation JSC, Khanty-Mansiysk Airport, Tyumen Region,
Russia, when acting for or on their behalf, any successors or assigns,
agents, or employees 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 EAR, or
in any other activity subject to the EAR including, but not limited to:
A. Applying for, obtaining, or using any license (except directly
related to safety of flight), 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 EAR except directly related to
safety of flight and authorized by BIS pursuant to Section 764.3(a)(2)
of the Regulations, or engaging in any other activity subject to the
EAR except directly related to safety of flight and authorized by BIS
pursuant to Section 764.3(a)(2) of 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 EAR, or from any other activity subject to the EAR except directly
related to safety of flight and authorized by BIS pursuant to Section
764.3(a)(2) of the Regulations.
SECOND, that no person may, directly or indirectly, do any of the
following:
A. Export, reexport, or transfer (in-country) to or on behalf of
UTair any item subject to the EAR except directly related to safety of
flight and authorized by BIS pursuant to Section 764.3(a)(2) of the
Regulations;
B. Take any action that facilitates the acquisition or attempted
acquisition by UTair of the ownership, possession, or control of any
item subject to the EAR that has been or will be exported from the
United States, including financing or other support activities related
to a transaction whereby UTair acquires or attempts to acquire such
ownership, possession or control except directly related to safety of
flight and authorized by BIS pursuant to Section 764.3(a)(2) of the
Regulations;
C. Take any action to acquire from or to facilitate the acquisition
or attempted acquisition from UTair of any item subject to the EAR that
has been exported from the United States except directly related to
safety of flight and authorized by BIS pursuant to Section 764.3(a)(2)
of the Regulations;
D. Obtain from UTair in the United States any item subject to the
EAR with knowledge or reason to know that the item will be, or is
intended to be, exported from the United States except directly related
to safety of flight and authorized by BIS pursuant to Section
764.3(a)(2) of the Regulations; or
E. Engage in any transaction to service any item subject to the EAR
that has been or will be exported from the United States and which is
owned,

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possessed or controlled by UTair, or service any item, of whatever
origin, that is owned, possessed or controlled by UTair if such service
involves the use of any item subject to the EAR that has been or will
be exported from the United States except directly related to safety of
flight and authorized by BIS pursuant to Section 764.3(a)(2) of the
Regulations. For purposes of this paragraph, servicing means
installation, maintenance, repair, modification, or testing.
THIRD, that, after notice and opportunity for comment as provided
in section 766.23 of the EAR, any other person, firm, corporation, or
business organization related to UTair by ownership, control, position
of responsibility, affiliation, or other connection in the conduct of
trade or business may also be made subject to the provisions of this
Order.
In accordance with the provisions of Sections 766.24(e) of the EAR,
UTair may, at any time, appeal this Order by filing a full written
statement in support of the appeal with the Office of the
Administrative Law Judge, U.S. Coast Guard ALJ Docketing Center, 40
South Gay Street, Baltimore, Maryland 21202-4022.
In accordance with the provisions of Section 766.24(d) of the EAR,
BIS may seek renewal of this Order by filing a written request not
later than 20 days before the expiration date. A renewal request may be
opposed by UTair as provided in Section 766.24(d), by filing a written
submission with the Assistant Secretary of Commerce for Export
Enforcement, which must be received not later than seven days before
the expiration date of the Order.
A copy of this Order shall be provided to UTair, and shall be
published in the Federal Register.
This Order is effective immediately and shall remain in effect for
180 days.

Dated: April 7, 2022.
Matthew S. Axelrod,
Assistant Secretary of Commerce for Export Enforcement.
[FR Doc. 2022-07770 Filed 4-11-22; 8:45 am]
BILLING CODE 3510-DT-P

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