Notice2022-13293
Belavia Belarusian Airlines, 14A Nemiga str., Minsk, Belarus, 220004; Order Temporarily Denying Export Privileges
Primary source
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Published
June 22, 2022
Issuing agencies
Commerce DepartmentIndustry and Security Bureau
Full Text
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<title>Federal Register, Volume 87 Issue 119 (Wednesday, June 22, 2022)</title>
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[Federal Register Volume 87, Number 119 (Wednesday, June 22, 2022)]
[Notices]
[Pages 37309-37312]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-13293]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
Belavia Belarusian Airlines, 14A Nemiga str., Minsk, Belarus,
220004; 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 Belavia Belarusian Airlines (``Belavia''). OEE's request and related
information indicates that Belavia is headquartered in Minsk, Belarus
and owned by the State of Belarus.
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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. Sec.
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superseded, set aside, or revoked through action undertaken pursuant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 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. Between February and June
2022, BIS has published a series of amendments to the EAR that
[[Page 37310]]
increasingly tightened export controls on Russia and Belarus in
response to Russia's further invasion of Ukraine, as substantially
enabled by Belarus. These controls primarily target Russia and
Belarus's defense, aerospace, and maritime sectors and are intended to
cut off their access to vital technological inputs, atrophy key sectors
of their 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 (``CCL'') 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 generally review
any export or reexport license applications for such items under a
policy of denial. See Section 746.8(b) of the EAR. 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), and as part of the same rule,
imposed a license requirement for the export, re-export, or transfer
(in-country) of all items controlled under CCL Categories 3 through 9
to Belarus.\3\ On April 8, 2022, BIS excluded any aircraft registered
in, owned, or controlled by, or under charter or lease by Belarus or a
national of Belarus from eligibility to use license exception AVS for
travel to Russia or Belarus.\4\ Accordingly, any U.S.-origin aircraft
or foreign-origin 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 Belarus or a national of Belarus, is subject
to a license requirement before it can travel to Russia or Belarus.
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\2\ 87 FR 12226 (Mar. 3, 2022). Additionally, BIS published a
final rule effective April 8, 2022, which imposed licensing
requirements on items controlled on the CCL under Categories 0-2
that are destined for Russia or Belarus. Accordingly, now all CCL
items require export, reexport, and transfer (in-country) licenses
if destined for or within Russia or Belarus. 87 FR 22130 (Apr. 14,
2022).
\3\ 87 FR 13048 (Mar. 8, 2022).
\4\ 87 FR 22130 (Apr. 14, 2022).
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OEE's request is based upon facts indicating that Belavia engaged
in recent conduct prohibited by the Regulations by operating aircraft
subject to the EAR and classified under ECCN 9A991 on flights into
Russia and Belarus after April 8, 2022, without the required BIS
authorization.
Specifically, OEE's investigation, including publicly available
flight tracking information, indicates that after April 8, 2022,
Belavia operated multiple U.S.-origin aircraft subject to the EAR,
including, but not limited to, those identified below, on flights into
and out of Minsk, Belarus from/to Moscow, Russia; St. Petersburg,
Russia; Antalya, Turkey; Istanbul, Turkey; Tbilisi, Georgia; Batumi,
Georgia; Sharjah, United Arab Emirates; and Sharm El-Sheikh, Egypt.
Pursuant to Section 746.8 of the EAR, all of these flights would have
required export or reexport licenses from BIS. As a Belarusian airline,
Belavia flights would not be eligible to use license exception AVS for
travel to Russia or Belarus. No BIS authorizations were either sought
or obtained by Belavia for these exports or reexports to Belarus and/or
Russia. 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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EW-456PA....................... 61422 737-8ZM (B738) Minsk, BY/St. May 13, 2022.
Petersburg, RU.
EW-456PA....................... 61422 737-8ZM (B738) St. Petersburg, RU/ May 13, 2022.
Minsk, BY.
EW-456PA....................... 61422 737-8ZM (B738) Antalya, TR/Minsk, May 15, 2022.
BY.
EW-456PA....................... 61422 737-8ZM (B738) Istanbul, TR/ May 16, 2022.
Minsk, BY.
EW-456PA....................... 61422 737-8ZM (B738) Antalya, TR/Minsk, June 6, 2022.
BY.
EW-456PA....................... 61422 737-8ZM (B738) Tbilisi, GE/Minsk, June 7, 2022.
BY.
EW-456PA....................... 61422 737-8ZM (B738) Antalya, TR/Minsk, June 8, 2022.
BY.
EW-456PA....................... 61422 737-8ZM (B738) Istanbul, TR/ June 14, 2022.
Minsk, BY.
EW-457PA....................... 61423 737-8ZM (B738) Minsk, BY/Moscow, May 10, 2022.
RU.
EW-457PA....................... 61423 737-8ZM (B738) Moscow, RU/Minsk, May 10, 2022.
BY.
EW-457PA....................... 61423 737-8ZM (B738) Antalya, TR/Minsk, May 11, 2022.
BY.
EW-457PA....................... 61423 737-8ZM (B738) Tbilisi, GE/Minsk, May 12, 2022.
BY.
EW-457PA....................... 61423 737-8ZM (B738) Antalya, TR/Minsk, June 6, 2022.
BY.
EW-457PA....................... 61423 737-8ZM (B738) Sharjah, AE/Minsk, June 7, 2022.
BY.
EW-457PA....................... 61423 737-8ZM (B738) Batumi, GE/Minsk, June 8, 2022.
BY.
EW-457PA....................... 61423 737-8ZM (B738) Tbilisi, GE/Minsk, June 12, 2022.
BY.
EW-457PA....................... 61423 737-8ZM (B738) Antalya, TR/Minsk, June 14, 2022.
BY.
EW-527PA....................... 40877 737-82R (B738) Antalya, TR/Minsk, May 14, 2022.
BY.
EW-527PA....................... 40877 737-82R (B738) Istanbul, TR/ May 15, 2022.
Minsk, BY.
EW-527PA....................... 40877 737-82R (B738) Minsk, BY/Moscow, May 16, 2022.
RU.
EW-527PA....................... 40877 737-82R (B738) Moscow, RU/Minsk, May 16, 2022.
BY.
EW-527PA....................... 40877 737-82R (B738) Antalya, TR/Minsk, June 6, 2022.
BY.
EW-527PA....................... 40877 737-82R (B738) Istanbul, TR/ June 7, 2022.
Minsk, BY.
EW-527PA....................... 40877 737-82R (B738) Tbilisi, GE/Minsk, June 9, 2022.
BY.
EW-527PA....................... 40877 737-82R (B738) Batumi, GE/Minsk, June 12, 2022.
BY.
EW-527PA....................... 40877 737-82R (B738) Sharjah, AE/Minsk, June 14, 2022.
BY.
EW-544PA....................... 35139 737-8K5 (B738) Istanbul, TR/ May 13, 2022.
Minsk, BY.
EW-544PA....................... 35139 737-8K5 (B738) Batumi, GE/Minsk, May 14, 2022.
BY.
EW-544PA....................... 35139 737-8K5 (B738) Antalya, TR/Minsk, May 15, 2022.
BY.
EW-544PA....................... 35139 737-8K5 (B738) Antalya, TR/Minsk, May 16, 2022.
BY.
EW-544PA....................... 35139 737-8K5 (B738) Sharm El-Sheikh, June 4, 2022.
EG/Minsk, BY.
EW-544PA....................... 35139 737-8K5 (B738) Istanbul, TR/ June 6, 2022.
Minsk, BY.
EW-544PA....................... 35139 737-8K5 (B738) Antalya, TR/Minsk, June 14, 2022.
BY.
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[[Page 37311]]
Additionally, based on information publicly available on Belavia's
website as of the date of the signing of this order, Belavia has
``resume[d] flights to Kaliningrad,'' a city in Russia.\5\ Moreover,
that same website advertises flights from Minsk, Belarus to
Ekaterinburg and Kazan, Russia.\6\ 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 Belavia aircraft illegally exported or reexported to Russia or
Belarus after April 8, 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).\7\
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\5\ <a href="https://en.belavia.by/">https://en.belavia.by/</a>.
\6\ Id.
\7\ 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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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 Belavia took
actions in apparent violation of the Regulations by exporting or
reexporting the aircraft cited above, among many others, on flights
into Belarus and Russia after April 8, 2022, without the required BIS
authorization. Moreover, the continued operation of these aircraft by
Belavia and the company's ongoing 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. Additionally, I
find that such apparent violations have been ``significant, deliberate,
covert and/or likely to occur again, rather than technical or
negligent[.]'' Therefore, issuance of a 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 Belavia, 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, Belavia Belarusian Airlines, 14A Nemiga str., Minsk,
Belarus, 220004, 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
Belavia 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 Belavia 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 Belavia 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 Belavia 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 Belavia 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, possessed or controlled by Belavia, or service any item, of
whatever origin, that is owned, possessed or controlled by Belavia 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 Belavia 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,
Belavia 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 Belavia as provided in Section 766.24(d), by filing a
written submission with the Assistant Secretary of Commerce for Export
[[Page 37312]]
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 Belavia and shall be
published in the Federal Register.
This Order is effective immediately and shall remain in effect for
180 days.
Dated: June 16, 2022.
Matthew S. Axelrod,
Assistant Secretary of Commerce for Export Enforcement.
[FR Doc. 2022-13293 Filed 6-21-22; 8:45 am]
BILLING CODE 3510-DT-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.