Notice2022-16851
Empresa de Transporte Aéreocargo del Sur, S.A., a/k/a Aerocargo del Sur Transportation Company a/k/a EMTRASUR, Avenida Intercomunal, Edificio Sede, Sector 6.3, Maiquetia, Distrito Federal, Venezuela; Avenida Lecuna Torre Oeste Piso 49, Libertador, Caracas, Venezuela; Order Temporarily Denying Export Privileges
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 5, 2022
Issuing agencies
Commerce DepartmentIndustry and Security Bureau
Full Text
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<title>Federal Register, Volume 87 Issue 150 (Friday, August 5, 2022)</title>
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[Federal Register Volume 87, Number 150 (Friday, August 5, 2022)]
[Notices]
[Pages 47964-47966]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-16851]
[[Page 47964]]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
Empresa de Transporte A[eacute]reocargo del Sur, S.A., a/k/a
Aerocargo del Sur Transportation Company a/k/a EMTRASUR, Avenida
Intercomunal, Edificio Sede, Sector 6.3, Maiquetia, Distrito Federal,
Venezuela; Avenida Lecuna Torre Oeste Piso 49, Libertador, Caracas,
Venezuela; Order Temporarily Denying Export Privileges
Pursuant to Section 766.24 of the Export Administration
Regulations, 15 CFR parts 730 through 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 Venezuela-based cargo airline Empresa de Transporte
A[eacute]reocargo del Sur, S.A., a/k/a Aerocargo del Sur Transportation
Company, a/k/a EMTRASUR (``EMTRASUR''). OEE's request and related
information indicates that EMTRASUR is a subsidiary of Consorcio
Venezolano de Industrias Aeronauticas Y Servicios Aereos, S.A., a/k/a
CONVIASA (``CONVIASA''), a Venezuelan state-owned airline. On or about
February 7, 2020, U.S. Department of the Treasury's Office of Foreign
Assets Control (``OFAC'') added CONVIASA to the list of Specially
Designated Nationals (``SDN'') pursuant to Executive Order (E.O.)
13884.\2\
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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).
\2\ See <a href="https://home.treasury.gov/news/press-releases/sm903">https://home.treasury.gov/news/press-releases/sm903</a>.
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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'')
OEE's request is based upon facts indicating that EMTRASUR engaged
in conduct prohibited by a BIS-issued temporary denial order (``TDO'')
against Iranian airline Mahan Air a/k/a Mahan Airlines a/k/a Mahan
Airways (``Mahan Air'') and the Regulations by acquiring custody and/or
control from Mahan Air of a U.S-origin Boeing 747 aircraft bearing
manufacturer's serial number 23413 (``MSN 23413''), an item subject to
the EAR and classified under ECCN 9A991. In or around October 2021,
Mahan Air transferred custody and control of MSN 23413 to EMTRASUR's
parent company, CONVIASA, through an intermediary. Open source
evidence, including flight tracking data, reveals the aircraft, which
was operating under Iranian tail number EP-MND, has now been painted in
EMTRASUR's livery and logo and bears Venezuelan tail number YV-3531.
Mahan Air has been on BIS's Denied Persons List since March 2008,
due to numerous significant, continuing, deliberate, and covert
violations of the Regulations. The BIS-issued TDO against Mahan Air
(``Mahan Air TDO'') has been renewed on or about every six months
thereafter and remains in effect.\3\ Any named parties to the TDO,
which further encompasses any related parties, agents, representatives
or those acting for or on their behalf, are broadly prohibited from
directly or indirectly participating ``in any way'' in a transaction
involving U.S.-origin commodities or those subject to the EAR. The TDO
also prohibits third-parties from engaging in a broad range of conduct
subject to the Regulations with denied persons.
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\3\ Mahan Airways' status as a denied person was most recently
renewed by BIS through a TDO issued on May 12, 2022. See 87 FR
30,173 (May 18, 2022). The May 12, 2022 renewal order summarizes the
initial TDO issued against Mahan in March 2008, and the other
renewal orders prior to May 12, 2022. See id.
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Since October 2011, Mahan Air also has been designated as a
Specially Designated Global Terrorist (``SDGT'') by OFAC pursuant to
Executive Order 13224 for providing financial, material and
technological support to Iran's Islamic Revolutionary Guard Corps-Qods
Force (IRGC-QF). See 77 FR 64,427 (October 18, 2011).
In addition to the prohibited conduct arising from EMTRASUR
acquiring custody and/or control of the aircraft from Mahan Air,
EMTRASUR's continued use of MSN 23413 on flights into Iran and 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. See General Prohibition
10 of the EAR at 15 CFR 736.2(b)(10). Moreover, there are no license
exceptions available for this General Prohibition.\4\ Specifically,
OEE's investigation, including publicly available flight tracking
information, indicates that EMTRASUR operated MSN 23413 on flights into
and out of Tehran, Iran and Moscow, Russia. The information about those
flights includes the following:
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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.
[[Page 47965]]
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Departure/arrival
Tail No. Serial No. Aircraft type cities Dates
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YV-3531........................... 23413 747-300M Caracas, VZ/Tehran, February 19, 2022.
IR.
YV-3531........................... 23413 747-300M Caracas, VZ/Tehran, March 13, 2022.
IR.
YV-3531........................... 23413 747-300M Caracas, VZ/Tehran, April 17, 2022.
IR.
YV-3531........................... 23413 747-300M Caracas, VZ/Tehran, May 21,2022.
IR.
YV-3531........................... 23413 747-300M Tehran, IR/Moscow, RU May 24, 2022.
YV-3531........................... 23413 747-300M Moscow RU/Tehran, IR. May 25, 2022.
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BIS has become aware that, on or about June 6, 2022, MSN 23413
landed at Ezeiza International Airport in Buenos Aires, Argentina. On
or about June 8, 2022, MSN 23413 departed to Uruguay to refuel. But
Uruguay refused to grant MSN 23413 access to its airspace due to its
association with multiple sanctioned entities. That same day, on or
about June 8, 2022, MSN 23413 landed a second time at Ezeiza
International Airport in Buenos Aires, Argentina. After MSN 23413
landed a second time, the Government of Argentina temporarily detained
the aircraft. Based upon the on-going violations by EMTRASUR, and the
potential release of the MSN 23413 from detention, there are heightened
concerns of future violations of the EAR, especially given that any
subsequent actions taken with regard to MSN 23413 may violate the EAR.
Such actions include, but are not limited to, refueling, maintenance,
repair, or the provision of spare parts or services. Id.
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 a violation of
the Mahan Air TDO occurred in connection with Mahan Air's transfer of
custody and/or control of MSN 23413 to EMTRASUR in or about October
2021. EMTRASUR also took subsequent actions in apparent violation of
the Regulations by operating the aircraft on flights into Iran as well
as flights into Russia after February 24, 2022, without the required
BIS authorization. Moreover, the continued operation of MSN 23413 by
EMTRASUR, 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 the violations under investigation have been
``significant, deliberate, covert and/or likely to occur again, rather
than technical or negligent[.]'' 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 EMTRASUR
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, Empresa de Transporte A[eacute]reocargo del Sur, S.A., a/k/a
Aerocargo del Sur Transportation Company, a/k/a EMTRASUR, Avenida
Intercomunal, Edificio Sede, Sector 6.3, Maiquetia, Distrito Federal,
Venezuela, and Avenida Lecuna Torre Oeste Piso 49, Libertador, Caracas,
Venezuela, and when acting for or on its 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
EMTRASUR 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 EMTRASUR 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 EMTRASUR 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 EMTRASUR 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 EMTRASUR 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 EMTRASUR, or service any item, of
whatever origin, that is owned, possessed or controlled by EMTRASUR 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.
[[Page 47966]]
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 EMTRASUR 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,
EMTRASUR 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 EMTRASUR 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 EMTRASUR and shall be
published in the Federal Register.
This Order is effective immediately and shall remain in effect for
180 days.
Dated: August 2, 2022.
Matthew S. Axelrod,
Assistant Secretary of Commerce for Export Enforcement.
[FR Doc. 2022-16851 Filed 8-4-22; 8:45 am]
BILLING CODE 3510-DT-P
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</html>Indexed from Federal Register on August 5, 2022.
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.