Notice2022-21818
Order Renewing Temporary Denial of Export Privileges
Primary source
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Published
October 7, 2022
Issuing agencies
Commerce DepartmentIndustry and Security Bureau
Full Text
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<title>Federal Register, Volume 87 Issue 194 (Friday, October 7, 2022)</title>
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[Federal Register Volume 87, Number 194 (Friday, October 7, 2022)]
[Notices]
[Pages 60985-60987]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-21818]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
Order Renewing Temporary Denial of Export Privileges
PJSC Aeroflot, 1 Arbat St., 119019, Moscow, Russia
Pursuant to Section 766.24 of the Export Administration
Regulations, 15 CFR parts 730-774 (2021) (``EAR'' or ``the
Regulations''),\1\ I hereby grant the request of the Office of Export
Enforcement (``OEE'') to renew the temporary denial order (``TDO'')
issued in this matter on April 7, 2022. I find that renewal of this
order is necessary in the public interest to prevent an imminent
violation of the Regulations.
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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 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according to their terms until modified, superseded, set aside, or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. Procedural History
On April 7, 2022, I signed an order denying PJSC Aeroflot's
(``Aeroflot'') export privileges for a period of 180 days on the ground
that issuance of the order was necessary in the public interest to
prevent an imminent violation of the Regulations. The order was issued
ex parte pursuant to Section 766.24(a) of the Regulations and was
effective upon issuance.\2\
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\2\ The TDO was published in the Federal Register on April 12,
2022 (87 FR 21611).
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On September 13, 2022, BIS, through OEE, submitted a written
request for renewal of the TDO that issued on April 7, 2022. The
written request was made more than 20 days before the TDO's scheduled
expiration. A copy of the renewal request was sent to Aeroflot in
accordance with sections 766.5 and 766.24(d) of the Regulations. No
opposition to the renewal of the TDO has been received.
II. Renewal of the TDO
A. 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
[[Page 60986]]
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.
B. The TDO and BIS's Request for Renewal
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).\3\ 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).\4\
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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\3\ 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 Commerce Control List
(``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).
\4\ 87 FR 13048 (Mar. 8, 2022).
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OEE's request for renewal is based upon the facts underlying the
issuance of the initial TDO and the evidence developed over the course
of this investigation, which indicate a blatant disregard for U.S.
export controls, as well as the TDO. Specifically, the initial TDO,
issued on April 7, 2022, was based on evidence that Aeroflot engaged in
conduct prohibited by the Regulations by operating multiple aircraft
subject to the EAR and classified under ECCN 9A991.b on flights into
Russia after March 2, 2022, from destinations including Beijing, China,
Delhi, India, and Dubai, United Arab Emirates, without the required BIS
authorization.\5\ Further evidence submitted by BIS indicated that
Aeroflot was continuing to operate aircraft subject to the EAR both
domestically on flights within Russia, as well as to/from Belarus
potentially in violation of section 736.2(b)(10) of the Regulations.
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\5\ Publicly available flight tracking information shows that on
March 6, 2022, serial number (SN) 65309 flew from Beijing, China to
Moscow, Russia, and SN 41690 flew from Dubai, UAE to Moscow, Russia.
In addition, on March 7, 2022, SN 63511 flew from Delhi, India to
Moscow, Russia.
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In its September 13, 2022, request for renewal of the TDO, BIS has
submitted evidence that Aeroflot continues to operate in violation of
the April 7, 2022 TDO and/or the Regulations by operating aircraft
subject to the EAR and classified under ECCN 9A991.b on flights into
and within Russia. Specifically, BIS's evidence and related
investigation indicated that Aeroflot has continued to operate aircraft
subject to the EAR, including, but not limited to, flights into and out
of Russia from/to Minsk, Belarus, Delhi, India, and Istanbul, Turkey.
Information about those flights includes, but is not limited to, the
following:
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Departure/arrival
Tail No. Serial No. Aircraft type cities Dates
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RA-73126......................... 41214 737-8LJ (B738)..... Moscow, RU/Minsk, September 1, 2022.
BY.
RA-73126......................... 41214 737-8LJ (B738)..... Minsk, BY/Moscow, September 1, 2022.
RU.
RA-73126......................... 41214 737-8LJ (B738)..... Moscow, RU/Sochi, September 13, 2022.
RU.
RA-73117......................... 44442 737-8MC (B738)..... Moscow, RU/Minsk, August 29, 2022.
BY.
RA-73117......................... 44442 737-8MC (B738)..... Minsk, BY/Moscow, August 29, 2022.
RU.
RA-73117......................... 44442 737-8MC (B738)..... Moscow, RU/Sochi, September 22, 2022.
RU.
RA-73107......................... 44439 737-8MC (B738)..... Moscow, RU/Minsk, September 8, 2022.
BY.
RA-73107......................... 44439 737-8MC (B738)..... Minsk, BY/Moscow, September 8, 2022.
RU.
RA-73107......................... 44439 737-8MC (B738)..... Moscow, RU/ September 21, 2022.
Mineralnye Vody,
RU.
RA-73106......................... 44434 737-8MC (B738)..... Moscow, RU/Minsk, August 25, 2022.
BY.
RA-73106......................... 44434 737-8MC (B738)..... Minsk, BY/Moscow, August 25, 2022.
RU.
RA-73106......................... 44434 737-8MC (B738)..... Moscow, RU/Barnaul, September 19, 2022.
RU.
RA-73144......................... 41690 777-3M0 (ER) (B77W) Istanbul, TR/ September 20, 2022.
Moscow, RU.
RA-73144......................... 41690 777-3M0 (ER) (B77W) Istanbul, TR/ September 21, 2022.
Moscow, RU.
RA-73144......................... 41690 777-3M0 (ER) (B77W) Delhi, IN/Moscow, September 20, 2022.
RU.
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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 Aeroflot has
acted in violation of the Regulations and the TDO; that such violations
have been significant, deliberate and covert; and that given the
foregoing and the nature of the matters under investigation, there is a
likelihood of imminent violations. Therefore, renewal 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 Aeroflot,
in connection with export and reexport transactions involving items
subject to the Regulations and in connection with any other activity
subject to the Regulations.
IV. Order
It is therefore ordered:
[[Page 60987]]
First, PJSC Aeroflot, 1 Arbat St., 119019, Moscow, 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
Aeroflot 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 Aeroflot 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 Aeroflot 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 Aeroflot 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 Aeroflot 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 Aeroflot, or service any item, of
whatever origin, that is owned, possessed or controlled by Aeroflot 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 Aeroflot 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,
Aeroflot 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 Aeroflot 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 Aeroflot, and shall be
published in the Federal Register.
This Order is effective immediately and shall remain in effect for
180 days.
Matthew S. Axelrod,
Assistant Secretary of Commerce for Export Enforcement.
[FR Doc. 2022-21818 Filed 10-6-22; 8:45 am]
BILLING CODE 3510-DT-P
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</html>Indexed from Federal Register on October 7, 2022.
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