Notice2022-22815
Aviastar-TU, 5 b. 7 Leningradsky prospekt g. Moskva, 125040, Moscow, Russia; Order Renewing Temporary Denial of Export Privileges
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Published
October 20, 2022
Issuing agencies
Commerce DepartmentIndustry and Security Bureau
Full Text
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<title>Federal Register, Volume 87 Issue 202 (Thursday, October 20, 2022)</title>
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[Federal Register Volume 87, Number 202 (Thursday, October 20, 2022)]
[Notices]
[Pages 63760-63762]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-22815]
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Notices
Federal Register
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Federal Register / Vol. 87, No. 202 / Thursday, October 20, 2022 /
Notices
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
Aviastar--TU, 5 b. 7 Leningradsky prospekt g. Moskva, 125040,
Moscow, Russia; Order Renewing Temporary Denial of Export Privileges
Pursuant to section 766.24 of the Export Administration
Regulations, 15 CRR 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 21, 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according to their terms until modified, superseded, set aside, or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 21, 2022, I signed an order denying Aviastar--TU's
(``Aviastar'') 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 26,
2022 (87 FR 24514).
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On September 13, 2022, BIS, through OEE, submitted a written
request for renewal of the TDO that issued on April 21, 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 Aviastar 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 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 21, 2022, was based on evidence that Aviastar 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 Hangzhou,
China, Shenzhen, China, and Zhengzhou, China, without the required BIS
authorization.\5\
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\5\ Publicly available flight tracking information shows that on
April 10, 2022, serial number (SN) 27054 flew from Hangzhou, China
to Novosibirsk, Russia and that on April 11, 2022 and April 14,
2022, respectively, SN 25696 and SN 25731 flew from Hangzhou, China
to Novosibirsk, Russia. In addition, on April 12, 2022, SN 27053
flew from Shenzhen, China to Abakan, Russia.
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[[Page 63761]]
In its September 13, 2022, request for renewal of the TDO, BIS has
submitted evidence that Aviastar continues to operate in violation of
the April 21, 2022 TDO and/or the Regulations by operating aircraft
subject to the EAR and classified under ECCN 9A991.b on flights into
Russia. Specifically, BIS's evidence and related investigation
indicated that Aviastar has continued to operate aircraft subject to
the EAR, including, but not limited to, flights into and out of Russia
from/to Hangzhou, China and Zhengzhou, China, as well as on domestic
flights within Russia potentially in violation of section 736.2(b)(10)
of the Regulations.\6\ Information about those flights includes, but is
not limited to, the following:
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\6\ 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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Departure/Arrival
Tail No. Serial No. Aircraft Type Cities Dates
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RA-73355......................... 27054 757-223 (PCF) Zhengzhou, CN/ May 22, 2022.
(B752). Novosibirsk, RU.
RA-73355......................... 27054 757-223 (PCF) Irkutsk, RU/Moscow, September 25, 2022.
(B752). RU.
RA-73355......................... 27054 757-223 (PCF) Norilsk, RU/ September 30, 2022.
(B752). Novosibirsk, RU.
RA-73355......................... 27054 757-223 (PCF) Moscow, RU/Mirny, October 4, 2022.
(B752). RU.
RA-73351......................... 25696 757-223 (PCF) Zhengzhou, CN/ May 24, 2022.
(B752). Novosibirsk, RU.
RA-73351......................... 25696 757-223 (PCF) Moscow, RU/Norilsk, September 23, 2022.
(B752). RU.
RA-73351......................... 25696 757-223 (PCF) Moscow, RU/Norilsk, September 27, 2022.
(B752). RU.
RA-73351......................... 25696 757-223 (PCF) Ulan-Ude, RU/ October 1, 2022.
(B752). Moscow, RU.
RA-73352......................... 25731 757-223 (PCF) Hangzhou, CN/ May 25, 2022.
(B752). Novosibirsk, RU.
RA-73352......................... 25731 757-223 (PCF) Irkutsk, RU/Moscow, September 22, 2022.
(B752). RU.
RA-73352......................... 25731 757-223 (PCF) Moscow, RU/Norilsk, October 1, 2022.
(B752). RU.
RA-73352......................... 25731 757-223 (PCF) Moscow, RU/Norilsk, October 7, 2022.
(B752). RU.
RA-73354......................... 27053 757-223 (PCF) Hangzhou, CN/ May 25, 2022.
(B752). Novosibirsk, RU.
RA-73354......................... 27053 757-223 (PCF) Moscow, RU/Norilsk, September 28, 2022.
(B752). RU.
RA-73354......................... 27053 757-223 (PCF) Moscow, RU/ September 30, 2022.
(B752). Novosibirsk, RU.
RA-73354......................... 27053 757-223 (PCF) Moscow, RU/Mirny, October 7, 2022.
(B752). 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 Aviastar 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 Aviastar,
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:
First, Aviastar-TU, 5 b. 7 Leningradsky prospekt, g. Moskva,
125040, 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
Aviastar 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 Aviastar 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 Aviastar 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 Aviastar 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 Aviastar 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
[[Page 63762]]
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 Aviastar, or service any item, of
whatever origin, that is owned, possessed or controlled by Aviastar 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 Aviastar 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,
Aviastar 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 Aviastar 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 Aviastar, 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. 2022-22815 Filed 10-19-22; 8:45 am]
BILLING CODE 3510-DT-P
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