Notice2023-12538
Belavia Belarusian Airlines, 14A Nemiga Str., Minsk, Belarus, 220004; Order Renewing Temporary Denial of 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
June 13, 2023
Issuing agencies
Commerce DepartmentIndustry and Security Bureau
Full Text
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<title>Federal Register, Volume 88 Issue 113 (Tuesday, June 13, 2023)</title>
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[Federal Register Volume 88, Number 113 (Tuesday, June 13, 2023)]
[Notices]
[Pages 38483-38486]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-12538]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
Belavia Belarusian Airlines, 14A Nemiga Str., Minsk, Belarus,
220004; Order Renewing Temporary Denial of Export Privileges
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 December 13, 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 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according to their terms until modified, superseded, set aside, or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 June 16, 2022, I signed an order denying the export privileges
of Belavia Belarusian Airlines (``Belavia'') 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\ This temporary denial order was
subsequently renewed in accordance with section 766.24(d) of the
Regulations.\3\ The renewal order issued on December 13, 2022, and was
effective upon issuance.\4\
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\2\ The TDO was published in the Federal Register on June 22,
2022 (87 FR 37309).
\3\ Section 766.24(d) provides that BIS may seek renewal of a
temporary denial order for additional 180-day renewal periods, if it
believes that renewal is necessary in the public interest to prevent
an imminent violation. Renewal requests are to be made in writing no
later than 20 days before the scheduled expiration date of a
temporary denial order.
\4\ The December 16, 2022 renewal order was published in the
Federal Register on December 19, 2022 (87 FR 77550).
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On May 18, 2023, BIS, through OEE, submitted a written request for
renewal of the TDO that was issued on December 13, 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 Belavia 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).\5\ 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), and as part
of the same rule, imposed a license requirement for the export,
reexport, or transfer (in-country) of all items controlled under CCL
Categories 3 through 9 to Belarus.\6\ On April 8, 2022, BIS excluded
any aircraft registered in, owned, 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.\7\ 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 Belarus or a national of
Belarus, is subject to a license requirement before it can travel to
Russia or Belarus.
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\5\ 87 FR 12226 (Mar. 3, 2022).
\6\ 87 FR 13048 (Mar. 8, 2022).
\7\ 87 FR 22130 (Apr. 14, 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 continue to demonstrate disregard for U.S.
export controls and the terms of the TDO. Specifically, the initial
TDO, issued on June 16, 2022, was based on evidence that Belavia
engaged in conduct prohibited by the Regulations by operating multiple
aircraft subject to the EAR and classified under ECCN 9A991.b on
flights into Belarus after April 8, 2022 from destinations including
but not limited to, Moscow, Russia; St. Petersburg, Russia; Antalya,
Turkey; Istanbul, Turkey; Tbilisi, Georgia; Batumi, Georgia; Sharjah,
United Arab Emirates (``UAE''); and Sharm el-Sheikh, Egypt, without the
required BIS authorization.\8\
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\8\ Publicly available flight tracking information shows, for
example, that on May 10, 2022, serial number (SN) 61423 flew from
Moscow, Russia to Minsk, Belarus. On June 14, 2022, SN 61422 flew
from Istanbul, Turkey to Minsk, Belarus and SN 40877 flew from
Sharjah, United Arab Emirates to Minsk, Belarus.
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As discussed in the December 13, 2022 renewal order, evidence
presented by BIS indicated that, after the renewal order issued,
Belavia continued to operate aircraft subject to the EAR and classified
under ECCN 9A991.b on flights into Belarusia and/or Russia, in
violation of the Regulations and the TDO itself.\9\ The December 13,
2022 renewal order detailed Belavia's continued operation of flights
into Belarus and/or Russia in violation of the EAR, including flights
from St. Petersburg and Moscow Russia; Istanbul, Turkey; and Sharjah,
UAE.\10\
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\9\ Engaging in conduct prohibited by a denial order violates
the Regulations. 15 CFR 764.2(a) and (k).
\10\ Based on publicly available flight tracking information,
representative examples include, but are not limited to, the
following: (1) on November 15, 2022, serial number (SN) 61421 flew
from Moscow, Russia to Minsk, Belarus; (2) on December 9, 2022, SN
61423 flew from St. Petersburg, Russia to Minsk, Belarus and SN
61421 flew from Istanbul, Turkey to Minsk, Belarus; and (3) on
November 12, 2022, SN 61423 flew from Sharjah, United Arab Emirates
to Minsk, Belarus.
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Since that time, Belavia has continued to engage in conduct
prohibited by the TDO and Regulations. In its May 18, 2023 request for
renewal of the TDO, BIS submitted evidence that Belavia is operating
aircraft subject to the EAR and classified under ECCN 9A991.b on
flights into Belarus and/or Russia, in violation of the December 13,
2022 TDO and/or the Regulations. Specifically, BIS's evidence and
related investigation demonstrates that Belavia has continued to
operate aircraft subject to the EAR, including, but not limited to, on
flights into Belarus and/or Russia from/to Hurghada, Egypt; Tbilisi,
Georgia; Doha,
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Qatar; Moscow Russia; Istanbul, Turkey; and Sharjah, UAE.
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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EW-455PA........................ 61421 737-8ZM (B738) Doha, QA/Minsk, BY. May 27, 2023.
EW-455PA........................ 61421 737-8ZM (B738) Sharjah, AE/Minsk, June 2, 2023.
BY.
EW-455PA........................ 61421 737-8ZM (B738) Istanbul, TR/Minsk, June 4, 2023.
BY.
EW-455PA........................ 61421 737-8ZM (B738) Moscow, RU/Minsk, June 5, 2023.
BY.
EW-455PA........................ 61421 737-8ZM (B738) Minsk, BY/Moscow, June 6, 2023.
RU.
EW-456PA........................ 61422 737-8ZM (B738) Kutaisi, GE/Minsk, May 25, 2023.
BY.
EW-456PA........................ 61422 737-8ZM (B738) Hurghada, EG/Minsk, June 2, 2023.
BY.
EW-456PA........................ 61422 737-8ZM (B738) Antalya, TR/Minsk, June 3, 2023.
BY.
EW-456PA........................ 61422 737-8ZM (B738) Istanbul, TR/Minsk, June 4, 2023.
BY.
EW-456PA........................ 61422 737-8ZM (B738) Antalya, TR/Minsk, June 6, 2023.
BY.
EW-457PA........................ 61423 737-8ZM (B738) Tbilisi, GE/Minsk, May 28, 2023.
BY.
EW-457PA........................ 61423 737-8ZM (B738) Antalya, TR/Minsk, May 31, 2023.
BY.
EW-457PA........................ 61423 737-8ZM (B738) Moscow, RU/Minsk, May 31, 2023.
BY.
EW-457PA........................ 61423 737-8ZM (B738) Hurghada, EG/Minsk, June 4, 2023.
BY.
EW-457PA........................ 61423 737-8ZM (B738) Antalya, TR/Minsk, June 5, 2023.
BY.
EW-254PA........................ 26294 737-3Q8 (B733) Baku, AZ/Minsk, BY. May 29, 2023.
EW-254PA........................ 26294 737-3Q8 (B733) Moscow, RU/Minsk, May 30, 2023.
BY.
EW-254PA........................ 26294 737-3Q8 (B733) Minsk, BY/Moscow, May 31, 2023.
RU.
EW-254PA........................ 26294 737-3Q8 (B733) Baku, AZ/Minsk, BY. June 4, 2023.
EW-254PA........................ 26294 737-3Q8 (B733) Baku, AZ/Minsk, BY. June 6, 2023.
EW-544PA........................ 35139 737-8K5 (B738) Moscow, RU/Minsk, May 29, 2023.
BY.
EW-544PA........................ 35139 737-8K5 (B738) Tbilisi, GE/Minsk, May 30, 2023.
BY.
EW-544PA........................ 35139 737-8K5 (B738) Istanbul, TR/Minsk, May 31, 2023.
BY.
EW-544PA........................ 35139 737-8K5 (B738) Antalya, TR/Minsk, June 1, 2023.
BY.
EW-544PA........................ 35139 737-8K5 (B738) Antalya, TR/Minsk, June 4, 2023.
BY.
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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 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 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.
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
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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
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 7, 2023.
Matthew S. Axelrod,
Assistant Secretary of Commerce for Export Enforcement.
[FR Doc. 2023-12538 Filed 6-12-23; 8:45 am]
BILLING CODE 3510-DT-P
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</html>Indexed from Federal Register on June 13, 2023.
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