Notice2023-27474
Pobeda Airlines, 108811, Russian Federation, Moscow, p. Moskovskiy, Kievskoe shosse 22nd km, 4/1. Moscow, Russia; 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
December 14, 2023
Issuing agencies
Commerce DepartmentIndustry and Security Bureau
Full Text
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<title>Federal Register, Volume 88 Issue 239 (Thursday, December 14, 2023)</title>
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[Federal Register Volume 88, Number 239 (Thursday, December 14, 2023)]
[Notices]
[Pages 86628-86631]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-27474]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
Pobeda Airlines, 108811, Russian Federation, Moscow, p.
Moskovskiy, Kievskoe shosse 22nd km, 4/1. Moscow, Russia; Order
Renewing Temporary Denial of Export Privileges
Pursuant to Section 766.24 of the Export Administration
Regulations, 15 CFR parts 730-774 (``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 June 15, 2023. I find that renewal of this order is necessary
in the public interest to prevent an imminent violation of the
Regulations and that renewal for an extended period is appropriate
because Pobeda Airlines (``Pobeda'') has engaged in a pattern of
repeated, ongoing and/or continuous apparent violations of the EAR.
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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 24, 2022, I signed an order denying Pobeda's export
privileges for a
[[Page 86629]]
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\ The
TDO was subsequently renewed on December 20, 2022 \3\ and again on June
15, 2023,\4\ in accordance with Section 766.24(d) of the
Regulations.\5\
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\2\ The TDO was published in the Federal Register on June 29,
2022 (87 FR 38707).
\3\ The December 20, 2022, renewal order was published in the
Federal Register on December 23, 2022 (87 FR 78925).
\4\ The June 15, 2023, renewal order was published in the
Federal Register on June 21, 2023 (88 FR 40200).
\5\ At the time of the renewal, Section 766.24(d) provided 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.
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On November 21, 2023, BIS, through OEE, submitted a written request
for a third renewal of the TDO. The written request was made more than
20 days before the TDO's scheduled expiration and, given the temporary
suspension of international mail service to Russia, OEE has attempted
to serve a copy of the renewal request on Pobeda 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.
If BIS believes that renewal of a denial order is necessary in the
public interest to prevent an imminent violation, it may file a written
request for renewal, with any modifications if appropriate. 15 CFR
766.24(d)(1). The written request, which must be filed no later than 20
days prior to the TDO's expiration, should set forth the basis for
BIS's belief that renewal is necessary, including any additional or
changed circumstances. Id. ``In cases demonstrating a pattern of
repeated, ongoing and/or continuous apparent violations, BIS may
request the renewal of a temporary denial order for an additional
period not exceeding one year.'' \6\ Id.
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\6\ 88 FR 59791 (Aug. 30, 2023).
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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).\7\ 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).\8\ 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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\7\ 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).
\8\ 87 FR 13048 (Mar. 8, 2022).
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OEE's request for renewal for a period of one year is based upon
the facts underlying the issuance of the initial TDO, the renewal
orders subsequently issued in this matter, and evidence that continues
to develop during this investigation. These facts and evidence
demonstrate that Pobeda has continued, and continues, to act in blatant
disregard for U.S. export controls and the terms of previously issued
TDOs. Specifically, the initial TDO, issued on June 24, 2022, was based
on evidence that Pobeda 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, but not limited to, Antalya, Turkey,
Gazipasa, Turkey, and Istanbul, Turkey, without the required BIS
authorization.\9\ Further evidence submitted by BIS indicated that
Pobeda also continued to operate aircraft subject to the EAR
domestically on flights within Russia, potentially in violation of
Section 736.2(b)(10) of the Regulations.
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\9\ Publicly available flight tracking information shows, for
example, that on March 6, 2022, serial number (``SN'') 64862 flew
from Antalya, Turkey to Moscow, Russia. On March 7, 2022, SN 64863
flew from Gazipasa, Turkey to Moscow, Russia, and, on March 6, 2022,
SN 64864 flew from Istanbul, Turkey to Mineralnye Vody, Russia.
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As discussed in the prior renewal orders, BIS presented evidence
indicating that, after the initial June 24, 2022 TDO issued, Pobeda
continued to operate aircraft subject to the EAR and classified under
ECCN 9A991.b on flights both into and within Russia, in violation of
the Regulations and the TDO itself.\10\ The December 20, 2022 order
detailed flights into and out of Russia from/to Minsk, Belarus.\11\ The
June 15, 2023 renewal order documented a similar pattern of prohibited
conduct.\12\
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\10\ Engaging in conduct prohibited by a denial order violates
the Regulations. 15 CFR 764.2(a) and (k).
\11\ Publicly available flight tracking information shows, for
example, the following flights: (1) on November 26, 2022, SN 61793
flew from Minsk, Belarus to Moscow, Russia; (2) on December 3, 2023,
SN 41238 flew from Minsk, Belarus to Moscow, Russia; and (3) on
November 24, 2022, SN 64866 flew from Minsk, Belarus to Moscow,
Russia.
\12\ Publicly available flight tracking information shows that
SN 41227 flew from Istanbul, Turkey to Moscow, Russia on May 24,
2023. Additionally, SN 41238 flew from Dubai, United Arab Emirates
to Moscow, Russia on May 31, 2023. Further, SN 41242 flew from
Antalya, Turkey to Perm, Russia on June 10, 2023.
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[[Page 86630]]
Since that time, Pobeda continued to engage in conduct prohibited
by the TDO and Regulations. In its November 21, 2023, request for
renewal of the TDO, BIS submitted evidence that Pobeda continues to
operate aircraft subject to the EAR and classified under ECCN 9A991.b,
both on flights into and within Russia, in violation of the June 15,
2023, renewal order and/or the Regulations. Specifically, BIS's
evidence and related investigation demonstrates that Pobeda continued
to operate aircraft subject to the EAR, including, but not limited to,
on flights into and out of Russia, including from/to Dubai, United Arab
Emirates, and Gazipasa and Istanbul, Turkey, Gyumri, Armenia, and
Minsk, Belarus, as well as domestically within Russia. 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-73242..................... 41227 737-8LJ...................... Moscow, RU/Minsk, November 29,
BY. 2023.
RA-73242..................... 41227 737-8LJ...................... Dubai, AE/Beslan, November 28,
RU. 2023.
RA-73242..................... 41227 737-8LJ...................... Abu Dhabi, UAE/ November 26,
Moscow, RU. 2023.
RA-73242..................... 41227 737-8LJ...................... Istanbul, TR/ November 15,
Moscow, RU. 2023.
RA-73242..................... 41227 737-8LJ...................... Gyumri, AM/Moscow, November 6, 2023.
RU.
RA-73248..................... 41238 737-8LJ...................... Abu Dhabi, AE/ December 4, 2023.
Moscow, RU.
RA-73248..................... 41238 737-8LJ...................... Yekaterinburg, RU/ December 4, 2023.
Moscow, RU.
RA-73248..................... 41238 737-8LJ...................... Istanbul, TR/ November 27,
Moscow, RU. 2023.
RA-73248..................... 41238 737-8LJ...................... Samarkand, UZ/ November 7, 2023.
Moscow, RU.
RA-73248..................... 41238 737-8LJ...................... Dubai, AE/Moscow, November 2, 2023.
RU.
RA-73250..................... 41242 737-8LJ...................... Istanbul, TR/ December 4, 2023.
Makhachkala, RU.
RA-73250..................... 41242 737-8LJ...................... Dubai, AE/ December 3, 2023.
Makhachkala, RU.
RA-73250..................... 41242 737-8LJ...................... Chelyabinsk, RU/ December 2, 2023.
Moscow, RU.
RA-73250..................... 41242 737-8LJ...................... Gazipasa, TR/ November 10,
Moscow, RU. 2023.
RA-73250..................... 41242 737-8LJ...................... Samarkand, UZ/ November 8, 2023.
Moscow, 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 demonstrates that Pobeda 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. Moreover, I find that renewal for an
extended period is appropriate because Pobeda has engaged in a pattern
of repeated, ongoing and/or continuous apparent violations of the EAR.
Therefore, renewal of the TDO for one year 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 Pobeda, 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, Pobeda Airlines, 108811, Russian Federation, Moscow, p.
Moskovskiy, Kievskoe shosse, 22nd km, 4/1. 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
Pobeda 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 Pobeda 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 Pobeda 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 Pobeda 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 Pobeda 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 Pobeda, or service any item, of
whatever origin,
[[Page 86631]]
that is owned, possessed or controlled by Pobeda 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 Pobeda 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,
Pobeda 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 Pobeda 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 Pobeda and shall be
published in the Federal Register.
This Order is effective immediately and shall remain in effect for
one year.
Matthew S. Axelrod,
Assistant Secretary of Commerce for Export Enforcement.
[FR Doc. 2023-27474 Filed 12-13-23; 8:45 am]
BILLING CODE 3510-DT-P
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</html>Indexed from Federal Register on December 14, 2023.
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