Notice2023-27476
Siberian Airlines d/b/a S7 Airlines, 633104, Novosibirskaya obl., g. Ob. prospekt Mozzherina, d. 10 ofis 201; 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 86626-86628]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-27476]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security, Washington, DC 20230
Siberian Airlines d/b/a S7 Airlines, 633104, Novosibirskaya obl.,
g. Ob. prospekt Mozzherina, d. 10 ofis 201; 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 Siberian Airlines d/b/a S7 Airlines (``Siberian'') 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 Siberian's 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\ 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 38709).
\3\ The December 20, 2022 renewal order was published in the
Federal Register on December 23, 2022 (87 FR 78921).
\4\ The June 15, 2023 renewal order was published in the Federal
Register on June 21, 2023 (88 FR 40205).
\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 Siberian 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,
[[Page 86627]]
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 Siberian 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 Siberian 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, Atyrau,
Kazakhstan, Bishkek, Kyrgyzstan, and Urgench, Uzbekistan, without the
required BIS authorization.\9\ Further evidence submitted by BIS
indicated that Siberian 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 10, 2022, serial number (``SN'') 41400 flew
from Atyrau, Kazakhstan to Moscow, Russia. On May 1, 2022, SN 41707
flew from Bishkek, Kyrgyzstan to Novosibirsk, Russia and, on March
4, 2022, SN 41841 flew from Urgench, Uzbekistan to Moscow, 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, Siberian
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 Bangkok, Thailand,
Antalya, Turkey, and Urgench, Uzbekistan.\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, that on November 30, 2022, SN 41709 flew from Bangkok,
Thailand to Irkutsk, Russia. SN 41707 flew from Antalya, Turkey to
Novosibirsk, Russia on November 19, 2022, and from Urgench,
Uzbekistan to Moscow, Russia on December 10, 2022.
\12\ Publicly available flight tracking information shows that
SN 41707 flew from Istanbul, Turkey to Moscow, Russia on May 20,
2023. Additionally, SN 41709 flew from Beijing, China to Irkutsk,
Russia on May 27, 2023. Further, SN 41710 flew from Bangkok,
Thailand to Irkutsk, Russia on May 20, 2023.
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Since that time, Siberian 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 Siberian 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 Siberian continued
to operate aircraft subject to the EAR, including, but not limited to,
on flights into and out of Russia, including from/to Antalya and
Istanbul, Turkey, Bangkok, Thailand, Beijing, China, Dubai, United Arab
Emirates, and Fergana, Uzbekistan, 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-73668.................. 41709 737-8LP................... Bangkok, TH/ December 4, 2023.
Irkutsk, RU.
RA-73668.................. 41709 737-8LP................... Irkutsk, RU/ December 4, 2023.
Novosibirsk, RU.
RA-73668.................. 41709 737-8LP................... Beijing, CN/ December 3, 2023.
Irkutsk, RU.
RA-73668.................. 41709 737-8LP................... Bangkok, TH/ November 16,
Irkutsk, RU. 2023.
RA-73668.................. 41709 737-8LP................... Dubai, AE/ October 30, 2023.
Novosibirsk, RU.
RA-73670.................. 41710 737-8LP................... Bangkok, TH/ December 4, 2023.
Irkutsk, RU.
RA-73670.................. 41710 737-8LP................... Fergana, UZ/ December 1, 2023.
Irkutsk, RU.
RA-73670.................. 41710 737-8LP................... Novosibirsk, RU/ November 21,
Irkutsk, RU. 2023.
RA-73670.................. 41710 737-8LP................... Beijing, CN/ November 17,
Novosibirsk, RU. 2023.
RA-73670.................. 41710 737-8LP................... Bangkok, TH/ November 8, 2023.
Irkutsk, RU.
RA-73667.................. 41707 737-8LP................... Antalya, TR/ December 4, 2023.
Moscow, RU.
RA-73667.................. 41707 737-8LP................... Dubai, AE/Moscow, December 3, 2023.
RU.
RA-73667.................. 41707 737-8LP................... Ufa, RU/Moscow, December 1, 2023
RU.
RA-73667.................. 41707 737-8LP................... Istanbul, TR/ November 16,
Moscow, RU. 2023.
RA-73667.................. 41707 737-8LP................... Urgench, UZ/ November 10,
Moscow, RU. 2023.
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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 Siberian 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
[[Page 86628]]
appropriate because Siberian 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 Siberian, 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, Siberian Airlines d/b/a S7 Airlines, 633104, Novosibirskaya
obl., g. Ob, prospekt Mozzherina, d. 10 ofis 201, 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
Siberian 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 Siberian 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 Siberian 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 Siberian 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 Siberian 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 Siberian, or service any item, of
whatever origin, that is owned, possessed or controlled by Siberian 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 Siberian 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,
Siberian 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 Siberian 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 Siberian 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. 2023-27476 Filed 12-13-23; 8:45 am]
BILLING CODE 3510-DT-P
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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.