87 FR 119 pgs. 37309-37312 - Belavia Belarusian Airlines, 14A Nemiga str., Minsk, Belarus, 220004; Order Temporarily Denying Export Privileges
Type: NOTICEVolume: 87Number: 119Pages: 37309 - 37312
Pages: 37309, 37310, 37311, 37312FR document: [FR Doc. 2022-13293 Filed 6-21-22; 8:45 am]
Agency: Commerce Department
Sub Agency: Industry and Security Bureau
Official PDF Version: PDF Version
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
Belavia Belarusian Airlines, 14A Nemiga str., Minsk, Belarus, 220004; Order Temporarily Denying Export Privileges
Pursuant to Section 766.24 of the Export Administration Regulations, 15 CFR parts 730-774 (2021) ("EAR" or "the Regulations"), 1 the Bureau of Industry and Security ("BIS"), U.S. Department of Commerce, through its Office of Export Enforcement ("OEE"), has requested the issuance of an Order temporarily denying, for a period of 180 days, the export privileges under the Regulations of Belavia Belarusian Airlines ("Belavia"). OEE's request and related information indicates that Belavia is headquartered in Minsk, Belarus and owned by the State of Belarus.
Footnotes:
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as of ECRA's date of enactment (August 13, 2018), shall continue in effect according to their terms until modified, superseded, set aside, or revoked through action undertaken pursuant to the authority provided under ECRA.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).
I. 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.
II. OEE's Request for a Temporary Denial Order ("TDO")
[top] 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. Between February and June 2022, BIS has published a series of amendments to the EAR that
Effective February 24, 2022, BIS imposed expansive controls on aviation-related ( e.g., Commerce Control List ("CCL") 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). 2 BIS will generally review any export or reexport license applications for such items under a policy of denial. See Section 746.8(b) of the EAR. 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, re-export, or transfer (in-country) of all items controlled under CCL Categories 3 through 9 to Belarus. 3 On April 8, 2022, BIS excluded any aircraft registered in, owned, or 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. 4 Accordingly, any U.S.-origin aircraft or foreign-origin 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.
Footnotes:
2 ?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 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).
3 ?87 FR 13048 (Mar. 8, 2022).
4 ?87 FR 22130 (Apr. 14, 2022).
OEE's request is based upon facts indicating that Belavia engaged in recent conduct prohibited by the Regulations by operating aircraft subject to the EAR and classified under ECCN 9A991 on flights into Russia and Belarus after April 8, 2022, without the required BIS authorization.
Specifically, OEE's investigation, including publicly available flight tracking information, indicates that after April 8, 2022, Belavia operated multiple U.S.-origin aircraft subject to the EAR, including, but not limited to, those identified below, on flights into and out of Minsk, Belarus from/to Moscow, Russia; St. Petersburg, Russia; Antalya, Turkey; Istanbul, Turkey; Tbilisi, Georgia; Batumi, Georgia; Sharjah, United Arab Emirates; and Sharm El-Sheikh, Egypt. Pursuant to Section 746.8 of the EAR, all of these flights would have required export or reexport licenses from BIS. As a Belarusian airline, Belavia flights would not be eligible to use license exception AVS for travel to Russia or Belarus. No BIS authorizations were either sought or obtained by Belavia for these exports or reexports to Belarus and/or Russia. The information about those flights includes the following:
| Tail No. | Serial No. | Aircraft type | Departure/arrival cities | Dates |
|---|---|---|---|---|
| EW-456PA | 61422 | 737-8ZM (B738) | Minsk, BY/St. Petersburg, RU | May 13, 2022. |
| EW-456PA | 61422 | 737-8ZM (B738) | St. Petersburg, RU/Minsk, BY | May 13, 2022. |
| EW-456PA | 61422 | 737-8ZM (B738) | Antalya, TR/Minsk, BY | May 15, 2022. |
| EW-456PA | 61422 | 737-8ZM (B738) | Istanbul, TR/Minsk, BY | May 16, 2022. |
| EW-456PA | 61422 | 737-8ZM (B738) | Antalya, TR/Minsk, BY | June 6, 2022. |
| EW-456PA | 61422 | 737-8ZM (B738) | Tbilisi, GE/Minsk, BY | June 7, 2022. |
| EW-456PA | 61422 | 737-8ZM (B738) | Antalya, TR/Minsk, BY | June 8, 2022. |
| EW-456PA | 61422 | 737-8ZM (B738) | Istanbul, TR/Minsk, BY | June 14, 2022. |
| EW-457PA | 61423 | 737-8ZM (B738) | Minsk, BY/Moscow, RU | May 10, 2022. |
| EW-457PA | 61423 | 737-8ZM (B738) | Moscow, RU/Minsk, BY | May 10, 2022. |
| EW-457PA | 61423 | 737-8ZM (B738) | Antalya, TR/Minsk, BY | May 11, 2022. |
| EW-457PA | 61423 | 737-8ZM (B738) | Tbilisi, GE/Minsk, BY | May 12, 2022. |
| EW-457PA | 61423 | 737-8ZM (B738) | Antalya, TR/Minsk, BY | June 6, 2022. |
| EW-457PA | 61423 | 737-8ZM (B738) | Sharjah, AE/Minsk, BY | June 7, 2022. |
| EW-457PA | 61423 | 737-8ZM (B738) | Batumi, GE/Minsk, BY | June 8, 2022. |
| EW-457PA | 61423 | 737-8ZM (B738) | Tbilisi, GE/Minsk, BY | June 12, 2022. |
| EW-457PA | 61423 | 737-8ZM (B738) | Antalya, TR/Minsk, BY | June 14, 2022. |
| EW-527PA | 40877 | 737-82R (B738) | Antalya, TR/Minsk, BY | May 14, 2022. |
| EW-527PA | 40877 | 737-82R (B738) | Istanbul, TR/Minsk, BY | May 15, 2022. |
| EW-527PA | 40877 | 737-82R (B738) | Minsk, BY/Moscow, RU | May 16, 2022. |
| EW-527PA | 40877 | 737-82R (B738) | Moscow, RU/Minsk, BY | May 16, 2022. |
| EW-527PA | 40877 | 737-82R (B738) | Antalya, TR/Minsk, BY | June 6, 2022. |
| EW-527PA | 40877 | 737-82R (B738) | Istanbul, TR/Minsk, BY | June 7, 2022. |
| EW-527PA | 40877 | 737-82R (B738) | Tbilisi, GE/Minsk, BY | June 9, 2022. |
| EW-527PA | 40877 | 737-82R (B738) | Batumi, GE/Minsk, BY | June 12, 2022. |
| EW-527PA | 40877 | 737-82R (B738) | Sharjah, AE/Minsk, BY | June 14, 2022. |
| EW-544PA | 35139 | 737-8K5 (B738) | Istanbul, TR/Minsk, BY | May 13, 2022. |
| EW-544PA | 35139 | 737-8K5 (B738) | Batumi, GE/Minsk, BY | May 14, 2022. |
| EW-544PA | 35139 | 737-8K5 (B738) | Antalya, TR/Minsk, BY | May 15, 2022. |
| EW-544PA | 35139 | 737-8K5 (B738) | Antalya, TR/Minsk, BY | May 16, 2022. |
| EW-544PA | 35139 | 737-8K5 (B738) | Sharm El-Sheikh, EG/Minsk, BY | June 4, 2022. |
| EW-544PA | 35139 | 737-8K5 (B738) | Istanbul, TR/Minsk, BY | June 6, 2022. |
| EW-544PA | 35139 | 737-8K5 (B738) | Antalya, TR/Minsk, BY | June 14, 2022. |
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Additionally, based on information publicly available on Belavia's website as of the date of the signing of this order, Belavia has "resume[d] flights to Kaliningrad," a city in Russia. 5 Moreover, that same website advertises flights from Minsk, Belarus to Ekaterinburg and Kazan, Russia. 6 Based on this information, there are heightened concerns of future violations of the EAR, given that any subsequent actions taken with regard to any of the listed aircraft, or other Belavia aircraft illegally exported or reexported to Russia or Belarus after April 8, 2022, may violate the EAR. Such actions include, but are not limited to, refueling, maintenance, repair, or the provision of spare parts or services. See General Prohibition 10 of the EAR at 15 CFR 736.2(b)(10). 7
Footnotes:
5 ? https://en.belavia.by/.
6 ? Id.
7 ?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).
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 took actions in apparent violation of the Regulations by exporting or reexporting the aircraft cited above, among many others, on flights into Belarus and Russia after April 8, 2022, without the required BIS authorization. Moreover, the continued operation of these aircraft by Belavia and the company's ongoing need to acquire replacement parts and components, many of which are U.S.-origin, presents a high likelihood of imminent violations warranting imposition of a TDO. Additionally, I find that such apparent violations have been "significant, deliberate, covert and/or likely to occur again, rather than technical or negligent[.]" Therefore, issuance of a 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.
This Order is being issued on an ex parte basis without a hearing based upon BIS's showing of an imminent violation in accordance with Section 766.24 and 766.23(b) of 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 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.
[top] 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
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 16, 2022.
Matthew S. Axelrod,
Assistant Secretary of Commerce for Export Enforcement.
[FR Doc. 2022-13293 Filed 6-21-22; 8:45 am]
BILLING CODE 3510-DT-P