Order Renewing Temporary Denial of Export Privileges; Pobeda Airlines, 108811, Russian Federation, Moscow, p. Moskovskiy, Kievskoe shosse, 22nd km, 4/1, 78925-78927 [2022-27989]
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TKELLEY on DSK125TN23PROD with NOTICE
Federal Register / Vol. 87, No. 246 / Friday, December 23, 2022 / Notices
and the establishment of a National
Authority to serve as the national focal
point for effective liaison with the
OPCW and other States Parties. The
CWC also requires each State Party to
implement a comprehensive data
declaration and inspection regime to
provide transparency and to verify that
both the public and private sectors of
the State Party are not engaged in
activities prohibited under the CWC. In
the United States, the Chemical
Weapons Convention Implementation
Act of 1998, 22 U.S.C. 6701 et seq.,
implements the provisions of the CWC.
‘‘Schedule 1’’ chemicals consist of
those toxic chemicals and precursors set
forth in the CWC ‘‘Annex on
Chemicals’’ and in ‘‘Supplement No. 1
to part 712—SCHEDULE 1
CHEMICALS’’ of the Chemical Weapons
Convention Regulations (CWCR) (15
CFR parts 710–722). The CWC
identified these toxic chemicals and
precursors as posing a high risk to the
object and purpose of the Convention.
The CWC (Part VI of the ‘‘Verification
Annex’’) restricts the production of
‘‘Schedule 1’’ chemicals for protective
purposes to two facilities per State
Party: a single small-scale facility and a
facility for production in quantities not
exceeding 10 kg per year. The CWC
Article-by-Article Analysis submitted to
the Senate in Treaty Doc. 103–21
defined the term ‘‘protective purposes’’
to mean ‘‘used for determining the
adequacy of defense equipment and
measures.’’ Consistent with this
definition and as authorized by
Presidential Decision Directive (PDD) 70
(December 17, 1999), which specifies
agency and departmental
responsibilities as part of the U.S.
implementation of the CWC, the
Department of Defense (DOD) was
assigned the responsibility to operate
these two facilities. DOD maintains
strict controls on ‘‘Schedule 1’’
chemicals produced at its facilities in
order to ensure accountability for such
chemicals, as well as their proper use,
consistent with the object and purpose
of the Convention. Although this
assignment of responsibility to DOD
under PDD–70 effectively precluded
commercial production of ‘‘Schedule 1’’
chemicals for ‘‘protective purposes’’ in
the United States, it did not establish
any limitations on ‘‘Schedule 1’’
chemical activities that are not
prohibited by the CWC.
The provisions of the CWC that affect
commercial activities involving
‘‘Schedule 1’’ chemicals are
implemented in the CWCR (see 15 CFR
part 712) and in the Export
Administration Regulations (EAR) (see
15 CFR 742.18 and 15 CFR part 745),
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20:36 Dec 22, 2022
Jkt 259001
both of which are administered by the
Bureau of Industry and Security (BIS).
Pursuant to CWC requirements, the
CWCR restrict commercial production
of ‘‘Schedule 1’’ chemicals to research,
medical, or pharmaceutical purposes.
The CWCR prohibit commercial
production of ‘‘Schedule 1’’ chemicals
for ‘‘protective purposes’’ because such
production is effectively precluded per
PDD–70, as described above. See 15 CFR
712.2(a).
The CWCR also contain other
requirements and prohibitions that
apply to ‘‘Schedule 1’’ chemicals and/or
‘‘Schedule 1’’ facilities. Specifically, the
CWCR:
(1) Prohibit the import of ‘‘Schedule
1’’ chemicals from States not Party to
the Convention (15 CFR 712.2(b));
(2) Require annual declarations by
certain facilities engaged in the
production of ‘‘Schedule 1’’ chemicals
in excess of 100 grams aggregate per
calendar year (i.e., declared ‘‘Schedule
1’’ facilities) for purposes not prohibited
by the Convention (15 CFR 712.5(a)(1)
and (a)(2));
(3) Provide for government approval
of ‘‘declared Schedule 1’’ facilities (15
CFR 712.5(f));
(4) Require 200 days advance
notification of the establishment of new
‘‘Schedule 1’’ production facilities
producing greater than 100 grams
aggregate of ‘‘Schedule 1’’ chemicals per
calendar year (15 CFR 712.4);
(5) Provide that ‘‘declared Schedule
1’’ facilities are subject to initial and
routine inspection by the OPCW (15
CFR 712.5(e) and 716.1(b)(1));
(6) Require advance notification and
annual reporting of all imports and
exports of ‘‘Schedule 1’’ chemicals to, or
from, other States Parties to the
Convention (15 CFR 712.6, 742.18(a)(1)
and 745.1); and
(7) Prohibit the export of ‘‘Schedule
1’’ chemicals to States not Party to the
Convention (15 CFR 742.18(a)(1) and
(b)(1)(ii)).
For purposes of the CWCR (see the
definition of ‘‘production’’ in 15 CFR
710.1), the phrase ‘‘production of a
Schedule 1 chemical’’ means the
formation of ‘‘Schedule 1’’ chemicals
through chemical synthesis, as well as
processing to extract and isolate
‘‘Schedule 1’’ chemicals. The phrase
also encompasses the formation of a
chemical through chemical reaction,
including by a biochemical or
biologically mediated reaction.
‘‘Production of a Schedule 1 chemical’’
is understood, for CWCR declaration
purposes, to include intermediates, byproducts, or waste products that are
produced and consumed within a
defined chemical manufacturing
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78925
sequence, where such intermediates, byproducts, or waste products are
chemically stable and therefore exist for
a sufficient time to make isolation from
the manufacturing stream possible, but
where, under normal or design
operating conditions, isolation does not
occur.
Request for Comments
In order to assist in determining
whether the legitimate commercial
activities and interests of chemical,
biotechnology, and pharmaceutical
firms in the United States are
significantly harmed by the limitations
of the Convention on access to, and
production of, ‘‘Schedule 1’’ chemicals
as described in this notice, BIS is
seeking public comments on any effects
that implementation of the CWC,
through the Chemical Weapons
Convention Implementation Act of 1998
and the CWCR, has had on commercial
activities involving ‘‘Schedule 1’’
chemicals during calendar year 2022.
Such information will assist BIS in its
preparation of the annual certification to
Congress described above. To allow BIS
to properly evaluate the significance of
any harm to commercial activities
involving ‘‘Schedule 1’’ chemicals,
public comments submitted in response
to this notice of inquiry should include
both a quantitative and qualitative
assessment of the impact of the CWC on
such activities.
Submission of Comments
All comments must be submitted to
one of the addresses indicated in this
notice and in accordance with the
instructions provided herein. BIS will
consider all comments received on or
before January 23, 2023.
Matthew S. Borman,
Deputy Assistant Secretary for Export
Administration.
[FR Doc. 2022–27952 Filed 12–22–22; 8:45 am]
BILLING CODE 3510–33–P
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
Order Renewing Temporary Denial of
Export Privileges; Pobeda Airlines,
108811, Russian Federation, Moscow,
p. Moskovskiy, Kievskoe shosse, 22nd
km, 4⁄1. Moscow, Russia
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
1 On August 13, 2018, the President signed into
law the John S. McCain National Defense
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request of the Office of Export
Enforcement (‘‘OEE’’) to renew the
temporary denial order (‘‘TDO’’) issued
in this matter on June 24, 2022. I find
that renewal of this order is necessary
in the public interest to prevent an
imminent violation of the Regulations.
I. Procedural History
On June 24, 2022, I signed an order
denying the export privileges of Pobeda
Airlines (‘‘Pobeda’’) 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
On December 1, 2022, BIS, through
OEE, submitted a written request for
renewal of the TDO that issued on June
24, 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 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
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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 aviationrelated (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), and as part of the same rule,
Aircraft type
737–8AL
737–8AL
737–8AL
737–8AL
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
VerDate Sep<11>2014
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.
Departure/arrival cities
(B738)
(B738)
(B738)
(B738)
Minsk, BY/Moscow, RU
Moscow, RU/Minsk, BY
Minsk, BY/Moscow, RU
Moscow, RU/Minsk, BY
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Dates
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.................................
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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).
2 The TDO was published in the Federal Register
on June 29, 2022 (87 FR 38707).
3 87 FR 12226 (Mar. 3, 2022).
4 87 FR 13048 (Mar. 8, 2022).
PO 00000
imposed a license requirement for the
export, reexport, or transfer (in-country)
of all items controlled under CCL
Categories 3 through 9 to Belarus.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.
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 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.5 As also
noted in OEE’s initial request for a
temporary denial order, Aeroflot
Russian Airlines JSC, a/k/a PJSC
Aeroflot (‘‘Aeroflot’’) is Pobeda’s
majority shareholder.6
In its December 1, 2022, request for
renewal of the TDO, BIS has submitted
evidence that Pobeda continues to
operate in violation of the June 24, 2022
TDO and/or the Regulations by
operating aircraft subject to the EAR and
classified under ECCN 9A991.b.
Specifically, BIS’s evidence and related
investigation indicates that after the
issuance of the TDO, Pobeda continued
to fly aircraft into Russia and Belarus in
violation of the EAR, including flights
between Minsk, Belarus and Moscow,
Russia. Information about those flights
includes, but is not limited to, the
following:
November
November
November
December
26, 2022.
29, 2022.
29, 2022.
3, 2022.
5 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.
6 Aeroflot is the subject of a Temporary Denial
Order issued on April 8, 2022, which was renewed
on October 3, 2022. See 87 FR 21611 (April 12,
2022) and 87 FR 60985 (October 7, 2022).
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Serial No.
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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 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.
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 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
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20:36 Dec 22, 2022
Jkt 259001
Aircraft type
Departure/arrival cities
737–8AL
737–8LJ
737–8LJ
737–8LJ
737–8LJ
737–8MC
737–8MC
737–8MC
737–8MC
Minsk, BY/Moscow, RU .................................
Moscow, RU/Minsk, BY .................................
Minsk, BY/Moscow, RU .................................
Moscow, RU/Minsk, BY .................................
Minsk, BY/Moscow, RU .................................
St. Petersburg, RU/Minsk, BY .......................
Minsk, BY/St. Petersburg, RU .......................
Moscow, RU/Minsk, BY .................................
Minsk, BY/Moscow, RU .................................
(B738)
(B738)
(B738)
(B738)
(B738)
(B738)
(B738)
(B738)
(B738)
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 (incountry) 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
PO 00000
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Sfmt 9990
Dates
December
November
November
November
November
November
November
November
November
3, 2022.
22, 2022
22, 2022.
28, 2022.
28, 2022.
23, 2022.
23, 2022.
24, 2022.
24, 2022.
service any item, of whatever origin,
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 180 days.
Matthew S. Axelrod,
Assistant Secretary of Commerce for Export
Enforcement.
[FR Doc. 2022–27989 Filed 12–22–22; 8:45 am]
BILLING CODE 3510–DT–P
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[Federal Register Volume 87, Number 246 (Friday, December 23, 2022)]
[Notices]
[Pages 78925-78927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27989]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
Order Renewing Temporary Denial of Export Privileges; Pobeda
Airlines, 108811, Russian Federation, Moscow, p. Moskovskiy, Kievskoe
shosse, 22nd km, \4/1\. Moscow, Russia
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
[[Page 78926]]
request of the Office of Export Enforcement (``OEE'') to renew the
temporary denial order (``TDO'') issued in this matter on June 24,
2022. I find that renewal of this order is necessary in the public
interest to prevent an imminent violation of the Regulations.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
I. Procedural History
On June 24, 2022, I signed an order denying the export privileges
of Pobeda Airlines (``Pobeda'') 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\
---------------------------------------------------------------------------
\2\ The TDO was published in the Federal Register on June 29,
2022 (87 FR 38707).
---------------------------------------------------------------------------
On December 1, 2022, BIS, through OEE, submitted a written request
for renewal of the TDO that issued on June 24, 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 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.
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), 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.\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).
\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 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.\5\ As also noted in OEE's initial
request for a temporary denial order, Aeroflot Russian Airlines JSC, a/
k/a PJSC Aeroflot (``Aeroflot'') is Pobeda's majority shareholder.\6\
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\5\ 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.
\6\ Aeroflot is the subject of a Temporary Denial Order issued
on April 8, 2022, which was renewed on October 3, 2022. See 87 FR
21611 (April 12, 2022) and 87 FR 60985 (October 7, 2022).
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In its December 1, 2022, request for renewal of the TDO, BIS has
submitted evidence that Pobeda continues to operate in violation of the
June 24, 2022 TDO and/or the Regulations by operating aircraft subject
to the EAR and classified under ECCN 9A991.b. Specifically, BIS's
evidence and related investigation indicates that after the issuance of
the TDO, Pobeda continued to fly aircraft into Russia and Belarus in
violation of the EAR, including flights between Minsk, Belarus and
Moscow, Russia. Information about those flights includes, but is not
limited to, the following:
----------------------------------------------------------------------------------------------------------------
Departure/arrival
Tail No. Serial No. Aircraft type cities Dates
----------------------------------------------------------------------------------------------------------------
RA-73305..................... 61793 737-8AL (B738) Minsk, BY/Moscow, November 26, 2022.
RU.
RA-73305..................... 61793 737-8AL (B738) Moscow, RU/Minsk, November 29, 2022.
BY.
RA-73305..................... 61793 737-8AL (B738) Minsk, BY/Moscow, November 29, 2022.
RU.
RA-73305..................... 61793 737-8AL (B738) Moscow, RU/Minsk, December 3, 2022.
BY.
[[Page 78927]]
RA-73305..................... 61793 737-8AL (B738) Minsk, BY/Moscow, December 3, 2022.
RU.
RA-73248..................... 41238 737-8LJ (B738) Moscow, RU/Minsk, November 22, 2022
BY.
RA-73248..................... 41238 737-8LJ (B738) Minsk, BY/Moscow, November 22, 2022.
RU.
RA-73248..................... 41238 737-8LJ (B738) Moscow, RU/Minsk, November 28, 2022.
BY.
RA-73248..................... 41238 737-8LJ (B738) Minsk, BY/Moscow, November 28, 2022.
RU.
RA-73229..................... 64866 737-8MC (B738) St. Petersburg, RU/ November 23, 2022.
Minsk, BY.
RA-73229..................... 64866 737-8MC (B738) Minsk, BY/St. November 23, 2022.
Petersburg, RU.
RA-73229..................... 64866 737-8MC (B738) Moscow, RU/Minsk, November 24, 2022.
BY.
RA-73229..................... 64866 737-8MC (B738) Minsk, BY/Moscow, November 24, 2022.
RU.
----------------------------------------------------------------------------------------------------------------
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 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. 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 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, 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
180 days.
Matthew S. Axelrod,
Assistant Secretary of Commerce for Export Enforcement.
[FR Doc. 2022-27989 Filed 12-22-22; 8:45 am]
BILLING CODE 3510-DT-P