Order Renewing Temporary Denial of Export Privileges, 4901-4903 [2024-01411]

Download as PDF Federal Register / Vol. 89, No. 17 / Thursday, January 25, 2024 / Notices January 29, 2024; 3 p.m. to 4 p.m. Eastern Daylight Time (EDT). ADDRESSES: The meeting will be held virtually. Members of the public are not able to attend in-person but may listen to the meeting and view the presentation by visiting the URL: https://firstnet.webex.com/firstnet/ j.php?MTID=mec0e9d7798ef2007c0bce 5ed17d43b4b. Meeting Number: 2822 733 4965. Password: H3Qvm5XD4cx. Call In (Audio Only): 415–527–5035. Access Code: 2822 733 4965. If you experience technical difficulty, please contact the FirstNet Authority Customer Support Service Desk at CSSD@FirstNet.gov. FOR FURTHER INFORMATION CONTACT: General information: Jennifer Watts, (571) 665–6178, Jennifer.Watts@ FirstNet.gov. Media inquiries: Ryan Oremland, (571) 665–6186, Ryan.Oremland@ FirstNet.gov. DATES: khammond on DSKJM1Z7X2PROD with NOTICES SUPPLEMENTARY INFORMATION: Background: The Middle-Class Tax Relief and Job Creation Act of 2012 (codified at 47 U.S.C. 1401 et seq.) (Act) established the FirstNet Authority as an independent authority within NTIA. The Act directs the FirstNet Authority to ensure the building, deployment, and operation of a nationwide interoperable public safety broadband network. The FirstNet Authority Board is responsible for making strategic decisions regarding the operations of the FirstNet Authority. Matters to be Considered: The FirstNet Authority will post a detailed agenda for the Combined Board and Board Finance and Investment Committee Meeting on FirstNet.gov prior to the meeting. The agenda topics are subject to change. 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Jennifer Watts, Board Secretary, First Responder Network Authority. [FR Doc. 2024–01405 Filed 1–24–24; 8:45 am] BILLING CODE P DEPARTMENT OF COMMERCE Bureau of Industry and Security Order Renewing Temporary Denial of Export Privileges Empresa de Transporte Ae´reocargo del Sur, S.A., a/k/a Aerocargo del Sur Transportation Company, a/k/a EMTRASUR, Avenida Intercomunal, Edificio Sede, Sector 6.3, Maiquetia, Distrito Federal, Venezuela, Avenida Lecuna Torre Oeste Piso 49, Libertador Caracas, Venezuela Pursuant to section 766.24 of the Export Administration Regulations, 15 CFR parts 730 through 774 (2023) (‘‘EAR’’ or ‘‘the Regulations’’),1 I hereby grant the request of the Bureau of Industry and Security (‘‘BIS’’), U.S. Department of Commerce, through its Office of Export Enforcement (‘‘OEE’’), to renew the temporary denial order (‘‘TDO’’) issued in this matter on July 25, 2023. 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 August 2, 2022, I signed an order denying the export privileges of Venezuela-based cargo airline Empresa de Transporte Ae´reocargo del Sur, S.A., a/k/a Aerocargo del Sur Transportation Company, a/k/a EMTRASUR (‘‘EMTRASUR’’) for a period of 180 days on the ground that issuance of the order 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. section 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). PO 00000 Frm 00011 Fmt 4703 Sfmt 4703 4901 was necessary in the public interest to prevent an imminent violation of the Regulations. The order was issued ex parte pursuant to section 766.24(a) of the Regulations and was effective upon issuance.2 This temporary denial order was subsequently renewed in accordance with section 766.24(d) of the Regulations.3 The renewal order issued on January 26, 2023 and was effective upon issuance.4 A second renewal order issued on July 25, 2025 and was also effective upon issuance.5 On December 22, 2023, BIS, through OEE, submitted a written request for renewal of the TDO that issued on July 25, 2023. The written request was made more than 20 days before the TDO’s scheduled expiration. A copy of the renewal request was sent to EMTRASUR 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 2 The TDO was published in the Federal Register on August 5, 2022. See 87 FR 47964 (August 5, 2022). 3 Section 766.24(d) provides that BIS may seek renewal of a temporary denial order for additional 180-day renewal periods, if it believes that renewal is necessary in the public interest to prevent an imminent violation. Renewal requests are to be made in writing no later than 20 days before the scheduled expiration date of a temporary denial order. 4 The January 26, 2023 renewal order was published in the Federal Register on January 31, 2023. See 88 FR 6231 (January 31, 2023). 5 The July 25, 2023 renewal order was published in the Federal Register on July 28 2023. See 88 FR 48789 (July 28, 2023). E:\FR\FM\25JAN1.SGM 25JAN1 4902 Federal Register / Vol. 89, No. 17 / Thursday, January 25, 2024 / Notices 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 khammond on DSKJM1Z7X2PROD with NOTICES OEE’s request for renewal is based upon the facts underlying the issuance of the initial TDO and evidence developed during this investigation, which demonstrate continued disregard for U.S. export controls and the terms of a preexisting TDO. As noted in OEE’s initial request for a temporary denial order, EMTRASUR is a subsidiary of Consorcio Venezolano de Industrias Aeronauticas Y Servicios Aereos, S.A., a/k/a CONVIASA (‘‘CONVIASA’’), a Venezuelan state-owned airline. On or about February 7, 2020, U.S. Department of the Treasury’s Office of Foreign Assets Control (‘‘OFAC’’) added CONVIASA to the list of Specially Designated Nationals (‘‘SDN’’) pursuant to Executive Order (E.O.) 13884.6 The initial TDO, issued on August 2, 2022, was based on evidence that EMTRASUR engaged in conduct prohibited by a TDO that had been previously issued against Iranian airline Mahan Air a/k/a Mahan Airlines a/k/a Mahan Airways (‘‘Mahan Air’’) and the Regulations when EMTRASUR, through its parent company, acquired custody and/or control from Mahan Air of a U.Sorigin Boeing 747 aircraft bearing manufacturer’s serial number 23413 (‘‘MSN 23413’’), an item subject to the EAR and classified under ECCN 9A991, in or around October 2021.7 Moreover, the initial TDO, issued on August 2, 2022, was also based on evidence that EMTRASUR had continued to use MSN 23413 on flights into Iran and Russia in violation of General Prohibition 10, which (among other restrictions) prohibits the continued use of an item that was known to have been exported or reexported in violation of the EAR.8 See General Prohibition 10 of the EAR at 15 CFR 736.2(b)(10). There are no license exceptions available for this General 6 See https://home.treasury.gov/news/pressreleases/sm903. 7 Mahan Air’s status as a denied person was most recently renewed by BIS through a TDO issued on May 5, 2023. See 88 FR 30078 (May 10, 2023). The May 5, 2023 renewal order summarizes the initial TDO issued against Mahan in March 2008 and the other renewal orders issued prior to May 5, 2023. See id. 8 Publicly available flight tracking information demonstrates, for instance, that EMTRASUR operated MSN 23413 on multiple flights between Caracas, Venezuela and Tehran, Iran between February 19, 2022 and May 25, 2022. In addition, EMTRASUR operated MSN 23413 on flights between Tehran, Iran and Moscow, Russia on May 24, 2022 and May 25, 2022. VerDate Sep<11>2014 17:22 Jan 24, 2024 Jkt 262001 Prohibition.9 As also noted in OEE’s initial request, MSN 23413 was detained by Argentinian authorities on or about June 8, 2022, where it presently remains. On or about August 2, 2022, the United States Department of Justice transmitted a request to Argentinian authorities for the seizure of MSN 23413 following the unsealing of a seizure warrant in the U.S. District Court for the District of Columbia. The January 26, 2023 and July 2023 renewal orders outlined evidence demonstrating that EMTRASUR’s acquisition of MSN 23413 from Mahan Air was in violation of the TDO previously issued against Mahan Air as well as evidence that certain of MSN 23413’s parts, including spare parts which appear to be U.S-origin, bear the markings and logos of Mahan and/or CONVIASA. Accordingly, any attempts by EMTRASUR to operate the aircraft or to return it to Venezuela, as well as any efforts EMTRASUR may take to maintain it, would violate General Prohibition 10. Moreover, as detailed in the January 26, 2023 and July 25, 2023 renewal orders, BIS’s investigation indicates that Venezuelan parties took affirmative actions to secure the release of the aircraft from its detention in Argentina, even after the issuance of the August 2, 2022, TDO against EMTRASUR. BIS also offered evidence that on May 3, 2023, United States District Judge Randolph D. Moss of the United States District Court for the District of Columbia issued a final order of forfeiture as to the aircraft, vesting all rights to MSN 23413 with the United States. See United States v. Boeing 747– 300 Aircraft, No. 1:22–cv–3208, Dkt. 11 (D.D.C. May 3, 2023). Most recently, on or about January 4, 2024, a federal judge in Argentina issued an order for the aircraft at to be released to the United States Government.10 Notwithstanding 9 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. 10 https://www.msn.com/en-us/news/world/ argentina-surrenders-emtrasur-747-aircraft-to-theus/ar-AA1mE3uV. PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 this order, however, the aircraft physically remains in Argentina and has not yet been recovered by the United States government. Based upon the violations by EMTRASUR, its disregard for the Regulations and the previously issued TDO against Mahan Air, and the attempts by the Venezuelan government to reacquire control of MSN 23413, there are concerns of future violations of the EAR. These concerns are heightened because any subsequent actions taken with regard to MSN 23413 for or on behalf of EMTRASUR would violate the EAR, including, but not limited to, its refueling, maintenance, repair, or the provision of spare parts or services. 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 EMTRASUR 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 EMTRASUR 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, Empresa de Transporte Ae´reocargo del Sur, S.A., a/k/a Aerocargo del Sur Transportation Company, a/k/a EMTRASUR, Avenida Intercomunal, Edificio Sede, Sector 6.3, Maiquetia, Distrito Federal, Venezuela, and Avenida Lecuna Torre Oeste Piso 49, Libertador, Caracas, Venezuela, and when acting for or on its 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; E:\FR\FM\25JAN1.SGM 25JAN1 khammond on DSKJM1Z7X2PROD with NOTICES Federal Register / Vol. 89, No. 17 / Thursday, January 25, 2024 / Notices 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 (incountry) to or on behalf of EMTRASUR 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 EMTRASUR 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 EMTRASUR 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 EMTRASUR 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 EMTRASUR 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 EMTRASUR, or service any item, of whatever origin, that is owned, possessed or controlled VerDate Sep<11>2014 17:22 Jan 24, 2024 Jkt 262001 by EMTRASUR 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 EMTRASUR 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, EMTRASUR 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 EMTRASUR 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 EMTRASUR and shall be published in the Federal Register. This Order is effective immediately and shall remain in effect for 180 days. Dated: January 21, 2024. Matthew S. Axelrod, Assistant Secretary of Commerce for Export Enforcement. [FR Doc. 2024–01411 Filed 1–24–24; 8:45 am] BILLING CODE 3510–DT–P DEPARTMENT OF COMMERCE International Trade Administration [A–533–885] Polyester Textured Yarn From India: Preliminary Results of Antidumping Duty Administrative Review; 2022 Enforcement and Compliance, International Trade Administration, Department of Commerce. SUMMARY: The U.S. Department of Commerce (Commerce) preliminarily AGENCY: PO 00000 Frm 00013 Fmt 4703 Sfmt 4703 4903 determines that polyester textured yarn (yarn) from India was not sold in the United States at less than normal value (NV) during the period of review (POR) January 1, 2022, through December 31, 2022. We invite interested parties to comment on these preliminary results of review. DATES: Applicable January 25, 2024. FOR FURTHER INFORMATION CONTACT: Samantha Kinney, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482–2285. SUPPLEMENTARY INFORMATION: Background On January 10, 2020, Commerce published in the Federal Register the antidumping duty (AD) order on polyester textured yarn from India.1 On January 3, 2023, Commerce published in the Federal Register a notice of opportunity to request an administrative review of the Order.2 On March 14, 2023, based on a timely request for review, in accordance with 19 CFR 351.221(c)(1)(i), Commerce initiated an AD administrative review of the Order, covering one producer/exporter, Reliance Industries Limited (Reliance).3 Pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), on September 11, 2023, Commerce extended the deadline for the preliminary results of this review until January 31, 2024.4 For a complete description of the events that followed the initiation of this review, see the Preliminary Decision Memorandum.5 Scope of the Order The merchandise covered by the Order is polyester textured yarn from 1 See Polyester Textured Yarn from India and the People’s Republic of China: Amended Final Antidumping Duty Determination for India and Antidumping Duty Orders, 85 FR 1298 (January 10, 2020) (Order). 2 See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review and Join Annual Inquiry Service List, 88 FR 45 (January 3, 2023). 3 See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 88 FR 15642, 15649 (March 14, 2023). We have preliminarily determined that Reliance and its affiliate, Alok Industries Limited (AIL), should be collapsed and treated as a single entity, Reliance/ AIL. See Memorandum, ‘‘Decision Memorandum for Preliminary Results of Antidumping Duty Administrative Review: Polyester Textured Yarn from India; 2022,’’ dated concurrently with, and hereby adopted by, this notice (Preliminary Decision Memorandum), at the section entitled, ‘‘Affiliation and Single Entity Treatment.’’ 4 See Memorandum, ‘‘Extension of Deadline for Preliminary Results of Antidumping Duty Administrative Review, dated September 11, 2023. 5 See Preliminary Decision Memorandum. E:\FR\FM\25JAN1.SGM 25JAN1

Agencies

[Federal Register Volume 89, Number 17 (Thursday, January 25, 2024)]
[Notices]
[Pages 4901-4903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01411]

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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

Order Renewing Temporary Denial of Export Privileges

Empresa de Transporte A[eacute]reocargo del Sur, S.A., a/k/a Aerocargo
del Sur Transportation Company, a/k/a EMTRASUR, Avenida Intercomunal,
Edificio Sede, Sector 6.3, Maiquetia, Distrito Federal, Venezuela,
Avenida Lecuna Torre Oeste Piso 49, Libertador Caracas, Venezuela

Pursuant to section 766.24 of the Export Administration
Regulations, 15 CFR parts 730 through 774 (2023) (``EAR'' or ``the
Regulations''),\1\ I hereby grant the request of the Bureau of Industry
and Security (``BIS''), U.S. Department of Commerce, through its Office
of Export Enforcement (``OEE''), to renew the temporary denial order
(``TDO'') issued in this matter on July 25, 2023. I find that renewal
of this order is necessary in the public interest to prevent an
imminent violation of the Regulations.
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\1\ On August 13, 2018, the President signed into law the John
S. McCain National Defense Authorization Act for Fiscal Year 2019,
which includes the Export Control Reform Act of 2018, 50 U.S.C.
4801-4852 (``ECRA''). While section 1766 of ECRA repeals the
provisions of the Export Administration Act, 50 U.S.C. App. section
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 August 2, 2022, I signed an order denying the export privileges
of Venezuela-based cargo airline Empresa de Transporte
A[eacute]reocargo del Sur, S.A., a/k/a Aerocargo del Sur Transportation
Company, a/k/a EMTRASUR (``EMTRASUR'') for a period of 180 days on the
ground that issuance of the order was necessary in the public interest
to prevent an imminent violation of the Regulations. The order was
issued ex parte pursuant to section 766.24(a) of the Regulations and
was effective upon issuance.\2\ This temporary denial order was
subsequently renewed in accordance with section 766.24(d) of the
Regulations.\3\ The renewal order issued on January 26, 2023 and was
effective upon issuance.\4\ A second renewal order issued on July 25,
2025 and was also effective upon issuance.\5\
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\2\ The TDO was published in the Federal Register on August 5,
2022. See 87 FR 47964 (August 5, 2022).
\3\ Section 766.24(d) provides that BIS may seek renewal of a
temporary denial order for additional 180-day renewal periods, if it
believes that renewal is necessary in the public interest to prevent
an imminent violation. Renewal requests are to be made in writing no
later than 20 days before the scheduled expiration date of a
temporary denial order.
\4\ The January 26, 2023 renewal order was published in the
Federal Register on January 31, 2023. See 88 FR 6231 (January 31,
2023).
\5\ The July 25, 2023 renewal order was published in the Federal
Register on July 28 2023. See 88 FR 48789 (July 28, 2023).
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On December 22, 2023, BIS, through OEE, submitted a written request
for renewal of the TDO that issued on July 25, 2023. The written
request was made more than 20 days before the TDO's scheduled
expiration. A copy of the renewal request was sent to EMTRASUR 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

[[Page 4902]]

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

OEE's request for renewal is based upon the facts underlying the
issuance of the initial TDO and evidence developed during this
investigation, which demonstrate continued disregard for U.S. export
controls and the terms of a preexisting TDO. As noted in OEE's initial
request for a temporary denial order, EMTRASUR is a subsidiary of
Consorcio Venezolano de Industrias Aeronauticas Y Servicios Aereos,
S.A., a/k/a CONVIASA (``CONVIASA''), a Venezuelan state-owned airline.
On or about February 7, 2020, U.S. Department of the Treasury's Office
of Foreign Assets Control (``OFAC'') added CONVIASA to the list of
Specially Designated Nationals (``SDN'') pursuant to Executive Order
(E.O.) 13884.\6\
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\6\ See https://home.treasury.gov/news/press-releases/sm903.
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The initial TDO, issued on August 2, 2022, was based on evidence
that EMTRASUR engaged in conduct prohibited by a TDO that had been
previously issued against Iranian airline Mahan Air a/k/a Mahan
Airlines a/k/a Mahan Airways (``Mahan Air'') and the Regulations when
EMTRASUR, through its parent company, acquired custody and/or control
from Mahan Air of a U.S-origin Boeing 747 aircraft bearing
manufacturer's serial number 23413 (``MSN 23413''), an item subject to
the EAR and classified under ECCN 9A991, in or around October 2021.\7\
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\7\ Mahan Air's status as a denied person was most recently
renewed by BIS through a TDO issued on May 5, 2023. See 88 FR 30078
(May 10, 2023). The May 5, 2023 renewal order summarizes the initial
TDO issued against Mahan in March 2008 and the other renewal orders
issued prior to May 5, 2023. See id.
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Moreover, the initial TDO, issued on August 2, 2022, was also based
on evidence that EMTRASUR had continued to use MSN 23413 on flights
into Iran and Russia in violation of General Prohibition 10, which
(among other restrictions) prohibits the continued use of an item that
was known to have been exported or reexported in violation of the
EAR.\8\ See General Prohibition 10 of the EAR at 15 CFR 736.2(b)(10).
There are no license exceptions available for this General
Prohibition.\9\ As also noted in OEE's initial request, MSN 23413 was
detained by Argentinian authorities on or about June 8, 2022, where it
presently remains. On or about August 2, 2022, the United States
Department of Justice transmitted a request to Argentinian authorities
for the seizure of MSN 23413 following the unsealing of a seizure
warrant in the U.S. District Court for the District of Columbia.
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\8\ Publicly available flight tracking information demonstrates,
for instance, that EMTRASUR operated MSN 23413 on multiple flights
between Caracas, Venezuela and Tehran, Iran between February 19,
2022 and May 25, 2022. In addition, EMTRASUR operated MSN 23413 on
flights between Tehran, Iran and Moscow, Russia on May 24, 2022 and
May 25, 2022.
\9\ 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.
---------------------------------------------------------------------------

The January 26, 2023 and July 2023 renewal orders outlined evidence
demonstrating that EMTRASUR's acquisition of MSN 23413 from Mahan Air
was in violation of the TDO previously issued against Mahan Air as well
as evidence that certain of MSN 23413's parts, including spare parts
which appear to be U.S-origin, bear the markings and logos of Mahan
and/or CONVIASA. Accordingly, any attempts by EMTRASUR to operate the
aircraft or to return it to Venezuela, as well as any efforts EMTRASUR
may take to maintain it, would violate General Prohibition 10.
Moreover, as detailed in the January 26, 2023 and July 25, 2023
renewal orders, BIS's investigation indicates that Venezuelan parties
took affirmative actions to secure the release of the aircraft from its
detention in Argentina, even after the issuance of the August 2, 2022,
TDO against EMTRASUR. BIS also offered evidence that on May 3, 2023,
United States District Judge Randolph D. Moss of the United States
District Court for the District of Columbia issued a final order of
forfeiture as to the aircraft, vesting all rights to MSN 23413 with the
United States. See United States v. Boeing 747-300 Aircraft, No. 1:22-
cv-3208, Dkt. 11 (D.D.C. May 3, 2023). Most recently, on or about
January 4, 2024, a federal judge in Argentina issued an order for the
aircraft at to be released to the United States Government.\10\
Notwithstanding this order, however, the aircraft physically remains in
Argentina and has not yet been recovered by the United States
government.
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\10\ https://www.msn.com/en-us/news/world/argentina-surrenders-emtrasur-747-aircraft-to-the-us/ar-AA1mE3uV.
---------------------------------------------------------------------------

Based upon the violations by EMTRASUR, its disregard for the
Regulations and the previously issued TDO against Mahan Air, and the
attempts by the Venezuelan government to reacquire control of MSN
23413, there are concerns of future violations of the EAR. These
concerns are heightened because any subsequent actions taken with
regard to MSN 23413 for or on behalf of EMTRASUR would violate the EAR,
including, but not limited to, its refueling, maintenance, repair, or
the provision of spare parts or services.

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 EMTRASUR 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 EMTRASUR
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, Empresa de Transporte
A[eacute]reocargo del Sur, S.A., a/k/a Aerocargo del Sur Transportation
Company, a/k/a EMTRASUR, Avenida Intercomunal, Edificio Sede, Sector
6.3, Maiquetia, Distrito Federal, Venezuela, and Avenida Lecuna Torre
Oeste Piso 49, Libertador, Caracas, Venezuela, and when acting for or
on its 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;

[[Page 4903]]

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
EMTRASUR 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 EMTRASUR 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 EMTRASUR 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 EMTRASUR 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 EMTRASUR 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 EMTRASUR, or service any item, of
whatever origin, that is owned, possessed or controlled by EMTRASUR 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 EMTRASUR 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,
EMTRASUR 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 EMTRASUR 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 EMTRASUR and shall be
published in the Federal Register.
This Order is effective immediately and shall remain in effect for
180 days.

Dated: January 21, 2024.
Matthew S. Axelrod,
Assistant Secretary of Commerce for Export Enforcement.
[FR Doc. 2024-01411 Filed 1-24-24; 8:45 am]
BILLING CODE 3510-DT-P

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