[Federal Register Volume 88, Number 234 (Thursday, December 7, 2023)]
[Notices]
[Pages 85209-85211]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-26896]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security


Belavia Belarusian Airlines, 4A, Nemiga str., Minsk, Belarus, 
220004; Order Renewing Temporary Denial of Export Privileges

    Pursuant to section 766.24 of the Export Administration 
Regulations, 15 CFR parts 730-774 (``EAR'' or ``the Regulations''),\1\ 
I hereby grant the request of the Office of Export Enforcement 
(``OEE'') to renew the temporary denial order (``TDO'') issued in this 
matter on June 7, 2023. I find that renewal of this order is necessary 
in the public interest to prevent an imminent violation of the 
Regulations and that renewal for an extended period is appropriate 
because Belavia Belarusian Airlines (``Belavia'') has engaged in a 
pattern of repeated, ongoing and/or continuous apparent violations of 
the EAR.
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    \1\ On August 13, 2018, the President signed into law the John 
S. McCain National Defense Authorization Act for Fiscal Year 2019, 
which includes the Export Control Reform Act of 2018, 50 U.S.C. 
4801-4852 (``ECRA''). While section 1766 of ECRA repeals the 
provisions of the Export Administration Act, 50 U.S.C. app. 2401 et 
seq. (``EAA''), (except for three sections which are inapplicable 
here), section 1768 of ECRA provides, in pertinent part, that all 
orders, rules, regulations, and other forms of administrative action 
that were made or issued under the EAA, including as continued in 
effect pursuant to the International Emergency Economic Powers Act, 
50 U.S.C. 1701 et seq. (``IEEPA''), and were in effect as of ECRA's 
date of enactment (August 13, 2018), shall continue in effect 
according to their terms until modified, superseded, set aside, or 
revoked through action undertaken pursuant to the authority provided 
under ECRA. Moreover, section 1761(a)(5) of ECRA authorizes the 
issuance of temporary denial orders. 50 U.S.C. 4820(a)(5).
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I. Procedural History

    On June 16, 2022, I signed an order denying Belavia's export 
privileges for a period of 180 days on the ground that issuance of the 
order was necessary in the public interest to prevent an imminent 
violation of the Regulations. The order was issued ex parte pursuant to 
Section 766.24(a) of the Regulations and was effective upon 
issuance.\2\ The TDO was subsequently renewed on December 13, 2022 \3\ 
and again on June 7, 2023,\4\ in accordance with Section 766.24(d) of 
the Regulations.\5\
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    \2\ The TDO was published in the Federal Register on June 22, 
2022 (87 FR 37309).
    \3\ The December 13, 2022 renewal order was published in the 
Federal Register on December 19, 2022 (87 FR 77550).
    \4\ The June 7, 2023 renewal order was published in the Federal 
Register on June 13, 2023 (88 FR 38483).
    \5\ At the time of the renewal, section 766.24(d) provided that 
BIS may seek renewal of a temporary denial order for additional 180-
day renewal periods, if it believes that renewal is necessary in the 
public interest to prevent an imminent violation.
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    On November 13, 2023, BIS, through OEE, submitted a written request 
for a third renewal of the TDO. The written request was made more than 
20 days before the TDO's scheduled expiration and, given the temporary 
suspension of international mail service to Russia and Belarusia, OEE 
has attempted to serve a copy of the renewal request on Belavia in 
accordance with sections 766.5 and 766.24(d) of the Regulations. No 
opposition to the renewal of the TDO has been received.

II. Renewal of the TDO

A. Legal Standard

    Pursuant to section 766.24, BIS may issue an order temporarily 
denying a respondent's export privileges upon a showing that the order 
is necessary in the public interest to prevent an ``imminent 
violation'' of the Regulations, or any order, license or authorization 
issued thereunder. 15 CFR 766.24(b)(1) and 766.24(d). ``A violation may 
be `imminent' either in time or degree of likelihood.'' 15 CFR 
766.24(b)(3). BIS may show ``either that a violation is about to occur, 
or that the general circumstances of the matter under investigation or 
case under criminal or administrative charges demonstrate a likelihood 
of future violations.'' Id. As to the likelihood of future violations, 
BIS may show that the violation under investigation or charge ``is 
significant, deliberate, covert and/or likely to occur again, rather 
than technical or negligent[.]'' Id. A ``lack of information 
establishing the precise time a violation may occur does not preclude a 
finding that a violation is imminent, so long as there is sufficient 
reason to believe the likelihood of a violation.'' Id.
    If BIS believes that renewal of a denial order is necessary in the 
public interest to prevent an imminent violation, it may file a written 
request for renewal, with any modifications if appropriate. 15 CFR 
766.24(d)(1). The written request, which must be filed no later than 20 
days prior to the TDO's expiration, should set forth the basis for 
BIS's belief

[[Page 85210]]

that renewal is necessary, including any additional or changed 
circumstances. Id. ``In cases demonstrating a pattern of repeated, 
ongoing and/or continuous apparent violations, BIS may request the 
renewal of a temporary denial order for an additional period not 
exceeding one year.'' \6\ Id.
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    \6\ 88 FR 59791 (Aug. 30, 2023).
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B. The TDO and BIS's Request for Renewal

    The U.S. Commerce Department, through BIS, responded to the Russian 
Federation's (``Russia's'') further invasion of Ukraine by implementing 
a sweeping series of stringent export controls that severely restrict 
Russia's access to technologies and other items that it needs to 
sustain its aggressive military capabilities. These controls primarily 
target Russia's defense, aerospace, and maritime sectors and are 
intended to cut off Russia's access to vital technological inputs, 
atrophy key sectors of its industrial base, and undercut Russia's 
strategic ambitions to exert influence on the world stage. Effective 
February 24, 2022, BIS imposed expansive controls on aviation-related 
(e.g., Commerce Control List Categories 7 and 9) items to Russia, 
including a license requirement for the export, reexport or transfer 
(in-country) to Russia of any aircraft or aircraft parts specified in 
Export Control Classification Number (``ECCN'') 9A991 (section 
746.8(a)(1) of the EAR),\7\ BIS will review any export or reexport 
license applications for such items under a policy of denial. See 
section 746.8(b). Effective March 2, 2022, BIS excluded any aircraft 
registered in, owned, or controlled by, or under charter or lease by 
Russia or a national of Russia from being eligible for license 
exception Aircraft, Vessels, and Spacecraft (``AVS'') (section 740.15 
of the EAR), 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.\8\ On 
April 8, 2022, BIS excluded any aircraft registered in, owned, 
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.\9\ 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 Belarus or a national of Belarus, is subject to a license 
requirement before it can travel to Russia or Belarus.
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    \7\ 87 FR 12226 (Mar. 3, 2022).
    \8\ 87 FR 13048 (Mar. 8, 2022).
    \9\ 87 FR 22130 (Apr. 14, 2022). Additionally, this rule also 
imposed licensing requirements on items controlled on the Commerce 
Control List (``CCL'') under Categories 0-2 that are destined for 
Russia or Belarus. Accordingly, now all CCL items require export, 
reexport, and transfer (in-country) licenses if destined for or 
within Russia or Belarus.
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    OEE's request for renewal for a period of one year is based upon 
the facts underlying the issuance of the initial TDO, the renewal 
orders subsequently issued in this matter, and evidence that continues 
to develop during this investigation. These facts and evidence 
demonstrate that Belavia has continued, and continues, to act in 
blatant disregard for U.S. export controls and the terms of previously 
issued TDOs. Specifically, the initial TDO, issued on June 16, 2022, 
was based on evidence that Belavia engaged in conduct prohibited by the 
Regulations by operating multiple aircraft subject to the EAR and 
classified under ECCN 9A991.b on flights into Belarus after April 8, 
2022, from destinations including, but not limited to, Moscow, Russia; 
St. Petersburg, Russia; Antalya, Turkey; Istanbul, Turkey, Tbilisi, 
Georgia; Batumi, Georgia; Sharjah, United Arab Emirates (``UAE''), and 
Sharm el-Sheikh, Egypt, without the required BIS authorization.\10\
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    \10\ Publicly available flight tracking information shows that 
on May 10, 2022, serial number (SN) 61423 flew from Moscow, Russia 
to Minsk, Belarus. On June 14, 2022, SN 61422 flew from Istanbul, 
Turkey to
    Minsk, Belarus and SN 40877 flew from Sharjah, United Arab 
Emirates to Minsk, Belarus.
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    As discussed in the prior renewal orders, BIS presented evidence 
indicating that, after the initial June 16, 2022 TDO issued, Belavia 
continued to operate aircraft subject to the EAR and classified under 
ECCN 9A991.b on flights both into Belarus and/or Russia, in violation 
of the Regulations and the TDO itself.\11\ The December 13, 2022 order 
detailed Belavia's continued flight operations into Belarus and/or 
Russia, including flights from St. Petersburg and Moscow, Russia; 
Istanbul, Turkey; and Sharjah, UAE.\12\ The June 7, 2023 renewal order 
documented a similar pattern of prohibited conduct.\13\
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    \11\ Engaging in conduct prohibited by a denial order violates 
the Regulations. 15 CFR 764.2(a) and (k).
    \12\ Publicly available flight tracking information shows that 
on November 15, 2022, serial number (SN) 61421 flew from Moscow, 
Russia to Minsk, Belarus. On December 9, 2022, SN 61423 flew from 
St. Petersburg, Russia to Minsk, Belarus and SN 61421 flew from 
Istanbul, Turkey to Minsk, Belarus. On November 12, 2022, SN 61423 
flew from Sharjah, UAE to Minsk, Belarus.
    \13\ Publicly available flight tracking information shows that 
SN 61421 flew from Doha, Qatar, to Minsk, Belarus on May 27, 2023. 
Additionally, SN 61422 flew from Kutaisi, Georgia to Minsk, Belarus 
on May 25, 2023 and SN 26294 flew from Baku, Azerbaijan to Minsk, 
Belarus on May 2, 2023.
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    Since that time, Belavia continued to engage in conduct prohibited 
by the TDO and Regulations. In its November 13, 2023, request for 
renewal of the TDO, BIS submitted evidence that Belavia continues to 
operate aircraft subject to the EAR and classified under ECCN 9A991.b, 
on flights into Belarus and/or Russia, in violation of the June 7, 2023 
renewal order and/or the Regulations. Specifically, BIS's evidence and 
related investigation demonstrates that Belavia continued to operate 
aircraft subject to the EAR, including, but not limited to, on flights 
into Belarus and/or Russia from/to Antalya, Turkey, and Sharm el-
Sheikh, Egypt. Information about those flights includes, but is not 
limited to, the following:

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                                                                        Departure/arrival
            Tail No.               Serial No.      Aircraft type             cities                 Dates
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EW-455PA........................        61421  737-8ZM (B738).......  Dubai, AE/Minsk, BY.  November 27, 2023.
EW-455PA........................        61421  737-8ZM (B738).......  Sharm el-Sheikh, EG/  November 15, 2023.
                                                                       Minsk, BY.
EW-455PA........................        61421  737-8ZM (B738).......  Istanbul, TR/Minsk,   November 14, 2023.
                                                                       BY.
EW-455PA........................        61421  737-8ZM (B738).......  Minsk, BY/Moscow, RU  November 1, 2023.
EW-455PA........................        61421  737-8ZM (B738).......  Dubai, AE/Minsk, BY.  October 29, 2023.
EW-456PA........................        61422  737-8ZM (B738).......  Hurghada, EG/Minsk,   November 26, 2023.
                                                                       BY.
EW-456PA........................        61422  737-8ZM (B738).......  Hurghada, EG/Minsk,   November 1, 2023.
                                                                       BY.
EW-456PA........................        61422  737-8ZM (B738).......  Sharm el-Sheikh, EG/  October 31, 2023.
                                                                       Minsk, BY.
EW-456PA........................        61422  737-8ZM (B738).......  Antalya, TR/Minsk,    October 30, 2023.
                                                                       BY.
EW-456PA........................        61422  737-8ZM (B738).......  Minsk, BY/St.         October 24, 2023.
                                                                       Petersburg, RU.
EW-457PA........................        61423  737-8ZM (B738).......  Sharm el-Sheikh, EG/  November 27, 2023.
                                                                       Minsk, BY.
EW-457PA........................        61423  737-8ZM (B738).......  Antalya, TR/Minsk,    November 15, 2023.
                                                                       BY.
EW-457PA........................        61423  737-8ZM (B738).......  Minsk, BY/Moscow, RU  November 14, 2023.

[[Page 85211]]

 
EW-457PA........................        61423  737-8ZM (B738).......  Istanbul, TR/Minsk,   October 31, 2023.
                                                                       BY.
EW-457PA........................        61423  737-8ZM (B738).......  Hurghada, EG/Minsk,   October 30, 2023.
                                                                       BY.
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III. Findings

    Under the applicable standard set forth in Section 766.24 of the 
Regulations and my review of the entire record, I find that the 
evidence presented by BIS demonstrates that Belavia has acted in 
violation of the Regulations and the TDO; that such violations have 
been significant, deliberate and covert; and that given the foregoing 
and the nature of the matters under investigation, there is a 
likelihood of imminent violations. Moreover, I find that renewal for an 
extended period is appropriate because Belavia has engaged in a pattern 
of repeated, ongoing and/or continuous apparent violations of the EAR. 
Therefore, renewal of the TDO for one year is necessary in the public 
interest to prevent imminent violation of the Regulations and to give 
notice to companies and individuals in the United States and abroad 
that they should avoid dealing with 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.

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.
    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 
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 Belavia and shall be 
published in the Federal Register.
    This Order is effective immediately and shall remain in effect for 
one year.

Matthew S. Axelrod,
Assistant Secretary of Commerce for Export Enforcement.
[FR Doc. 2023-26896 Filed 12-6-23; 8:45 am]
BILLING CODE 3510-DT-P