[Federal Register Volume 87, Number 119 (Wednesday, June 22, 2022)]
[Notices]
[Pages 37309-37312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-13293]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security


Belavia Belarusian Airlines, 14A Nemiga str., Minsk, Belarus, 
220004; Order Temporarily Denying Export Privileges

    Pursuant to Section 766.24 of the Export Administration 
Regulations, 15 CFR parts 730-774 (2021) (``EAR'' or ``the 
Regulations''),\1\ the Bureau of Industry and Security (``BIS''), U.S. 
Department of Commerce, through its Office of Export Enforcement 
(``OEE''), has requested the issuance of an Order temporarily denying, 
for a period of 180 days, the export privileges under the Regulations 
of Belavia Belarusian Airlines (``Belavia''). OEE's request and related 
information indicates that Belavia is headquartered in Minsk, Belarus 
and owned by the State of Belarus.
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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. Sec.  
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superseded, set aside, or revoked through action undertaken pursuant 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. Legal Standard

    Pursuant to Section 766.24, BIS may issue an order temporarily 
denying a respondent's export privileges upon a showing that the order 
is necessary in the public interest to prevent an ``imminent 
violation'' of the Regulations, or any order, license or authorization 
issued thereunder. 15 CFR 766.24(b)(1) and 766.24(d). ``A violation may 
be `imminent' either in time or degree of likelihood.'' 15 CFR 
766.24(b)(3). BIS may show ``either that a violation is about to occur, 
or that the general circumstances of the matter under investigation or 
case under criminal or administrative charges demonstrate a likelihood 
of future violations.'' Id. As to the likelihood of future violations, 
BIS may show that the violation under investigation or charge ``is 
significant, deliberate, covert and/or likely to occur again, rather 
than technical or negligent[.]'' Id. A ``lack of information 
establishing the precise time a violation may occur does not preclude a 
finding that a violation is imminent, so long as there is sufficient 
reason to believe the likelihood of a violation.'' Id.

II. OEE's Request for a Temporary Denial Order (``TDO'')

    The U.S. Commerce Department, through BIS, responded to the Russian 
Federation's (``Russia's'') further invasion of Ukraine by implementing 
a sweeping series of stringent export controls that severely restrict 
Russia's access to technologies and other items that it needs to 
sustain its aggressive military capabilities. Between February and June 
2022, BIS has published a series of amendments to the EAR that

[[Page 37310]]

increasingly tightened export controls on Russia and Belarus in 
response to Russia's further invasion of Ukraine, as substantially 
enabled by Belarus. These controls primarily target Russia and 
Belarus's defense, aerospace, and maritime sectors and are intended to 
cut off their access to vital technological inputs, atrophy key sectors 
of their 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 (``CCL'') Categories 7 
and 9) items to Russia, including a license requirement for the export, 
reexport or transfer (in-country) to Russia of any aircraft or aircraft 
parts specified in Export Control Classification Number (``ECCN'') 
9A991 (Section 746.8(a)(1) of the EAR).\2\ BIS will generally review 
any export or reexport license applications for such items under a 
policy of denial. See Section 746.8(b) of the EAR. Effective March 2, 
2022, BIS excluded any aircraft registered in, owned, or controlled by, 
or under charter or lease by Russia or a national of Russia from being 
eligible for license exception Aircraft, Vessels, and Spacecraft 
(``AVS'') (Section 740.15 of the EAR), and as part of the same rule, 
imposed a license requirement for the export, re-export, or transfer 
(in-country) of all items controlled under CCL Categories 3 through 9 
to Belarus.\3\ On April 8, 2022, BIS excluded any aircraft registered 
in, owned, or controlled by, or under charter or lease by Belarus or a 
national of Belarus from eligibility to use license exception AVS for 
travel to Russia or Belarus.\4\ Accordingly, any U.S.-origin aircraft 
or foreign-origin aircraft that includes more than 25% controlled U.S.-
origin content, and that is registered in, owned, or controlled by, or 
under charter or lease by Belarus or a national of Belarus, is subject 
to a license requirement before it can travel to Russia or Belarus.
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    \2\ 87 FR 12226 (Mar. 3, 2022). Additionally, BIS published a 
final rule effective April 8, 2022, which imposed licensing 
requirements on items controlled on the CCL under Categories 0-2 
that are destined for Russia or Belarus. Accordingly, now all CCL 
items require export, reexport, and transfer (in-country) licenses 
if destined for or within Russia or Belarus. 87 FR 22130 (Apr. 14, 
2022).
    \3\ 87 FR 13048 (Mar. 8, 2022).
    \4\ 87 FR 22130 (Apr. 14, 2022).
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    OEE's request is based upon facts indicating that Belavia engaged 
in recent conduct prohibited by the Regulations by operating aircraft 
subject to the EAR and classified under ECCN 9A991 on flights into 
Russia and Belarus after April 8, 2022, without the required BIS 
authorization.
    Specifically, OEE's investigation, including publicly available 
flight tracking information, indicates that after April 8, 2022, 
Belavia operated multiple U.S.-origin aircraft subject to the EAR, 
including, but not limited to, those identified below, on flights into 
and out of Minsk, Belarus from/to Moscow, Russia; St. Petersburg, 
Russia; Antalya, Turkey; Istanbul, Turkey; Tbilisi, Georgia; Batumi, 
Georgia; Sharjah, United Arab Emirates; and Sharm El-Sheikh, Egypt. 
Pursuant to Section 746.8 of the EAR, all of these flights would have 
required export or reexport licenses from BIS. As a Belarusian airline, 
Belavia flights would not be eligible to use license exception AVS for 
travel to Russia or Belarus. No BIS authorizations were either sought 
or obtained by Belavia for these exports or reexports to Belarus and/or 
Russia. The information about those flights includes the following:

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                                                                    Departure/arrival
            Tail No.               Serial No.      Aircraft type         cities                  Dates
----------------------------------------------------------------------------------------------------------------
EW-456PA.......................           61422    737-8ZM (B738)  Minsk, BY/St.       May 13, 2022.
                                                                    Petersburg, RU.
EW-456PA.......................           61422    737-8ZM (B738)  St. Petersburg, RU/ May 13, 2022.
                                                                    Minsk, BY.
EW-456PA.......................           61422    737-8ZM (B738)  Antalya, TR/Minsk,  May 15, 2022.
                                                                    BY.
EW-456PA.......................           61422    737-8ZM (B738)  Istanbul, TR/       May 16, 2022.
                                                                    Minsk, BY.
EW-456PA.......................           61422    737-8ZM (B738)  Antalya, TR/Minsk,  June 6, 2022.
                                                                    BY.
EW-456PA.......................           61422    737-8ZM (B738)  Tbilisi, GE/Minsk,  June 7, 2022.
                                                                    BY.
EW-456PA.......................           61422    737-8ZM (B738)  Antalya, TR/Minsk,  June 8, 2022.
                                                                    BY.
EW-456PA.......................           61422    737-8ZM (B738)  Istanbul, TR/       June 14, 2022.
                                                                    Minsk, BY.
EW-457PA.......................           61423    737-8ZM (B738)  Minsk, BY/Moscow,   May 10, 2022.
                                                                    RU.
EW-457PA.......................           61423    737-8ZM (B738)  Moscow, RU/Minsk,   May 10, 2022.
                                                                    BY.
EW-457PA.......................           61423    737-8ZM (B738)  Antalya, TR/Minsk,  May 11, 2022.
                                                                    BY.
EW-457PA.......................           61423    737-8ZM (B738)  Tbilisi, GE/Minsk,  May 12, 2022.
                                                                    BY.
EW-457PA.......................           61423    737-8ZM (B738)  Antalya, TR/Minsk,  June 6, 2022.
                                                                    BY.
EW-457PA.......................           61423    737-8ZM (B738)  Sharjah, AE/Minsk,  June 7, 2022.
                                                                    BY.
EW-457PA.......................           61423    737-8ZM (B738)  Batumi, GE/Minsk,   June 8, 2022.
                                                                    BY.
EW-457PA.......................           61423    737-8ZM (B738)  Tbilisi, GE/Minsk,  June 12, 2022.
                                                                    BY.
EW-457PA.......................           61423    737-8ZM (B738)  Antalya, TR/Minsk,  June 14, 2022.
                                                                    BY.
EW-527PA.......................           40877    737-82R (B738)  Antalya, TR/Minsk,  May 14, 2022.
                                                                    BY.
EW-527PA.......................           40877    737-82R (B738)  Istanbul, TR/       May 15, 2022.
                                                                    Minsk, BY.
EW-527PA.......................           40877    737-82R (B738)  Minsk, BY/Moscow,   May 16, 2022.
                                                                    RU.
EW-527PA.......................           40877    737-82R (B738)  Moscow, RU/Minsk,   May 16, 2022.
                                                                    BY.
EW-527PA.......................           40877    737-82R (B738)  Antalya, TR/Minsk,  June 6, 2022.
                                                                    BY.
EW-527PA.......................           40877    737-82R (B738)  Istanbul, TR/       June 7, 2022.
                                                                    Minsk, BY.
EW-527PA.......................           40877    737-82R (B738)  Tbilisi, GE/Minsk,  June 9, 2022.
                                                                    BY.
EW-527PA.......................           40877    737-82R (B738)  Batumi, GE/Minsk,   June 12, 2022.
                                                                    BY.
EW-527PA.......................           40877    737-82R (B738)  Sharjah, AE/Minsk,  June 14, 2022.
                                                                    BY.
EW-544PA.......................           35139    737-8K5 (B738)  Istanbul, TR/       May 13, 2022.
                                                                    Minsk, BY.
EW-544PA.......................           35139    737-8K5 (B738)  Batumi, GE/Minsk,   May 14, 2022.
                                                                    BY.
EW-544PA.......................           35139    737-8K5 (B738)  Antalya, TR/Minsk,  May 15, 2022.
                                                                    BY.
EW-544PA.......................           35139    737-8K5 (B738)  Antalya, TR/Minsk,  May 16, 2022.
                                                                    BY.
EW-544PA.......................           35139    737-8K5 (B738)  Sharm El-Sheikh,    June 4, 2022.
                                                                    EG/Minsk, BY.
EW-544PA.......................           35139    737-8K5 (B738)  Istanbul, TR/       June 6, 2022.
                                                                    Minsk, BY.
EW-544PA.......................           35139    737-8K5 (B738)  Antalya, TR/Minsk,  June 14, 2022.
                                                                    BY.
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[[Page 37311]]

    Additionally, based on information publicly available on Belavia's 
website as of the date of the signing of this order, Belavia has 
``resume[d] flights to Kaliningrad,'' a city in Russia.\5\ Moreover, 
that same website advertises flights from Minsk, Belarus to 
Ekaterinburg and Kazan, Russia.\6\ Based on this information, there are 
heightened concerns of future violations of the EAR, given that any 
subsequent actions taken with regard to any of the listed aircraft, or 
other Belavia aircraft illegally exported or reexported to Russia or 
Belarus after April 8, 2022, may violate the EAR. Such actions include, 
but are not limited to, refueling, maintenance, repair, or the 
provision of spare parts or services. See General Prohibition 10 of the 
EAR at 15 CFR 736.2(b)(10).\7\
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    \5\ https://en.belavia.by/.
    \6\ Id.
    \7\ Section 736.2(b)(10) of the EAR provides: General 
Prohibition Ten--Proceeding with transactions with knowledge that a 
violation has occurred or is about to occur (Knowledge Violation to 
Occur). You may not sell, transfer, export, reexport, finance, 
order, buy, remove, conceal, store, use, loan, dispose of, 
transport, forward, or otherwise service, in whole or in part, any 
item subject to the EAR and exported or to be exported with 
knowledge that a violation of the Export Administration Regulations, 
the Export Administration Act or any order, license, License 
Exception, or other authorization issued thereunder has occurred, is 
about to occur, or is intended to occur in connection with the item. 
Nor may you rely upon any license or License Exception after notice 
to you of the suspension or revocation of that license or exception. 
There are no License Exceptions to this General Prohibition Ten in 
part 740 of the EAR. (emphasis in original).
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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 Belavia took 
actions in apparent violation of the Regulations by exporting or 
reexporting the aircraft cited above, among many others, on flights 
into Belarus and Russia after April 8, 2022, without the required BIS 
authorization. Moreover, the continued operation of these aircraft by 
Belavia and the company's ongoing need to acquire replacement parts and 
components, many of which are U.S.-origin, presents a high likelihood 
of imminent violations warranting imposition of a TDO. Additionally, I 
find that such apparent violations have been ``significant, deliberate, 
covert and/or likely to occur again, rather than technical or 
negligent[.]'' Therefore, issuance of a TDO is necessary in the public 
interest to prevent imminent violation of the Regulations and to give 
notice to companies and individuals in the United States and abroad 
that they should avoid dealing with Belavia, in connection with export 
and reexport transactions involving items subject to the Regulations 
and in connection with any other activity subject to the Regulations.
    This Order is being issued on an ex parte basis without a hearing 
based upon BIS's showing of an imminent violation in accordance with 
Section 766.24 and 766.23(b) of the Regulations.

IV. Order

    It is therefore ordered:
    First, Belavia Belarusian Airlines, 14A Nemiga str., Minsk, 
Belarus, 220004, when acting for or on their behalf, any successors or 
assigns, agents, or employees may not, directly or indirectly, 
participate in any way in any transaction involving any commodity, 
software or technology (hereinafter collectively referred to as 
``item'') exported or to be exported from the United States that is 
subject to the EAR, or in any other activity subject to the EAR 
including, but not limited to:
    A. Applying for, obtaining, or using any license (except directly 
related to safety of flight), license exception, or export control 
document;
    B. Carrying on negotiations concerning, or ordering, buying, 
receiving, using, selling, delivering, storing, disposing of, 
forwarding, transporting, financing, or otherwise servicing in any way, 
any transaction involving any item exported or to be exported from the 
United States that is subject to the EAR except directly related to 
safety of flight and authorized by BIS pursuant to Section 764.3(a)(2) 
of the Regulations, or engaging in any other activity subject to the 
EAR except directly related to safety of flight and authorized by BIS 
pursuant to Section 764.3(a)(2) of the Regulations; or
    C. Benefitting in any way from any transaction involving any item 
exported or to be exported from the United States that is subject to 
the EAR, or from any other activity subject to the EAR except directly 
related to safety of flight and authorized by BIS pursuant to Section 
764.3(a)(2) of the Regulations.
    Second, that no person may, directly or indirectly, do any of the 
following:
    A. Export, reexport, or transfer (in-country) to or on behalf of 
Belavia any item subject to the EAR except directly related to safety 
of flight and authorized by BIS pursuant to Section 764.3(a)(2) of the 
Regulations;
    B. Take any action that facilitates the acquisition or attempted 
acquisition by Belavia of the ownership, possession, or control of any 
item subject to the EAR that has been or will be exported from the 
United States, including financing or other support activities related 
to a transaction whereby Belavia acquires or attempts to acquire such 
ownership, possession or control except directly related to safety of 
flight and authorized by BIS pursuant to Section 764.3(a)(2) of the 
Regulations;
    C. Take any action to acquire from or to facilitate the acquisition 
or attempted acquisition from Belavia of any item subject to the EAR 
that has been exported from the United States except directly related 
to safety of flight and authorized by BIS pursuant to Section 
764.3(a)(2) of the Regulations;
    D. Obtain from Belavia in the United States any item subject to the 
EAR with knowledge or reason to know that the item will be, or is 
intended to be, exported from the United States except directly related 
to safety of flight and authorized by BIS pursuant to Section 
764.3(a)(2) of the Regulations; or
    E. Engage in any transaction to service any item subject to the EAR 
that has been or will be exported from the United States and which is 
owned, possessed or controlled by Belavia, or service any item, of 
whatever origin, that is owned, possessed or controlled by Belavia if 
such service involves the use of any item subject to the EAR that has 
been or will be exported from the United States except directly related 
to safety of flight and authorized by BIS pursuant to Section 
764.3(a)(2) of the Regulations. For purposes of this paragraph, 
servicing means installation, maintenance, repair, modification, or 
testing.
    Third, that, after notice and opportunity for comment as provided 
in section 766.23 of the EAR, any other person, firm, corporation, or 
business organization related to Belavia by ownership, control, 
position of responsibility, affiliation, or other connection in the 
conduct of trade or business may also be made subject to the provisions 
of this Order.
    In accordance with the provisions of Sections 766.24(e) of the EAR, 
Belavia may, at any time, appeal this Order by filing a full written 
statement in support of the appeal with the Office of the 
Administrative Law Judge, U.S. Coast Guard ALJ Docketing Center, 40 
South Gay Street, Baltimore, Maryland 21202-4022.
    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

[[Page 37312]]

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 
180 days.

    Dated: June 16, 2022.
Matthew S. Axelrod,
Assistant Secretary of Commerce for Export Enforcement.
[FR Doc. 2022-13293 Filed 6-21-22; 8:45 am]
BILLING CODE 3510-DT-P