[Federal Register Volume 87, Number 124 (Wednesday, June 29, 2022)]
[Notices]
[Pages 38707-38709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-13875]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security


Washington, DC 20230; Pobeda Airlines, 108811, Russian 
Federation, Moscow, p. Moskovskiy, Kievskoe shosse, 22nd km, 4/1. 
Moscow, Russia; 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 Russian airline Pobeda Airlines (``Pobeda''). OEE's request and 
related information indicates that Pobeda is headquartered in Moscow, 
Russia, and Aeroflot Russian Airlines JSC, a/k/a PJSC Aeroflot 
(``Aeroflot'') is Pobeda's majority shareholder.\2\ The Russian Federal 
Government is the majority owner of Aeroflot, through its Federal 
Agency for State Property Management.
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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superseded, set aside, or revoked through action undertaken pursuant 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).
    \2\ Aeroflot is the subject of a Temporary Denial Order issued 
on April 8, 2022. See 87 FR 21611 (April 12, 2022).
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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. 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).\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). Additionally, BIS published a 
final rule effective April 8, 2022, which 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. 87 FR 22130 (Apr. 14, 2022).
    \4\ 87 FR 13048 (Mar. 8, 2022).
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    OEE's request is based upon facts indicating that Pobeda engaged in 
conduct prohibited by the Regulations by operating multiple aircraft 
subject to the EAR and classified under ECCN 9A991, including but not 
limited to those below, on international flights, including from 
Antalya, Gazipasa, and Istanbul, Turkey to Russia after March 2, 2022, 
without the required BIS authorization. Pursuant to Section 746.8 of 
the EAR, all of these flights would have required export or reexport 
licenses from BIS. Pobeda flights would not be eligible to use license 
exception AVS. No BIS authorizations were either sought or obtained by 
Pobeda for these exports or reexports to Russia.
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    \5\ 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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    Additionally, Pobeda's continued use of such U.S.-origin aircraft 
on domestic routes within Russia runs afoul 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. See General Prohibition 10 of the EAR at 15 CFR 736.2(b)(10).\5\ 
Specifically, OEE's investigation, including publicly available flight 
tracking information, indicates that after March 2, 2022, Pobeda 
operated multiple U.S.-origin aircraft, including, but not limited to, 
those identified below, domestically on flights into and out of Russian 
cities, including Kazan, Russia; Moscow, Russia; Murmansk, Russia; 
Nalchik, Russia; Perm, Russia; St. Petersburg,

[[Page 38708]]

Russia; and Surgut, Russia. The information about those flights 
includes the following:

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                                                                         Departure/arrival
             Tail No.                Serial No.       Aircraft type            cities               Dates
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VQ-BQB/RA-73225..................           64862  737-8MC (B738).....  Antalya, TR/Moscow,  March 6, 2022.
                                                                         RU.
RA-73225.........................           64862  737-8MC (B738).....  Kazan, RU/St.        June 20, 2022.
                                                                         Petersburg, RU.
RA-73225.........................           64862  737-8MC (B738).....  Moscow, RU/Nalchik,  June 21, 2022.
                                                                         RU.
RA-73225.........................           64862  737-8MC (B738).....  Moscow, RU/          June 21, 2022.
                                                                         Murmansk, RU.
RA-73225.........................           64862  737-8MC (B738).....  Moscow, RU/Nalchik,  June 22, 2022.
                                                                         RU.
VQ-BQC/RA-73226..................           64863  737-8MC (B738).....  Gazipasa, TR/        March 7, 2022.
                                                                         Moscow, RU.
RA-73226.........................           64863  737-8MC (B738).....  Nalchik, RU/Moscow,  June 20, 2022.
                                                                         RU.
RA-73226.........................           64863  737-8MC (B738).....  Saratov, RU/Moscow,  June 21, 2022.
                                                                         RU.
RA-73226.........................           64863  737-8MC (B738).....  Moscow, RU/Saratov,  June 21, 2022.
                                                                         RU.
RA-73226.........................           64863  737-8MC (B738).....  St. Petersburg, RU/  June 22, 2022.
                                                                         Perm, RU.
VP-BQE/RA-73227..................           64864  737-8MC (B738).....  Istanbul, TR/        March 6, 2022.
                                                                         Mineralnye Vody,
                                                                         RU.
RA-73227.........................           64864  737-8MC (B738).....  Minsk, BY/St.        June 17, 2022.
                                                                         Petersburg, RU.
RA-73227.........................           64864  737-8MC (B738).....  Moscow, RU/Perm, RU  June 20, 2022.
RA-73227.........................           64864  737-8MC (B738).....  Perm, RU/St.         June 20, 2022.
                                                                         Petersburg, RU.
RA-73227.........................           64864  737-8MC (B738).....  Perm, RU/St.         June 21, 2022.
                                                                         Petersburg, RU.
RA-73227.........................           64864  737-8MC (B738).....  St. Petersburg, RU/  June 22, 2022.
                                                                         Mineralnye Vody,
                                                                         RU.
VP-BQQ/RA-73232..................           64869  737-8MC (B738).....  Istanbul, TR/        March 7, 2022.
                                                                         Moscow, RU.
RA-73232.........................           64869  737-8MC (B738).....  St. Petersburg, RU/  June 20, 2022.
                                                                         Mineralnye Vody,
                                                                         RU.
RA-73232.........................           64869  737-8MC (B738).....  Mineralnye Vody, RU/ June 20, 2022.
                                                                         Moscow, RU.
RA-73232.........................           64869  737-8MC (B738).....  Surgut, RU/Moscow,   June 21, 2022.
                                                                         RU.
RA-73232.........................           64869  737-8MC (B738).....  Moscow, RU/Perm, RU  June 22, 2022.
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    Based upon the on-going violations by Pobeda, there are heightened 
concerns of future violations of the EAR, especially given that any 
subsequent actions taken with regard to any of the listed aircraft, or 
other Pobeda aircraft exported or reexported to Russia after March 2, 
2022, may violate the EAR. Such actions include, but are not limited 
to, refueling, maintenance, repair, or the provision of spare parts or 
services. Id.
    Moreover, additional concerns of future violations of the 
Regulations are raised by public information on Pobeda's website, 
available as of the date of this order, indicating that Pobeda intends 
to continue its domestic flight routes. Specifically, Pobeda's website 
continues to advertise flights from Moscow, Russia to other Russian 
cities, including Kaliningrad, St. Petersburg, and Kazan.\6\ Given 
BIS's review policy of denial under Section 746.8(a) of the Regulations 
for exports and reexports to Russia, it is foreseeable that Pobeda will 
attempt to evade the Regulations in order to obtain new or additional 
aircraft parts for or service its existing aircraft that were exported 
or reexported to Russia in violation of Section 746.8 of the 
Regulations.
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    \6\ https://www.pobeda.aero/en/.
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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 took 
actions in apparent violation of the Regulations by operating the 
aircraft cited above, among many others, on flights into and within 
Russia after March 2, 2022, without the required BIS authorization. 
Moreover, the continued operation of these aircraft by Pobeda, even on 
domestic routes within Russia, and the company's on-going 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, given that Pobeda and its majority 
shareholder Aeroflot both own and operate a number of similar models of 
U.S-origin aircraft requiring the same spare parts, I find it necessary 
to issue this Order not only to prevent further violations involving 
Pobeda's aircraft but also to prevent evasion of the Aeroflot TDO that 
I issued on April 8, 2022. I further find that such apparent violations 
have been ``significant, deliberate, covert and/or likely to occur 
again, rather than technical or negligent[.]'' Therefore, issuance 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.
    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, Pobeda Airlines, 108811, Russian Federation, Moscow, p. 
Moskovskiy, Kievskoe shosse, 22nd km, 4[ne]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

[[Page 38709]]

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.

    Dated: June 24, 2022.
Matthew S. Axelrod,
Assistant Secretary of Commerce for Export Enforcement.
[FR Doc. 2022-13875 Filed 6-28-22; 8:45 am]
BILLING CODE 3510-DT-P