[Federal Register Volume 87, Number 80 (Tuesday, April 26, 2022)]
[Notices]
[Pages 24514-24516]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08885]


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DEPARTMENT OF COMMERCE

Bureau of Industry and Security


Aviastar--TU, 5 b. 7 Leningradsky Prospekt, g. Moskva, 125040, 
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: Aviastar--TU (``Aviastar''). OEE's request and related information 
indicates that Aviastar is an airline headquartered in Zhukovsky, 
Moscow Oblast, Russia, and that Aviastar provides a variety of cargo 
services, including delivery of military cargo, dangerous goods, and 
oversized goods.
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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according to their terms until modified, superseded, set aside, or 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. 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

[[Page 24515]]

specified in Export Control Classification Number (ECCN) 9A991 (Section 
746.8(a)(1) of the EAR).\2\ 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).\3\ 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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    \2\ 87 FR 12226 (Mar. 3, 2022).
    \3\ 87 FR 13048 (Mar. 8, 2022).
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    OEE's request is based upon facts indicating that Aviastar engaged 
in recent conduct prohibited by the Regulations by operating aircraft 
subject to the EAR and classified under ECCN 9A991 on flights into 
Russia after March 2, 2022, without the required BIS authorization.
    Specifically, OEE's investigation, including publicly available 
flight tracking information, indicates that after March 2, 2022, 
Aviastar operated multiple U.S.-origin aircraft subject to the EAR, 
including, but not limited to, those identified below, on flights into 
and out of Novosibirsk, Russia and Abakan, Russia from/to Hangzhou, 
China; Shenzhen, China; and Zhengzhou, China. Pursuant to Section 746.8 
of the EAR, all of these flights would have required export or reexport 
licenses from BIS. Moreover, Aviastar flights would not be eligible to 
use license exception AVS. No BIS authorizations were either sought or 
obtained by Aviastar for these exports or reexports to 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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RA-73355..........................  27054.......................  757-223 (PCF) (B752)...............  Hangzhou, CN/           April 10, 2022.
                                                                                                        Novosibirsk, RU.
RA-73355..........................  27054.......................  757-223 (PCF) (B752)...............  Zhengzhou, CN/Abakan,   April 12, 2022.
                                                                                                        RU.
RA-73351..........................  25696.......................  757-223 (PCF) (B752)...............  Hangzhou, CN/           April 8, 2022.
                                                                                                        Novosibirsk, RU.
RA-73351..........................  25696.......................  757-223 (PCF) (B752)...............  Hangzhou, CN/           April 11, 2022.
                                                                                                        Novosibirsk, RU.
RA-73352..........................  25731.......................  757-223 (PCF) (B752)...............  Shenzhen, CN/Abakan,    April 9, 2022.
                                                                                                        RU.
RA-73352..........................  25731.......................  757-223 (PCF) (B752)...............  Hangzhou, CN/           April 14, 2022.
                                                                                                        Novosibirsk, RU.
RA-73354..........................  27053.......................  757-223 (PCF) (B752)...............  Shenzhen, CN/Abakan,    April 5, 2022.
                                                                                                        RU.
RA-73354..........................  27053.......................  757-223 (PCF) (B752)...............  Shenzhen, CN/Abakan,    April 12, 2022.
                                                                                                        RU.
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    `Based on this information, 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 Aviastar 
aircraft illegally 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. See General Prohibition 10 of the EAR at 15 CFR 
736.2(b)(10).\4\ Even Aviastar's continued use of such U.S.-origin 
aircraft only 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. For example, publicly available 
flight tracking data shows that, between April 12 and April 15, 2022, 
aircraft RA-73355 (SN: 27054) and RA-73351 (SN: 25696) flew on flights 
into and out of Moscow, Russia to/from Norilsk, Russia, Novosibirsk, 
Russia, and Yakutsk, Russia, following those aircrafts' unauthorized 
flights into Russia as referenced in the chart above. In addition, in a 
public statement on its website and available as of the signing of this 
order, Aviastar states that it ``regularly carr[ies] out express 
delivery of mail and freight across Russia . . .'' \5\
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    \4\ 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).
    \5\ https://aviastartu.com/.
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    Moreover, additional concerns of future violations of the 
Regulations are raised by other public statements available as of the 
signing of this order on Aviastar's website stating that its fleet 
includes multiple U.S.-origin 757-200F aircraft.\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 Aviastar will attempt 
to evade the Regulations in order to obtain new or additional aircraft 
parts or service for its existing aircraft that were exported or 
reexported to Russia in violation of Section 746.8 of the Regulations. 
Additionally, as a cargo carrier and given its prior record of apparent 
EAR non-compliance, Aviastar presents a heightened risk of committing 
future violations by transporting items subject to the EAR into Russia 
without the required BIS authorization, potentially enabling a means of 
transport to support Russia's military efforts and/or attempts to evade 
U.S. sanctions by acquiring such items from abroad.
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    \6\ https://aviastartu.com/ourfleet.
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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 Aviastar took 
actions in apparent violation of the Regulations by exporting or 
reexporting the aircraft cited above, among many others, on flights 
into Russia after March 2, 2022, without the required BIS 
authorization. Moreover, the continued operation of these cargo 
aircraft by Aviastar, the company's on-going need to acquire 
replacement parts and components (many of which are U.S.-origin), and 
the concern the aircraft can be used to evade U.S. export controls, 
presents a high likelihood of imminent violations warranting imposition 
of a TDO. I further find that such apparent violations have been 
significant and deliberate. 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 Aviastar, in connection 
with export and reexport

[[Page 24516]]

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, Aviastar-TU, 5 b. 7 Leningradsky prospekt, g. Moskva, 
125040, Moscow, Russia, when acting for or on their behalf, any 
successors or assigns, agents, or employees may not, directly or 
indirectly, participate in any way in any transaction involving any 
commodity, software or technology (hereinafter collectively referred to 
as ``item'') exported or to be exported from the United States that is 
subject to the EAR, or in any other activity subject to the EAR 
including, but not limited to:
    A. Applying for, obtaining, or using any license (except directly 
related to safety of flight), license exception, or export control 
document;
    B. Carrying on negotiations concerning, or ordering, buying, 
receiving, using, selling, delivering, storing, disposing of, 
forwarding, transporting, financing, or otherwise servicing in any way, 
any transaction involving any item exported or to be exported from the 
United States that is subject to the EAR except directly related to 
safety of flight and authorized by BIS pursuant to Section 764.3(a)(2) 
of the Regulations, or engaging in any other activity subject to the 
EAR except directly related to safety of flight and authorized by BIS 
pursuant to Section 764.3(a)(2) of the Regulations; or
    C. Benefitting in any way from any transaction involving any item 
exported or to be exported from the United States that is subject to 
the EAR, or from any other activity subject to the EAR except directly 
related to safety of flight and authorized by BIS pursuant to Section 
764.3(a)(2) of the Regulations.
    Second, that no person may, directly or indirectly, do any of the 
following:
    A. Export, reexport, or transfer (in-country) to or on behalf of 
Aviastar 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 Aviastar 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 Aviastar 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 Aviastar 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 Aviastar 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 Aviastar, or service any item, of 
whatever origin, that is owned, possessed or controlled by Aviastar 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 Aviastar 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, 
Aviastar 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 Aviastar 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 Aviastar and shall be 
published in the Federal Register.
    This Order is effective immediately and shall remain in effect for 
180 days.

    Dated: April 21, 2022.
Matthew S. Axelrod,
Assistant Secretary of Commerce for Export Enforcement.
[FR Doc. 2022-08885 Filed 4-25-22; 8:45 am]
BILLING CODE 3510-DT-P