[Federal Register Volume 90, Number 64 (Friday, April 4, 2025)]
[Notices]
[Pages 14783-14786]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-05803]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
Order Temporarily Denying Export Privileges
ExHigh Air Space Ltd., Wilson Airport, United Complex, Third Floor
Suite 1, Nairobi, Kenya
Geoffrey Chune Omariba, Wilson Airport, United Complex, Third Floor
Suite 1, Nairobi, Kenya
Nader Ali Saboori Haghighi, Dalmatinska 65, Belgrade, Serbia
Pursuant to section 766.24 of the Export Administration
Regulations, 15 CFR parts 730-774 (``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: ExHigh Air
Space Ltd. (``ExHigh''), Geoffrey Chune Omariba (``Chune''), and Nader
Ali Saboori Haghighi (``Haghighi''), (collectively, the
``Respondents''). OEE's request and related information indicate that
these parties are located in Nairobi, Kenya, and Belgrade, Serbia, at
the respective addresses listed on the caption page of this order.
OEE's request and related information further indicates that the
Respondents have obtained, and continue to engage in attempts to
obtain, controlled aircraft parts from the United States in order to
divert those items to Russia contrary to the requirements of the
Regulations.
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\1\ The Regulations, currently codified at 15 CFR parts 730-774
(2025), were originally issued pursuant to the Export Administration
Act (50 U.S.C. 4601-4623 (Supp. III 2015) (``EAA''), which lapsed on
August 21, 2001. The President, through Executive Order 13222 of
August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), as extended by
successive Presidential Notices, continued the Regulations in effect
under the International Emergency Economic Powers Act (50 U.S.C.
1701, et seq. (2012)) (``IEEPA''). 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 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 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.
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[[Page 14784]]
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. 15 CFR 766.24(b)(1), 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
``[l]ack 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 or within 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 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''). 15 CFR
746.8(c)(2)(v), 740.15(a)-(b).\3\
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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 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).
\3\ 87 FR 13048 (Mar. 8, 2022).
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OEE sought a TDO based on evidence indicating that the Respondents
seek to procure various U.S.-origin commodities, including certain
aircraft parts classified as ECCN 9A991 and those controlled for
Missile Technology reasons classified as 7A103, and transship them to
Russia without seeking the required authorization from BIS, contrary to
the requirements in the Regulations. Respondents' transactions involved
Denied Persons on the BIS Denied Persons List (``DPL''), which are
parties prohibited from participating in exports from the United
States, among other activities subject to the Regulations.
A. ExHigh, Chune, and Haghighi
Following the Russian invasion of Ukraine, and the resultant
imposition of BIS export controls affecting the Russian aviation
industry, Respondents engaged in a scheme to export, reexport, and
transfer (in-country) aircraft parts to or within Russia, including to
persons on the DPL, in circumvention of BIS export controls. In or
around July 2022, ExHigh began submitting license applications to BIS
for the export of Inertial Reference Units (``IRUs''),\4\ classified
under ECCN 7A103, to ultimate consignees located in Kenya. However,
IRUs exported under the authority of ExHigh's BIS licenses were instead
exported to parties in Belgrade, Serbia, and ultimately diverted to
Russia. In order to effectuate these exports, Respondents caused the
submission of false and misleading Electronic Export Information
(``EEI''), including EEI based on false information which Respondents
submitted to U.S. freight forwarders.
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\4\ An IRU is a component of an aircraft's navigational system
that provides critical data such as position, attitude, and velocity
of the aircraft.
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Chune is the General Director of ExHigh and is listed on BIS export
licenses as the point of contact for ExHigh. Haghighi is an owner of
ExHigh and an Iranian national believed to currently reside in
Belgrade, Serbia. Exhigh, through Chune and Haghighi, coordinated with
an employee from JSC Ural Airlines (``Ural'') to transship items from
the United States to Ural, located in Russia. Ural has been subject to
a BIS TDO since October 2022, and accordingly, no person may export,
reexport or transfer (in-country) any item subject to the EAR to or on
behalf of Ural except as authorized by BIS.\5\ Specifically,
correspondence between ExHigh and the Ural employee indicated that an
IRU, supposedly destined for an aviation company based in Kenya, was in
fact destined to Ural in Russia. Additional correspondence between
ExHigh and a Ural employee detailed the diversion of several IRUs to
Ural that Exhigh had ordered or sent for repair on behalf of Ural.
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\5\ The order was signed on October 13, 2022, and was effective
on that date. A copy was published in the Federal Register on
October 19, 2022. 87 FR 63477 (October 19, 2022). The order has been
renewed three times. 89 FR 81881 (October 9, 2024); 88 FR 70925
(October 13, 2023); 88 FR 22406 (April 13, 2023).
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On or about July 31, 2023, additional correspondence from ExHigh to
Ural indicated that ExHigh conducted deliveries of IRUs sourced from
the United States to Ural at Domodedovo Airport in Moscow, Russia.
OEE's investigation determined that one of Ural's aircraft line
maintenance stations is located at Domodedovo Airport. These
communications confirm ExHigh's delivery of a BIS export-controlled IRU
to Ural in Russia, which was not the end-user reflected in the filed
export paperwork for this IRU.
B. ExHigh, Chune, and Haghighi Send Items to the United States for
Repair
The Respondents' scheme also included several attempts to send
items, on behalf of Ural, to the United States for repair and return to
Ural. Such actions are in violation of the terms of the TDO issued
against Ural, and furthermore, are in violation of sections 764.2(e)
and/or 764.2(k) of the Regulations.
On or about July 26, 2023, OEE's investigation revealed information
regarding a suspicious transaction between U.S. Company 1 and ExHigh.
U.S. Company 1 received an Engine Control Unit (``ECU'') from ExHigh
along with letters from Chune which stated that the ECU was owned by
Airline 1. U.S. Company 1 transferred the ECU to the Original Equipment
Manufacturer (``OEM'') for repair. After tracing the ECU, the OEM
determined that the ECU was originally sold to Ural and installed on an
Airbus A321 NEO aircraft with a tail number matching an Ural aircraft.
The OEM also noted that the ECU is classified under ECCN 9A991. Airline
1 confirmed that the ECU did not belong to them, and that the letters
provided by Chune were fraudulent. On or about October 27, 2023, OEE
seized the ECU pursuant to a court order.
[[Page 14785]]
On or about August 29, 2023, OEE determined that ExHigh had shipped
an IRU, classified under ECCN 7A103, to U.S. Company 2 for replacement
due to apparent mechanical failure. According to the failure report,
the IRU purportedly belonged to Airline 2, an airline located in Kenya.
OEE researched the relevant BIS license for this IRU and found no EEI
for its export, indicating that the IRU had been previously smuggled
out of the United States. When U.S. Company 2 confronted ExHigh
regarding this discrepancy, Chune provided another failure report
purportedly belonging to a Kenyan airline. OEE determined that this
failure report was falsified by Haghighi and was in fact printed and
modified from a Russian database belonging to Ural. OEE assesses that
the IRU was used by Ural and that the Respondents took steps to conceal
this fact from U.S. Company 2 and evade detection by U.S law
enforcement.
On or about October 30, 2023, ExHigh returned another ECU to the
United States for repair on behalf of Ural in violation of the terms of
its TDO. The U.S. manufacturer of the ECU traced the serial number of
the item and determined that it belonged to a Ural aircraft. Pursuant
to a court-authorized seizure warrant issued in the Southern District
of Florida, FBI and OEE agents seized the ECU.
C. Ongoing and Pending Exports
As detailed in OEE's request and related information, the
Respondents continue to engage in prohibited conduct. ExHigh continues
to place orders for the export of controlled items, including IRUs,
with companies located throughout the United States. Some of these U.S.
companies have been in contact with OEE regarding the red flags that
have arisen in their proposed transactions with ExHigh. Specifically,
on or about August 6, 2024, ExHigh attempted to purchase IRUs
classified under ECCN 7A103 from a U.S. company located in Texas. OEE
believes it is likely that this item would be diverted to Russia,
contrary to the Regulations.
Furthermore, on or about January 9, 2025, ExHigh was the ultimate
consignee for the export of an IRU from a company located in Iowa. Upon
further investigation, OEE determined that the exported item was
falsely declared as ECCN 9A991 and declared as not requiring a license
for export. The correct classification of the item, according to the
U.S. exporter, was ECCN 7A103.
By underreporting the values of exports, falsely reporting exports
as not requiring licenses, and falsely reporting the final destination
of the exports, Respondents have repeatedly provided falsified
documents to U.S. freight forwarders to avoid the EEI filing
requirement or otherwise cause a false or misleading EEI filing for
their export transactions. Respondents have thus demonstrated a
willingness to openly deceive U.S. businesses and OEE investigators
through the provision of false or misleading information on BIS export
license applications and in routed export transactions. Even after
repeated contacts and multiple seizures from OEE conducted with the
assistance of other federal law enforcement, Respondents' behavior has
continued. The issuance of a TDO will assist in preventing an imminent
violation of the Regulations relating to Respondents' continued
attempts to procure and divert controlled items from U.S. companies and
evade the requirements of the Regulations.
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 the
Respondents have acted in violation of the Regulations; that such
violations have been significant and deliberate; and that given the
foregoing and the nature of the matters under investigation, there is a
likelihood of imminent violations. Therefore, 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 the Respondents, 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, ExHigh Air Space Ltd., Wilson Airport, United Complex, Third
Floor Suite 1, Nairobi, Kenya; Geoffrey Chune Omariba, Wilson Airport,
United Complex, Third Floor Suite 1, Nairobi, Kenya; and Nader Ali
Saboori Haghighi, Dalmatinska 65, Belgrade, Serbia, when acting for or
on their behalf, any successors or assigns, agents, or employees (each
a ``Denied Person'' and collectively the ``Denied Persons'') 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 a
Denied Person 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 a Denied Person 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 a Denied Person 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 a Denied Person 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 a Denied Person 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
[[Page 14786]]
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 a Denied Person, or service any item,
of whatever origin, that is owned, possessed or controlled by a Denied
Person 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 ExHigh Air Space Ltd., Geoffrey Chune
Omariba, or Nader Ali Saboori Haghighi 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 section 766.24(e) of the EAR,
ExHigh Air Space Ltd., Geoffrey Chune Omariba, and/or Nader Ali Saboori
Haghighi 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 ExHigh Air Space Ltd., Geoffrey Chune Omariba, and/or Nader
Ali Saboori Haghighi 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 ExHigh Air Space Ltd.,
Geoffrey Chune Omariba, and Nader Ali Saboori Haghighi and shall be
published in the Federal Register.
This Order is effective immediately and shall remain in effect for
180 days.
Dated: March 31, 2025.
John Sonderman,
Performing the Non-Exclusive Functions and Duties of the Assistant
Secretary for Export Enforcement.
[FR Doc. 2025-05803 Filed 4-3-25; 8:45 am]
BILLING CODE 3510-DT-P