Today, the U.S. Commerce Department, through its Bureau of Industry and Security (BIS), is updating its list of aircraft that have flown into Russia or Belarus in apparent violation of the Export Administration Regulations (EAR) by adding the first 25 foreign-produced aircraft that BIS has identified as apparently violating the EAR’s de minimis threshold for U.S. components. There are now a total of 183 aircraft identified on the list for apparent violations of U.S. export controls.
“The United States and our partners applied sweeping, powerful export controls to industry sectors – such as aerospace – that Russia leverages to sustain its military aggression,” said Assistant Secretary of Commerce for Export Enforcement Matthew S. Axelrod. “Today’s identification of 25 foreign-produced aircraft further degrades Russian airlines’ ability to operate their fleets of both U.S. and EU airplanes.”
Based on publicly available information, BIS has identified aircraft subject to the EAR flying from third countries to Russia (since March 2—see background on EAR restrictions below) or Belarus since April 8 (see background on EAR restrictions below), all of which are owned or controlled by, or under charter or lease to, Belarus, Russia, or Russian or Belarusian nationals. In addition to U.S.-origin aircraft, foreign-produced aircraft that exceed a de minimis amount – greater than 25 percent – of controlled U.S.-origin content by value are also subject to the EAR. As a result, today BIS identified 25 foreign-produced aircraft that are subject to the EAR due to meeting this de minimis threshold that have apparently violated BIS’s stringent export controls on Russia.
Accordingly, any subsequent actions taken with regard to any of the listed aircraft, including, but not limited to, refueling, maintenance, repair, or the provision of spare parts or services, are subject to the prohibitions outlined in General Prohibition Ten of the EAR (Section 736.2(b)(10)), which provides:
(10) 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.
BIS has led the Department of Commerce’s efforts in response to Russia’s invasion of Ukraine by taking a number of powerful regulatory and enforcement actions, including issuing public notice of potential violations of the EAR in the aerospace sector and issuing Temporary Denial Orders (TDOs) on major Russian airlines Aeroflot, Aviastar, Azur Air, Nordwind Airlines, Pobeda, Rossiya, S7 Airlines, and Utair, as well as Belarus’s flag carrier Belavia. These TDOs terminate the rights of these airlines to participate in transactions subject to the EAR, including exports from the United States and reexports from third countries.
On February 24, 2022, BIS imposed expansive controls on aviation-related items to Russia, including a license requirement for the export, reexport or transfer (in-country) to Russia of any aircraft or aircraft parts on the Commerce Control List. Belarus was made subject to these restrictions on March 2, 2022.
On March 2, 2022, BIS tightened its restrictions further by excluding 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). BIS similarly removed AVS’s eligibility in connection with Belarus and/or Belarus nationals on April 8, 2022. Accordingly, any aircraft manufactured in the United States, or that is manufactured in a foreign country and includes more than 25 percent by value of U.S.-origin controlled content, is subject to a license requirement if such aircraft is destined for Belarus or Russia.
The list below has been updated with additions in bold. Please note this list is not exhaustive, and the restrictions also apply in any situation in which a person has knowledge that a violation of the EAR has occurred, is about to occur, or is intended to occur in connection with an aircraft or other item that is subject to the EAR, whether or not such aircraft or other item is included on this list. This list will continue to be updated as circumstances warrant.
Additional BIS resources on export controls implemented in response to Russia’s invasion of Ukraine are available at: https://bis.doc.gov/index.php/policy-guidance/country-guidance/Russia-belarus
The public may submit confidential enforcement tips via the BIS website: https://www.bis.doc.gov/index.php/component/rsform/form/14?task=forms.edit, or by calling the Enforcement Hotline at 1-800-424-2980.
These BIS actions were taken under the authority of the Export Control Reform Act of 2018 and the EAR. For more information, visit www.bis.doc.gov.
Original source can be found here.
