On February 24, 2022, the United States imposed stringent export controls on Commerce Control List (CCL) and EAR99 items destined for Russia. Despite these restrictions, the United States identified dozens of private and commercial aircraft subject to the EAR that flew into Russia from outside the United States. On March 18, 2022, BIS publicly identified those flights, indicating the flights  appeared to violate the Russian/Belarusian Foreign Direct Product Rules (the “Russia/Belarus FDP Rules”) adopted under the EAR (15 C.F.R. pts. 730-774).

The EAR implements the Russia/Belarus FDP Rule and the Russia/Belarus-Military End User FDP Rule. The Russia/Belarus rules prohibit U.S. persons, and some foreign persons, from exporting or reexporting controlled content to Russia or Belarus, as well as in-country transfers. The Russia/Belarus FDP Rules establish control over foreign-produced items directly produced with major components or by certain plants using “U.S.-origin software or technology subject to the EAR.” The Russia/Belarus Military End User FDP Rule restricts exports of all software or technology “subject to the EAR that is on the CCL,” plus items designated EAR99. EAR99 items are subject to the EAR, but are not specifically controlled on the CCL. BIS emphasized that aircraft and other controlled items manufactured in the United States or a foreign country that include more than 25% U.S.-origin controlled content require a license if destined for Russia or Belarus.

BIS reiterated that anyone, including persons within Russia, risk violating the EAR by exporting these controlled items without a license to Russia or Belarus. However, these licenses will be difficult, if not impossible, to obtain. Further, under the EAR’s reexport and in-country transfer rules, it does not matter that the owners exported these controlled aircraft from a third country. BIS further clarified that any actions taken “including, but not limited to, refueling, maintenance, repair, or the provision of spare parts or services” to any of the identified aircraft reexported to Russia would violate General Prohibition 10 of the EAR. Persons violating the EAR are subject to BIS enforcement actions, including substantial jail time, fines, loss of export privileges, or other restrictions. As a result, these aircraft must remain grounded, or the owners and operators will risk incurring additional penalties. However, the penalty risks may not deter persons who are not subject to the personal jurisdiction of the United States.

BIS also reminded owners, operators, and potential servicers of the controlled items that the list is not exhaustive. BIS will update the list as necessary, but this public statement should alert exporters of U.S.-Origin and Foreign Direct Products of the gravity with which BIS intends to enforce the Russia/Belarus FDP Rules. On March 30, 2022, BIS updated the list adding 73 aircraft and removing 12 aircraft cleared for removal to owners in U.S.-allied countries. On April 1, 2022, BIS issued a final rule adding 95 additional military end users to the Entity List for Russia and Belarus.