U.S. companies involved in international trade and transactions have become accustomed to compliance hurdles when conducting business with the Russian Federation ("Russia").
Prior to the inauguration of President Biden, many commenters predicted additional sanctions or other punitive measures against Russia at the beginning of the new presidential administration. These predictions were fulfilled on March 2, 2021, when multiple U.S. executive branch agencies announced additional measures against Russia in response to the poisoning of Russian opposition figure Aleksey Navalny.
Specifically, as outlined in further detail below, the Department of State ("State"), Department of the Treasury Office of Foreign Assets Control ("OFAC"), and Department of Commerce Bureau of Industry and Security ("BIS") imposed a variety of export control measures and sanctions against Russia.
Department of State Action
Pursuant to its finding that Russia used a chemical weapon against one of its own nationals, State imposed various sanctions on Russia, including an arms embargo under the Arms Export Control Act ("AECA"),1 the legislation under which the International Traffic in Arms Regulations ("ITAR") are promulgated.
This move was enacted in practice by adding Russia to the list of proscribed destinations found at 22 C.F.R § 126.1 of the ITAR, effective March 18, 2021. By adding Russia to the ITAR list of proscribed destinations, State will now require mandatory disclosure to State's Directorate of Defense Trade Controls ("DDTC") in the event of a violation of the ITAR with respect to Russia, as opposed to the voluntary disclosure process in place for other violations of the ITAR.
Additional sanctions include:
- termination of assistance to Russia, other than urgent humanitarian assistance, food, or other agricultural products, under the Foreign Assistance Act (note that these sanctions are and will continue to be waived in all respects);
- termination of foreign military financing under the Arms Export Control Act ("AECA");
- denial of credit, credit guarantees, or other financial assistance from the U.S. Government; and
- prohibition on exports of national security goods and technology.
The above-listed sanctions will be in place for at least 12 months and will only be lifted upon Russia's demonstration that it can meet the several conditions described in the Chemical Biological Weapons ("CBW") Act.2
Despite the levying of sanctions, State also waived a number of export-related restrictions so as to limit the potential impact on U.S. businesses. In addition to the foreign assistance waiver referenced above, there are waivers for certain export transactions, including exports to wholly-owned Russian subsidiaries of U.S. and foreign-owned subsidiaries, exports in support of government space cooperation, and deemed export licenses for Russian nationals working in the United States. License applications for all activities subject to waivers will continue to be reviewed on a case-by-case basis.
In addition, State added multiple science and research entities to the Countering America's Adversaries Through Sanctions Act ("CAATSA") Section 231 List of Specified Persons. (For additional background on CAATSA, please see our previous article, Foreign Companies Must be Mindful of the Extraterritorial Reach in the Newest U.S. Sanctions Law Developments.) State will impose at least five of the sanctions described in Section 235 of CAATSA on persons engaged in significant transactions with these listed entities.
Finally, State designated seven parties under Executive Order ("E.O.") 13382 as Weapons of Mass Destruction Proliferators and their Supporters: Russia's Federal Security Service ("FSB"), GosNIIOKhT, the 33rd TsNIII, the 27th Scientific Center, the Main Intelligence Directorate ("GRU"), and GRU officers Alexander Yevgeniyevich Mishkin and Anatoliy Vladimirovich Chepiga. This designation leads to the blocking of property of the listed entities and individuals.
Pursuant to the attacks on Aleksey Navalny, OFAC designated on March 2, 2021, seven Russian officials pursuant to E.O. 13661, Blocking Property of Additional Persons Contributing to the Situation in Ukraine.3 These individuals will have property blocked, and U.S. persons are prohibited in engaging in transactions with these officials or entities owned, directly or indirectly, 50% or more by these officials.
Similar to the waivers under the State sanctions, and in contrast to State designation of the FSB under E.O. 13382, OFAC issued a general license to authorize certain transactions with the FSB. Cyber-related General License 1B authorizes activities that are "necessary and ordinarily incident" to requesting and receiving certain licenses, permits, and related authorizations for the importation and distribution of information technology products in Russia.4
Pursuant to the united executive actions, BIS announced on March 17, 2021, additional restrictions and export controls on commodities and technology destined for Russia.5 BIS limited the availability of multiple Export Administration Regulations ("EAR") license exceptions for national security-controlled items, including:
- Replacement of Parts and Equipment ("RPL");
- Technology and Software Unrestricted ("TSU"); and
- Additional Permissive Reexports ("APR").
Additionally, BIS has adopted a presumption of denial for license requests for national security-controlled items destined for Russia, even when requested by commercial end-users for civil end-uses. The presumption of denial is applicable except in a few limited circumstances, such as when required for the safety of flight of civil fixed-wing passenger aircraft.
Pursuant to a partial waiver, many EAR license exceptions will continue to be available for exports and reexports to Russia of national security-controlled items, including:
- Temporary Imports, Exports, Reexports, and Transfers ("TMP");
- Governments, International Organizations, International Inspections under the Chemical Weapons Convention and the International Space Station ("GOV");
- Baggage ("BAG");
- Aircraft, Vessels, and Spacecraft ("AVS"); and
- Encryption Commodities, Software, and Technology ("ENC").
On March 4, BIS also added 14 entities to its Entity List. These Russian, German, and Swiss entities have connections to Russian weapons of mass destruction and chemical weapons production.6 BIS will require a license for transactions with any party listed on the Entity List, and the license review policy is generally a presumption of denial, though there are exceptions.
Internationally Coordinated Action
Importantly, the sanctions actions against Russia were coordinated with the European Union, which also announced sanctions against Russia on March 2, 2021.7 Additionally, though not part of the formal coordinated announcement, the UK previously imposed sanctions measures against Russia on October 15, 2020 in response to the Navalny poisoning.8 This multilateral action shows a united front against Russia and potentially sets the stage for further coordinated action depending on Russia's response and ongoing conduct.
Conclusion and Recommendations
Companies with any commercial relationship with Russia will need to carefully scrutinize transactions to determine whether the recent measures will affect future business. With the addition of multiple parties to various denied party lists, screening will, as always, be a key component of compliance with export and sanctions regulations.
Many observers believe that the recently-announced actions against Russia may soon be followed by additional measures. Accordingly, compliance programs should be adaptable to quickly handle the evolving relationship with Russia.
1 U.S. Sanctions and Other Measures Imposed on Russia in Response to Russia's Use of Chemical Weapons, Fact Sheet, Office of the Spokesperson, U.S. Department of State (Mar. 2, 2021), available at https://www.state.gov/u-s-sanctions-and-other-measures-imposed-on-russia-in-response-to-russias-use-of-chemical-weapons/.
2 22 U.S.C. 5605(c) (2021).
3 Treasury Sanctions Russian Officials in Response to the Novichok Poisoning of Aleksy Navalny, Press Release, U.S. Department of the Treasury (Mar. 2, 2021), available at https://home.treasury.gov/news/press-releases/jy0045.
4 General License No. 1B to Executive Order 13694 of April 1, 2015, Office of Foreign Assets Control (Mar. 2, 2021), available at https://home.treasury.gov/system/files/126/cyber_gl1b.pdf.
5 U.S. Department of Commerce to Expand Restrictions on Exports to Russia in Response to Chemical Weapons Poisoning, Press Release, U.S. Department of Commerce (Mar. 17, 2021), available at https://www.commerce.gov/news/press-releases/2021/03/us-department-commerce-expand-restrictions-exports-russia-response.
6 Addition of Certain Entities to the Entity List; Correction of Existing Entries on the Entity List, 86 Fed. Reg. 12,529 (Mar. 4, 2021), available at https://www.govinfo.gov/content/pkg/FR-2021-03-04/pdf/2021-04505.pdf.
7 Global Human Rights Sanctions Regime: EU Sanctions Four People Responsible for Serious Human Rights Violations in Russia, Press Release, Council of the EU (Mar. 2, 2021), available at https://www.consilium.europa.eu/en/press/press-releases/2021/03/02/global-human-rights-sanctions-regime-eu-sanctions-four-people-responsible-for-serious-human-rights-violations-in-russia/.
8 UK Sanctions Alexey Navalny's Poisoners, Press Release, Foreign, Commonwealth & Development Office (Oct. 15, 2020), available at https://www.gov.uk/government/news/uk-sanctions-alexey-navalnys-poisoners.
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