Aug 30, 2018
On August 27, 2018, new sanctions were imposed on Russia under the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 (the “CBW Act”). These sanctions are required under the CBW Act upon an August 6, 2018 determination that a Russia used chemical or biological weapons in violation of international law or against its own nationals. The administration made such a determination following the use of a “Novichok” nerve agent in an attempt to assassinate UK citizen Sergei Skripal and his daughter Yulia Skripal, which the UK determined was an act of the Russian government.
Under the CBW Act, additional significant sanctions are required in three months of the determination unless the President certifies to Congress that Russia (i) is no longer using chemical or biological weapons in violation of international law or using lethal chemical or biological weapons against its own nationals, (ii) has provided reliable assurances that it will not in the future engage in any such activities, and (iii) is willing to allow on-site inspections by UN or other observers. Such additional sanctions must include three of the following – import restrictions, export restrictions, restrictions on financing from US institutions, restrictions on financing from multilateral development banks, curtailment of diplomatic relations, curtailment of landing rights for Russia-flagged aircraft.
The following initial CBW Act sanctions and related waivers took effect as of August 27, 2018, and will last for at least 12 months:
a. License Exceptions: Exports or reexports made pursuant to certain EAR license exceptions contained in EAR Part 740 are allowed, including but not limited to exports or reexports under License Exception ENC, which applies to certain encryption-related items. Each license exception is subject to certain conditions, and we would, therefore, suggest an exporter review the license exceptions in detail before relying on any one exception to export or reexport to Russia a good or technology subject to NS controls.
b. Certain Exports/Reexports Under New Licenses Allowed: The following exports and reexports of goods and technology controlled for NS reasons are allowed provided they are pursuant to a “new” license. It is logical to interpret this reference to “new” licenses to mean that this waiver applies only to licenses issued after the enactment of the CBW Act sanctions on August 27, 218; however, the State Department has not issued guidance on this point thus far. Such “new” licenses will be issued on a case-by-case basis consistent with the export licensing policy for Russia that was in effect prior to the enactment of the CBW Act sanctions.
c. Exports/Reexports to SOEs or SFEs Denied: Separately, license applications for new licenses to export NS-controlled goods or technology to Russian state-owned or state-funded enterprises will be reviewed on a case-by-case basis, subject to a “presumption of denial” policy.