База санкцій

OFAC, in consultation with the Department of State, issued a sectoral determination pursuant to E.O. 14024 that authorizes the imposition of economic sanctions on individuals and entities that operate or have operated in the accounting, trust and corporate formation services, or management consulting sectors of Russian economy. Посилання на оригінал

The White House further expanded U.S. sanctions against Russia due to its invasion of Ukraine by issuing a new Presidential Proclamation 10371 banning all Russian-affiliated vessels from entering any U.S. port in response to Russia’s continued aggression in Ukraine, effective on April 28, 2022, except for certain limited situations. Banned vessels include vessels of Russian registry (i.e., the vessel is Russian flagged), vessels owned by Russian persons, and vessels that are Russian operated. The order authorizes the U.S. Department of Homeland Security to issue regulations to implement the ban. Посилання на оригінал

Expansion of the coverage of license requirements on the export and reexport of US-origin and certain foreign-produced commodities, software, and technologies to Russia and Belarus under the Export Administration Regulations (“EAR“) on all categories of items on the Commerce Control List (“CCL“). Specifically, this rule applies the additional restrictions established under previous Russia and Belarus rules to Categories 0-2 of unilaterally-controlled technology remaining on the CCL, which include Nuclear Materials, Facilities, and Equipment [and Miscellaneous Items] (Category 0), Special Materials and Related Equipment, Chemicals, “Microorganisms,” and “Toxins” (Category 1) and Materials Processing (Category 2). While the vast majority of items in Categories 0-2 already required a license for Russia and Belarus (or are subject to the licensing authorities of other agencies), this rule imposes new license requirements for items including certain composite materials, medical products containing certain toxins or genetically modified organisms, hydraulic fluids, pumps, valves, and lower-level machine tools. As a result, all items subject to the EAR other than items covered under EAR99 now require a license to export, re-export, or transfer (in-country) to Russia and Belarus. There still is no country-wide licensing requirement for EAR99 items, although exports of these items to military end users or for military end uses in Russia or Belarus require a license. Посилання на оригінал

Expansion of the Russia- and Belarus-related Foreign Direct Product Rule (Russia/Belarus FDP rule) to apply to all items on the CCL where the foreign-produced item is the direct product of US-origin technology or software subject to the EAR that falls in any ECCN in product groups D (Software) or E (Technology) on the CCL or produced by a plant or major component of a plant that is itself a direct product of such software or technology subject to the EAR and falling on the CCL. All foreign direct product (FDP) derived from any CCL item are now subject to the same license requirements. Previously, the Russia/Belarus FDPR was limited to Categories 3-9. Посилання на оригінал

Removal of the License Exception AVS (Aircraft, Vessels, and Spacecraft) eligibility for aircraft registered in, owned or controlled by, or under charter or lease by Belarus or a national of Belarus. Посилання на оригінал

Ending Importation of Russian Oil Act prohibits the importation of energy products from Russia (explicitly codifies the outright ban on Russian energy imports imposed March 8, 2022 by E.O. 14066). It also permanently authorizes the President to impose visa- and property-blocking sanctions based on violations of human rights, and it revises the President's authority to impose these sanctions. All products of Russia classified under Chapter 27 of the Harmonized Tariff Schedule of the US (which includes mineral fuels, mineral oils and products of their distillation, bituminous substances, and mineral waxes), shall be banned from importation into the US, in a manner consistent with any implementation actions issued under E.O. 14066 (relating to prohibiting certain imports and new investments with respect to continued Russian efforts to undermine the sovereignty and territorial integrity of Ukraine), with an exception for prior contracts or agreements. The President may waive this prohibition for national interest reasons, subject to congressional approval. Посилання на оригінал

On April 8, the President signed into law the “Suspending Normal Trade Relations with Russia and Belarus Act”. This bill revokes Russia’s and Belarus’s permanent normal trade relations (PNTR) status. Beginning on April 9, imports originating from Russia and Belarus are subject to higher duties. Rather than having duty rates under “Column 1” of the Harmonized Tariff Schedule of the United States (HTSUS) (which average just over 3 % ad valorem) the United States currently applies to imports from all World Trade Organization member countries, Russian and Belarusian goods are now immediately subject to the statutory duty rates set forth in "Column 2" of the HTSUS which average approximately 32.3 %. The suspension remains in effect until 1 January 2024. The bill allows the President until January 1, 2024, to increase the applicable duty rates for Russian and Belarusian goods above the rates set forth in “Column 2” of the HTSUS as long as the President consults with the House Ways and Means Committee and the Senate Finance Committee five days prior. The bill gives the President authority to temporarily restore normal trade relations with Russia and Belarus up to 1 year or permanently if Russia/Belarus cease military hostilities and other conditions are met. Congress may overrule the President’s decision by passing a resolution of disapproval within 90 days of the certification. The bill directs the U.S. Trade Representative to take certain actions, including to consider steps to suspend Russia's participation in the WTO and block the accession process of Belarus. Additionally, the bill permanently authorizes the President to impose visa- and property-blocking sanctions based on violations of human rights, and it revises the President's authority to impose these sanctions. Посилання на оригінал

Prohibition on the exportation, reexportation, sale, or supply, directly or indirectly, from the U.S., or by a U.S. person, wherever located, of any category of services as may be determined by the Secretary of the Treasury, in consultation with the Secretary of State, to any person located in Russia. Посилання на оригінал

Prohibition on any approval, financing, facilitation, or guarantee by a U.S. person, wherever located, of a transaction by a foreign person where the transaction by that foreign person would be prohibited by this section if performed by a U.S. person or within the U.S. This means that U.S. persons cannot facilitate new Russia investments by companies or persons outside of the U.S. Moreover, a non-U.S. person could be held liable for "causing" a U.S. person to violate the order if the non-U.S. person made a new investment in Russia in U.S. dollars cleared through or transferred with the involvement of a U.S. correspondent bank or other U.S. person. The April 6, 2022 E.O. does not specify how investments by U.S. persons in non-U.S. companies which engage in new Russia investments would be treated, and OFAC may release further guidance explaining the parameters of this broad restriction on new investments. Посилання на оригінал

Prohibition on new investment in Russia by a U.S. person, wherever located. On 6 June, OFAC issued a series of FAQs that provide guidance on three recent Executive Orders (EOs), which imposed bans on certain “new investment” in Russia: EO 14071, which on April 6 banned new investment in Russia by a US person; EO 14066, which on March 8 banned new investment in the Russian energy sector by a US person; and EO 14068, which on March 11 banned new investment in any sector of the Russian economy determined by the Secretary of the Treasury, in connection with the Secretary of State. Most of the FAQs clarify the concepts specified in these Executive Orders. FAQ 1049 defines ”investment” for the purpose of Executive Orders 14071, 14066, and 14068 as the commitment of capital or other assets for the purpose of generating returns or appreciation. It further clarifies that a “new” investment is one made on or after the respective effective dates of the Investment Ban EOs, i.e., March 8, March 11, and April 6, 2022 (collectively, the “Cutoff Dates“). This includes commitments (1) entered into on or after the Cutoff Dates and (2) made on or after the Cutoff Dates by exercising rights under an agreement concluded before the Cutoff Dates. The “maintenance” of an investment in Russia made before the Cutoff Dates does not constitute a new investment. This FAQ also includes a list of transactions that OFAC considers to be “new investments” and a list of activities that OFAC does not consider to be “new investments.” Transactions that OFAC considers to be “new investment” for the purposes of the respective E.O. prohibitions include: - The purchase or acquisition of real estate in Russia, other than for noncommercial, personal use; - Entry into an agreement requiring the commitment of capital or other assets for the establishment or expansion of projects or operations in Russia, including the formation of joint ventures or other corporate entities in Russia; - Entry into an agreement providing for the participation in royalties or ongoing profits in Russia; - The lending of funds to persons located in Russia for commercial purposes, including when such funds are intended to be used to fund a new or expanded project or operation in Russia; - The purchase of an equity interest in an entity located in Russia; - The purchase or acquisition of rights to natural resources or exploitation thereof in Russia. Examples of transactions that OFAC does not consider to be “new investment” for the purposes of the respective E.O. prohibitions include: - Entry into, performance of, or financing of a contract, pursuant to ordinary commercial sales terms, to sell or purchase goods, services, or technology to or from an entity in Russia (e.g., a payment of an invoice for goods, where payment is made within the contracted time period and such payment does not involve participation in royalties or ongoing profits); - Maintenance of an investment in Russia, where the investment was made prior to the effective date of the respective E.O. prohibitions, including maintenance of pre-existing entities, projects, or operations, including associated tangible property, in Russia; - Wind down or divestment of a pre-existing investment, such as a pre-existing investment in an entity, project, or operation, including any associated tangible property, located in Russia. FAQ 1050 clarifies that the three Executive Orders banning “new investment” in Russia exclude from the scope of prohibited new investment “the maintenance of investments in the Russian Federation that were made prior to the effective dates of the respective [ ] prohibitions (‘pre-existing projects or operations’)". FAQ 1050 provides guidance on the meaning of “maintenance of investments” and includes a list of activities that are considered maintenance of investments and thus not subject to the prohibitions under the Investment Ban EOs. Generally, “maintenance” includes all transactions (including performing under or modifying pre-existing agreements and entering into new agreements) that are ordinarily incident to performing under an existing agreement, including transactions that ensure continuity of pre-existing projects or operations in Russia, including paying employees, suppliers, landlords, lenders, and partners; preserving and providing for the upkeep of pre-existing tangible property in Russia; and “activities associated with” maintaining pre-existing capital investments or equity investments. In contrast, expansion of Pre-Existing Agreements would not be considered “maintenance.” “Maintenance” of investments includes: - Transactions to ensure continuity of pre-existing projects or operations located in Russia, including payments to employees, suppliers, landlords, lenders, and partners; - The preservation and upkeep of pre-existing tangible property in Russia; - Activities associated with maintaining pre-existing capital investments or equity investments. FAQ 1052 explains that US persons may continue to fund their subsidiaries and affiliates with respect to projects or operations located in Russia, so long as those activities are consistent with “maintenance” and do not expand pre-existing projects or operations. FAQ 1054 clarifies that US persons are prohibited from purchasing both new and existing debt and equity securities issued by Russian entities but are not required to sell or divest such previously acquired debt and securities. According to FAQ 1054, the Investment Ban EOs do not prohibit the sale or divestment of — or facilitating the sale or divestment of — debt or equity securities issued by an entity in Russia to a non-US person. The FAQ also states that a US person may continue to hold such previously acquired securities, and to convert depositary receipts to underlying local shares non-sanctioned Russian issuers consistent with Investment Ban EOs. This interpretation, as a general matter, prohibits US persons from engaging in secondary market trading in pre-existing bonds and debt issued by Russian companies. Further, FAQ 1054 clarifies that US persons are not prohibited from investing in a US fund that contains debt or equity securities issued by Russian entities, so long as these holdings do not constitute a predominant share by value of debt or equity securities issued by Russian entities. FAQ 1054 does not define what a “predominant share” means in this context, but common readings in other sanctions programs include treating “predominance” as a majority share or as the single largest share. FAQ 1055 clarifies that the bans on “new investment” do not prohibit US persons from lending funds to, or purchasing an equity interest in, entities located outside of Russia, assuming two conditions are met: (1) the funds are not specifically intended for new projects or operations in Russia and (2) the entity located outside of Russia generates revenue that is “not predominantly derived from its investments” in Russia. This FAQ generally confirms the permissibility of engaging in large M&A transactions that may include a small Russian operation within the deal perimeter. Посилання на оригінал