The recently announced Joint Comprehensive Plan of Action (JCPOA) negotiated between the U.S., the other permanent members of the UN Security Council (China, France, Russia, and the UK), plus Germany and the High Representative of the European Union, and Iran will offer U.S. companies expanded opportunities to export aircraft items and services to Iran, but with restrictions.
Since January 2014, under prior versions of the JCPOA and extensions of it, the Office of Foreign Assets Control (OFAC) has had a favorable licensing policy for spare parts to ensure the safe operation of Iranian commercial passenger aircraft and associated services and safety related inspections and repairs. This licensing policy extends to U.S. companies (including U.S.-owned or -controlled foreign entities), and parties involved in the export of U.S.-origin goods. Under this licensing policy, a specific license application can be submitted to OFAC for consideration on a case-by-case basis.
Under the JCPOA, the U.S. has agreed generally to issue licenses that will allow U.S. companies to (i) export, re-export, sell, lease or transfer to Iran commercial passenger aircraft for an exclusively civil aviation end-use; (ii) export, re-export, sell, lease or transfer to Iran spare parts and components for commercial passenger aircraft; and (iii) provide associated services, including warranty, maintenance and repair services and safety-related inspections, provided the licensed items and services are used exclusively for commercial passenger aviation.
OFAC has authority to issue both specific and general licenses. A general license is essentially a “blanket” authorization to transact business under the terms and conditions set out in the general license. A specific license is issued for a particular transaction or series of transactions. The JCPOA does not indicate whether a general license will be issued with respect to these commercial passenger aircraft items and services. Therefore, unless and until a general license is issued, U.S. parties seeking new opportunities under the JCPOA will be required to apply for a specific license from OFAC.
Nonetheless, this development provides greater certainty that opportunities to supply commercial passenger aircraft items and services to Iran will exist into the future and U.S. companies will not have to await the announcement of an extension of temporary Iran sanctions relief, as was the case before the JCPOA.
For assistance with understanding and complying with the JCPOA, Iran sanctions, other economic sanctions laws, regulations, and Executive Orders, as well as representation before OFAC in investigations, civil penalty, and voluntary self-disclosures, please contact Jon P. Yormick, Attorney and Counsellor at Law, email@example.com or by calling +1.866.967.6425 (Toll free in Canada & U.S.) or +1.216.269.5138 (mobile).
Gazprom, Lukoil, Other Russian Energy and Defense Companies Targeted in Latest Round of U.S. Export Controls and Ukraine-related Sanctions
Last Friday, the U.S. Department of Commerce, Bureau of Industry and Security (BIS) dramatically increased targeted economic sanctions and export controls against several Russian energy and defense companies, including Gazprom OAO, the largest gas extraction company in the world, and privately-owned petroleum company, Lukoil. The BIS action is in addition to the U.S. Department of Treasury, Office of Foreign Assets Control (OFAC) issuing new Ukraine-related economic sanctions against Russia’s financial services, energy, and defense sectors, also announced on Friday.
BIS added the following major energy sector companies to the Entity List:
- Gazprom OAO; Gazpromneft; Lukoil, OAO; Rosneft; and Surgutneftegas.
BIS maintains the Entity List to impose a specific license requirement for the export, reexport or foreign transfer of items subject to the Export Administration Regulations (EAR) on those parties – businesses, research institutions, government and private organizations, and individuals – named on the list. These license requirements are in addition to any other requirements and restrictions imposed elsewhere in the EAR. Often, the stated License Review Policy for parties on the Entity List is “Presumption of denial,” although certain parties have a stated License Review Policy of determining a license application on a “Case-by-case” basis. Currently, the License Review Policy for nearly every Russian party on the Entity List is Presumption of Denial. This License Review Policy applies to the newly added parties.
The five (5) Russian energy sector companies added to the Entity List are subject to a license requirement when the exporter, reexporter or transferor knows those items will be used directly or indirectly in:
- exploration for, or production from, deepwater, Arctic offshore, or shale projects in Russia. License applications for such transactions will be reviewed with a presumption of denial when for use directly or indirectly for exploration or production from deepwater, Arctic offshore, or shale projects in Russia that have the potential to produce oil.
Notably, it appears that licenses for natural gas projects will be reviewed on a case-by-case basis; therefore, exporters, reexporters, and parties seeking in-country transfers to the listed companies should be sure to obtain specific end-use information and document the stated end-use for potential licensing application purposes. It should be further noted that this latest action is in addition to and does not replace export controls imposed by BIS on August 1 that designated certain items used in used in Russia’s energy sector, including exploration and production from deepwater, Artic offshore, and shale projects. In its 1 August rule, BIS designated those items by specific Schedule B (export classification) numbers and other by the Export Commodity Control Number (ECCN). A prior post explains those controls, http://bit.ly/1y4s9JN.
The Russian defense sector parties added to the Entity List include:
- Almaz-Antey Air Defense Concern Main System Design Bureau, JSC; Tikhomirov Scientific Research Institute of Instrument Design; Mytishchinski Mashinostroitelny Zavod, OAO; Kalinin Machine Plant, JSC; and Dolgoprudny Research Production Enterprise.
Similar export controls as those imposed on the energy sector companies apply to the defense sector companies, with a License Review Policy of “Presumption of Denial.”
BIS and OFAC action continue to be largely coordinated. OFAC updated the Sectoral Sanctions Identifications (SSI) List by adding Russian energy sector and financial services companies (and other names by which the companies operate or are known), AK Transneft OAO, Lukoil OAO, OJSC Gazprom Neft, Gazprom OAO, Rostec, Sberbank of Russia, Surgutneftgas, Bank of Moscow, as well as other financial services companies. Additionally, OFAC added each of the defense sector parties to the SSI List that BIS placed on the Entity List.
For assistance with understanding and complying with the latest BIS action, Ukraine-related and other economic sanctions laws, regulations, and Executive Orders, as well as representation before BIS and OFAC in investigations, civil penalty, and voluntary self-disclosures, please contact Jon P. Yormick, Attorney and Counsellor at Law, firstname.lastname@example.org or by calling +1.866.967.6425 (Toll free in Canada & U.S.) or +1.216.269.5138 (mobile).
Buffalo, NY and Cleveland, OH (8 September 2014) – International business and trade attorney, Jon Yormick, will discuss U.S. economic sanctions at the 25th Annual FCIB Global Conference on 12-14 October 2014 in Baltimore, Maryland. He will be joined for a panel discussion by a Special Agent, U.S. Department of Homeland Security Investigations, Counter-Proliferations Investigations, and a Vice President, Structured Trade Advisory, of JPMorgan Chase Bank, N.A.
Yormick’s presentation, “Navigating Economic Sanctions … Successfully,” will cover compliance with complex and ever-changing U.S. economic sanctions and Executive Orders, how they apply to U.S. and foreign parties, and how companies may find legitimate business opportunities available under sanctions programs. He will also use recent civil penalty settlements to examine how companies can avoid violations and costly penalties.
The event will take place at the Sheraton Inner Harbor in downtown Baltimore. More information about the conference, including how to register, can be found at http://bit.ly/1urehUS.
Yormick regularly advises and represents publicly-traded and privately-held companies on matters such as compliance programs, due diligence reviews, investigations, penalty proceedings, export licensing of defense and “dual use” items and technologies, economic sanctions and trade embargoes, export licensing of foods, medicine and medical devices under the Trade Sanctions Reform and Export Enhancement Act (TSRA), prior and voluntary self-disclosures of violations, and ruling requests. His clients include those in the advanced manufacturing, advanced materials, aerospace and defense, distribution, electronics, energy, medical device, oil/gas, pharmaceuticals, professional services, steel, textiles and apparel, and transportation/logistics sectors.
With a membership of over 1,100 global credit and trade finance professionals in 55 countries around the world, FCIB is internationally recognized as the premier association of executives in finance, credit and international business, providing export credit and collections insight, practical advice, and intelligence to companies of all sizes – from Fortune 500 multinationals to medium and small private companies.
U.S. Imposes New Export Controls on Russia’s Energy Sector and Adds Russian Shipbuilder to Entity List
On 1 August, Under Secretary of Commerce for Industry and Security, Eric L. Hirschhorn, signed a rule amending the Export Administration Regulations (EAR) to “impose additional sanctions implementing U.S. policy toward Russia,” and address the ongoing developments in Ukraine. Under the rule, the Bureau of Industry and Security (BIS) imposes export controls on items used in Russia’s energy sector, including exploration and production from deepwater, Artic offshore, and shale projects. The rule also adds state-owned shipbuilder, United Shipbuilding Corporation, to the Entity List. On 31 July, the Office of Foreign Assets Control (OFAC) added United Shipbuilding Corporation, to the Specially Designated Nationals and Blocked Persons (SDN) List.
The new rule adds 15 CFR § 746.5 to the EAR, “Russian Industry Sector Sanctions,” and imposes export, reexport, and transfer controls on items classified under the following Export Control Commodity Numbers (ECCNs): 0A998 (Oil/gas exploration equipment, software, and data ), 1C992 (Commercial charges and devices containing energetic materials ), 3A229 (Firing sets and equivalent high-current generators), 3A231 (Neutron generator systems), 3A232 (Detonators and multipoint initiation systems), 6A991 (Marine or terrestrial acoustic equipment ), 8A992 (Vessels, marine systems or equipment, “specially designed” “parts” and “components” therefor), and 8D999 (“Software” “specially designed” for operation of unmanned submersible vehicles used in oil/gas industry). These new controls apply “when the exporter, reexporter or transferor knows or is informed that the items will be used directly or indirectly in Russia’s energy sector” for exploration and production from deepwater (more than 500 feet depth), Artic offshore, and shale oil/gas projects. The rule goes on to identify, without limitation, examples of items that are specifically covered by the new Russian Industry Sector Sanctions, as follows: drilling rigs, parts for horizontal drilling, drilling and completion equipment, subsea processing equipment, Artic-capable marine equipment, wireline and down hole motors and equipment, drill pipe and casing, software for hydraulic fracturing (“fracking”), high pressure pumps, seismic acquisition equipment, remotely operated vehicles, compressors, expanders, valves, and risers. The rule makes clear that “[n]o license exceptions may overcome the licensing requirements under new § 746.5,” except for license exception GOV, and that the license review policy is a presumption of denial.
The rule also adds Supplement No. 2 to Part 746, Russian Industry Sector Sanctions List. This new supplement includes the ECCNs referenced above, but also includes more than 50 “Schedule B” numbers. Schedule B numbers are a commodity classification number used for exports, administered by the U.S. Census Bureau and used for reporting foreign trade data. The following main Schedule B numbers and items are listed: 7304, 7305, and 7306 (line pipe, drill pipe, casing), 8207 (rock drilling or earth boring tools and bits), 8413 (oil well pumps and elevators), 8421 (industrial gas cleaning and separation equipment), 8430 (offshore drilling and production platforms and boring/sinking machinery), 8431 (oil/gas field machinery parts), 8479 (oil/gas field wire line and downhole equipment), 8705 (mobile drilling derricks), and 8905 (floating or submersible drilling or production platforms and floating docks).
For U.S. companies and foreign companies that are subject to U.S. export controls and the jurisdiction of BIS, these new Russian energy sector sanctions pose new compliance challenges and risks. As with any economic sanctions and export controls, but particularly with the progressing multilateral Ukraine-related sanctions, companies are urged to exercise enhanced due diligence in their compliance efforts. U.S. and foreign companies that currently export, reexport, or transfer commodities, technology, and software covered by the ECCNs and Schedule B, should be alerted to this new rule and its compliance requirements. U.S. companies and foreign companies that are subject to U.S. export controls that might only sell or transfer such items domestically should also undertake additional due diligence and not “self-blind” on determining whether Russia is the ultimate destination of the items.
The new rule can be found at this link, http://1.usa.gov/1okGBSH.
For assistance with understanding and complying with this new BIS rule, Ukraine-related and other economic sanctions laws, regulations, and Executive Orders, as well as representation before BIS and OFAC in investigations, civil penalty, and voluntary self-disclosures, please contact Jon P. Yormick, Attorney and Counsellor at Law, email@example.com or by calling +1.866.967.6425 (Toll free in Canada & U.S.) or +1.216.269.5138 (mobile).
On April 23, international trade and business attorney, Jon Yormick, will present a webinar on Navigating Economic Sanctions Successfully for The Finance, Credit & International Business Association (FCIB). The 1-hour webinar begins at 11:00 am EST and is open to FCIB members and non-members.
In his presentation, Yormick will provide an update on the recent economic sanctions relating to events in Ukraine, discuss key U.S. economic sanctions regimes, discuss recent OFAC General Licenses and TSRA licenses that give companies certain business opportunities within the U.S. sanctions regimes for Iran and other countries subject to U.S. sanctions, and emphasize economic sanctions compliance, including lessons learned from recent OFAC and BIS civil penalty cases.
Yormick is an experienced international business and trade attorney practicing in the areas Export Controls & Economic Sanctions, Customs & International Trade, and FCPA/Anticorruption. He represents U.S. and foreign clients before the U.S. Department of Commerce, Bureau of Industry and Security (BIS), the U.S. Customs and Border Protection (CBP), the U.S. Department of Homeland Security, Immigration and Customs Enforcement (ICE), the U.S. Department of State, Directorate of Defense Trade Controls (DDTC), the U.S. Department of Treasury, Office of Foreign Assets Control (OFAC), and the U.S. International Trade Commission (ITC) on import and export laws and regulations, including the Export Administration Regulations (EAR), and the International Traffic in Arms Regulations (ITAR). His clients include those in the advanced manufacturing, advanced materials, aerospace and defense, distribution, electronics, energy, medical device, oil/gas, pharmaceuticals, professional services, steel, textiles and apparel, and transportation/logistics sectors.