OFAC and Commerce Department Russian

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1 OFAC and Commerce Department Russian Economic Sanctions Update Presented by Margaret Gatti Marynell DeVaughn Louis Rothberg MOSCOW November 13, 2014 KYIV CRIMEA

2 Ukraine Crisis: Sanctions against Specified Parties in Russia Since March, the United States has imposed a range of sanctions on Russian individuals and companies in response to the annexation of Crimea and the crisis in eastern Ukraine. The United States has also imposed restrictions on key sectors of the Russian economy. The sanctions program targets specific persons and businesses all trade with Russia is not restricted. The most recent set of U.S. sanctions were imposed on September 12, targeting companies in the financial, energy, and defense sectors of Russia. 2

3 Russian Sanctions Enacted by the United States Treasury Department sanctions Sanctions administered and enforced by the U.S. Department of Treasury s Office of Foreign Assets Control (OFAC) Apply to actions by U.S. Persons (In Personam Jurisdiction) Commerce Department sanctions Sanctions administered and enforced by the US Department of Commerce s Bureau of Industry & Security (BIS) Apply to actions by dual use items subject to EAR (In Rem Jurisdiction) The legal basis for the imposition of sanctions is: Trading with the Enemy Act (TWEA) International Emergency Economic Powers Act (IEEPA) 3

4 OFAC Sanctions OFAC sanctions target: Countries whose actions are determined to constitute a threat to U.S. national security, U.S. foreign policy, or the U.S. economy; and/or Specific individuals or entities which may be in any country involved in or contributing to activities that are deemed to constitute a threat t to U.S. national security, U.S. foreign policy, or the U.S. economy; and/or Specific industries within a country. Each OFAC sanction program is unique, with its own definitions, prohibitions, and regulations All OFAC sanctions apply to activities by U.S. Persons 4

5 Additions to OFAC s Specially Designated Nationals (SDN) List U.S. persons for Russia OFAC sanctions = U.S. citizens (wherever located) and permanent residents U.S. legal entities Foreign branches of U.S. entities Any persons or entities located in the United States Foreign subsidiaries of U.S. companies are not included in the definition of U.S. persons for OFAC Russian sanctions program 5

6 Summary of Recent OFAC Sanctions The September 12 sanctions adopted by the United States: Designate additional Russian entities as SDNs; Tighten debt financing restrictions on specifically named Russian entities; and Implement additional restrictions on sales of certain goods, services, and technology for oil-related operations. These sanctions are primarily enacted through the expansion of OFAC s sectoral sanction directives (initially issued on March 20, 2014 under Executive Order 13662). 6

7 September 12 Additions to OFAC s Specially Designated Nationals (SDN) List OFAC designated the following Russian state-owned defense technology firms: JSC Almaz-Antey Air Defense Concern Main System Design Bureau Named by Academician A.A. A Raspletin JSC V. Tikhomirov Scientific Research Institute of Instrument Design Kalinin Machine Plant JSC Mytishchinski Mashinostroitelny Zavod, OAO OAO Dolgoprudny Research Production Enterprise These additions expanded the Russian SDN List 7

8 US Person requirements with Respect to SDNs U.S. persons : Must block the assets of SDNs if such assets are in the United States or come into the possession of U.S. Persons Are prohibited from engaging in any dealings with SDNs Must treat t as SDNs any entities directly or indirectly owned 50% or more by one or more named SDNs (Shadow SDNs) (new revision of old 50% rule) Must exercise caution when dealing with entities that are controlled by SDNs 8

9 OFAC Sectoral Sanctions Directive 1 (financial services sector): Prohibits U.S. persons from transacting in, providing financing for, or otherwise dealing in new debt of longer than 30 days maturity or new equity for designated persons, their property, or their interests in property (i.e., what they own 50% or more of): Bank of Moscow Gazprombank OAO Russian Agricultural Bank Sberbank of Russia Vnesheconombank VTB Bank OAO 9

10 OFAC Sectoral Sanctions Directive 2 (energy sector): Prohibits U.S. persons from transacting in, providing financing for, or otherwise dealing in new debt of longer than 90 days maturity for designated persons, their property, or their interests in property (i.e., what they own 50% or more of): AK Transneft OAO OAO Novatek OJSC Gazprom Neft OJSC Rosneft Oil Company 10

11 OFAC Sectoral Sanctions Directive e 3 (defense and related material sector): Prohibits U.S. persons from transacting ti in, providing financing for, or otherwise dealing in new debt of longer than 30 days maturity for designated persons, their property, or their interests in property (i.e., what they own 50% or more of): Rostec (Russian Technologies) 11

12 OFAC Sectoral Sanctions (con t) Directive 4 (energy sector): Prohibits U.S. persons from providing, exporting, or re-exporting, directly or indirectly, goods, services (except for financial services), or technology in support of exploration or production for deepwater, Arctic offshore, or shale projects that t have the potential ti to produce oil in the Russian Federation, or in any maritime area claimed by the Russian Federation and extending from its territory, and that involve any of the persons listed below, their property, or their interests in property p (i.e., what they own 50% or more of): Lukoil OAO OJSC Gazprom OJSC Gazprom Neft OJSC Rosneft Oil Company Surgutneftegas 12

13 OFAC Sectoral Sanctions (con t) Directive 4 (energy sector) (con t) Services include, e.g., drilling services, geophysical services, geological services, logistical services, management services, modeling capabilities, and mapping technologies. Services also include legal services if such services are in support of exploration or production for deepwater, Arctic offshore, or shale projects that have the potential to produce oil in the Russian Federation, or in any maritime area claimed by the Russian Federation and extending from its territory, and that involve [any person subject to Directive 4] U.S. entities must have withdrawn from existing projects on or before September 26, 2014 (under OFAC General License 2, which granted a two-week period for winding-down do n of operations, contracts, or other agreements involving persons subject to Directive 4). 13

14 OFAC Sectoral Sanctions (con t) The text of each of the four directives is available on the OFAC website: center/sanctions/programs/documents/eo13662_directive1.pdf ti /P /D t / ti 1 df center/sanctions/programs/documents/eo13662_directive4.pdf Also available on OFAC s website are FAQs reading the tea leaves! 14

15 OFAC s 50% Rule Applies to SDNs and SSIs Under this rule, any entity in which a designated individual or company owns a 50% or greater interest is deemed to be designated Effect of 50% rule: Deemed SDNs: U.S. persons must block the assets and refrain from engaging in transactions with deemed SDNs, even though such entities are not specifically named on the OFAC SDN List Deemed SSIs: U.S. persons must apply requirements of Directives 1 to 4 Compliance requirement: must trace up the ladder the ownership structure of entities with which you are doing business to ensure that a designated party does not have an ownership interest that would cause an entity with which you are dealing to also be subject to sanctions 15

16 Example and Explanation of OFAC s 50% Rule Suppose that Mr. A is designated by OFAC as an SDN and: Mr. A owns 60% of Company B; Company B owns 40% of Company D; Mr. A also owns 45% of Company C; Company C owns 60% of Company D. Who and what are blocked under the rule set forth in OFAC s 50% rule? 16

17 Example and Explanation of OFAC s 50% Rule Clearly Company B is a deemed SDN and its assets are blocked based on its 60% ownership by Mr. A Company C is not a deemed SDN and its assets are not blocked because Mr. A owns only 45% of Company C. But what about Company D? 17

18 Example & Explanation of the 50% Rule (con t) Company D is a deemed SDN, as explained below: Mr. A indirectly owns 24% of Company D through his 60% ownership interest in Company B, which owns 40% of Company D (60% * 40% = 24%). Mr. A also indirectly owns 27% of Company D through his 45% ownership interest in Company C, which owns 60% of Company D (45% * 60% = 27%). Based on the above, therefore, Mr. A has a cumulative indirect ownership interest of 51% in Company D (24% + 27% = 51%). So even though Mr. A does not have any direct ownership of Company D, his 51% indirect ownership interest in Company D will cause OFAC to deem Company D an SDN. 18

19 Summary and Conclusions Regarding OFAC s 50% Rule Mr. A was designated by OFAC as an SDN. Company B is deemed by OFAC to be an SDN because Mr. A directly owns 60% (> 50%) of Company B. The SDN status of Company B applies to the entire Company B without regard to the 40% ownership by owners other than Mr. A. (If any of the 40% owners in Company B is a U.S. Person ) 19

20 Summary and Conclusions Regarding OFAC s 50% rule (con t) Company C is not deemed by OFAC to be an SDN because Mr. A directly owns only 45% (< 50%) of Company B. Company D is deemed by OFAC to be an SDN because Mr. A indirectly owns 51% ( > 50%) of Company D (24% by virtue of Company B + 27% by virtue of Company C). The SDN status of Company D applies to the entire Company D without regard to the 100% direct ownership by Company B (40%) and Company C (60%). 20

21 One Additional Consideration for 50% Rule What if Mr. A owns 38% of Company E and his brother Mr. Z (also an SDN) also owns 38% of Company E? 38% + 38% = 76% 76% > 50% Company E is a deemed SDN: On August 13, 2014, OFAC issued new guidance stating that OFAC will aggregate the ownership of multiple SDNs in one entity, such that if one or more SDNs own a 50% or greater interest in an entity, that entity is considered to be a blocked person. Company E is blocked! 21

22 Comments on Ownership and Control Ownership = Automatic, Immediate Blocking & Prohibition One or more SDNs own, directly or indirectly, 50% or greater interest in subject entity ty = entity tty is blocked boc regardless of whether specifically listed Transactions with SDN through third- party intermediary are also banned All transactions with SDN (direct as well as through third -party intermediary ) are banned Control = Possible Future Blocking and Prohibition Act with caution when considering transaction with entity in which SDN has significant ownership interest est (<50%) or which SDN controls through other means Risk of future designation or enforcement, but not yet blocked 22

23 BIS Sanctions Together with the expansion of OFAC s SDN designations and sectoral sanctions, the U.S. Department of Commerce's Bureau of Industry and Security (BIS) rolled out new export restrictions in September 2014 (separate and distinct from August 2014 export restrictions). 23

24 BIS Sanctions (August 2014) EAR adds new EAR entitled Russian Industry Sector Sanctions. This section imposes an BIS/EAR license requirement on the export, re-export or transfer (in-country within Russia) of: all the items specified in EAR Commerce Control List under ECCNs 0A998, 1C992, 3A229, 3A231, 3A232, 6A991, 8A992, and 8D999 and also any item subject to the EAR listed in the new Supplement No. 2 to EAR Part 746 EAR99 items with no ECCNs - are set forth as "Schedule B numbers" rather than by ECCNs. A Schedule B number is a 10-digit commodity classification number administered by the US Census Bureau and is used for reporting foreign trade. Census's Schedule B List 2014 can be found at 24

25 BIS Sanctions (August 2014 cont d) Items in new Supplement 2 are now licensable for shipment to Russia. These items include but are not limited to, drilling rigs, parts for horizontal drilling, drilling and completion equipment, subsea processing equipment, Arctic-capable marine equipment, wireline and down hole motors and equipment, drill pipe and casing, software for hydraulic fracturing, high pressure pumps, seismic acquisition equipment, remotely operated vehicles, compressors, expanders, valves, and risers. The new license requirement is triggered when the exporter, re-exporter exporter or transferor : knows or is informed that the item will be used directly or indirectly in Russia's energy sector for exploration or production from deepwater (greater than 500 feet), Arctic offshore, or shale projects in Russia that have the potential to produce oil or gas or is unable to determine whether the item will be used in such projects in Russia. 25

26 BIS Sanctions (September 2014) BIS added five entities operating in Russia s defense sector to the BIS Entity List. The designated entities are: Almaz-Antey Antey Air Defense Concern Main System Design Bureau, Tikhomirov Scientific Research Institute of Instrument Design, Mytishchinski Mashinostroitelny Zavod, Kalinin Machine Plant, and Dolgoprudny Research Production Enterprise Designation imposes a new license requirement for the export, reexport or transfer of all items subject to the EAR to the designated entities (with presumption of denial). 26

27 BIS Sanctions (September 2014 con t) BIS also added five Russian energy companies to the Entity List: Gazprom, Gazpromneft, Lukoil, Rosneft, and Surgutneftegas. Designation imposes a new license requirement for the export, re-export, or transfer of all items subject to the EAR when the exporter knows that the items will be used directly or indirectly in deepwater, Arctic offshore, or shale projects in Russia. 27

28 What Is Subject to the EAR? (15 CFR 734.3) 3) All items in the United States, including in a U.S. FTZ or moving in transit through the US from one foreign country to another; All U.S. origin items, wherever located; Foreign-made commodities that incorporate controlled U.S.-origin commodities, foreign-made commodities that are bundled with controlled U.S.-origin software, foreign-made software that is commingled with controlled U.S.-origin software, and foreign-made technology that is commingled with controlled U.S.-origin technology in quantities exceeding the de minimis levels (25% for Russia, other than encryption technology); Certain foreign-made direct products of U.S.-origin technology or software; and Certain commodities produced by any plant or major component of a plant located outside the United States that is a direct product of U.S.- origin technology or software. 28

29 Difference Between BIS Regulations Published in August 2014 and BIS Regulations Published in September 2014 August 2014 Regulations: Specifically designated items to all Russian entities September 2014 Regulations: All items subject to EAR for five specifically named Russian energy sector companies If the exporter, re-exporter, or transferor has knowledge or reason to know that the item will be used directly or indirectly in deepwater, Arctic offshore, or shale projects in Russia 29

30 New BIS Restrictions on Items Intended for Military End Uses and Military End Users in Russia As of September 17, 2014, a license is required for the export, re-export, or transfer of any item that is subject to the EAR and specifically listed in Supplement No. 2 to Part 744 of the EAR if the exporter, re-exporter, or transferor has knowledge or reason to know that the item is intended, entirely or in part, for a military end use or military end user in Russia See next slides for items listed in Supplement No. 2 to Part

31 Items Contained in Supplement No. 2 to Part 744 1A290 Depleted Uranium in shipments of more than 1000 kg 1C990 Fibrous and filamentary materials other than glass, aramid, or polyethylene 1C996 Hydraulic fluids containing synthetic hydrocarbon oils 1D993 Software specially designed for equipment controlled by 1C210.b or 1C990 1D999 Specific software controlled by 1D999.b 1E994 Technology 2A991 Bearings 2B991 Numerically 2B992 Non- 2B996 Dimensional for items controlled by 1C990 and bearing systems not controlled by 2A001 controlled machine tools having positioning accuracies numerically controlled machine tools for generating optical quality surfaces inspection or measuring systems and equipment not controlled by 2B006 3A292.d Digital oscilloscopes and transient recorders 2A999.c-Flash X-ray machines and components of pulsed power systems 3E292 Technology for digital oscilloscopes and transient recorders 4A994 Computers not controlled by 4A001 or 4A003 4D993 Program proof and validation software 4D994 Software specially designed or modified for equipment controlled by 4A101 5A991 Telecommunications equipment designed to operate outside 219K to 297K 5D991 Software specially designed for equipment controlled by 5A991.a, 5A991.b.7 31 and 5A991.f 5E991 Technology for equipment controlled by 5A001.a, 5A991.b7 or 5A991.f 6A995 Lasers

32 Items Contained in Supplement No. 2 to Part 744 4D994 Software specially designed or modified for equipment controlled by 4A101 5A991 Telecommunications equipment designed to operate outside 219K to 297K 5D991 Software specially designed for equipment controlled by 5A991.a, 5A991.b.7, and 5A991.f 5E991 Technology for equipment controlled by 5A001.a, 5A991.b7, or 5A991.f 6A995 Lasers 6C992 Optical 6A993 Cameras 7A994 Other 7B992 Other 7D994 Software sensing fibers navigation direction finding equipment equipment for navigation, airborne communication and avionics 7E994 Technology for navigation, airborne communication, and avionics 9D991 Software for equipment controlled by 9A001 or 9A101 8A992 Underwater systems or equipment 9E991 Technology for equipment controlled by 9A991 or 9B991 8D992 Software for equipment controlled by 8A992 8E992 Technology for equipment controlled by 8A992 9A991 Aircraft and gas turbine engines 32

33 Russian Sanctions Q&A Q: Do the prohibitions imposed pursuant to the OFAC Directives also extend to entities owned 50% or more by one or more entities identified by these Directives? A: Yes, these prohibitions apply to the named persons, their property, and their interests in property, which includes entities owned 50% or more by one or more persons identified as subject to the Directives. 33

34 Russian Sanctions Q&A Q: What do the prohibitions in Directives 1 and 2 mean? Are they blocking actions? A: Directives 1 and 2 prohibit transactions by U.S. persons, wherever they are located, and transactions within the United States. They do not require U.S. persons to block the property or interests in property of the entities identified in the Directives, nor will persons identified in Directives 1 and 2 be added to the SDN List. U.S. persons should reject transactions or dealings that are prohibited by Directive 1 or 2, and U.S. financial institutions must report to OFAC any rejected funds transfers within 10 business days. 34

35 Russian Sanctions Q&A Q: What does OFAC interpret t to be debt and equity? A: The term debt includes bonds, loans, extensions of credit, loan guarantees, letters of credit, drafts, bankers acceptances, discount notes or bills, or commercial paper. The term equity includes stocks, share issuances, depositary receipts, or any other evidence of title or ownership. 35

36 Russian Sanctions Q&A Q: There are restrictions ti for long-term credits for some categories of sanctioned persons. If there is a long overdue indebtedness (e.g., more than three months) by a client that falls under this category, are we allowed to claim the indebtedness? Or does this qualify as long-term crediting and in order for us to get the overdue payment we need to seek an OFAC license? A: This is likely not new debt issued after the date of the relevant sectoral sanctions Directive. Rather, it appears to be old debt more than 90 days overdue or delinquent. Hence, since it is not new debt, it is not subject to sectoral sanctions prohibitions. 36

37 Russian Sanctions Q&A Q: Does Directive 4 apply to projects that t have the potential ti to produce gas? A: If a deepwater, Arctic offshore, or shale project in the Russian Federation, or in a maritime area claimed by the Russian Federation and extending from its territory, and involving a person named under Directive 4 has the potential to produce oil, then the prohibition applies, irrespective of whether the project also has the potential to produce gas. If, however, the project has the potential to produce gas only, then the prohibition does not apply. 37

38 Other Questions? 38

39 International Trade and Economic Sanctions Group Margaret M. Gatti Philadelphia, PA tel Washington, DC tel Marynell DeVaughn Washington, DC tel Louis K. Rothberg Washington, DC tel Kelly S. Herman Washington, DC tel Katelyn M. Moscony Washington, DC tel

40 This material is provided as a general informational service to clients and friends of Morgan, Lewis & Bockius LLP. It does not constitute, and should not be construed as, legal advice on any specific matter, nor does it create an attorney-client relationship. You should not act or refrain from acting on the basis of this information. This material may be considered Attorney Advertising in some states. Any prior results discussed in the material do not guarantee similar outcomes. Links provided from outside sources are subject to expiration or change.. All Rights Reserved. 40

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