Overview
On July 27, the Senate passed 98-2 the Countering America’s Adversaries Through Sanctions Act (HR 3364), which previously passed the House 419-3 on July 25, setting up a showdown with President Trump. This bill is an omnibus of three separate sanctions measures: the Countering Iran’s Destabilizing Activities Act (“CIDAA”), the Countering Russian Influence in Europe and Eurasia Act (“CRIEEA”), and the North Korean Interdiction and Modernization of Sanctions Act (“NKIMSA”). Together, they make a forceful, bipartisan statement that Congress supports the application of robust sanctions as a cornerstone of US foreign policy. However, they also may put President Trump in the difficult position of receiving a strong Russia sanctions bill as he seeks to repair relations with Russia and members of his administration are embroiled in Russia-related controversies.
Russia Sanctions: Congress Flexes its Muscle
As Steptoe has previously discussed in our alert and on the blog, CRIEEA would authorize – and at times require – the President to impose significant new sanctions on the Russian energy, financial, and defense sectors. The Senate has previously passed two versions of this bill, and the House version includes further amendments designed to allay some concerns from the US energy industry and EU allies. In particular, CRIEEA would do the following:
- Codify Authorities: Codify Executive Orders (EOs) 13660 and 13661 (blocking property of persons contributing to the situation in Ukraine), EO 13662 (sectoral sanctions targeting persons contributing to the situation in Ukraine), EO 13685 (blocking property of persons and prohibiting certain transactions related to Crimea), and EOs 13694 and 13757 (blocking the property of persons with respect to significant malicious cyber-enabled activities). By codifying these authorities, Congress would reduce the Executive Branch’s flexibility to lift sanctions.
Moreover, CRIEEA would create a mechanism to allow Congress to review and disapprove of attempts by the President to terminate or waive Russia-related sanctions or issue licenses that significantly alter US sanctions policy.
- Energy Sector Sanctions:
- Financing Restrictions: Expand existing restrictions on US persons transacting in new debt of Russian energy companies on the Office of Foreign Assets Control’s Sectoral Sanctions Identification (“SSI”) List pursuant to Directive 2. US persons can currently deal in Directive 2 entities’ new debt with a maturity of 90 days or less, but CRIEEA would reduce this threshold to 60 days. This would further restrict Directive 2 entities’ ability to obtain short-term financing in international markets and would cause sellers to reduce their sales terms to 60 day payment terms. The House amendments to CRIEEA provide a 60-day grace period before this reduced new debt threshold would become effective.
- Exploration and Production: Broaden existing prohibitions on US persons providing goods, services, or technology in support of deepwater, Arctic offshore, and shale oil projects. These restrictions are currently limited to projects in Russian territory or maritime waters, but CRIEEA would extend them to new projects anywhere in the world if a Directive 4 entity has at least a 33% interest in the project. Moreover, this provision would apply to US persons and persons in the United States, which could include EU energy firms with US operations. A prior version of the bill extended this restriction to all new and existing projects globally with any Directive 4 entity involvement, but the 33% ownership threshold, as well as the reference to “new” projects, for new projects were added to address concerns from the US and EU energy industries. The House amendments to CRIEEA provide a 90-day grace period before this provision would become effective.
- Energy Export Pipelines: Modeled after Iran sanctions laws, CRIEEA would authorize (but not require) the imposition of sanctions for investments in or the provision of goods, services, technology, information, or support for the construction, modernization, or repair of Russian energy export pipelines. The threshold for such investments would be $1 million or $5 million over a 12-month period. The House bill added that the US would coordinate with allies in determining whether to impose such sanctions, but many energy companies – especially in the EU – fear that this provision could imperil the completion of the Nord Stream 2 pipeline.
- Crude Oil: Make mandatory a provision in the Ukraine Freedom Support Act that authorizes the imposition of sanctions for “significant” investments in a “special Russian crude oil project,” which is defined as a crude deepwater, Arctic offshore, or shale oil project.
- Financial Sector Sanctions
- Financing Restrictions: Expand existing restrictions on US persons transacting in new debt of Russian financial institutions on the SSI List pursuant to Directive 1. US persons can currently deal in Directive 1 entities’ new debt with a maturity of 30 days, but CRIEEA would reduce this threshold to a mere 14 days, which could severely constrict short-term financing for Russian banks. The House amendments to CRIEEA provide a 60-day grace period before this reduced new debt threshold would become effective.
- Correspondent Banking Restrictions: Limit the opening or maintaining of correspondent bank accounts for foreign financial institutions that facilitate certain Russian energy projects or defense activities.
- Privatization: Mandate the imposition of sanctions against persons that invest $10 million or more to facilitate the Russian government’s privatization of state assets in a manner that allows Russian government officials or their family members to benefit unjustly.
- Defense Sector Sanctions
- Defense Transactions: Mandate the imposition of sanctions against persons engaged in significant transactions with the Russian defense or intelligence sectors. The House amendments provide a 180 day grace period before this provision would become effective and would require the President to provide guidance regarding the scope of companies defined to be operating in the Russian defense or intelligence sectors. Furthermore, the House amendments would permit the President to delay the imposition of sanctions, for a renewable period of 180 days, against a person who substantially reduced its significant transactions during those 180 day periods.
- Syria: Mandate the imposition of sanctions against persons providing certain defense articles to Syria.
- Additional Sanctions:
- Authorize the imposition of sectoral sanctions against persons operating in the Russian railway, metals, and mining sectors. The House version removed a reference to the Russian shipping sector included in the Senate bill.
- Mandate the imposition of sanctions against any person engaged in malicious cyber activity on behalf of Russia, any person involved in evading Russia or Ukraine sanctions, any person involved in human rights abuses in Russia or Russian-occupied territories, and any person facilitating Russian corruption.
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It remains unclear whether President Trump will sign the bill into law. White House officials have sent mixed messages over the past week, meaning that the fate of these new sanctions provisions remains uncertain. Steptoe will continue to monitor the situation, and stay tuned to our blog for more developments in the coming days.