I wrote earlier this month on a State Department press release finding that Russia had used chemical weapons in the attacks on Sergei and Yulia Skirpal in the United Kingdom and that, accordingly, sanctions would be imposed on Russia pursuant to the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 (the “CBW Act”). That act requires the imposition of five sanctions, although the President has the authority to waive any or all of the sanctions based on national security considerations. On Monday, the State Department published a notice in the Federal Register imposing those sanctions, effective immediately. As expected, the application of certain of the sanctions was waived completely or partially, and the ones given full effect are unlikely to be of much concern to Russia.   As a result, it seems unlikely that Russia will find any reason to curtail its use of nerve agents around the world.

The first sanction required by the CBW Act is the termination of all foreign assistance to Russia under the Foreign Assistance Act of 1961. This sanctions was waived on national security grounds. It’s not clear why State bothered to use the national security waiver here, since Russia last received foreign assistance under the act in 2014 and none was scheduled to be provided in 2019 (or likely any time after that.)

The second required sanction is the termination of arms sales to Russia. State waived this sanction except “with respect to the issuance of licenses in support of government space cooperation and commercial space launches.” You’ve got to get supplies to the International Space Station somehow or other.  And, of course, DDTC stopped granting license to export most items on the USML back in 2014.

The notice imposes the third required sanction completely and without waiver. It terminates all “foreign military financing for Russia under the Arms Export Control Act.” This can hardly be an earth-shaking development. When was the last time the US financed arms sales to Russia? World War II?

The fourth sanction — denial to Russia of “any credit, credit guarantees, or other financial assistance by any department, agency, or instrumentality of the United States Government, including the Export-Import Bank of the United States” — is also imposed without any waiver. Again, this is a sanction without any forseeable impact given the likelihood that little, if any, such federal financial assistance is being provided to Russia.  The last transactions involving Russia financed by the EXIM Bank were in 2014.

The fifth required sanction under the CBW Act is the prohibition of “the export to Russia of any goods or technology” controlled on the Commerce Control List for NS reasons. The State Department notice here has a number of waivers that arguably are not very different from waiving the prohibition in its entirety.

Not surprisingly, the waiver includes any exports under license exception ENC. Remember that all encryption items, other than mass market items, are controlled for NS reasons, so this prohibition would have prohibited, say, exporting network equipment to Russia. How could we spy on them if we don’t sell them routers?  Which is why, of course, Russia limits imports from the United States of items, such as routers, with encryption functionality.  Other exceptions that survive the prohibition are GOV, RPL, BAG, TMP, TSU, APR, CIV, and AVS.

Beyond the waivers for exports under the aforementioned license exports, there are waivers for exports to wholly-owned U.S. subsidiaries, to commercial (i.e. non-governmental) enterprises, and to Russian nationals in the United States. Because Russia has always been subject to NS controls, these waived exports will still require, as they always have, licenses.

One final observation should be made on the meaning of “to Russia” in these sanctions. As noted the sanctions prohibit the provision of federal financial assistance “to Russia.” The reference in the fifth sanction to waivers for deemed exports to Russian nationals in the United States means that “to Russia”  means to anyone in Russia and to any Russian outside Russia.  So, if that a Russian granted asylum in the United States is one of the victims of a natural disaster, FEMA could not provide any financial relief to that Russian.  That’ll teach Russia!

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