New Sanctions Against Belarus

The United States is issuing new sanctions against Belarus. In practice, they will prevent – or make very difficult – most aircraft parts transactions in support of commercial aviation in Belarus. In fact, they will generally prevent a wide range of transaction in goods that would be exported to Belarus.

The new sanctions will probably limit transactions with Belarusian air carriers like Belavia.

The Federal Register Notice will begin with the phrase “In response to Belarus’s substantial enabling of the Russian Federation’s (Russia)’s further invasion of Ukraine …” so there is no question about why these sanctions are being issued. And this also suggests that we can expect Belarus to be treated to a similar level of sanctions as Russia. You can see this being implemented through the addition of Belarus directly to the new Russia-specific sanctions programs.

Here is an outline of the new sanctions leveled against Belarus

• General licensing requirement for most exports
• Limit on the use of license exceptions
• Added to country groups D:2 and D:4
• New MEU sanctions
• New MEIU sanctions

Discussion of Belarusian Sanctions Programs

Recently, the US Government added a new regulation at 15 C.F.R. § 746.8. This new regulations applied a broad set of sanctions against Russia. In summary, anyone exporting aircraft parts (and many other BIS-controlled articles) now requires a license to export those goods to Russia (a license that will likely be denied). That same set of sanctions has been applied against Belarus. The new rule will apply 15 C.F.R. § 746.8 to Belarus, as well as to Russia.

In practice this means:

1. Aircraft parts that are controlled under an CCL categories 3 through 9 (like ECCN 9A991) will need a BIS license to be exported to Belarus or to Russia;
2. There is a presumption of denial for most such licenses;
3. Generally, license exceptions will not be permitted to be used, BUT a short list of exceptions can be used in specific cases; and
4. Among the license exceptions permitted to be used, most of them cannot be used to export aircraft parts to Belarusian and/or Russian customers.

This license requirement is the most important change for aircraft parts exporters. It means that you cannot export aircraft articles to Belarus (nor to Russia) without a BIS license, and because of the presumption of denial it will be difficult to obtain such a license.

Licensing and License Exceptions

For those who want to pursue a BIS license for exports to Belarus or Russia, the U.S. government has opened the door to license sin support of “safety of flight,” but the burden will be on the applicant to demonstrate that the transaction will not benefit the Russian or Belarusian government or defense sector. The presumption of denial, though, makes any license application an uphill battle, so we recommend using a law firm with experience in export licensing to pursue such a license (yes, a firm like ours).

The license exceptions that typically can be available are mostly forbidden. Only a short list of exceptions is available and for most civil aircraft article transactions there are limitations that will prevent them from being used to support Belarusian aircraft. The available license exceptions look like this:

• TMP: Temporary exports for use by the news media only.
• GOV: exports in support of the US government.
• TSU: software updates for US-related companies.
• BAG: for personal baggage.
• AVS: this applies to aircraft parts but it excludes exports for aircraft registered in D:1 nations, or owned/operated by nationals of D:1 nations. Both Belarus and Russia are D:1 nations.
• ENC: encryption hardware and software for US-related companies.
• CCD: applies to consumer devices like computers, TVs, phones and cameras.

If one of these license exceptions looks like it might apply to your fact pattern then read the regulation and get legal help before using it! There are plenty of details that potentially limit the applicability of each of these license exceptions. Note that the loopholes that are left are generally for supporting non-Belarusian parties who happen to be in Belarus; for example AVS may permit exports for an aircraft that is AOG in Belarus as long as the aircraft has no other connections to Belarus or Russia.

BIS maintains country groups in order to better manage sanctions programs and to limit exceptions. Belarus has been added to country groups D:2 and D:4 for additional nuclear and missile technology restrictions. Belarus was also removed from country group A:4, which was a nuclear suppliers group.

Belarus has been added to the MEU restrictions of 15 C.F.R. § 744.21 and the MEIU restrictions of 15 C.F.R. § 744.22. This imposes an additional restriction on exports for military end uses (or destined for military end users), including military intelligence end use and end users.. Remember that the list of military end users typically includes private companies who represent a “threat of diversion” to military end use, so the coverage of this rule is broader than just strict military entities.

Implementation is Now

The Belarusian sanctions Federal Register notice is expected to be published on March 8. It was posted for public inspection on the evening of March 2, though. It is expected to be effective for all transactions beginning on the public inspection date of March 2, 2022.