On August 8, 2018, the US State Department announced that it would be imposing new sanctions on Russia pursuant to the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 (CBW Act).  The new sanctions are in response to a determination by the US government that the Russian government was behind the recent use of a nerve agent in the United Kingdom against two UK citizens.  The CBW Act requires the imposition of sanctions following a determination by the President (delegated to the Secretary of State) of the use of chemical or biological weapons in violation of international law or in lethal form against one’s own nationals.  Sanctions under the CBW Act, which are expected to take effect on August 22nd, include the termination of foreign assistance, suspension of sales of defense articles or services, denial of credit or other financial assistance by the US government, and a prohibition of exports of national security-sensitive goods and technology.  In a background briefing the State Department announced that it is making “a number of carve-outs” to these sanctions to allow the continuation of certain foreign assistance; exports for space flight activities, safety of commercial passenger aviation, and “purely commercial end users for civilian end uses”; and perhaps other activities.  A Federal Register notice that is to be published by the State Department on August 22 should explain the sanctions and carve-outs in more detail.  According to the State Department, this is the third occasion on which sanctions have been imposed under the CBW Act.  Sanctions under the Act were imposed against Syria in 2013 and against North Korea earlier this year.

Under the CBW Act, additional, more significant sanctions must be imposed in another three months unless the US government determines at that time that the relevant foreign government is no longer using chemical or biological weapons, that the government has provided reasonable assurances that it will not in the future use such weapons, and that on-site inspections or other reliable means can be used to verify compliance.  If the US government cannot make this determination, then the CBW Act requires the imposition of at least three of a “menu” of additional sanctions, including US opposition to the extension of loans or financial assistance to that country by international financial institutions, the prohibition of providing credit to the government by US banks, the prohibition of most exports and imports involving that country, the downgrade or suspension of diplomatic relations, and the possible suspension of aviation rights into the United States.  Removal of sanctions is possible following certain reassurances regarding no use or preparations to use chemical or biological weapons and the allowance of on-site inspections.

A waiver of any of the CBW Act sanctions is possible if the President determines and certifies to Congress that the waiver is essential to the national security interests of the United States. 

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Photo of Alexandra Baj Alexandra Baj

Alex Baj’s practice primarily involves export controls and economic sanctions laws and regulations, anti-corruption investigations and compliance, international trade, and security clearance issues. Alex advises clients on export control and economic sanctions laws and regulations, including the Export Administration Regulations (EAR), International Traffic in Arms Regulations (ITAR), US sanctions regulations administered by the Office of Foreign Assets Control (OFAC), and nuclear export controls under the jurisdiction of the Nuclear Regulatory Commission (NRC).  Alex specializes in the development and implementation of export and anti-corruption compliance policies and procedures and training, internal investigations and voluntary disclosures under the EAR, the ITAR, and OFAC rules, due diligence for mergers and acquisitions, and on encryption and cybersecurity export controls.  Her clients include companies involved in defense, aerospace, software, semiconductor, and uranium processing industries.

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Photo of Brian Egan Brian Egan

Brian Egan advises on a number of international legal issues that affect US and foreign clients, including economic sanctions, export controls, and anti-money laundering programs; national security trade and investment reviews; international arbitration and other cross-border disputes; international cybersecurity and data privacy; and issues of public international law. He has worked in various senior legal positions for the US government, giving him keen insight into domestic and international legal matters that influence US government national security and foreign relations policies and programs. Before joining Steptoe, Brian served as the Legal Adviser to the US Department of State, the Legal Adviser to the National Security Council, Deputy White House Counsel, and Assistant General Counsel for Enforcement and Intelligence with the US Department of the Treasury. Brian has regularly appeared in public fora to speak on international legal issues, including testifying before Congress, public speaking engagements, and panel presentations.

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