OFAC Issues Sanctions in Response to Belarus’s Forced Diversion of a Ryanair Flight

On June 21, 2021, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) designated sixteen individuals and five entities pursuant to Executive Order ("E.O.") 13405 of June 16, 2006, entitled "Blocking Property of Certain Persons Undermining Democratic Processes or Institutions in Belarus." According to a press release, OFAC designated these individuals and entities in response to, inter alia, the "reckless forced diversion of a commercial Ryanair flight and arrest of journalist Raman Pratasevich . . . and his companion, Sofia Sapega . . . ."

This is in reference to the May 23, 2021 Ryanair flight from Athens, Greece to Vilnius, Lithuania that made an abrupt change of course to Belarus. In a press release, the White House pointed to "Belarus’s forced diversion of [the] Ryanair flight under false pretenses . . . and the subsequent removal and arrest of Raman Pratasevich, a Belarusian journalist" as the basis for the new sanctions.

The June 21, 2021 designations included:

• Lukashenka’s press secretary for having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services in support of, Lukashenka;
• The Chairperson of the Council of the Republic of the National Assembly and the Belarusian Parliament’s upper house, for acting or purporting to act for or on behalf of, directly or indirectly, Lukashenka;
• Six individuals and four entities for "their roles in the violent crackdown on peaceful protests following the August 9, 2020, fraudulent Belarusian presidential election";
• A detention center for having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services in support of, human rights abuses related to political repression in Belarus, where "[f]ollowing the peaceful protests against the fraudulent August 9, 2020 presidential election, many protesters have been arrested and subsequently detained"; and
• Eight members of the previously designated Central Commission of the Republic of Belarus on Elections and Holding Republican Referenda, "for falsely proclaiming Lukashenka the winner of the August 9, 2020, fraudulent presidential election despite a number of significant irregularities . . . ."

As a result of these designations, all property and interests in property of the individuals and entities described above that are in the U.S. or in the possession or control of U.S. persons are blocked and must be reported to OFAC. In addition, any entities that are owned, directly or indirectly, 50% or more by one or more blocked persons are also blocked. Unless authorized by a general or specific license, or otherwise exempt, all transactions by U.S. persons that involve any property or interests in property of these designated persons are generally prohibited. The prohibitions include the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any blocked person, or the receipt of any contribution or provision of funds, goods, or services from any such person.

According to OFAC, "[a]longside the actions taken today by Canada, the European Union (EU), and the United Kingdom (UK), these designations demonstrate steadfast transatlantic commitment to supporting the Belarusian people and their democratic aspirations."

General License 3 

On the same day, OFAC issued General License ("GL") 3. GL 3 authorizes all transactions and activities prohibited by the Belarus Sanctions Regulations, 31 CFR part 548 (the "BSR"), involving the State Security Committee of the Republic of Belarus (the "Belarusian KGB"), provided that such transactions and activities are necessary and ordinarily incident to:

• Requesting, receiving, utilizing, paying for, or dealing in licenses, permits, certifications, or notifications issued or registered by the Belarusian KGB for the importation, distribution, or use of information technology products in Belarus, provided that: (i) the exportation, re-exportation, or provision of any goods or technology that are subject to the Export Administration Regulations is licensed or otherwise authorized by the Department of Commerce; and (ii) the payment of any fees to the Belarusian KGB for such licenses, permits, certifications, or notifications does not exceed $5,000 in any calendar year;
• Complying with law enforcement or administrative actions or investigations involving the Belarusian KGB; and
• Complying with rules and regulations administered by the Belarusian KGB.

Notably, GL 3 does not authorize:

• The exportation, re-exportation, or provision of goods or technology to or on behalf of the Belarusian KGB;
• The transfer of any property or debiting of any account blocked pursuant to any E.O., statute, or 31 CFR chapter V; nor
• Any transactions or activities otherwise prohibited by the BSR, prohibited by any other part of 31 CFR chapter V, statute, or E.O., or involving any other blocked person.

Frequently Asked Questions

On the same day, OFAC issued two related Frequently Asked Questions ("FAQs"). Generally, OFAC issues public guidance related to its sanctions programs in the form of FAQs published on its website. The new FAQs are summarized below.

FAQ 912 clarifies that GL 3 authorizes transactions and activities with the Belarusian KGB that are necessary and ordinarily incident to requesting, receiving, utilizing, paying for, or dealing in certain licenses and authorizations for the importation, distribution, or use of certain information technology products in Belarus. GL 3 also authorizes transactions and activities necessary and ordinarily incident to compliance with rules and regulations administered by, and certain actions or investigations involving, the Belarusian KGB. OFAC emphasized that, "GL 3 only authorizes certain transactions and activities with the Belarusian KGB acting in its administrative capacity and does not authorize U.S. persons to engage in transactions and activities with the Belarusian KGB except for the limited purposes described above."

FAQ 913 clarifies that GL 3 does not authorize the exportation, re-exportation, or provision of any goods, technology, or services to the Belarusian KGB or any other blocked person, except for the limited purposes of complying with rules and regulations administered by, and certain actions and investigations involving, the Belarusian KGB or requesting certain licenses or authorizations for the importation, distribution, or use of information technology products in Belarus.

We will continue to monitor developments in this area, and encourage you to subscribe to be kept informed of latest developments. Please contact the authors or your usual Herbert Smith Freehills contacts for more information.