Following the G7 Finance Ministers Meeting on September 2, 2022 (see our previous blog here), on September 9, 2022, the US Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) issued preliminary guidance on implementation of the policy banning the provision of services related to the maritime transportation of (i) Russian-origin crude oil and (ii) Russian-origin petroleum products (together “seaborne Russian oil”) (the “Maritime Services Policy”).
The ban under the Maritime Services Policy will take effect on December 5, 2022 with respect to crude oil and on February 5, 2023 with respect to petroleum products.
OFAC explained that the Maritime Services Policy is intended to (1) maintain a reliable supply of seaborne Russian oil to the global market; (2) reduce upward pressure on energy prices; and (3) reduce revenues that Russia earns from oil.
To implement the Maritime Services Policy, OFAC anticipates issuing a determination under Executive Order 14071 of April 6, 2022 (“EO 14071“) which will:
(i) permit the exportation, reexportation, sale, or supply, directly or indirectly, from the United States, or by a United States person, wherever located, of services related to the maritime transportation of seaborne Russian oil, if the seaborne Russian oil is purchased at or below the price cap, and
(ii) prohibit such services if the seaborne Russian oil is purchased above the price cap.
Price Exception: The ban will have one important and express exception. Services to jurisdictions or actors that purchase seaborne Russian oil at or below a price cap (to be established by the coalition of countries adhering to and implementing the Maritime Services Policy) will not be prohibited (“Price Exception”). In other words, under the Price Exception, entities purchasing seaborne Russian oil at or below the price cap may continue to receive maritime services related to such purchases. Also, service providers (e.g., commodities brokers/traders, trade finance financial institutions, insurers, etc.) in countries implementing the Price Exception may provide such services for shipments of seaborne Russian oil sold at or below the price cap.
Compliance with the Price Exception will rely on recordkeeping, due diligence, and an attestation process which will allow parties the ability to demonstrate that seaborne Russian oil was purchased at or below the price cap. Parties relying on the Price Exception will be categorized into three tiers based on their level of access to seaborne Russian oil pricing information and subject to certain requirements based on tier classification, which are identified in the FAQs provided by OFAC found here. Adherence to the recordkeeping and attestation process will provide a “safe harbor” from OFAC enforcement action.
The guidance states that OFAC will issue further guidance on the type of covered services and how the price cap will be published and updated.
Additionally, OFAC has identified the following as potential “red flags” businesses should be aware of when reviewing transactions for possible price cap evasion:
- Refusal or reluctance to provide requested price information;
- Unusually favorable payment terms, inflated costs, or insistence on using circuitous or opaque payment mechanisms;
- Indications of manipulated shipping documentation, such as discrepancies of cargo type, voyage numbers, weights or quantities, serial numbers, shipment dates, etc.;
- Newly formed companies or intermediaries, especially if registered in high-risk jurisdictions; and
- Abnormal shipping routes.
OFAC also emphasized that, while the Maritime Services Policy will allow for services to be rendered related to maritime transportation of seaborne Russian oil to the extent the Price Exception applies, the importation into the United States of Russian-origin oil, petroleum, petroleum fuels, oils, and products for their distillation will remain prohibited pursuant to Executive Order 14066 of March 8, 2022 (please see our previous blog here for more information regarding the US import ban on Russian-origin oil, petroleum, etc.).
