On April 21, 2022, President Biden issued a declaration of national emergency on behalf of the United States relating to the ongoing policies and actions of the Russian government in continuing its war against Ukraine and its attendant disruptive effects on international relations, and to that end, issued a sweeping prohibition on Russian-affiliated vessels from entering into United States ports.
The prohibition will be effective as of April 28, 2022 at 12:01 a.m. EDT and has been immediately transmitted to Congress.
As the proclamation relies on the emergency powers contained within the National Emergencies Act (“NEA”), as well as the Magnuson Act, these prohibitions need no further act of Congress or implementing rule or regulation to take effect. Further rules and regulations may be in the offing, as the proclamation additionally authorizes and delegates authority to the Secretary of the U.S. Department of Homeland Security to make and issue further rules and regulations as the Secretary may find appropriate to regulate the anchorage and movement of Russian-affiliated vessels under the Magnuson Act.
Vessel owners, vessel operators and commercial and technical managers should take particular note that the definition of what is a “Russian-affiliated vessel” is broad. For purposes of the proclamation, a Russian-affiliated vessel means and includes (i) Russian-flagged vessels, (ii) Russian-owned vessels, or (iii) Russian-operated vessels. With respect to a vessel that is “Russian owned”, ownership refers to “the legal title of ownership of the vessel that appears on the ship’s registration documents is the Government of the Russian Federation or a Russian company, citizen, or permanent resident. And, a vessel that is “Russian operated” means that a “Russian company, citizen, or permanent resident is responsible for the commercial decisions concerning the employment of a ship and decides how and where that asset is employed.”
There are also only limited exceptions to the prohibition on Russian-affiliated vessels from entering into United States ports contained in the Declaration. The prohibition contained in the proclamation applies except (i) to Russian-affiliated vessels used in the transport of “source material, special nuclear material, and nuclear byproduct material” as to which the Secretary of Energy, in consultation with the Secretary of State and Secretary of Commerce, determines that no viable source of supply is available that would not require transport by Russian-affiliated vessels; and (ii) to Russian-affiliated vessels requesting only to enter United States ports due to force majeure, solely to allow seafarers of any nationality to disembark or embark for purposes of conducting crew changes, emergency medical care, or for other humanitarian need.
If you have any questions regarding the matters covered in this e-mail, please contact Bruce Paulsen (212) 574-1533, Brian Maloney (212) 574-1448 and Andrew Jacobson (212) 574-1477 in the Litigation Group or your primary attorney at Seward & Kissel.
