On January 17, 2023, the US Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) amended (i) certain Russia-related General Licenses (“GLs”) and (ii) four Russia-related Frequently Asked Questions (“FAQs”).
Amended General Licenses
Amended GLs include the following:
- GL 6C, “Transactions Related to Agricultural Commodities, Medicine, Medical Devices, Replacement Parts and Components, or Software Updates, the Coronavirus Disease 2019 (COVID-19) Pandemic, or Clinical Trials,” replaces and supersedes GL 6B (see previous blog post here) and was expanded in three significant ways as follows:
- GL 6C now authorizes the “provision” (in addition to production, manufacturing, sale and transport) of agricultural commodities, agricultural equipment, medicine, medical devices, replacement parts and components for medical devices, or software updates for medical devices;
- GL 6C is no longer limited to “ongoing” clinical trials, but would also apply to new clinical trials; and
- GL 6C now also authorizes certain services that would otherwise be prohibited under the Determination pursuant to Section 1(a)(ii) of Executive Order (“EO”) 14071, i.e., under the accounting, trust and corporate formation and management consulting services ban of EO 14071. This may be helpful for companies in the agricultural and life sciences sector needing to provide such services on an ongoing basis where US persons may be involved, but where the carve-outs for US-owned/controlled entities or divestments do not apply. (We note that GL 6C continues not to overcome EO 14071’s prohibitions regarding investments.)
- GL 28B, concerning transactions with Public Joint Stock Company Transkapitalbank and entities in which it owns 50% or more (“TKB Entities”) that are destined for or originating from Afghanistan (see previous blog post here), has been narrowed from authorizing “all transactions” to only those activities ordinarily incident and necessary to the wind down of transactions involving TKB Entities. Any payment to a TKB Entity must be made into a blocked account. A note clarifies that wind down activities include the closure of correspondent accounts operated by US financial institutions on behalf of TKB Entities. Importantly, US persons are authorized to reject, rather than block, all transactions ordinarily incident and necessary to the processing of funds ultimately destined for or originating from Afghanistan involving one or more TKB Entities as an originating, intermediary or beneficiary financial institution prohibited by EO 14024 through the wind down period. GL 28B’s wind-down period has been extended from January 18, 2023 to 12:01 a.m. Eastern time on March 18, 2023.
Amended Russia-Related FAQs
FAQ 982 clarifies that US persons may not buy or sell debt or equity of Russian financial institutions blocked pursuant to EO 14024, unless otherwise authorized, i.e., under any applicable authorization. The prior version of the FAQ limited the applicable authorization to GL 6A. FAQ 982 also clarifies that a US fund that contains blocked holdings generally is not itself considered a blocked entity unless such blocked holdings represent a 50% or more share (rather than a predominant share as was previously the case) by value of the fund.
FAQ 1054 similarly clarifies that the purchase of shares in a US fund would not be considered “new investment” prohibited under EOs 14066, 14068, or 14071 (“Investment Ban EOs”) unless the fund’s holdings of debt or equity securities issued by Russian entities represent a 50% or more share by value of the fund. Again, the “predominant” language was removed. Additionally, FAQ 1054 removes the references to expired wind-down general license, i.e., GL 45.
FAQ 1055 clarifies that the Investment Ban EOs do not prohibit US persons from lending funds to, or purchasing a debt or equity interest in, non-Russian entities, provided that (1) the funds are not specifically intended for new projects or operations in Russia and (2) the non-Russian entity derives less than 50% of its revenues from Russian investments (previously, this stated “not predominantly derived”). FAQ 1055 also adds guidance on determining the percentage of revenue derived from Russia (including with respect to entities located outside Russia that derive a portion of their revenues from Russia), and examples of transactions that OFAC does and does not consider to be “new investment” under the Investment Ban EOs. Our prior blog posts on these Investment Ban EOs can be found here and here, and related FAQs here.
FAQ 1059 concerns the scope of the prohibitions under the determinations made pursuant to EO 14071. OFAC has modified the first example of services that would be prohibited to include all scenarios where the trust exists to hold, sell, or purchase assets on behalf of a settlor, trustor, or beneficiary who is an individual ordinarily resident in Russia, not just where the trust exists predominantly to do the same.
The authors acknowledge the assistance of Alexandra Kumar with the preparation of this blog post.