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OFAC Issues New General Licenses Related to Russia-Related New Investment Prohibition and Updates FAQs

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On July 22, 2022, the US Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) issued two new Russia-related general licenses (“GLs”), published two new FAQs regarding these GLs, and amended two existing Russia-related FAQs. The new GLs authorize certain activities related to Russian bonds and securities and appear intended solely to help US investors wind down their financial exposure to Russia and settle certain credit default swaps following Russia’s recent June default on a sovereign bond.  OFAC also updated one of its Russia-related designations on the Specially Designated Nationals and Blocked Persons List (“SDN List”). 

The new GLs relate to Section (1)(a)(i) of Executive Order (“EO”) 14071, which prohibits US Persons, as of April 6, 2022, from engaging in any new investment, including purchasing debt and equity securities issued by an entity in the Russian Federation either directly or on secondary markets (the “New Investment Prohibition”). For further details on the scope of the New Investment Prohibition, please see our prior blog posts here and here.

GL 45: Wind Down of Certain Financial Contracts

GL 45 authorizes all transactions by US persons otherwise prohibited by the New Investment Prohibition that are ordinarily incident and necessary to the wind down of financial contracts or other agreements entered into on or before June 6, 2022 and involve, or are linked to, debt or equity issued by an non-sanctioned/non-designated entity in Russia (“Covered Contracts”). June 6 is the day before OFAC issued FAQs indicating that purchases of debt or equity issued by any Russian entity, both new-issue purchases and on secondary markets, are banned under the New Investment Prohibition. GL 45 expires at 12:01 a.m. eastern daylight time on October 20, 2022.

Specifically, the authorization in GL 45 includes: (i) purchases by US Persons of debt or equity issued by a Russian entity; and (ii) facilitating, clearing, and settling of such purchase, provided in each case ordinarily incident and necessary to the wind down of Covered Contracts. For example, per the new FAQ 1071, US Persons may purchase securities issued by an entity in Russia for purpose of covering or closing out a short position pursuant to a securities lending agreement entered into on or before June 6, 2022.

GL 46: Activities in Support of Auction Process to Settle Credit Derivatives Transactions

GL 46 authorizes the following activities that would otherwise be prohibited under the New Investment Prohibition:

  1. all transactions related to the establishment, administration, participation in, and execution of an auction process, as announced by the EMEA Credit Derivatives Determination Committee (“the Committee Auction”) to settle credit derivative transactions with a reference entity of “the Russian Federation”;
  2. the purchase or receipt of debt obligations of Russia by US Persons starting two business days before the announced date of the Committee Auction to up to eight business days after the conclusion of the Committee Auction; and
  3. all transactions ordinarily incident and necessary to facilitating, clearing, and settling transactions described in 1 or 2.

Transactions related to SDNs are not authorized under GL 46.  There is no expiration date for this general license.

OFAC’s new FAQ 1072 clarifies various points about GL 46, as follows:

  • It provides examples of transactions that may be related to the Committee Auction such as the submission and acceptance of bids and offers and physical settlement requests by auction participants and their customers, or the delivery and acceptance of the Russian debt obligations and corresponding settlement amounts.
  • GL 46 does not require the clearance and settlement of such transactions to be completed within eight business days after the conclusion of the auction.
  • Financial institutions processing transactions pursuant to GL 46 may reasonably rely upon the information available to them in the ordinary course of business to assess whether a transaction is authorized by GL 46, provided that the financial institution does not know or have reason to know that a transaction is not in compliance with GL 46.  

Finally, OFAC revised two Russia-related FAQs: FAQ 1053 and FAQ 1054. These revisions address the scope of the new investment prohibitions under EOs 14066, 14068, and 14071 and authorizations under certain relevant GLs.

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Ms Stafford Powell advises on all aspects of outbound trade compliance, including compliance planning, risk assessments, licensing, regulatory interpretations, voluntary disclosures, enforcement actions, internal investigations and audits, mergers and acquisitions and other cross-border activities. She develops compliance training, codes of conduct, compliance procedures and policies. She has particular experience in the financial services, technology/IT services, travel/hospitality, telecommunications, and manufacturing sectors.

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Alex advises clients on compliance with US export controls, trade and economic sanctions, export controls (Export Administration Regulations (EAR); International Traffic in Arms Regulations (ITAR)) and antiboycott controls. He counsels on and prepares filings to submit to the US Government's Committee on Foreign Investment in the United States (CFIUS) with respect to the acquisition of US enterprises by non-US interests. Moreover, Alex advises US and non-US companies in the context of licensing, enforcement actions, internal investigations, compliance audits, mergers and acquisitions and other cross-border transactions, and the design, implementation, and administration of compliance programs. He has negotiated enforcement settlements related to both US sanctions and the EAR.

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Vivian advises clients on a wide range of international trade issues, including US export controls such as the Export Administration Regulations (EAR), sanctions, internal investigations, and voluntary disclosure filings to the US government. She also advises clients on M&A export control, sanctions, and customs and import law due diligence reviews of target companies, in collaboration with the Firm’s M&A team in multiple jurisdictions. Further, Vivian’s practice covers multijurisdictional commercial transactions including contract localizations and post-acquisition integrations.

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