On December 22, 2021, the US Treasury Department’s Office of Foreign Assets Control (OFAC) issued three general licenses (GLs) to authorize additional activities involving the Taliban and the Haqqani Network in Afghanistan that would otherwise be prohibited under the Global Terrorism Sanctions Regulations, 31 CFR part 594 (GTSR), the Foreign Terrorist Organizations Sanctions Regulations, 31 CFR part 597 (FTOSR), and Executive Order (EO) 13224. In comparison to earlier authorizations, the new GLs significantly expand the permissible activities that can be undertaken in Afghanistan by the US government, the United Nations (UN), nongovernmental organizations, and various other international organizations named in the GLs.
According to an accompanying Treasury Department news release, the new GLs build on GLs issued in September 2021, after the fall of the Afghan government, and are intended “to facilitate the continued flow of humanitarian assistance and other support for the Afghan people.” The GLs coincide with the adoption of UN Security Council Resolution (UNSCR) 2615 (2021), also on December 22, 2021, which establishes several humanitarian exemptions to the UN Afghanistan-related sanctions regime under USCR 1988 (2011).
OFAC also issued a Fact Sheet on humanitarian support to Afghanistan, stating that the Treasury Department seeks to ensure that humanitarian assistance and other support to the Afghan people “can continue to flow directly to Afghanistan through transparent and legitimate channels.” The Fact Sheet also explains that the Treasury Department seeks to enable Afghans and Afghan-Americans to support their families through personal remittances.
The new GLs are:
- GL No. 17—authorizing transactions and activities that are for the conduct of the official business of the US government by its employees, grantees, or contractors;
- GL No. 18—authorizing transactions and activities that are for the conduct of the official business of (i) the UN (including its Programmes, Funds, and Other Entities and Bodies, as well as its Specialized Agencies and Related Organizations); (ii) the International Centre for Settlement of Investment Disputes (ICSID) and the Multilateral Investment Guarantee Agency (MIGA); (iii) the African Development Bank Group, the Asian Development Bank, the European Bank for Reconstruction and Development, and the Inter-American Development Bank Group (IDB Group), including any fund entity administered or established by any of the foregoing; (iv) the International Committee of the Red Cross and the International Federation of Red Cross and Red Crescent Societies; and (v) the Islamic Development Bank, by those organizations’ employees, grantees, or contractors.
- GL No. 19—authorizing transactions and activities that are ordinarily incident and necessary to the activities of nongovernmental organizations (NGOs) related to (i) humanitarian projects to meet basic human needs in Afghanistan; (ii) rule of law, citizen participation, government accountability and transparency, human rights and fundamental freedoms, access to information, and civil society development projects, in Afghanistan; (iii) education in Afghanistan; (iv) non-commercial development projects directly benefitting the Afghan people; and (v) environmental and natural resource protection in Afghanistan.
Like earlier GLs, the new GLs apply to transactions involving the Taliban or the Haqqani Network, which are designated by the US government as Specially Designated Global Terrorist (SDGTs), as well as legal entities that are owned 50 percent or more by them. However, as noted in newly issued FAQ 951, there are numerous other individuals and entities operating in Afghanistan that are designated as SDGTs or Specially Designated Nationals (SDNs) that are not covered by any OFAC GLs and with whom activities are still prohibited under OFAC regulations when subject to US jurisdiction.
Additionally, the GLs do not apply to financial transfers involving the Taliban or the Haqqani Network other than for the purpose of effecting the payment of taxes, fees, or import duties, or the purchase or receipt of permits, licenses, or public utility services. The GLs also do not authorize debits from blocked accounts held by US financial institutions or activities that would otherwise be prohibited under OFAC regulations (e.g., transactions involving specific Taliban members who are individually designated as SDGTs or SDNs).
Practically speaking, the new GLs build on GL No. 14 of September 24, 2021, which is limited to activities of the above organizations “that are ordinarily incident and necessary to the provision of humanitarian assistance to Afghanistan or other activities that support basic human needs in Afghanistan.” The new GLs should enable NGOs and other organizations to undertake a wider range of activities that are not clearly authorized under GL No. 14.
In conjunction with the new GLs, OFAC updated three FAQs and issued six new FAQs (950, 951, 952, 953, 954, and 955). Of note, FAQ 951 clarifies that Afghanistan is not subject to comprehensive sanctions. FAQ 952 provides guidance on identifying the involvement of SDNs who are members of the Taliban and the Haqqani Network (with whom transactions remain prohibited, since those individual SDNs are outside the scope of the new GLs) using OFAC’s SDN List and all information at a user’s disposal. FAQ 953 clarifies that it is not generally prohibited to send money in or out of Afghanistan, regardless of the form of payment. FAQ 954 clarifies that purchase of fuel, telecommunications fees, rents, and other routine transactions may be covered by one or more GLs if they are ordinarily incident and necessary to a licensed activity by an NGO or other authorized person.
For more information about GL No. 14, as well as GL No. 15 authorizing exports and reexports of agricultural commodities, medicine, and medical devices to Afghanistan, see this article by Steptoe lawyers published in the November 2021 issue of WorldECR.
Prior to the new GLs, OFAC issued GL No. 16, on December 10, 2021, which authorizes noncommercial, personal remittances to Afghanistan involving the Taliban or the Haqqani Network that would otherwise be prohibited under the GTSR, the FTOSR, or EO 13224. The authorization in GL No. 16 extends to transfers through Afghan depository institutions but has limitations similar to those in the other Afghanistan-related GLs: financial transfers to the Taliban or the Haqqani Network (or to any entity owned 50 percent or more by them) are only authorized for the payment of reasonable and customary taxes, fees, or other duties.
For more information on how these authorizations may impact your organization, contact a member of Steptoe’s Economic Sanctions team.