For many years, OFAC loved to toy with lawyers at conferences by rattling the facilitation sabre. Spokespersons for the agency would do so by suggesting that the day was coming when OFAC would go after lawyers under the facilitation doctrine, particularly when lawyers were providing advice to people that they were outside the scope of U.S. economic sanctions.

This was not an idle threat.  OFAC had tried this before.  Donald Looper, an American lawyer, had his briefcase seized by Customs as he returned to the United States after advising a Bermuda corporation on a proposed deal with Libya.  OFAC claimed that he was, by providing such advice, assisting his client in evading or avoiding sanctions.   Looper brought suit to prevent the examination of attorney-client privileged material in his briefcase.   The District Court had this to say about OFAC’s position:

[t]he Constitution certainly cannot abide the Kafkaesque interpretation that OFAC proposes–that the Libyan sanctions prohibit, at the whim of OFAC regulators, any effort to structure transactions with the purpose of complying with the remainder of the Libyan sanctions regulations, including any attempt to hire an attorney for guidance.

Ouch. Notwithstanding this smackdown, OFAC continued, at least informally, to caution attorneys that advice to clients might overstep the facilitation prohibition insofar as a lawyer might, in the language of the typical prohibition on facilitation, “approve … any transaction by a foreign person where the transaction by that foreign person would be prohibited by this part if performed by a United States person.”

Lawyers have typically attempted to negotiate this issue by trying to make sure that advice provided to non-U.S. persons that they were not covered by sanctions programs was not given in a way that could be characterized as approval of the transaction. This was a strategy, of course, that worked better for outside counsel than in-house counsel.

By a guidance released last week on January 12, OFAC finally put this issue to rest.

U.S. persons have been able to provide, and may continue to provide, the services below relating to the requirements of U.S. sanctions laws to covered persons: Opining on the legality of specific transactions under U.S. sanctions laws regardless of whether it would be prohibited for a U.S. person to engage in those transactions.

This statement, however, was immediately followed by an obtuse qualification:

U.S. persons may solicit information from [U.S. persons and non-blocked foreign persons] and conduct research to make a determination as to the legality of transactions under U.S. sanctions laws provided there is no importation of services where the importation of services is prohibited by any part of [OFAC’s regulations].

My best guess is this means that if a lawyer were, say, advising a German company on the legality under the Iran sanctions of a transaction by a German company in Iran, the U.S. lawyer could not query the counterparties in Iran (or their lawyers) about the scope of the transaction to make that determination. However, I’m not sure why that would ever be necessary. Comments from any readers on what this qualification might actually mean are welcome.

Yesterday the Office of Foreign Assets Control (“OFAC”) announced that it had levied a $17,500 fine against Aban Offshore Ltd. (“AOL”), an Indian oil rig company, because AOL’s subsidiary in Singapore arranged to have oil rig equipment, presumably U.S. origin although not stated as such, re-exported from Saudi Arabia to Iran. This was alleged to have been in violation of section 560.204 of the Iranian Transactions and Sanctions Regulations (“ITSR”) which prohibits re-exportations from the United States to Iran.

The OFAC action is more than a little peculiar. Both AOL and it’s Singapore subsidiary are not U.S. persons and so it would seem that section 560.205 of the ITSR, which covers “reexportation of goods … by persons other than United States persons” would be the applicable provision. Of course, that section only penalizes re-exports of items that require a license from BIS for export to Iran. See § 560.205(a)(2). The oil rig equipment was almost certainly EAR99, although the OFAC document is oddly silent on this point, and would not have required a license under either sections 742.8 or 746.7 of the EAR.

It looks like what OFAC is doing here is pretending that section 560.205 does not limit section 560.204 at all. On its face, and without reference to section 560.205, section 560.204 prohibits re-exports by anyone, U.S. persons and non-U.S. persons alike, from the United States to Iran without regard to whether the item would require a BIS license. But if section 560.204 is intended to be read that broadly, there is no reason for section 560.205 to exist at all. It would simply be swallowed up by the breadth of section 560.204 rather than serve as a qualification of the scope of 560.204 for non-U.S. persons.

Granted agencies have broad latitude to interpret their own regulations, but that latitude does not go so far as to allow an agency to read one rule in a way as to render another rule absolutely meaningless.  As it stands, OFAC has read section 560.205 out of its rules and held that non-U.S. persons can now be held liable for re-exports of U.S. origin EAR99 items to Iran.