The U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) reportedly issued its final batch of specific licenses to Airbus for the export or re-export of civil passenger aircraft to Iran. According to Reuters, the licenses will permit the proposed sale of 106 civil passenger aircraft to Iran, which should complete legal permissions for Airbus’ mega-deal with Iran (at least from OFAC). There is now growing expectation that OFAC will provide similar license authorization to Boeing in the weeks ahead to ensure that it can complete its proposed sale to Tehran as well.

While the U.S. State Department spokesperson argued that the issuance of the licenses was “not a final push” by the Obama administration to fortify the nuclear accord in its last weeks, there should be no mistake that the surprise election of Donald Trump spurred OFAC to quickly issue the licenses before the transition. As an avowed opponent of the JCPOA, it is unclear whether President-elect Trump would affirmatively license the sale of aircraft to Iran – despite the express U.S. obligation to do so under the terms of the nuclear accord. As I have argued, the fact that President-elect Trump will be obligated to take positive action to implement and support the JCPOA increases the political volatility surrounding the nuclear accord and presents a serious risk impediment to U.S. and foreign companies considering lawful engagement with the Iranian market, including the Boeing and Airbus mega-sales to Iran.

However, OFAC’s issuance of the licenses does not resolve concerns on this front. Indeed, as I have noted, specific licenses almost universally contain a provision permitting OFAC to revoke them upon notice. Specific licenses issued to Boeing and Airbus for the sale of aircraft to Iran will be no different – particularly, considering the fact that the JCPOA itself releases the United States from its obligation to allow for the sale of civil passenger aircraft to Iran upon a determination that Iran is transferring the aircraft to certain designated parties or is otherwise using the aircraft for certain illicit purposes (such as the transfer of arms to Syria, etc.). That means that an incoming Trump administration could – as a practical matter – revoke the licenses already issued to Boeing and Airbus. Because the actual export or re-export of aircraft to Iran is likely to take place over the next decade or longer, the effect of the revocation will be to prohibit the sale of aircraft to Iran altogether. In other words, the risks for Boeing and Airbus remain appreciable – despite the issuance of specific license authorization to the two aircraft manufacturers.

Nonetheless, the issuance of the licenses does overcome at least one significant hurdle. If the licenses had not been issued prior to the Obama administration’s departure, it would have been incumbent upon the incoming Trump administration to issue the licenses. It is unclear whether the Trump administration would issue the licenses at all; or if they chose to do so, those licenses could have been so caveated as to effectively deny Iran the opportunity to purchase the aircraft at all. Issuing the licenses prior to transition avoids some of these problems – at least in the short term.