We recently received a question regarding whether or not the export of animals from the United States to Burma would be prohibited by current economic sanctions targeting that country. Moreover, the question asked whether the United States Department of the Treasury Office of Foreign Assets Control (OFAC) would be open to licensing such exports given their new general license on the export of food to Iran and Sudan.

While there is a licensing policy in place regarding the export of animals and specimens to Burma, which allows for export in sample quantities only, for bona fide scientific research and analysis purposes, I highly doubt that OFAC would view that licensing policy any differently now that there is a general license for export of food to Iran and Sudan.

First, there needs to be an understanding that animals do not necessarily fall under the definition of food, although certain animals are used for human consumption. There has been some confusion about the new export of food general licenses and some have construed it to mean anything that was previously referred to as an agricultural commodity. This is not the case and it should carefully be considered whether or not an article is actually deemed to be food under the general license before exporting it.

Second, every sanctions program is viewed on a case by case basis in light of current foreign policy objectives regarding that program. The U.S. government’s foreign policy objectives vary from program to program. Therefore, just because they deem something permissible in one program does not mean that such permissible activity should be allowed in another program. As such, I do not believe recent changes to the Iran and Sudan programs will have any impact on OFAC’s willingness to allow the export of animals to Burma.

Anyone who seeks licensing from OFAC, but is unsure of whether OFAC would be willing to license a certain activity, can file a request for interpretative guidance. The request for interpretative guidance is not a request for authorization, but rather a request for OFAC to clarify some aspect of their regulations or policy in light of the specific circumstances of your case. This type of request is useful, particularly when exploring the feasibility of engaging in certain transactions which may have some nexus to a sanctioned party or country. The downside to this, however, is that it does generally take OFAC quite a bit of time to respond to these requests so you could be waiting for quite a while on a response. That said, when you have fairly complicated and ambiguous laws and shifting foreign policy considerations, sometimes the best thing you can do is ask OFAC directly whether they are open to licensing a particular activity.

The author of this blog is Erich Ferrari, an attorney specializing in OFAC matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.