I came across an interesting case recently in regards to the general license for legal services under the Burmese Sanctions Regulations, 31 CFR 537.507. That section allows for, among other things, the representation of parties blocked pursuant to 31 CFR 537.201(a) in matters involving representation before any federal or state agency with respect to the imposition, administration, or enforcement of U.S. sanctions against such persons. Upon looking at 537.201(a) one sees that subsection (a)(1) explicitly prohibits dealings in property owned or controlled by persons blocked pursuant to Executive Order (“E.O.”) 13310. Subsection (a)(2) goes on to include persons designated by Treasury who are senior officials of the Government of Burma, the State Peace and Development Council of Burma, the Union Solidarity and Development Association of Burma, or any successor entity to any of the foregoing, or who are owned or controlled by such parties.

Easy enough, right? Well here’s the kicker. There is a note to paragraph (a) which states that the names of persons who are blocked pursuant to paragraph (a) of this section are published in the Federal Register and incorporated into the Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List (“SDN List”) with the identifier “[BURMA].” Reading it one way it could be interpreted to say that those blocked under 537.201(a) are identified as [BURMA], meaning that anyone with the designation of [BURMA] on the List of Specially Designated Nationals and Blocked Persons (“SDN List”) maintained by the United States Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) is deemed a blocked person for purposes of 539.201(a), and therefore, anyone providing legal services under 537.507 would be allowed to provide those services to anyone on the SDN List with the [BURMA] identifier.

However, this is not how OFAC reads the note to 537.201(a). They interpret it as anyone who is listed in the Annex to E.O. 13310 and/or a senior official of any of the named groups or owned or controlled by such officials will have the [BURMA] identifier associated with their name. There is no mention that such identifier is also used for other SDNs designated pursuant to other executive orders. To further complicate matters, other general licenses for legal services in other programs do not typically have some delineations. As such, while it would not be unreasonable to assume the former interpretation without knowing how OFAC actually interprets the regulation, that is not the case.

And therein lies the challenge of interpreting OFAC regulations. Due to the wording of some regulations different interpretations can be construed. The good news here is that if you are planning to represent a party designated as [BURMA], but not designated under E.O. 13310, then you’re likely to want to get paid, and will have to apply for a specific license to do so. It will be at that time where OFAC may issue you a license to not only get paid but also to provide the services. That said, if you are planning on performing legal services for an SDN identified as [BURMA], but not designated pursuant to E.O. 13310, on a pro bono basis, it’s not safe to assume that 537.507 covers them.