The U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) has issued new guidance on its Sudan and Darfur sanctions programs.
The new guidance clarifies that U.S. persons are no longer prohibited from engaging in transactions with respect to Sudan or the government of Sudan that were previously prohibited by the Sudanese Sanctions Regulations (SSR) because Sections 1 and 2 of Executive Order (EO) 13067 (Nov. 3, 1997) and all of EO 13412 (Oct. 13, 2006) were revoked in 2017. To reflect this revocation, OFAC removed the SSR from the Code of Federal Regulations (C.F.R.) in 2018.
However, this revocation did not affect OFAC sanctions on individuals and entities involved in the Darfur conflict. The national emergency declared in EO 13067 (but not the specific provisions in Sections 1 and 2 of that EO) remains in effect and provides the basis for OFAC’s sanctions on individuals and entities in connection with the conflict in Darfur, which were imposed pursuant to EO 13400 (April 2006). The revocation also does not affect OFAC designations of any Sudanese persons pursuant to sanctions authorities other than E.O.s 13067 and 13412, according to OFAC.
Sections 1 and 2 of EO 13067 previously blocked all property and interests in property of the Sudanese government that were in the United States, came within the U.S., or that came within the possession or control of U.S. persons. They also prohibited, generally, importation into the U.S. of Sudanese goods and services; exportation or reexportation of any goods, technology (including technical data, software, or other information), or services (except for donations of articles intended to relieve human suffering, such as food, clothing, and medicine); the facilitation of those exports by a U.S. person; the performance of any contract in support of an industrial, commercial, public utility, or governmental project in Sudan; the grant or extension of credits or loans to the Government of Sudan; or transportation of cargo to or from Sudan.
In addition, EO 13412 prohibited “all transactions by United States persons relating to the petroleum or petrochemical industries in Sudan, including, but not limited to, oilfield services and oil or gas pipelines, are prohibited.” It also clarified that EO 13067 did not prohibit activities or transactions “with respect to Southern Sudan, Southern Kordofan/Nuba Mountains State, Blue Nile State, Abyei, Darfur, or marginalized areas in and around Khartoum, provided that the activities or transactions do not involve any property or interests in property of the Government of Sudan.”
New Guidance Aims to Clarify Sudan Sanctions
The new guidance also explains that an OFAC license is required for “certain exports or reexports to the Government of Sudan or any other entity in Sudan of agricultural commodities, medicine or medical devices.” Because these activities are generally licensed under the Terrorism List Government Sanctions Regulations (TLGSR) no license is required for these activities, including for financing of these exports or reexports.
For certain other items such as commodities, software and technology, U.S. and non-U.S. persons must obtain necessary licenses from the Department of Commerce’s Bureau of Industry and Security (BIS) in order to export or reexport these items to Sudan. This is because Sudan remains on the State Sponsors of Terrorism list. Section 742.10 of the Export Administration Regulations (EAR) contains the anti-terrorism licensing requirements and policies specific to Sudan.
In addition, the guidance explains that the TLGSR also prohibits U.S. persons from engaging in transfers from the Government of Sudan “that would constitute a donation to a U.S. person, or with respect to which a U.S. person knows, or has reasonable cause to believe, poses a risk of furthering terrorist acts in the United States.”
Finally, the guidance notes that while certain persons were removed from OFAC’s List of Specially Designated Nationals and Blocked
Persons (SDN List) when the sanctions were revoked in 2017, some persons “may still be designated for conducting activities that are considered to be sanctionable under other authorities.”
In conjunction with the guidance, Treasury also removed eleven Sudan-related Frequently Asked Questions (FAQs); amended 10 FAQs relating to the Trade Sanctions Reform and Export Enhancement Act (TSRA) of 2000 as it applies to Sudan (FAQs 5, 97, 98, 500, 36, 42, 91, 126 and 398); and amended five other FAQs to make clear that Sudan has not been a comprehensively sanctioned country since October 12, 2017.