News
March 18, 2020

Help in a Time of COVID-19: Providing Humanitarian Assistance to Those in Need in Countries Subject to US Economic Sanctions

Coronavirus: Global Law & Public Policy Advisory

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Editorial note: This Advisory was updated May 5, 2020.

Introduction

As COVID-19 spreads across the globe, some of the countries hit hardest by the virus or at grave risk, including Iran and Syria, are subject to the most stringent US economic sanctions. There has been a growing concern that US economic sanctions are exacerbating conditions in certain of these countries (especially Iran) that are already struggling to respond to this crisis.1 The US government has longstanding mechanisms in place that permit US and non-US individuals and companies to provide medicine, medical supplies, and other humanitarian assistance under even the most restrictive US sanctions regimes. Even when the regulations themselves do not offer a clear path, it may be possible to obtain specific licenses to support humanitarian projects and programs. Navigating through US sanctions regimes can be challenging and requires thoughtfully structuring the transactions and working with financial institutions to facilitate those transactions in a manner wholly consistent with US sanctions laws and regulations.

To provide clarity on the current exemptions and authorizations for humanitarian assistance to those in need in certain sanctioned countries, the US Department of Treasury's Office of Foreign Assets Control (OFAC) recently issued a Fact Sheet on Provision of Humanitarian Assistance and Trade to Combat COVID-19 outlining such mechanisms.2 The Fact Sheet does not provide new relief from regulatory restrictions for humanitarian assistance to those sanctioned countries, but it clarifies certain aspects and scope of the humanitarian authorizations and states that OFAC is prioritizing and expediting its review of specific licenses related to provision of humanitarian assistance, as discussed further below. The Director of OFAC, Andrea Gacki, recently stated that it is one of the agency's "primary objectives . . . to make sure that sanctions do not impede humanitarian relief efforts related to the COVID-19 crisis[.]"3

We provide below an overview of various provisions that permit the provision of humanitarian trade and aid to the people of Iran, Syria, Cuba, Venezuela, North Korea, and the Crimea region of Ukraine consistent with US economic sanctions.

GENERAL OVERVIEW

Economic Sanctions. Under various economic and trade sanctions regimes maintained by OFAC, the United States prohibits US persons from engaging in transactions or dealings that involve sanctioned individuals or entities—or in the case of a few comprehensive sanctions programs, entire sanctioned countries or territories (including Iran, Syria, North Korea, Cuba, and the Crimea Region of Ukraine). Dealings with the Government of Venezuela also are significantly restricted. These prohibitions may extend to transactions involving non-US persons when there is a US nexus, such as the involvement of a US person (such as an employee or supplier), US dollars that are routed through the US financial system, or the US financial system more generally. OFAC also may impose secondary sanctions, such as limiting access to US markets, on non-US persons for engaging in certain types of prohibited transactions, even when there is no US nexus.

Export Control. In addition to the sanctions regimes maintained by OFAC, the United States also regulates the export, reexport or transfer of items that are in or originate from the United States, and certain foreign items that may incorporate or are produced using US-origin items, through export controls, including the Export Administrations Regulations (EAR), which are maintained by the Bureau of Industry and Security (BIS) within the US Department of Commerce.4 The export controls are highly item-specific and involve different restrictions based on the nature or classification of the item being exported, the end-user of the item, and other factors. Depending on these factors, BIS may require an exporter to obtain a license before the item at issue may be transferred.

Importantly, many types of medicine and medical devices are classified as "EAR99" under the EAR, which means that they may be exported without a license to most destinations.5 However, with few exceptions, even items classified as EAR99 are likely to require a license or other specific authorization for export, reexport, or transfer to certain embargoed countries and regions, including Iran, Syria, Cuba, Sudan, North Korea, and the Crimea region of Ukraine (as well as nationals of those countries who may be in a third country). Given the fact-specific nature of most BIS licensing determinations, it is essential to check whether any particular item, whether classified as EAR99 or something more restrictive, requires a license for export or not.

FEMA Temporary Rule. On April 10, 2020, the Federal Emergency Management Agency ("FEMA") issued a Temporary Rule on Prioritization and Allocation of Certain Scarce or Threatened Health and Medical Resources for Domestic Use.6 The Temporary Rule prohibits exports of the following five personal protective equipment (PPE) from the United States without explicit approval from FEMA:

  • N95 Filtering Facepiece Respirators, including devices that are disposable half-face-piece non-powered air-purifying particulate respirators intended for use to cover the nose and mouth of the wearer to help reduce wearer exposure to pathogenic biological airborne particulates;
  • Other Filtering Facepiece Respirators (e.g., those designated as N99, N100, R95, R99, R100, or P95, P99, P100), including single-use, disposable half-mask respiratory protective devices that cover the user's airway (nose and mouth) and offer protection from particulate materials at an N95 filtration efficiency level per 42 C.F.R. § 84.181;
  • Elastomeric, air-purifying respirators and appropriate particulate filters/cartridges;
  • PPE surgical masks, including masks that cover the user's nose and mouth and provide a physical barrier to fluids and particulate materials; and
  • PPE gloves or surgical gloves, including those defined at 21 C.F.R. § 880.6250 (exam gloves) and § 878.4460 (surgical gloves) and such gloves intended for the same purposes.

The FEMA Temporary Rule, which is effective from April 7, 2020 to August 10, 2020, applies even when there is an authorization, exception, or exemption from OFAC or BIS that allows the export of medical supplies from the United States. However, FEMA recently announced a number of exemptions from the Temporary Rule, including humanitarian exports by non-profit or non-governmental organizations (NGOs) that are solely for donation to foreign charities or governments for free distribution at their destinations.7

Notwithstanding these restrictions, there are many other exceptions and authorizations like the exception to the FEMA Temporary Rule for humanitarian exports of PPE that allow provision of certain medicine, medical devices, and humanitarian relief even to Iran, Syria, Cuba, Venezuela, North Korea, and the Crimea region of Ukraine, as described below.

IRAN

The United States maintains a comprehensive sanctions regime involving Iran, prohibiting almost all transactions or dealings involving Iran.8 However, there remain a number of ways to provide humanitarian goods and assistance to the Iranian people in the fight against COVID-19 consistent with US sanctions, as discussed below. As US sanctions have become increasingly restrictive over the past several years, the United States continuously has made clear that its exception for humanitarian trade remained intact. In fact, OFAC recently issued several Frequently Asked Questions (FAQs) reiterating its commitment to this exception and outlining various paths through which humanitarian goods or assistance can be provided to Iran in response to the COVID-19 crisis.9

Humanitarian Donations. The making of non-commercial humanitarian donations to recipients in Iran from the United States or by US persons, including the donation of medicine intended to relieve human suffering, is generally exempt from US sanctions on Iran.10 However, this does not authorize donations made to the Government of Iran or other individuals or entities subject to blocking sanctions or listed on OFAC's Specially Designated Nationals (SDN) List.

Commercial Sale and Export. There are also broad exceptions and authorizations that allow for the commercial sale and export of humanitarian goods, such as food, medicine, and medical devices, to Iran or the Government of Iran. For example, OFAC maintains a general license (i.e., an exception to the sanctions) for the exportation or reexportation of certain food, medicine, and medical devices to Iran, which incorporates a corollary authorization to engage in related transactions, including the arrangement of financing and payment, the making of shipping and cargo inspection arrangements, obtaining of insurance, shipping of the goods, receipt of payment according to proscribed payment mechanisms, and entry into contracts (including executory contracts).11 In the recently published Fact Sheet, OFAC specifically noted that the general license covers "most medicine and medical devices, including certain personal protective equipment and other items used for COVID-19-related treatment such as medical gowns, medical eyeshields and goggles, surgical gloves, face shields, certain respirators and masks such as N95, N99, and N100 masks, and certain ventilators."12 However, as noted above, some of these items (such as respirators, N95, N99, and N100 masks, and surgical gloves) are subject to the FEMA Temporary Rule.

The general license for humanitarian trade involving Iran does not allow for those transactions to involve individuals or entities listed on the SDN List, except SDNs that are identified only with the program tag "[IRAN]" on the SDN List, pursuant to Executive Order 13599. Therefore, persons who are considering commercial transactions involving Iran under the general license for medicine and medical devices must screen all parties involved in the transactions, directly or indirectly, to ensure that they are not on the SDN List with any program tag other than "[IRAN]."

Moreover, the general license for medicine and medical devices does not authorize transactions involving all medicine, medical devices, or persons. Certain medicine, medical devices, and persons are excluded from the ambit of the authorization. Specifically, the general license does not authorize the export or reexport of the following excluded medicines: non-NSAID analgesics, cholinergics, anticholinergics, opioids, narcotics, benzodiazapenes, and bioactive peptides.13 In addition, the general license does not authorize the export or reexport of certain excluded medical devices, such as "oxygen generators, full face mask respirators including Powered Air Purifying Respirators, certain diagnostic medical imaging equipment, and certain decontamination equipment."14 The full list of excluded medical devices can be found here.15 The general license also does not authorize the export or reexport of medicine or medical devices to military, intelligence, or law enforcement purchasers or importers.16

Although the US government is committed to supporting humanitarian trade with Iran, it is essential for individuals and companies to ensure compliance with each of the conditions required for such trade. If any of these conditions are not present, such that the general license is not applicable, one could apply for a specific license from OFAC to sell and export to Iran certain medicine or medical devices not covered by the general license, through specified procedures under the Trade Sanctions Reform and Export Enhancement Act of 2000 (TSRA).17

Transactions involving Central Bank of Iran. OFAC recently designated the Central Bank of Iran ("CBI") as an SDN under sanctions programs beyond the "[IRAN]" tag only, including those indicating association with the Islamic Revolutionary Guard Corps ([IRGC] tag) and support of global terrorism ([SDGT] and [IFSR] tags).18 Therefore, as noted above, any humanitarian trade involving the CBI would not have qualified under the general license for the export and reexport of medicine and medical devices. However, on February 27, 2020, as COVID-19 became an increasing humanitarian crisis in Iran, OFAC issued General License 8, authorizing humanitarian trade transactions for the exportation and financing of food, medicine, and medical devices to Iran, even if those transactions involve the CBI.19 Therefore, US and non-US persons may now conduct humanitarian trade with Iran, even if such trade involves the CBI in a direct or indirect role. This new CBI-related general license is limited to the CBI; the prohibition remains with respect to any other Iranian financial institutions or parties that have been designated for support of global terrorism or other OFAC sanctions programs beyond Executive Order 13599.

Framework for Financial Channels to Facilitate Humanitarian Trade with Iran. Although the United States consistently has stood behind the general license for humanitarian trade with Iran, the broader restrictions on trade with Iran have made it increasingly difficult to send or receive payment in connection with humanitarian trade. To remedy this, OFAC recently implemented a financial framework to facilitate the flow of humanitarian goods to the Iranian people while safeguarding against the Iranian regime's diversion of humanitarian trade for malign purposes.20 The framework is designed solely for the purpose of commercial exports of agricultural commodities, food, medicine, and medical devices to Iran that already are authorized under a general or specific license. Through the framework, foreign governments and foreign financial institutions may seek written confirmation from OFAC that any proposed financial channel will not be exposed to US sanctions. In exchange for participating in this new mechanism (and in turn, for the benefit of receiving such written confirmation), foreign governments and financial institutions must commit to conducting enhanced due diligence and to reporting to OFAC certain extensive information on a monthly basis.21

Non-governmental Organizations (General License E). OFAC's General License E authorizes certain services in support of NGOs' activities in Iran, including the export or reexport services to or related to Iran in support of certain not-for-profit activities designed to benefit directly the Iranian people, such as the provision of donated health-related services and the distribution of donated articles, including medicine.22 However, the transfer of funds in support of these activities may not exceed $500,000 in the aggregate over a 12-month period.23

Transactions Involving the Manufacturing Sector. Under Executive Order 13902, both US and non-US persons determined to operate in certain sectors (including the manufacturing sector) of the Iranian economy, those who knowingly engage in significant transactions relating to such sectors, and those who provide material support to persons engaged in such sectors may be subject to sanctions.24 In the recently published Fact Sheet, OFAC clarified that "persons in Iran manufacturing medicines, medical devices, or products used for sanitation, hygiene, medical care, medical safety, and manufacturing safety, including soap, hand sanitizer, ventilators, respirators, personal hygiene products, diapers, infant and childcare items, personal protective equipment, and manufacturing safety systems, for use in Iran and not for export from Iran, will not be considered to be operating in the manufacturing sector of the Iranian economy."25 In addition, OFAC noted "that persons conducting or facilitating transactions for the provision, including any sale, of agricultural commodities, food, medicine, or medical devices to Iran will not be subject to sanctions under E.O. 13902."26

Prioritization of Certain License Applications. Even if the above exceptions, exemptions, and authorizations do not provide a way to provide certain humanitarian assistance, it may be possible to obtain a specific license for a particular transaction or project. In the recently published Fact Sheet, OFAC noted that it is currently prioritizing and expediting such applications, compliance questions, and other requests related to humanitarian support for the people of Iran.27

SYRIA

The United States maintains a comprehensive sanctions regime involving Syria, which prohibits most transactions and dealings involving Syria, including making new investments in Syria and the export, reexport, sale, or supply of items or services to Syria.28 However, there remain a number of ways to provide humanitarian goods or assistance regarding COVID-19 to the Syrian people, consistent with US sanctions, as discussed below.

Provision of Medicine and Medical Services. The US sanctions regime involving Syria does not prohibit US persons from sending US-origin food or medicine to Syria, provided that the transaction does not involve individuals or entities subject to US sanctions.29 Although there are certain export control restrictions on what items may be sent to Syria, most medicines do not require a license for export to Syria.30 In addition, there is a general license under the Syria-related sanctions that authorizes the provision of non-scheduled emergency medical services, even to persons on the SDN List.31 However, it should be noted that the receipt of payment for such emergency medical services requires specific license from OFAC.32

Non-governmental Organizations. In addition, a general license authorizes certain services in support of NGOs' activities, including the export or reexport services to or related to Syria in support of certain not-for-profit activities designed to benefit directly the Syrian people, such as the provision of donated health-related services and distribution of donated articles, including medicine.33

International Organizations. A general license authorizes official activities of certain international organizations, including the United Nations, its agencies and programs, and other related organizations.34 However, this authorization does not allow transactions or activities that involve persons whose property or interests in property are blocked, other than the Government of Syria.

Prioritization of Certain License Applications. Even if the above exceptions, exemptions, and authorizations do not provide a way to provide certain humanitarian assistance, it may be possible to obtain a specific license for a particular transaction or project. In the recently published Fact Sheet, OFAC noted that it is currently prioritizing such applications, compliance questions, and other requests related to humanitarian support for the people of Syria.35

CUBA

The United States has maintained a broad and comprehensive sanctions program involving Cuba since the 1960s, prohibiting nearly all transactions and dealings involving Cuba and Cuban nationals.36 Unlike other US sanctions regimes, the US sanctions involving Cuba include a travel prohibition. Although there was some easing of Cuba-related sanctions laws in 2014,37 most of the general restrictions remain in place today. Despite these restrictions, there remain a number of ways to provide humanitarian goods and assistance to the Cuban people in the fight against COVID-19, consistent with US sanctions, as discussed below.

Donations and Remittances to Cuba. Although OFAC withdrew a general license that had authorized certain donative remittances involving Cuba in a September 9, 2019 amendment to the Cuba-related sanctions regulations, there remain a number of categories of remittances that persons subject to US jurisdiction are authorized to make to persons in Cuba.38 For example, OFAC allows making remittances to nationals of Cuba who are close relatives of the remitter, provided that the remitter's total family remittances to any one Cuban national do not exceed $1,000 in any consecutive three-month period.39 In addition, US persons may make remittances to certain individuals and independent NGOs in Cuba to support humanitarian projects (including medical and health-related projects) in or related to Cuba that are designed to benefit directly the Cuban people.40

Commercial Sale and Export. The commercial sale and export of food, medicine, and medical devices to Cuba are still subject to restrictions under both OFAC's sanctions regulations and the EAR. However, there are several licenses, or at least favorable licensing policies, on which US persons and others subject to US jurisdiction may rely in order to send items such as medicine to Cuba. Importantly, in most—but not all—instances in which an item is authorized by BIS for export or reexport to Cuba, no separate OFAC authorization is necessary with respect to payment and financing for those exports.41 Given that this dual-authorization does not apply to all exports, however, it is important to check both the OFAC and EAR restrictions for any particular export to Cuba, even in the context of humanitarian assistance.

As an initial matter, although there is one license exception under the EAR—License Exception Support for the Cuban People (SCP)—that allows for the export or reexport of certain EAR99 items that are intended to improve the living conditions in Cuba, License Exception SCP does not authorize the export or reexport or agricultural commodities, medicines, or medical devices to Cuba.42 Agricultural commodities may be exported or reexported to Cuba under a different EAR exception—License Exception Agricultural Commodities—provided that certain conditions (e.g., the item must be EAR99, the export or reexport must done within 12 months of signing a written contract, BIS is notified of the export) are met.43 On the other hand, medicine and medical devices are not covered by any BIS license exception; however, those items are eligible for a general policy of approval that BIS announced in 2014, which applies to items exported or reexported to Cuba for disaster preparedness, relief and response, public health and sanitation, and more. Indeed, BIS specifically has advised that license applications for the export and reexport of medicines and medical devices to Cuba, whether sold or donated, generally are approved.44

Finally, we note that although OFAC has a prohibition barring any vessel from entering any US port for 180 days if that vessel entered a port or place in Cuba to engage in the trade of goods or the purchase or provision of services there, there are certain exceptions to this "180-day" rule that would apply in the context of humanitarian aid. For instance, the 180-day rule would not apply to vessels that had entered a port or place in Cuba to engage in the export or reexport from a third country to Cuba of agricultural commodities, medicine, or medical devices that, were they subject to the EAR, would be designated as EAR99.

Humanitarian Projects in Cuba. Even though the US sanctions involving Cuba prohibit travel to Cuba, the regulations also incorporate a number of general licenses that authorize some travel to Cuba for certain specific purposes. One of those general licenses, issued in early 2014, allows US persons to travel to Cuba for humanitarian projects, including establishing a physical presence in Cuba in order to engage in non-commercial activities and humanitarian projects in support of the Cuban people.45 OFAC has defined authorized humanitarian projects to include, for instance, medical and health-related projects, disaster preparedness, relief, and response projects, projects to meet basic human needs, and others.46

It is important that any travel to Cuba undertaken for such purposes comply with certain conditions that OFAC has imposed with respect to authorized travel, including that the traveler's schedule of activities must not include free time or recreation in excess of that consistent with a full-time schedule in Cuba.

Assistance to Cuban Nationals in the United States. Although the US sanctions involving Cuba even extend to the provision of goods and services to Cuban nationals in the United States, there is a general license that allows for the provision of non-scheduled emergency medical services, such as emergency room services, in the United States to Cuban nationals.47

Prioritization of Certain License Applications. Even if the above exceptions, exemptions, and authorizations do not provide a way to provide certain humanitarian assistance, it may be possible to obtain a specific license for a particular transaction or project. In the recently published Fact Sheet, OFAC noted that it is currently prioritizing such applications, compliance questions, and other requests related to humanitarian support for the people of Cuba.48

VENEZUELA

The United States maintains a sanctions regime involving Venezuela, which prohibits certain transactions and dealings with sanctioned individuals and entities, including the Maduro Regime.49 Although the United States has blocked all property and interests in property of the Venezuelan Government,50 the sanctions are "designed to ensure that the flow of humanitarian goods and services to the Venezuelan people is not prohibited by US sanctions."51 Therefore, US persons are permitted to export or reexport certain items to Venezuela consistent with this policy.52

Provision of Medicine. The Venezuela sanctions regime does not prohibit US persons from sending US-origin medicine to Venezuela, provided that the transaction does not involve individuals or entities subject to US sanctions.53 In addition, General License 4 authorizes all financing and other dealings in new debt related to the exportation or reexportation of agricultural commodities, medicine, medical devices, or components or replacement parts for medical devices to Venezuela, or to persons in third countries purchasing specifically for resale to Venezuela, provided that the exportation or reexportation is licensed or otherwise authorized by BIS.54 Moreover, General License 4C authorizes further transactions ordinarily incident and necessary to the exportation or reexportation of agricultural commodities, medicine, medical devices, replacement parts or components for medical devices, or software updates for medical devices to Venezuela, or to persons in third countries purchasing specifically for resale to Venezuela.55 Although there are certain export control restrictions on what items may be sent to Venezuela, most medicines do not require a specific license for export to Venezuela.

Provision of Medical Services. In addition, General License 26 authorizes the provision of non-scheduled emergency medical services that are otherwise prohibited under the Venezuela sanctions regime.56 Moreover, General License 26 authorizes the provision of other medical services involving Government of Venezuela.57 However, it should be noted that the receipt of payment for such medical services may require specific license from OFAC.58 Further, General License 33 authorizes receipt and payment of charges for overflights or emergency landings in Venezuela by aircraft registered in the United States, or owned or controlled by or chartered to US persons, and transactions necessary to provide air ambulance and related medical services.59

Non-governmental Organizations. Moreover, General License 29 authorizes certain services in support of NGOs' activities, including the export or reexport of services to or related to Venezuela in support of certain not-for-profit activities designed to benefit directly the Venezuelan people, such as the provision of donated health-related services and the distribution of donated articles, including medicine.60

International Organizations. General License 20B authorizes official activities of certain international organizations involving Government of Venezuela.61 General License 20B contains a list of specific international organizations whose official activities are authorized by the license; the list includes the International Federation of the Red Cross and Red Crescent Societies and various United Nations agencies, such as the Office for the Coordination of Humanitarian Affairs (OCHA) and the World Health Organization (WHO).62

Prioritization of Certain License Applications. Even if the above exceptions, exemptions, and authorizations do not provide a way to provide certain humanitarian assistance, it may be possible to obtain a specific license for a particular transaction or project. In the recently published Fact Sheet, OFAC noted that it is currently prioritizing such applications, compliance questions, and other requests related to humanitarian support for the people of Venezuela.63

NORTH KOREA

The United States maintains a comprehensive sanctions regime involving North Korea, prohibiting almost all transactions or dealings involving North Korea. However, there remain a number of ways to provide humanitarian goods and assistance to the North Korean people in the fight against COVID-19 consistent with US sanctions, as discussed below.

Provision of Medical Services. A general license authorizes the provision and receipt of non-scheduled emergency medical services.64 However, the receipt of payment for such medical services may require specific license from OFAC.

Personal Remittances. In addition, a general license authorizes the making of non-commercial, personal remittances to or from North Korea in the amount of up to $5,000 a year.65 However, this general license does not authorize transactions that are made by, to, or through a financial institution blocked pursuant to the Weapons of Mass Destruction Proliferators Sanctions Regulations or the Global Terrorism Sanctions Regulations or with persons whose property and interests in property are blocked under another sanctions regime.66

Non-governmental Organizations. A general license authorizes NGOs to export or reexport services to support humanitarian projects to meet basic human needs in North Korea, including the distribution of food, medicine, and clothing intended to be used to relieve human suffering and the provision of health-related services.67 In addition, the export or reexport of services relating to activities to support non-commercial development projects directly benefiting the North Korean people, including preventing infectious disease and promoting maternal/child health, is authorized. US financial institutions are authorized to process transfers of funds related to such activities.68 Further, NGOs may export or reexport from a third country to North Korea food or medicine in support of the activities listed above, provided that the food or medicine are not subject to the EAR.69

International Organizations. A general license authorizes official activities of certain international organizations, including the United Nations, its agencies and programs, and other related organizations.70

Prioritization of Certain License Applications. Even if the above exceptions, exemptions, and authorizations do not provide a way to provide certain humanitarian assistance, it may be possible to obtain a specific license for a particular transaction or project. In the recently published Fact Sheet, OFAC noted that it is currently prioritizing such applications, compliance questions, and other requests related to humanitarian support for the people of North Korea.71

THE CRIMEA REGION OF UKRAINE

The United States maintains a comprehensive sanctions regime that prohibits almost all transactions or dealings involving the Crimea region of Ukraine. However, there remain a number of ways to provide humanitarian goods and assistance to the people of the Crimea region in the fight against COVID-19 consistent with US sanctions, as discussed below.

Provision of Medicine. General License 4 authorizes the export or reexport of certain agricultural commodities, medicine, and medical services to the Crimea region of Ukraine, or to persons in third countries purchasing specifically for resale to the Crimea region of Ukraine, and related transactions.72 However, General License 4 does not authorize the export or reexport to military or law enforcement purchasers.73 Moreover, certain items are excluded from General License 4, including non-NSAID analgesics, cholinergics, anticholinergics, opioids, narcotics, benzodiazapenes, and bioactive peptides.74

Personal Remittances. In addition, General License 6 authorizes the making of non-commercial, personal remittances to or from the Crimea region of Ukraine.75 However, General License 6 does not authorize transactions that are made by, to, or through persons whose property and interests in property are blocked under various Executive Orders.76

Prioritization of Certain License Applications. Even if the above exceptions, exemptions, and authorizations do not provide a way to provide certain humanitarian assistance, it may be possible to obtain a specific license for a particular transaction or project. In the recently published Fact Sheet, OFAC noted that it is currently prioritizing such applications, compliance questions, and other requests related to humanitarian support for the people of Ukraine.77

*                    *

The COVID-19 pandemic is one of the most challenging global crises of the 21st century, and overcoming the crisis will ultimately require worldwide collaboration on a scale not seen since perhaps the Second World War. Despite the significant barriers that US trade sanctions impose around embargoed countries and regions, in general US policy favors humanitarian intervention. Beyond the specific provisions highlighted in this advisory, additional specific projects and efforts may be authorized by the many other general licenses and authorizations that exist under OFAC sanctions and the EAR. If no general authorizations exists, it may be possible to obtain a specific license on an expedited basis, where the specific effort is necessary to fight the pandemic.

© Arnold & Porter Kaye Scholer LLP 2020 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

 

  1. See, e.g., Angus Berwick, Mariela Nava & Sarah Kinosian, Venezuela Confirms Coronavirus Cases Amid Public Health Concerns, Reuters (Mar. 13, 2020),; Esfandyar Batmanghelidj & Abbas Kebriaeezadeh, As Coronavirus Spreads, Iranian Doctors Fear the Worst.

  2. OFAC, Fact Sheet: Provision of Humanitarian Assistance and Trade to Combat COVID-19 (Apr. 16, 2020) (hereinafter OFAC Fact Sheet).

  3. CQ NEWS, April 17, 2020, Treasury seeks to clarify legal humanitarian trade with Iran (Rachel Oswald, CQ).

  4. See 15 CFR § 734.2.

  5. See BIS, BIS List of EAR99 Medical Devices (May 21, 2013).

  6. Prioritization and Allocation of Certain Scarce or Threatened Health and Medical Resources for Domestic Use, 85 Fed. Reg. 20195 (Apr. 10, 2020).

  7. Prioritization and Allocation of Certain Scarce or Threatened Health and Medical Resources for Domestic Use; Exemptions, 85 Fed. Reg. 22021 (effective Apr. 17, 2020).

  8. See, e.g., 31 C.F.R. Part 560.

  9. OFAC, Resource Center, OFAC FAQs: Iran Sanctions, FAQ # 828 (Mar. 6, 2020).

  10. See 31 C.F.R. § 560.210(b).

  11. See 31 C.F.R. §§ 560.530(a)(3), 560.532.

  12. OFAC Fact Sheet, supra, at 2.

  13. See 31 C.F.R. § 560.530(a)(3)(iii).

  14. OFAC Fact Sheet, supra, at 2.

  15. See 31.C.F.R. § 560.530(a)(3)(ii).

  16. See 31 C.F.R. § 560.530(a)(3)(iv).

  17. See OFAC Resource Center, TSRA Program Background and License Application Process.

  18. Press Release, OFAC, Treasury Sanctions Iran's Central Bank and National Development Fund.

  19. See OFAC General License 8 (Feb. 27, 2020).

  20. See OFAC, Financial Channels to Facilitate Humanitarian Trade with Iran and Related Due Diligence and Reporting Expectations (Oct. 25, 2019).

  21. The United States and Swiss governments recently finalized the terms of the Swiss Humanitarian Trade Arrangement (SHTA), which is the first operational channel established under OFAC's framework to facilitate humanitarian trade with Iran. Under the SHTA, participating financial institutions within Swiss jurisdiction may provide humanitarian goods to Iran within the humanitarian mechanism consistent with OFAC's framework guidance. Other foreign governments and foreign financial institutions interested in establishing a humanitarian mechanism consistent with OFAC's framework guidance may contact OFAC directly. See OFAC Press Release (Feb. 27, 2020).

  22. See OFAC General License E (Sept. 10, 2013).

  23. See id. § (b).

  24. See Exec. Order No. 13902, 85 Fed. Reg. 2003 (Jan. 14, 2020).

  25. OFAC Fact Sheet, supra, at 4.

  26. Id.

  27. Id. at 3.

  28. See 31 C.F.R. Part 542.

  29. See OFAC, Resource Center, OFAC FAQs: Other Sanctions Programs, FAQ # 229 (Aug. 17, 2011).

  30. See id.

  31. See 31. C.F.R. § 542.531.

  32. See id.

  33. See 31 C.F.R. § 542.516.

  34. See 31 C.F.R. § 542.513.

  35. OFAC Fact Sheet, supra, at 8.

  36. See 31 C.F.R. Part 515 et seq.

  37. See, e.g., Arnold & Porter Advisory, Obama Administration Continues Loosening Cuba Sanctions (Feb. 18, 2016).

  38. See OFAC, Resource Center, OFAC FAQs: Other Sanctions Programs, FAQ # 732 (Sept. 6, 2019).

  39. See 31 C.F.R. § 515.570(a).

  40. See 31 C.F.R. § 515.570(g).

  41. 31 C.F.R. §§ 515.533, 515.559.

  42. See BIS, Country Guidance: Cuba, (last visited Mar. 17, 2020).

  43. See id.

  44. See id.

  45. See 31 C.F.R. § 515.575.

  46. See OFAC, Resource Center, OFAC FAQs: Other Sanctions Programs, FAQ # 708 (Sept. 6, 2019). Persons subject to US jurisdiction also are authorized to engage in any transaction necessary to provide air ambulance and related medical services, including medical evacuation from Cuba, for individual travelers in Cuba, regardless of nationality or the purpose of the individual's travel to Cuba.[[N:31 C.F.R. § 515.548(b).

  47. Id. § 515.589.

  48. OFAC Fact Sheet, supra, at 9.

  49. See 31 C.F.R. Part 591.

  50. See OFAC, Resource Center, OFAC FAQs: Other Sanctions Programs, FAQ # 519 (Aug. 6, 2019).

  51.  OFAC, Guidance Related to the Provision of Humanitarian Assistance and Support for the Venezuelan People (Aug. 6, 2019).

  52. See id.

  53. See OFAC, Resource Center, OFAC FAQs: Other Sanctions Programs, FAQ # 520 (Aug. 6, 2019).

  54. See OFAC General License 4 (Aug. 5, 2019).

  55.  See OFAC General License 4C (Aug. 5, 2019).

  56. See OFAC General License 26 (Aug. 5, 2019).

  57. See id. § (b)(1).

  58. See id. § (b)(2).

  59. See OFAC General License 33 (Aug. 5, 2019).

  60. See OFAC General License 29 (Aug. 5, 2019).

  61. See OFAC General License 20B (Jan 21, 2020).

  62. See id.

  63. OFAC Fact Sheet, supra, at 5.

  64. See 31 C.F.R. § 510.509.

  65. See 31 C.F.R. § 510.511.

  66. See OFAC, Resource Center, OFAC FAQs: Other Sanctions Programs, FAQ # 462 (Mar. 1, 2018).

  67. See 31 C.F.R. § 510.512(a).

  68. See 31 C.F.R. § 510.512(c).

  69. See 31 C.F.R. § 510.512(b); see also OFAC, Resource Center, OFAC FAQs: Other Sanctions Programs, FAQ # 463 (Mar. 1, 2018).

  70. See 31 C.F.R. § 510.514.

  71. OFAC Fact Sheet, supra, at 6.

  72. See OFAC General License 4 (Dec. 19, 2014).

  73. See id. § (a)(3).

  74. See id. § (a)(4)-(5).

  75. See OFAC General License 6 (Jan. 30, 2015).

  76. See id.

  77. OFAC Fact Sheet, supra, at 10.

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