Yesterday, the White House released an Executive Order ramping up U.S. sanctions on North Korea as a result of a recent ballistic missile test by the Norks and, it can be reasonably assumed, as a result of the Fat Man‘s recent claim to have his own Little Boy (or is it vice versa?). The new sanctions impose a complete ban on all exports of goods and services to North Korea, and as usual, with any executive order that gets drafted over at OFAC, the order, whether due to sloppy drafting or purposeful ambiguity, raises more questions than it answers.

Here’s the relevant provision that needs to be parsed:

Sec. 3. (a) The following are prohibited:

(i) the exportation or reexportation, direct or indirect, from the United States, or by a United States person, wherever located, of any goods,

services, or technology to North Korea;

(b) The prohibitions in subsection (a) of this section apply except to the extent provided by statutes, or in regulations, orders, directives, or licenses that may be issued pursuant to this order or pursuant to the export control authorities implemented by the Department of Commerce, and notwithstanding any contract entered into or any license or permit granted prior to the effective date of this order.

Prior to this order licenses have been required by the Bureau of Industry and Security for all items subject to the EAR other than food or medicine. BIS would license, on a case-by-case basis, EAR99 items (other than luxury goods) to North Korea. Items on the Commerce Control List subject to NP or MT controls are subject to a presumption of denial.

The new provision, due to the “notwithstanding” clause of subsection (b), appears to invalidate all existing specific licenses for exports to North Korea. Whether this Order changes the existing policy of BIS for future licenses is unclear and depends on what is meant by “export control authorities implemented by the Department of Commerce,” which is anybody’s guess. What is clear is that items not subject to the EAR, which previously could be exported to North Korea, cannot now be exported to the North Korea by U.S. persons unless such items are transshipped through the United States and a license is obtained from BIS or an OFAC license is obtained if the items are not shipped back to the United States first.

At the same time as the Executive Order, OFAC issued nine new general licenses, such asGeneral License No. 7 which authorizes mail and telecommunications services to North Korea. Other general licenses permit most of the usual exceptions to bans on exports of services such as emergency medical services, legal services, intellectual property services, and personal financial remittances. Oddly, the normal exception for services related to Internet-based communications is not included. So, you can send snail mail to the Norks but sending email is not allowed.

One nagging question is whether the travel and information exceptions in the Berman Amendment remain in place. Neither OFAC’s existing North Korea regulations nor the order contain a travel exemption, such as the one contained in section 560.210(d) of the Iranian Transactions and Sanctions Regulations. Nor does the order or those regulations contain an exemption for informational materials such as is found in section 542.211(b) of the Syria Sanctions Regulations.

Both the travel and informational material exceptions in the Berman Amendment may not be applicable because the Berman Amendment only applies to actions taken under the International Emergency Economic Powers Act (“IEEPA”). This latest executive order relies not only on IEEPA but also on the North Korea Sanctions and Policy Enhancement Act of 2016 (Public Law 114-122). Whether or not section 3 of the new order is authorized by the North Korea Sanctions and Policy Enhancement Act is not clear.  If section 3 is authorized under that statute, services related to travel to North Korea and the provision of informational services to North Korea would not be permitted unless OFAC specifically authorizes such services in its regulations or provides for specific licenses which, so far, it has not done.