On September 9, 2009, OFAC issued a general license authorizing U.S. persons to export and reexport agricultural commodities, medicine and medical devices to Southern Sudan, Southern Kordofan/Nuba Mountains State, Blue Nile State, Abyei, Darfur and marginalized areas in and around Khartoum (Specified Areas). [1] OFAC has also authorized U.S. persons to engage in related transactions so long as those transactions do not: (1) involve any property or interests in property of the Government of Sudan; (2) relate to the petroleum or petrochemical industries in Sudan; and (2) transit through non-Specified Areas of Sudan (Northern Sudan). [2] Authorized related transactions include, but are not limited to, the making of shipping and cargo inspection arrangements, the obtaining of insurance, the arrangement of financing and payment, the entry into executory contracts and the provision of brokerage services for such sales and exports or reexports. [3]

OFAC has amended the Sudanese Sanctions Regulations, 31 C.F.R. Part 538, to address the apparent inconsistency in licensing requirements whereby U.S. persons no longer needed an OFAC license to export or reexport goods, services or technology to Specified Areas but still needed OFAC’s authorization under the Trade Sanctions Reform and Export Enhancement Act (TSRA) [4] to export agricultural commodities, medicine and medical devices to that region. This tension resulted when, on October 13, 2006, the President issued Executive Order 13412 [5] and signed the Darfur Peace and Accountability Act of 2006 [6] which excluded the Specified Areas from OFAC’s licensing requirements imposed under Executive Order 13067. [7]

OFAC and the Department of Commerce’s Bureau of Industry and Security (BIS) continue to exercise concurrent jurisdiction over at least some exports to Sudan. Accordingly, exporters of TSRA-eligible commodities must be prepared to provide OFAC with copies of the exporter’s BIS license application and a commodity classification determination from BIS that the item proposed for export has been classified as EAR99. [8]

While the new General License will simplify U.S. exporters’ obligations with respect to exports and reexports of agricultural commodities, medicine and medical devices destined for Specified Areas, caution is advised for exporters of other commodities as the Department of Commerce’s Export Administration Regulations (EAR), 15 C.F.R. Parts 730-774, continue to require licenses for exports to Sudan of all other items subject to the EAR and listed on the Commerce Control List. [9]