030708-FACRL-IA-08
FAC No. [ text deleted ]
[ text deleted ] [ text deleted ] [ text deleted ] [ text deleted ]
Dear Mr. [ text deleted ]:
This responds to your letters of March 13, 17, and 31, 2003, regarding the entry of [ text deleted ] (the "U.S. Company"), a U.S. provider of Internet based listings of companies in the field of [ text deleted ], into a Licensing Agreement with [ text deleted ] (the "non-U.S. Company"), based in [ text deleted ] (the "Agreement"), to provide certain information for posting on the U.S. Company’s Web site regarding companies in Iran. It is our understanding that the U.S. Company, in association with [text deleted ], maintains a database containing certain basic information, including name, address, telephone number and product line, for companies throughout the world.
The U.S. Company proposes to offer, for a fee, pursuant to the Agreement with the non-U.S. Company, enhanced Internet- based listings for companies in Iran that wish to expand the information posted about them on the U.S. Company’s Web site. Such enhanced listings include [ text deleted ]. These enhanced listings would be produced at the behest of and for the benefit of customers in Iran.
The Iranian Transactions Regulations, 31 C.F.R. Part 560 (the "ITR"), prohibit the exportation, reexportation, sale or supply, directly or indirectly, from the United States or by a U.S. person, wherever located, of any goods, technology or services to Iran or the Government of Iran. This prohibition also applies to the exportation, reexportation, sale or supply of goods, technology or services to a person in a third country undertaken with knowledge or reason to know that the goods are intended specifically for supply, transshipment or reexportation, directly or indirectly, to Iran or the Government of Iran. ITR, § 560.204.
The prohibition in ITR § 560.204 on exports to Iran or the Government of Iran does not apply to the exportation to any country of information and informational materials. ITR, § 560.210(c). The term information and informational materials is defined in ITR § 560.315 to include publications, films, posters, phonograph records, photographs, microfilm, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds.
In addition, § 560.210(c)(2) of the ITR provides that the information and informational materials exemption does not apply to transactions related to information and informational materials not fully created and in existence at the date of the transactions, or to the substantive or artistic alteration or enhancement of informational materials, or to the provision of marketing and business consulting services.
The exemption for information and informational materials set forth in the ITR does not apply to the U.S. Company’s provision of enhanced listings for customers in Iran as described in your letters and the Agreement. Such transactions would appear to constitute the substantive enhancement of information provided by the Iranian customers and the provision of additional services. For example, the Agreement indicates that, under the authority of the U.S. Company, the non-U.S. Company will be selling services such as [ text deleted ] to companies in Iran. In addition, the Agreement indicates that the U.S. Company will be providing online customer support. The provision of such services to Iran would be prohibited by ITR § 560.204 in the absence of a license. It would be inconsistent with current licensing policy to specifically authorize such transactions.
Sincerely,
[Signature]
R. Richard Newcomb
Director
Office of Foreign Assets Control
1) As discussed in the "General Background Note on the Chronology of Guidance and interpretive Rulings Related to the Informational Materials Exemption and Publishing", this interpretive ruling has remained on OFAC's website from 2003 up through the present, and therefore cannot be viewed as having been impacted by the portions of the 2016 Publishing Guidance that dealt with the scope of the informational materials exemption of the Berman Amendment.
2) This guidance is upon/clarified by 031211-FACRL-IA-14. In that letter, OFAC permits "enhanced listing" services where it is clarified that the actual information disseminated is pre-existing and the payment pertains to the particular details surrounding how the information is laid out/disseminated. In this case, OFAC declares the "enhanced listings" to be prohibited, by on the basis of the ancillary support services provided.
Note that the scope of what "online customer support" is considered non-exempt is not clear in this case, or in the other 2003-2004 Interpretive Rulings making similar statements. OFAC's practice does not appear to consider "support" incident to merely the access of materials to be non-exempt.