On Dec. 16, 2004, the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) issued its final ruling regarding publishing activities with people in sanctioned countries (now identified as Cuba, Iran, and Sudan). This ruling follows a lawsuit filed against OFAC on Sept. 27, 2004, by the PEN American Center (PEN), the Association of American Publishers' Professional and Scholarly Publishing division (AAP/PSP), the Association of American University Presses (AAUP), and Arcade Publishing, arguing that the agency does not have the authority to mandate licenses for publishing activities with these countries.
"OFAC's previous guidance was interpreted by some as discouraging the publication of dissident speech from within these oppressive regimes. That is the opposite of what we want," said Stuart Levey, the Treasury's undersecretary for the Office of Terrorism and Financial Intelligence (TFI). "This new policy will ensure [that] those dissident voices and others will be heard without undermining our sanctions policy."
This new ruling "enables U.S. persons to freely engage in most ordinary publishing activities with persons in Cuba, Iran, and Sudan, while maintaining restrictions on certain interactions with the governments, government officials, and people acting on behalf of the governments of those countries." In its place, OFAC has issued three general licenses (the Cuban Assets Control Regulations, the Iranian Transactions Regulations, and the Sudanese Sanctions Regulations) that "authorize certain activities relating to publishing that otherwise entail the prohibited exportation of services to, or prohibited importation of services from, Cuba, Sudan, or Iran." These regulations permit Americans to engage in "all transactions necessary and ordinarily incident to the publishing and marketing of manuscripts, books, journals, and newspapers in paper or electronic format." The new regulations are located at http://www.treasury.gov/press/releases/js2152.htm.
"Persons engaging in the activities authorized in the general licenses can do so without seeking permission from OFAC," said OFAC director Robert Werner. "This rule provides clarity and promotes important policies aimed at the free exchange of ideas without undermining the national security objectives of these country sanctions."
A Reversal (Almost)
This OFAC ruling almost reverses the position that the agency has taken since September 2003 regarding its interpretation of the International Emergency Economic Powers Act (IEEPA) and the Trading With the Enemy Act (TWEA). The initial OFAC ruling essentially made it illegal to perform any type of editorial function on works produced by individuals from embargoed countries. As a result, publishers could only accept camera-ready copy. Anyone who violated this ruling risked serving a maximum 10-year prison sentence or paying a $50,000 fine per infraction.
OFAC's previous position was to take each publisher on a case-by-case basis and to require each to apply for a license before engaging in these activities. The landmark event in this saga was initially settled with the Institute of Electrical and Electronic Engineering (IEEE), which was …