International Law Advisory - OFAC Advisory Opinion on the Editing and Publication of Articles from Iranian, Cuban, Libyan and Sudanese Authors Under the Informational Materials Exemption

The Department of Treasury, Office of Foreign Assets Control (“OFAC”) has issued an interpretive ruling holding that peer review, copy editing and publication of the works of Iranian, Cuban, Libyan and Sudanese authors by a scholarly journal is permitted under the statutory informational materials exemption.  This ruling, dated April 2, 2004, revisited and in several regards substantially reversed OFAC’s earlier September 30, 2003 interpretive ruling in the same case.  While this is a welcome decision, please note that it does not reflect any major change in the very broad scope of US economic sanctions regimes.

The Iranian Transaction Regulations, 31 C.F.R. Part 560 (the “ITR”); the Cuban Assets Control Regulations, 31 C.F.R. Part 515; the Libyan Sanctions Regulations, 31 C.F.R. Part 550; and the Sudanese Sanctions Regulations, 31 C.F.R. Part 538 prohibit the export or import of most goods and services to or from those countries without an OFAC license or license exception.  However, there is a statutory exemption from these licensing requirements for transactions involving “informational materials,” such as written works, films, recordings or photographs, so long as those materials are not otherwise restricted for export, are already in existence, and are not created or substantively modified for a party in one of the sanctioned countries.

The Institute of Electrical and Electronic Engineers originally requested an advisory opinion from OFAC regarding its ability to conduct peer review and edit scholarly articles received from persons in Iran for publication in its trade journal.  The Institute explained to OFAC that upon receiving a manuscript, it submits the text to peer review by US and third country reviewers.  The peer review provides comments, criticisms and suggestions to the authors.  If the manuscript is selected for publication, further copy editing is performed by the Institute.  In a September 30, 2003 interpretive ruling, OFAC stated that the editing of manuscripts from authors in Iran, “including activities such as the reordering of paragraphs or sentences, correction of syntax, grammar, and replacement of inappropriate words by US persons, prior to publication” could alter or enhance the article and thus would be prohibited under the ITR.

On April 2, 2004, the Institute received the new interpretive ruling holding that peer review and copy editing activities relating to authors from the specified countries were permitted under the informational materials exemption.  Specifically, OFAC stated that feedback on an article could be provided to a selected author from Iran, Cuba, Libya or Sudan including:

1. Referencing existing literature examples to help the author conform to the journal’s editorial standards and article criteria.
2. Suggesting elaboration/clarification of certain points in the article, gathering more data to support conclusions and other modifications to the analysis. 
3. Suggesting minor corrections in the scientific theory or mathematics of equations and references. 
4. Offering improvements to the style or “expression of the work.” 
5. Suggesting areas for the author to expand his/her approach, delete sections or otherwise generally improve the manuscript.

In addition, OFAC indicated that, in preparation for publication, the journal could perform style and copy editing (formatting, captioning, editing for consistency, citation and spelling/grammar).

OFAC qualified that while the journal or its reviewers may advise an author on the nature and extent of any problems in the article, they could not engage in any collaborative interaction with the author or act themselves to “substantively re-write or revise” the article.  OFAC also noted that the informational materials exemption does not pertain to exportation of information subject to licensing under the Export Administration Regulations (“EAR”), the International Traffic in Arms Regulations (“ITAR”), or by the Energy Department or other agencies.

In this April 2, 2004 ruling, OFAC provides a more permissive interpretation of the informational materials exemption than in previous interpretations (see the September 30, 2003 ruling in this case and Interpretive Ruling 031014-FACRL-IA-10).  OFAC moved from a position that a US journal could make practically no changes to an article from an Iranian author to authorizing one-way substantive feedback on articles to Iranian, Cuban, Libyan or Sudanese authors (arguably bordering on provision of a service) and stylistic/copy editing of their articles for publication.

Despite the more moderate position taken in this ruling, OFAC continues to rigorously enforce the embargoes in these four, as well as other, countries.  The boundary between a permissive informational materials activity, and a prohibited provision of a service, continues to remain unclear.  Please contact Ed Krauland at 202.429.8083 if you have any questions regarding the scope of the informational materials exemption or the above-mentioned OFAC advisory opinions.