Iran’s Foreign Minister Mohammad Javad Zarif has on several occasions over the past few years published an opinion piece in American newspapers, including the New York Times and the Washington Post. Considering his status as Foreign Minister of a U.S.-sanctioned government, however, there has long been an under-appreciated aspect to these publications: How are these U.S. newspapers able to publish his articles under U.S. law, particularly considering the comprehensive U.S. trade embargo with Iran?

OFAC’s newly-issued interpretive guidance on certain publishing activities begins to answer the question. Under this new guidance – styled as an update to OFAC’s September 30, 2003 and April 2, 2004 interpretive guidance – OFAC provides sharper detail as to the scope of the publishing general licenses and the exemptions found in the Iranian Transactions Sanctions Regulations (ITSR), the Cuban Assets Control Regulations (CACR), the Sudanese Sanctions Regulations (SSR), and the Syrian Sanctions Regulations (SySR). How, then, under this new guidance, would a proper analysis of the permissibility of editing and/or publishing an article by Foreign Minister Zarif proceed?

First, it is important to appreciate the applicable regulations. 31 C.F.R. § 560.210 exempts the importation from Iran and the exportation to Iran of information or information materials, whether commercial or otherwise, regardless of format or medium of transmission. For purposes of this exemption, information or information materials include but is not limited to publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds (but would not include, with respect to exports, items controlled for export pursuant to § 5 of the Export Administration Act of 1979 or § 6 of the Export Administration Act to the extent that such controls promote the non-proliferation or anti-terrorism policies of the United States). However, 31 C.F.R. § 560.210(c)(2) states that transactions related to information or informational materials not fully created and in existence at the date of the transactions are not authorized under the exemption, nor is the substantive or artistic alteration or enhancement of information materials or the provision of marketing or business consulting services.

In addition to this exemption, the ITSR also promulgates a general license relating to certain publishing activities located at 31 C.F.R. § 560.538. Under this general license, U.S. persons are authorized 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. U.S. persons are also authorized to commission and make advance payments for identifiable written publications not yet in existence to the extent consistent with industry practice; collaborate on the creation and enhancement of written publications; augment written publications through the addition of items such as photographs, artwork, translation, and explanatory text; substantively edit written publication; make payment of royalties for written publications; undertake a marketing campaign to promote a written publication; etc. However, the publishing general license does not apply if the parties to the transaction include the Government of Iran, including any political subdivision, agency, or instrumentality of the Government of Iran and any person acting or purporting to act directly or indirectly on behalf of the foregoing.

With this legal background in mind, two questions become central: (1) Is Foreign Minister acting or purporting to act on behalf of the Iranian government through publication of these opinion pieces?, and (2) If so, would the publication of such material fall within the scope of the exemption at 31 C.F.R. § 560.210 such that a newspaper would not even have to entertain the question as to whether he is publishing in his official or his personal capacity?

OFAC provides some useful guidance as to the latter issue:

[P]reexisting, ‘camera ready’ articles submitted by authors from sanctioned countries, including from sanctioned country government officials, are exempt. In addition, while peer review that returns an article to the author with editorial comments or general suggestions or otherwise makes any substantive or artistic alteration is prohibited unless licensed, peer review simply to determine whether or not to select for publication an article in the form submitted is exempt. Likewise, style and copy editing simply to conform an article to the physical format of the publication, limited to font selection, margin size, spacing, type weight and size selection, sizing and positioning of illustrations, formatting references to conform to U.S. style manuals, ensuring no ‘window and orphan’ occurrences, inserting a uniform biography and photo, and adding page folios with publication titles and page numbers, would be exempt, while any substantive or artistic alteration or enhancement of the article would remain prohibited unless authorized. Marketing of an article written by a person from the sanctioned country is prohibited unless licensed; however, marketing of a journal that contains an article by an author from a sanctioned country (where such marketing services are not provided to or on behalf of individual contributors and are independent of individual submissions) is not prohibited.

In other words, assuming that the Foreign Minister was acting in his official capacity in writing and submitting an article for publication in a U.S. newspaper, the U.S. newspaper could review such an article to determine whether it merits publication or not. If the newspaper determines that it would like to publish the opinion piece, then the piece must be “camera ready,” as returning the article to the Foreign Minister with editorial comments or suggestions would be prohibited absent license authorization. However, if the piece is indeed “camera ready,” the U.S. newspaper would be permitted to engage in style and copy-editing to conform the article to the physical format of the publication pursuant to the exemption. Upon publication, though, the U.S. newspaper would be prohibited from marketing the article itself absent license authorization, as such activity would fall outside the scope of the exemption. (Side note: An interesting exercise is to consider the permissibility of individually tweeting out an article by the Foreign Minister, as countless Twitter users did when Foreign Minister Zarif published an opinion piece in the New York Times this past September. Similarly, is it permissible for the New York Times to keep the Twitter widget on the page hosting the Foreign Minister’s article, knowing that such widget will be used to share and “market” the opinion piece?)

If Foreign Minister Zarif is, on the other hand, acting in his personal capacity in writing and submitting an article for publication in a U.S. newspaper, then the U.S. newspaper would be able to utilize the publishing general license at 31 C.F.R. § 560.538, provided there was need to engage in activities falling beyond the scope of the exemption located at 31 C.F.R. § 560.210. For example, editors at the U.S. newspaper would be able to edit and provide comments on the submitted article from the Foreign Minister, so long as it was clear that he was writing in his personal – as opposed to official – capacity.

In short, OFAC’s new interpretive guidance sets out a mode of analysis by which to determine whether certain publishing activities of persons or officials from U.S.-sanctioned countries are permissible under U.S. law. It is much-hoped that this develops into a pattern, whereby OFAC provides more clarity and guidance as to the persistent ambiguities in scope and application of the sanctions prohibitions that it administers.