How U.S. export controls and embargoes affect associations. (Legal).

With our country on a heightened state of alert, laws affecting international transactions are more in the public eye. Jeff Glassie and Steve Becker discuss the U.S. laws related to export controls and embargoes.

Many associations conduct some kind of international activity, whether it be scheduling a meeting abroad, selling publications via the Internet, or promoting international memberships. Given the current focus on international issues, association leaders should be aware of export controls and embargo situations that might affect these activities.

Export administration regulations 

The Export Administration Act governs the export of goods and technology described in the Commerce Control List (CCL). Generally the list identifies those goods and technologies that are commercial in nature, although some do have military applications. The Department of Commerce's Bureau of Export Administration administers the law through the Export Administration Regulations. Under the regulations, most restrictions on exports depend on the export control classification category of the product or technology on the CCL and the final destination of the export or re-export. In some cases, restrictions are based on the particular end user or end use of the products or technology, regardless of their classification. It is important to note that under the Export Administration Regulations the United States asserts jurisdiction over the disposition outside of the United States of U.S.-origin goods and technology, regardless of whether a U.S. national is involved in the transaction. Specific categories of sensitiv e information may require licenses on a caseby-case determination. Technologies and items covered by a specific category that is not under special restrictions, however, may be exported freely, other than to the countries against which the United States maintains comprehensive embargoes.

Exclusion from regulation of published information

Perhaps the most relevant regulations for associations are the Export Administration Regulations that exclude from coverage "publicly available" data that are "published" and permissible for export when generally accessible to the public in any form. These include items published..."in periodicals, books, print, electronic, or any other media available for general distribution to any member of the public or to a community of people interested in the subject matter, such as those in a scientific or engineering discipline, either free or at a price that does not exceed the cost of reproduction and distribution...or release at an open conference, meeting, seminar, trade show, or other open gathering."

The publication of information through journals and Web sites is outside the scope of the regulations and not subject to export restrictions, regardless of its content (with certain exceptions, such as for encryption source code).

The transmission of information at educational sessions and meetings, whether held within or outside the United States, would appear to be publicly available and should not be prohibited by the regulations.

Economic embargoes

The International Emergency Economic Powers Act authorizes the president to declare and impose a broad range of restrictions on trade and commerce between people subject to U.S. jurisdiction and the country, entity, or person that is the subject of the embargo. Such embargoes usually are imposed through executive order and implemented in detail through regulations issued by the Office of Foreign Assets Control (OFAC) of the Treasury Department. Each embargo is implemented through an independent set of regulations. The major current OFAC embargoes are of Cuba, Iran, Iraq, Libya, and Sudan. The former economic embargo of North Korea has been lifted (although tight restrictions remain under the Export Administration Regulations). The embargo of the Taliban remains in effect, but is now of much more limited scope, as the Taliban no longer controls Afghanistan.

Although the scope of each embargo can vary to some degree, embargoes generally forbid any type of financial transaction with the embargoed country or its nationals, directly or indirectly, regardless of whether the transaction involves U.S.-origin products or technology. OFAC maintains embargoes not only of countries, but also of individuals and entities that have been deemed either to be connected to the embargoed countries or to be connected to terrorism or drug trafficking. The names of these individuals and entities--designated as "specially designated nationals"--are published by OFAC on the List of Specially Designated Nationals.

The embargoes enforced by OFAC are extremely broad and prohibit any U.S. individuals or organizations from dealing with certain countries specified earlier. Generally, it is advisable to completely avoid financial transactions with the embargoed countries and their nationals and to adopt a policy to that effect. As such, associations should not accept membership dues or payments for educational or scientific publications or information from, or make payments to, such countries. In the cases of Cuba, Iran, Libya, and Sudan, however, the embargoes exclude from their scope transactions involving "publications" and "information and informational materials," defined as including but not limited to publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD-ROMs, artworks, and news wire feeds. The embargo of Iraq, however, does not exempt exports of informational materials. Thus, information exempt from the Export Administration Regulations on the basis that it is "publicly available" is also exempt from the OFAC embargoes (except for Iraq).

OFAC rules do not prohibit associations from selling pre-existing educational or scientific publications and materials to Cuba, Iran, Libya or Sudan, or sponsoring conferences attended by nationals of those countries provided that no money or funds of any kind are received. However, associations would be prohibited from accepting members from Iraq, sending publications to Iraq, or allowing conference participation by nationals from Iraq, whether or not any funds were received.

Finally, the OFAC rules do not allow U.S. individuals, without prior approval, to sponsor conferences within any of these countries, or to cosponsor conferences with entities from those countries or for the benefit of those countries, even if held in a third country.

International traffic in arms regulations 

The International Traffic in Arms Regulations govern exports of equipment and technology described on the Munitions List. The list generally identifies military items, but also includes some commercial technologies such as those relating to nonmilitary space launches and satellites.

Although similar to the Export Administration Regulations, the International Traffic in Arms Regulations exempt from control technical data that are already in the public domain; in some circumstances prior Defense Department approval may be required before a person releases certain types of Munitions List technical data to the public for the first time.

Jefferson C. Glassie and Stephan E. Becker are partners in the Nonprofit Organizations Practice at the law firm of Shaw Pittman, Washington, D.C. Glassie is the author of International Legal Issues for Nonprofit Organizations (1999, American Society of Association Executives). Jerald A. Jacobs, a partner at Shaw Pittman, is general counsel to ASAE and edits this column.