hinges its approach on concepts that have not been effective.US Outbound Investment Regime: 1968 to 1986In the 1960s, President Johnson, the US Congress, the Commerce Department, and the Treasury Department identified significant balance of payments issues with developed, developing, and undeveloped countries. The concerns arose generally around the use of US capital for the funding of indigenous capabilities in other countries to the exclusion of or in lieu of use of that capital in the United States. These concerns resulted in the issuance of Executive Order 11387, “Governing Certain Capital Transfers Abroad,” on January 1, 1968, which established an outbound investment review process delegated for development to the Department of Commerce. The order also directed Commerce to consult with the Departments of State and Treasury, as well as the Federal Reserve Board, to inform Commerce’s decisions.President Johnson’s executive order relied on both the Trading with the Enemy Act (TWEA) (12 USC 95a as further incorporated into Section 5 of TWEA) and Proclamation No. 2914 (December 16, 1950) that established a national emergency due to the Korean conflict and the growth of communism as identified by then-US President Harry Truman. Even in 1968, questions arose as to the ability of the president to invoke an emergency declaration so far removed from the issues of 1968 (in essence, an 18-year gap for the emergency) and premised upon concerns that were not directly related to the objectives of the executive order. However, President Johnson proceeded and delegated authority to the Department of Commerce to establish the Office of Foreign Direct Investments which issued regulations, 15 CFR Part 1000 (Foreign Direct Investment Regulations), to manage the review and approval process.The Commerce regulations utilized a “catch and release” approach to establish a multi-tier process of notifications, reporting, and approvals that required financial institutions and/or investors to evaluat

Congress passed the Berman Amendment to the International Emergency Economic Powers Act (IEEPA) and the Trading with the Enemy Act (TWEA) to generally prohibit OFAC from regulating exchanges of informational materials, including artwork. See The Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, Pub. L. No. 103-236 § 525, 108 Stat. 382, 474 (1994) (codified, as amended, at 12 U.S.C. § 95a, 50 U.S.C. § 1702 (2000); 50 U.S.C. § 4305(b)(4)).[View source.]

The President also eased restrictions on money transfers by Cuban-Americans to family members who reside in Cuba and on travel by such persons to the island. The directive could prove to be a boon to American telecommunications and media companies that have wanted to do business in Cuba, although it remains to be seen how, and how quickly, U.S. agencies will implement the president’s order and how the Cuban leadership will react.Existing transactional regulations and governing bodiesPursuant to the Trading with the Enemy Act (12 U.S.C.§ 95a), financial transactions with foreign countries are governed by the Treasury Department’s Office of Foreign Assets Control (OFAC). OFAC’s regulations overlap with the Commerce Department’s Export Administration Regulations (EAR), which regulate the export and re-export of most commercial items, including civilian products and services that have possible military applications (so-called “dual use” items).