by Jeremy Paner
On November 4, the Friday before the U.S. election, the New York Department of Financial Services (DFS) and the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) announced separate enforcement actions targeted at the AML and sanctions threats emanating from China. While DFS explicitly set forth its allegations against a Chinese state bank, the U.S. Treasury Department indirectly signaled its increased pressure on China. FinCEN and the Office of Foreign Assets Control (OFAC) will likely directly target China in the near future.
Agricultural Bank of China
DFS announced that the Agricultural Bank of China, that country’s third largest bank, entered into a Consent Order to resolve violations of New York law requirements involving its compliance program (3 N.Y.C.R.R. § 116.2), books and records (New York Banking Law § 200-c), and reports to the DFS Superintendent (3 N.Y.C.R.R. § 300.1). The bank agreed to pay $215 million and engage an independent monitor to implement an effective compliance program and conduct an 18-month look-back into additional potential violations. The bank will likely pay significantly more than the initial $215 million required to maintain its New York banking license. Continue reading
by Trip Mackintosh, John Anderson, and the Export Controls/Trade Sanctions practice group
On October 7, 2016, President Obama signed an Executive Order lifting virtually all economic sanctions previously in effect against Burma (aka, Myanmar). This executive action signals an opening of economic activity between the United States and Burma. Perhaps more importantly for Burmese business interests, it removes an impediment to banking and financial services that had slowed non-U.S. investment into Myanmar. The action contrasts with remaining unilateral U.S. embargos that continue to impact non-U.S. interests, notably the sanctions on Iran.
Burma had been subject to targeted sanctions that were directed at members of the State Peace and Development Counsel (the “SPDC”) that governed Burma until 2011. This sanctions regime, implemented by Executive Orders issued per authority of the International Emergency Economic Powers Act (“IEEPA”) and the Tom Lantos Block Burmese JADE Act, and administered by the Office of Foreign Assets Control (“OFAC”), broadly prohibited all financial transactions involving members of the SPDC and/or entities they controlled. Given their prominence in the Burmese market, SPDC and the companies they owned or controlled created material compliance challenges for investors looking at the Burmese economy. Banks, predictably conservative in these circumstances, were reluctant to process payments and engage in services otherwise required for non-Burmese investors. Continue reading
by Jeremy Paner
Yesterday, the U.S. Department of Justice and the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) announced actions against four Chinese nationals and a China-based network of companies alleged to have provided North Korea with access to the U.S. financial system. The announcements followed months of steadily increasing pressure on North Korea and its economic partner, China.
Although the charges were announced yesterday, a New Jersey District Magistrate Judge signed a criminal complaint in August 2016 charging the Chinese nationals and China-based company with conspiracy to evade U.S. sanctions, violations of sanctions regulations, and conspiracy to launder money instruments. The Justice Department’s Asset Forfeiture and Money Laundering Section also filed a civil forfeiture complaint to seize funds contained in 25 bank accounts held for the alleged front company network. OFAC concurrently designated Dandong Hongxiang Industrial Development Company Ltd (DHID), and the Chinese individuals for illicitly providing a designated North Korean bank access to the U.S. financial system. Continue reading
by Jeremy Paner
Last month, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) concurrently announced Findings of Violation against two insurance companies. According to the announcements, AXA Equitable Life Insurance Company issued health insurance policies to designated individuals. A subsidiary of Humana, Inc. serviced these policies as a Third Party Administrator in violation of sanctions regulations.
While there is no direct monetary penalty from a Finding of Violation, businesses are nonetheless advised to modify their compliance programs in response to OFAC’s articulations of compliance expectations. The agency will likely determine that a significant civil monetary penalty is appropriate for similar future apparent violations by other businesses.
OFAC typically issues Findings of Violation to promote certain aspects of compliance. The agency’s increasing issuance of Findings of Violation makes failure to heed these warnings especially reckless. To date, OFAC has only issued nine such penalties, but seven of these announcements occurred in the past year. Continue reading
by Jeremy Paner
Earlier today, President Obama issued an Executive Order lifting sanctions against Côte d’Ivoire (the Ivory Coast). This removal follows similar action by the United Nations, which in April 2016 lifted international arms, travel and financial measures though UN Security Council Resolution 2283.
U.S. individuals and companies that may have violated the Ivory Coast-related sanctions are not absolved from their apparent violations. The U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) will continue to investigate and penalize prohibited dealings, even years after the underlying sanctions authority is lifted. For example, in March 2015 OFAC announced a $780,000 settlement to resolve apparent violations of the former Iraq sanctions program that occurred between 2002 and 2003. President Bush lifted the former Iraq sanctions program through a 2004 Executive Order, while the OFAC removed the regulations in September 2010.
Coming Sanctions Relief for Burma
President Obama also announced today “that the United States is now prepared to lift sanctions we’ve imposed upon Burma.” Current U.S. sanctions prohibit the importation of Burmese rubies and jadeite, certain new investment, and dealings with designated individuals and entities. These prohibitions will continue until their removal by Executive Order. OFAC issued an FAQ today to clarify this point. The President’s comments did not specify if all sanctions will be removed. Continue reading
by Jeremy Paner
Settlement announcements from the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) generally reflect the agency’s enforcement prioritization and sanctions compliance expectations. The two most recent enforcement actions indicate that OFAC continues to target companies that operate without sanctions compliance programs. Although robust sanctions compliance programs do not provide complete inoculation from sanctions compliance risk, such programs dramatically reduce the likelihood of violations and resulting civil penalties.
OFAC Civil Penalties Against Exporters Lacking Compliance Programs
On June 23, OFAC announced a $107,691 settlement with HyperBranch Medical Technology, Inc. to resolve apparent violations of the Iranian Transactions and Sanctions Regulations (ITSR) prohibition on the direct or indirect exportation of goods to Iran. According to the settlement announcement, HyperBranch exported about 4,000 units of various medical supplies to its United Arab Emirates-based distributor that it knew or had reason to know were ultimately destined for Iran. OFAC considered HyperBranch’s lack of a sanctions compliance program at the time of the apparent violations as an aggravating factor in the calculation of the civil penalty.
by Jeremy Paner
On March 7, the District Court for the District of Columbia issued a Memorandum Opinion granting the government’s Motion for Summary Judgment in the matter of Epsilon Electronics, Inc. v. United States Department of the Treasury, Office of Foreign Assets Control, et al., Civil Action No. 14-2220 (RBW), __ F.Supp.3d __ (D.D.C. 2016). The case arises from a $4,073,000 civil penalty the Office of Foreign Assets Control (OFAC) assessed against Epsilon Electronics (the plaintiff) in July 2014 for violations of the embargo on Iran. According to the announcement of this penalty, the plaintiff violated the Iran Transactions and Sanctions Regulations by shipping car audio and video equipment that it knew or had reason to know would be reexported to Iran. The opinion dismissing the challenge to this penalty serves as a cautionary tale of how OFAC may assess significant civil penalties with the aid of a few administrative subpoenas and circumstantial evidence provided by financial institutions and simple internet research.
by Jeremy Paner
Last Friday, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) published regulations that implement the Hizballah International Financing Prevention Act of 2015. The listing criteria for these regulations echo those in the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (CISADA), which was largely responsible for economically isolating Iran. Although frequently mischaracterized as extraterritorial in nature, the prohibitions of secondary sanctions are limited to domestic financial institutions.
The Hizballah Financial Sanctions Regulations, 31 CFR 566, prohibit U.S. financial institutions from opening or maintaining certain accounts for foreign financial institutions listed for knowingly providing significant transactions for Hizballah, or any person designated for acting for or on behalf of, or being owned or controlled by that terrorist organization. OFAC identifies Hizballah-related designated persons with the text [‘‘Subject to secondary sanctions pursuant to the Hizballah Financial Sanctions Regulations’’] in their respective List of Specially Designated Nationals (SDN List) entries. Continue reading
by Jeremy Paner
Yesterday, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) designated UK-based individuals and businesses for their dealings with Mahan Air, a commercial Iranian airline. OFAC designated this airline in 2011 pursuant to its counterterrorism authority for providing support to the IRGC-Qods Force. U.S. individuals and businesses are now generally prohibited from any dealings with these UK designees. Secondary sanctions also attach to terrorism-related listings. Foreign financial institutions that knowingly facilitate or conduct significant financial transactions for these designees could be prohibited from maintaining correspondent accounts at U.S. banks.
OFAC has firmly established authority to derivatively designate businesses that provide support or services to designated Iranians, irrespective of the nationality or location of those businesses. The recent lifting of certain secondary sanctions does not limit this authority. In fact, derivative designations against companies in Europe and Asia will likely increase in the near term.
by Jeremy Paner
Last week, President Obama significantly increased sanctions on North Korea through Executive Order 13722, which implements the North Korea Sanctions and Policy Enhancement Act of 2016 (H.R. 757). The Executive Order’s prohibitions and blocking provisions, and designation criteria are substantially more expansive than that Act. Concurrently with the issuance of the Executive Order, OFAC announced the designations of 17 North Korean government officials and organizations, 15 entities, two individuals, and identified 40 blocked vessels under various sanctions authorities.
While neither Congress nor the President imposed secondary sanctions per se, China and Russia should interpret the Executive Order as a clear warning about their economic ties with North Korea. In the Iran sanctions program, secondary sanctions require that a foreign financial institution “knowingly facilitate or conduct a significant financial transaction” for a particular individual or entity. This evidentiary standard greatly limited the use of those sanctions authorities. The new sanctions against North Korea are clearly aimed at foreign business interests, but unlike secondary sanctions, this new authority does not have an evidentiary impediment to its implementation.