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On January 12, the U.S. Treasury Department’s Office of Foreign Assets Control announced sanctions pursuant to Executive Order 13382 against five Democratic People’s Republic of Korea (DPRK) individuals based in Russia and China that OFAC designated as “responsible for procuring goods for the DPRK’s weapons of mass destruction (WMD) and ballistic missile-related programs.” According to OFAC, these sanctions are part of the U.S.’s ongoing efforts to counter the DPRK’s “continued use of overseas representatives to illegally procure goods for weapons.” As a result of the sanctions, all property and interests in property of the sanctioned individuals subject to U.S. jurisdiction are blocked and must be reported to OFAC. OFAC noted that its regulations generally prohibit U.S. persons from participating in transactions with the designated person, including transactions transiting the U.S. OFAC’s announcement further warned that any foreign financial institution that knowingly facilitates significant transactions or provides significant financial services for any of the designated individuals may be subject to U.S. correspondent account or payable-through account sanctions.
OFAC reaches $5.2 million settlement with Hong Kong company for apparent Iranian sanctions violations
On January 11, the U.S. Treasury Department’s Office of Foreign Assets Control announced a $5.2 million settlement with a Hong Kong, China-based company for allegedly processing certain transactions related to goods of Iranian origin through U.S. financial institutions in violation of the Iranian Transactions and Sanctions Regulations (ITSR). According to OFAC’s web notice, from August 2016 through May 2018, certain company employees violated company-wide policies and procedures by causing the company to purchase Iranian-origin goods from a supplier in Thailand for resale to buyers in China. Under the terms of the trading arrangement, the company made 60 separate U.S. dollar payments from its bank in Hong Kong to the Thai supplier’s banks in Thailand, transferring a total of $75.6 million. Each of these payments were allegedly “processed and settled through multiple U.S. financial institutions, including the U.S. correspondent banks of the Hong Kong and Thai banks.” Due to the noncompliant employees’ misconduct, the funds transfer instructions omitted references to Iran. As a result, U.S. financial institutions were unable to flag the transfers as violating the ITSR, which would have “caused them to reject and report each of these U.S. dollar denominated funds transfers.”
In calculating the settlement amount, OFAC considered the following aggravating factors: (i) the noncompliant employees omitted Iranian country of origin references from all relevant transactional documents over a period of two years, despite knowing and having been advised repeatedly that this conduct violated the ITSR and company policy; (ii) the noncompliant employees “had actual knowledge about the [supplier’s] relation to Iran”; (iii) the company’s actions conferred significant economic benefits to Iran, specifically with respect to Iran’s petrochemical sector; and (iv) the company “is a sophisticated offshore trading and cross-border trade financing company with ready access to experience and expertise in international trade, investment, financing, and sanctions compliance.”
OFAC also considered various mitigating factors, including that (i) the company repeatedly reminded noncompliant employees not to make U.S. dollar payments in connection with Iran-related business transactions; (ii) senior management and compliance personnel were unaware of the violations due to the concealment of the information internally; (iii) the company has not received a penalty notice from OFAC in the preceding five years; and (iv) the company voluntarily self-disclosed the apparent violations, cooperated with OFAC’s investigation, and has undertaken significant remedial measures to ensure sanctions compliance.
On January 11, FinCEN issued a notice in the Federal Register soliciting comments on the renewal of the Office of Management and Budget (OMB) control number assigned to the regulation requiring reports of transactions with foreign financial agencies (FFAs). According to the notice, the regulation in the Bank Secrecy Act authorizes the Treasury Secretary “to promulgate regulations requiring specified financial institutions to file reports with [FinCEN] of certain transactions with designated [FFAs].” Although no changes are proposed to the information collection itself, the notice gives stakeholders an opportunity to comment on existing regulatory requirements and related burden estimates under the Paperwork Reduction Act (PRA). The notice also proposes for review and comment a methodology to expand the scope of future estimates for purposes of the PRA to account for cost and time when a financial institution must also report on multiple prior (“backward-looking”) and future (“forward-looking”) transactions with a designated FFA, thus “intending to be more granular in the estimates of resources expended to comply with these regulatory requirements.” Comments must be received by March 14, 2022.
On January 10, the U.S. Treasury Department’s Office of Foreign Assets Control announced sanctions pursuant to Executive Order 13851 against six Nicaraguan government officials. The sanctions, taken in conjunction with EU sanctions adopted the same date, relate to Nicaraguan President Daniel Ortega and Vice President Rosario Murillo’s regime’s ongoing “subjugation of democracy through effectuating sham elections, silencing peaceful opposition, and holding hundreds of people as political prisoners.” Complementing OFAC’s actions, the State Department “impose[d] visa restrictions on individuals complicit in undermining democracy in Nicaragua, including mayors, prosecutors, and university administrators, as well as police, prison, and military officials.” As a result of the sanctions, all property and interests in property of the sanctioned persons subject to U.S. jurisdiction are blocked and must be reported to OFAC. Additionally, “any entities that are owned, directly or indirectly, 50 percent or more in the aggregate by one or more of such persons are also blocked.”
On January 7, the U.S. Treasury Department’s Office of Foreign Assets Control published a new FAQ 956 regarding Belarus, Ukraine-/Russia-related, and Venezuela-related sanctions programs, which prohibit U.S. persons from dealing in certain new debts (such as bonds, loans, drafts, loan guarantees, or letters of credit) of certain identified persons in these countries. The FAQ provides additional guidance on how OFAC views modifications to pre-existing loans, contracts, or other agreements to replace LIBOR as the reference rate. According to the FAQ, “[l]oans, contracts, or other agreements that use LIBOR as a reference rate that are modified to replace such benchmark reference rate will not be treated as new debt for OFAC sanctions purposes, so long as no other material terms of the loan, contract, or agreement are modified.”
On December 22, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) issued three general licenses (GLs) to expand existing authorizations and further support humanitarian assistance in Afghanistan. The GLs authorize transactions and activities involving the Taliban or the Haqqani Network that would otherwise be prohibited by the Global Terrorism Sanctions Regulations, the Foreign Terrorist Organizations Sanctions Regulations, or amended Executive Order 13224. Subject to certain conditions, General License 17 authorizes transactions “that are for the conduct of the official business of the United States Government by employees, grantees, or contractors thereof”; General License 18 authorizes transactions and activities that are for the conduct of the official business of specified international organizations and other international entities by employees, grantees, or contractors; and General License 19 authorizes transactions and activities that are ordinarily incident and necessary to specific nongovernmental organizations’ activities, such as humanitarian projects to meet basic human needs and activities that support rule of law, citizen participation, government accountability and transparency. Notably, the GLs do not authorize (i) financial transfers to identified blocked persons (except for when executing the payment of certain taxes, fees, or import duties, or for the purchase or receipt of permits, licenses, or public utility services); or (ii) “[a]ny debit to an account on the books of a U.S. financial institution of any blocked person” described within the GLs.
In addition to the GLs, OFAC published several responses to frequently asked questions to provide clarity on the scope of GLs and U.S. sanctions on the Taliban and the Haqqani Network (see FAQs 928, 929, 931, 950, 951, 952, 953, 954, and 955). OFAC also issued a humanitarian fact sheet providing an overview of the newest authorizations and latest guidance regarding the flow of humanitarian assistance to Afghanistan.
On December 23, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced amendments to the Weapons of Mass Destruction Trade Control Regulations. The amendments, among other things: (i) add Executive Order 13382, “Blocking Property of Weapons of Mass Destruction Proliferators and Their Supporters” as an authority to the regulations; (ii) eliminate appendix I, containing an outdated list of persons subject to import measures, from the regulations; and (iii) revise three definitions in the regulations to reflect the removal of appendix I and to make technical edits to the authority citation. The amendments took effect on December 27.
On January 5, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced sanctions, the first designations under Executive Order 14033, against an individual and one entity under that individual’s control in response to corrupt activities and ongoing threats to the stability and territorial integrity of Bosnia and Herzegovina (BiH). According to OFAC, the designated individual has used his official BiH position to accumulate personal wealth through graft, bribery, and other forms of corruption and has undermined BiH institutions by attempting to unilaterally transfer state competencies from the BiH government, among other things. As a result of the sanctions, all property and interests in property of the sanctioned individual subject to U.S. jurisdiction are blocked and must be reported to OFAC. OFAC noted that its regulations generally prohibit U.S. persons from participating in transactions with the designated person, which include “the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any blocked person or the receipt of any contribution or provision of funds, goods or services from any such person.”
On January 3, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced a $91,172 settlement against a registered money services business for allegedly processing payment transactions for guests traveling to Cuba "for reasons outside of OFAC’s authorized categories” and failing to maintain certain required records associated with Cuba-related transactions. These actions, OFAC, stated, allegedly violated the Cuban Assets Control Regulations (CACR). According to OFAC’s web notice, as the company scaled up its traveler services in Cuba, its technology platforms were allegedly unable to manage the associated sanctions risks, which led to the alleged violations. Among other things, OFAC maintained that the company used a manual process to screen hosts and guests for potential sanctions issues until it began using a customized IP blocking system. Additionally, the company’s alleged recordkeeping violations were primarily attributed to technical defects involving an older version of the company’s mobile application that could be used for Cuba-related travel without “maintain[ing] complete functionality for [g]uests to make an attestation regarding their reason for travel to Cuba.”
In arriving at the settlement amount, OFAC considered various aggravating factors, including, among other things, that the company is a large, sophisticated U.S.-based technology company, and that its alleged violations followed a 2015 foreign policy change with respect to Cuba, as well as associated changes to the CACR, which maintained certain specified restrictions. OFAC also considered various mitigating factors, including that the company (i) did not receive a penalty notice or finding of violation in the past five years preceding the earliest transaction giving rise to this settlement; (ii) conducted a comprehensive review of its sanctions compliance program, voluntarily reported its findings to OFAC, and substantially cooperated with the investigation; and (iii) undertook significant remedial measures to ensure sanctions compliance.
On December 22, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced sanctions pursuant to Executive Order 13224 against three members of a Brazil-based network of an international terrorist group and two connected entities for providing support to the terrorist group. According to OFAC, the terrorist group generates most of its revenue outside of the U.S., and the U.S. government has used financial tools to limit its funding streams globally, such as designating almost 300 individuals and entities affiliated with the terrorist group and other terrorist organizations throughout Afghanistan, Pakistan, the Gulf, Africa, and other regions. As a result, all property and interests in property belonging to the designated individual subject to U.S. jurisdiction are blocked, and any “entities that are owned, directly or indirectly, 50 percent or more by them, individually, or with other blocked persons, that are in the United States or in the possession or control of U.S. persons must be blocked and report to OFAC.” U.S. persons are generally prohibited from engaging in transactions with the designated individual unless authorized by a general or specific OFAC license or otherwise exempt. OFAC warned that the agency “can prohibit or impose strict conditions on the opening or maintaining in the United State[s] of a correspondent account or a payable-through account by a foreign financial institution that either knowingly conducted or facilitated any significant transaction on behalf of a Specially Designated Global Terrorist.” OFAC further noted that that engaging in certain transactions with the designated individual “entails risk of secondary sanctions pursuant to E.O. 13224, as amended.”
- Jeffrey P. Naimon to discuss “Section 1071: Small business data collection & fair lending” at the American Bar Association Consumer Financial Services Winter Meeting 2022
- Jonice Gray Tucker to discuss “Getting your company ready: Managing fair lending for IMBs” at the Mortgage Bankers Association Independent Mortgage Bankers Conference
- Lauren R. Randell to discuss “Significant legal developments in the Northeast” at the 37th Annual National Institute on White Collar Crime
- Jonice Gray Tucker to discuss “Small business & regulation: How fair lending has evolved & where it is heading?” at the Consumer Bankers Association Live program