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FinCEN clarifies financial crime information sharing program
On December 10, FinCEN Director Kenneth A. Blanco spoke at the Financial Crimes Enforcement Conference hosted by the American Bankers Association and American Bar Association to discuss the importance of information sharing in identifying, reporting, and preventing financial crime. Specifically, Blanco addressed recently updated guidance designed to provide additional clarity on FinCEN’s information sharing program under Section 314(b) of the USA PATRIOT Act, which provides financial institutions “the ability to share information with one another, under a safe harbor provision that offers protections from civil liability, in order to better identify and report potential money laundering or terrorist financing.”
FinCEN provided three main clarifications:
- While financial institutions may share information about suspected terrorist financing or money laundering, they “do not need to have specific information that these activities directly relate to proceeds of [a specified unlawful activity (SUA)], or to have identified specific laundered proceeds of an SUA.” FinCEN also stated that a conclusive determination that an activity is suspicious does not need to be made in order for a financial institution to benefit from the statutory safe harbor. Furthermore, information may be shared “even if the activities do not constitute a ‘transaction,’” such as “an attempted transaction, or an attempt to induce others engage in a transaction.” FinCEN added that there is no limitation under Section 314(b) on the sharing of personally identifiable information and no restrictions on the type of information shared or how the information can be shared, including verbally.
- “An entity that is not itself a financial institution under the Bank Secrecy Act [(BSA)] may form and operate an association of financial institutions whose members share information under Section 314(b),” FinCEN noted, adding that this includes compliance service providers.
- An unincorporated association of financial institutions governed by a contract between its members “may engage in information sharing under Section 314(b).”
In prepared remarks, Blanco reiterated, among other things, that companies should be specific in describing the activity they see in their suspicious activity reports (SAR), and discussed FinCEN’s Advance Notice of Proposed Rulemaking issued in September (covered by InfoBytes here), which solicited comments on questions concerning potential regulatory amendments under the BSA. Blanco also highlighted recent FinCEN’s advisories and guidance related to Covid-19 fraud (covered by InfoBytes here, here, and here) and encouraged the audience to review the agency’s dedicated Covid-19 webpage.
Senate passes NDAA with significant AML provisions
On December 11, the U.S. Senate passed the National Defense Authorization Act (NDAA) for Fiscal Year 2021 in a 84-13 vote, which was passed by the U.S. House of Representatives earlier in the week. As previously covered by InfoBytes, the NDAA includes a number of anti-money laundering provisions, such as (i) establishing federal disclosure requirements of beneficial ownership information, including a requirement that reporting companies submit, at the time of formation and within a year of any change, their beneficial owner(s) to a “secure, nonpublic database at FinCEN”; (ii) expanding the declaration of purpose of the Bank Secrecy Act (BSA) and establishing national examinations and supervision priorities; (iii) requiring streamlined, real-time reporting of Suspicious Activity Reports; (iv) expanding the definition of financial institution under the BSA to include dealers in antiquities; and (v) including digital currency in the AML-CFT enforcement regime by, among other things, expanding the definition of financial institution under the BSA to include businesses engaged in the transmission of “currency, funds or value that substitutes for currency or funds.” The NDAA has been sent to President Trump, who has publicly threatened to veto the measure; however, the legislation passed both the Senate and the House with majorities large enough to override a veto.
House passes NDAA with significant AML/CFT provisions
On December 8, the U.S. House of Representatives passed the National Defense Authorization Act (NDAA) for Fiscal Year 2021 in a 335-78 vote, which includes significant language from the September 2019 proposed legislation, the “Improving Laundering Laws and Increasing Comprehensive Information Tracking of Criminal Activity in Shell Holdings (ILLICIT CASH) Act,” among other proposed laws. Highlights of the anti-money laundering (AML) provisions include:
- Establishing federal disclosure requirements of beneficial ownership information, including a requirement that reporting companies submit, at the time of formation and within a year of any change, their beneficial owner(s) to a “secure, nonpublic database at FinCEN”;
- Expand the declaration of purpose of the Bank Secrecy Act (BSA) and establish national examinations and supervision priorities;
- Require streamlined, real-time reporting of Suspicious Activity Reports;
- Establish a Subcommittee on Innovation and Technology within the Bank Secrecy Act Advisory Group to encourage and support technological innovation in the area of AML and countering the financing of terrorism and proliferation (CFT);
- Expand the definition of financial institution under the BSA to include dealers in antiquities;
- Require federal agencies to study the facilitation of money laundering and the financing of terrorism through the trade of works of art; and
- Inclusion of digital currency in AML-CFT enforcement by, among other things, expanding the definition of financial institution under the BSA to include businesses engaged in the transmission of “currency, funds or value that substitutes for currency or funds.”
OFAC sanctions entities connected to IRGC-QF
On December 8, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced sanctions pursuant to Executive Order (E.O.) 13224 against an official in the Islamic Revolutionary Guard Corps-Qods Force (IRGC-QF), along with the Iranian regime’s envoy to the Houthi rebels in Yemen, for allegedly “acting for or on behalf of the IRGC-QF.” OFAC also announced sanctions against an Iranian university and a separate individual for providing support to IRGC-QF operations. As a result, all property and interests in property belonging to the designated persons subject to U.S. jurisdiction are blocked, and any “entities that are owned, directly or indirectly, 50 percent or more by such persons, are also blocked.” U.S. persons are “generally prohibited from engaging in transactions” with the designated persons. OFAC further warned foreign financial institutions that if they knowingly facilitate significant transactions for the designated persons they “risk exposure to sanctions that could sever their access to the U.S. financial system or block their property and interests in property under U.S. jurisdiction.”
OFAC sanctions entities for assisting North Korean coal exportation
On December 8, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced sanctions pursuant to Executive Orders 13687, 13722, and 13810 against six entities related to the alleged transportation of North Korean coal. OFAC also identified four vessels as blocked property. According to OFAC, by engaging in activities prohibited under UN Security Council resolution 2371, the six sanctioned entities have assisted North Korea’s continued efforts to circumvent UN prohibitions on the exportation of North Korean coal. As a result of the sanctions, “all property and interests in property of these targets that are in the United States or in the possession or control of U.S. persons must be blocked and reported to OFAC.” OFAC noted that its regulations “generally prohibit” U.S. persons from participating in transactions with the designated persons, and warned foreign financial institutions that if they knowingly facilitate significant transactions for any of the designated individuals or entities, they may be subject to U.S. secondary sanctions. OFAC also recommended all relevant jurisdictions review a global advisory issued last May by the U.S. Departments of State and Treasury, along with the U.S. Coast Guard (covered by InfoBytes here), which warned the maritime industry of deceptive shipping practices used by Iran, North Korea, and Syria to evade economic sanctions.
2nd Circuit: SEC within authority to bring actions for SAR failings
On December 4, the U.S. Court of Appeals for the Second Circuit affirmed summary judgment in favor of the SEC in an action brought by the agency against a penny stock broker-dealer, concluding the agency has the authority to bring an action under Section 17(a) of the Securities Exchange Act of 1934 (Exchange Act) and Rule 17a-8 promulgated thereunder for failure to comply with the Suspicious Activity Report (SAR) provisions of the Bank Secrecy Act (BSA). According to the opinion, the SEC filed an action against the broker-dealer for violating the Exchange Act and Rule 17a-8’s reporting, recordkeeping, and record-retention obligations by failing to file SARs as required by the BSA. Both parties moved for summary judgment, with the broker-dealer arguing that the SEC was improperly enforcing the BSA. The district court granted summary judgment in favor of the SEC in part (deferring “its resolution of categories of allegedly deficient SARs pending discovery and additional briefing”) and denied summary judgment for the broker-dealer, concluding that the SEC had authority to bring the action under the Exchange Act. After discovery and additional briefing, the SEC moved for summary judgment on the Rule 17a-8 violations and the district court granted summary judgment as to nearly 3,000 violations on the basis of the broker-dealer’s SARs-reporting and recordkeeping practices and imposed a $12 million civil penalty.
On appeal, the 2nd Circuit agreed with the district court, rejecting the broker-dealer’s argument that the SEC is attempting to enforce the BSA, which only the U.S. Treasury Department has the authority to do. The appellate court noted that the SEC is enforcing the requirements of Rule 17a-8, which requires broker-dealers to adhere to the BSA in order to comply with requirements of the Exchange Act, which does not constitute the agency’s enforcement of the BSA. Moreover, the appellate court concluded that the SEC did not overstep its authority when promulgating Rule 17a-8, as SARs “serve to further the aims of the Exchange Act by protecting investors and helping to guard against market manipulation,” and that the broker-dealer did not meet its “‘heavy burden’ to show that Congress ‘clearly expressed [its] intention’ to preclude the SEC from examining for SAR compliance in conjunction with FinCEN and pursuant to authority delegated under the Exchange Act.” In affirming the $12 million civil penalty, the appellate court stated that the district court acted “within its discretion to impose the [] penalty” considering the broker-dealer’s “systematic and widespread evasion of the law.”
OFAC sanctions supporter of Iranian chemical weapons research
On December 3, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced sanctions against a subordinate to the Iranian Organization of Defensive Innovation and Research and its director for its involvement in Iran’s chemical weapons research. The government made the sanctions designations pursuant to Executive Order 13382, which aims to freeze the assets of proliferators of weapons of mass destruction along with their supporters. As a result, all property and interests in property belonging to, or owned by, the designated persons subject to U.S. jurisdiction are blocked, and U.S. persons are also generally prohibited from engaging in transactions with them. OFAC further warned foreign financial institutions that knowingly facilitating significant transactions or providing significant support to the designated persons may subject them to U.S. sanctions.
Additionally, OFAC updated and issued several Iran-related FAQs.
Energy firm's U.S. affiliate agrees to pay $135 million to settle FCPA violations with CFTC and DOJ
On December 3, the DOJ announced it had entered into a deferred prosecution agreement with the U.S. affiliate of one of the largest energy trading firms in the world, in which the company agreed to pay a combined $135 million in criminal penalties related to two counts of conspiracy to violate the anti-bribery provisions of the FCPA. The agreement also resolves a parallel investigation in Brazil. According to the DOJ, between 2005 and 2014, the company paid millions of dollars in bribes to public officials in Brazil, Ecuador, and Mexico “‘to obtain improper competitive advantages that resulted in significant illicit profits for the company.’” Specifically, the company and its co-conspirators paid more than $8 million in bribes to at least four officials at Brazil’s state-owned and controlled oil company, Petróleo Brasileiro S.A. – Petrobras (Petrobras), “in exchange for receiving confidential Petrobras pricing and competitor information.” The company concealed the bribery scheme “through the use of intermediaries and a fictitious company that facilitated the payments to offshore accounts and, ultimately, to the Petrobras officials.” In another instance, the company bribed at least five additional Petrobras officials in order to receive confidential pricing information used to win fuel oil contracts, whereby “a consultant acting on behalf of [the company] engaged in back-channel negotiations with a Houston-based Petrobras official,” and “ultimately settl[ed] on the pre-arranged price that allowed for bribes to be paid from [the company] to the Petrobras officials.”
Between 2015 and July 2020, the company also engaged in a second bribery conspiracy by offering and paying government officials in Ecuador and Mexico more than $2 million in exchange for business opportunities connected to the purchase and sale of oil products. The company and its co-conspirators—who knew the funds, at least in part, were going towards the bribes—“entered into sham consulting agreements, set up shell companies, created fake invoices for purported consulting services and used alias email accounts to transfer funds to offshore companies involved in the conspiracy.”
DOJ is crediting $45 million of the total criminal penalty against the amount the company will pay to resolve the Brazilian Ministério Público Federal’s investigation into conduct related to the company’s bribery scheme in Brazil. The company and another entity within its group of energy trading firms have also agreed to continue to cooperate with the DOJ in ongoing criminal investigations and prosecutions, and will make enhancements to their compliance programs and report on their implementation for a three-year period.
In a related matter, the company also agreed to disgorge more than $12.7 million and pay an $83 million civil money penalty related to manipulative and deceptive trading activity not covered by the DOJ’s deferred prosecution agreement. Under the order, the civil money penalty will be recognized and offset up to $67 million by the amount paid to the DOJ as part of the deferred prosecution agreement. The CFTC noted that the company’s “fraudulent and manipulative conduct—including conduct relating to foreign corruption—defrauded its counterparties, harmed other market participants, and undermined the integrity of the U.S. and global physical and derivatives oil markets.” This case is the first foreign corruption action brought by the CFTC.
OFAC sanctions Chinese tech company for supporting Maduro regime
On November 30, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced sanctions against a Chinese technology company for allegedly “having materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, actions or policies that undermine democratic processes or institutions.” The sanctions, issued pursuant to Executive Order (E.O.) 13692, reflect Treasury’s continued efforts to hold persons who offer support to the Maduro regime accountable. As a result, all property and interests in property belonging to the identified individuals subject to U.S. jurisdiction are blocked, and “any entities that are owned, directly or indirectly, 50 percent or more by the designated individuals, are also blocked.” U.S. persons are generally prohibited from dealing with any property or interests in property of blocked or designated persons.
Concurrently, OFAC issued Venezuela-related General License (GL) 38 and a related frequently asked question. GL 38 authorizes the wind down of transactions and activities involving the sanctioned company or any entity owned—directly or indirectly at a 50 percent or greater interest—through January 14, 2021, which would otherwise be prohibited by E.O. 13692. According to OFAC, GL 38 does not authorize (i) any debit to the sanctioned entity’s accounts on a U.S. financial institution’s books; or (ii) any transactions otherwise prohibited by the Venezuela Sanctions Regulations.
OFAC sanctions entities for assisting North Korean regime
On November 19, the U.S. Treasury Department’s Office of Foreign Assets Control announced sanctions pursuant to Executive Order 13722 against two entities allegedly involved in the exportation of forced labor from North Korea. According to OFAC, the sanctioned entities—a Russian construction company and a North Korean company—have “engaged in, facilitated, or been responsible for the exportation of forced labor from North Korea, including exportation to generate revenue for the Government of North Korea or Workers’ Party of Korea.” In addition, OFAC updated the Specially Designated Nationals and Blocked Person List to provide additional information on three previously designated companies responsible for sending North Korean workers to Russia and China. As a result of the sanctions, “all property and interests in property of these targets that are in the United States or in the possession or control of U.S. persons must be blocked and reported to OFAC.” OFAC noted that its regulations “generally prohibit” U.S. persons from participating in transactions with the designated persons, and warned foreign financial institutions that if they knowingly facilitate significant transactions for any of the designated individuals or entities, they may be subject to U.S. secondary sanctions.