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U.S. Economic Sanctions Update


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Overview of developments in U.S. economic sanctions

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U.S. Economic Sanctions Update

  1. 1. Attorney AdvertisingU.S. Economic Sanctions Update Know the Rules or Pay the Price Cleveland Metropolitan Bar Association International Law Section Cleveland, Ohio April 4, 2012 Attorney Advertising
  2. 2. DisclaimerThe information provided is believed to be accurate as of the date of the presentation, but is subject to change without notice.This presentation is designed for informational purposes only and is not intended to be, nor should it be deemed, specific legal advice. If such advice is required, please consult with qualified legal counsel. Attorney Advertising
  3. 3. Office of Foreign Assets Control-Administers, enforces economic/trade sanctions againstforeign governments, government officials, persons/entitiesand placed on the SDN List-Financial expertise – blocking/freezing assets; title remains with sanctioned target-Broad prohibitions on transfers/transactions Attorney Advertising
  4. 4. OFAC History Lesson Treasury Department -War of 1812 - sanctions against Britain for harassing American sailors -Civil War, Congress approved law prohibiting transactions with Confederacy, called for forfeiture of goods involved in transactions, and created a licensing regime Office of Foreign Funds Control( ―FFC‗‖) – predecessor to OFAC; established at start of WWII after Germany invaded Norway (1940); initial purpose was preventing Nazi use of occupied countries foreign exchange and securities holdings; extended to protect assets of other invaded countries; FFC used powers to block enemy assets and prohibit foreign trade/transactions OFAC - created December 1950 after China entered Korean War; President Truman declared a national emergency and blocked all Chinese and N. Korean assets subject to U.S. jurisdiction Attorney Advertising
  5. 5. SDN List► Specially Designated Nationals List► Individuals and companies owned/controlled by or acting for/on behalf of targeted countries► Individuals, groups, and entities, (terrorists and narco- traffickers)► Assets are blocked and U.S. persons are generally prohibited from dealing with SDNs Attorney Advertising
  7. 7. SDN List Entrants (cont‘d)A A TRADING FZCO, P.O. Box 37089, Dubai, United Arab Emirates[SDNTK]ABASTECEDORA NAVAL Y INDUSTRIAL, S.A. (a.k.a. ANAINSA), Panama[CUBA]BIN LADEN, Osama (a.k.a. BIN LADEN, Usama; a.k.a. BIN LADIN, Osama;a.k.a. BIN LADIN, Osama bin Muhammad bin Awad; a.k.a. BIN LADIN,Usama; a.k.a. BIN LADIN, Usama bin Muhammad bin Awad); DOB 30 Jul1957; alt. DOB 1958; POB Jeddah, Saudi Arabia; alt. POB Yemen(individual) [SDT] [SDGT] Attorney Advertising
  8. 8. SDN List Entrants (cont‘d)CENTRAL AFRICAN AIR (a.k.a. CENTRAFRICAIN AIRLINES; a.k.a. CENTRAFRICANAIRLINES; a.k.a. CENTRAL AFRICAN AIR LINES; a.k.a. CENTRAL AFRICANAIRWAYS), P.O. Box 2760, Bangui, Central African Republic; c/o Transavia TravelAgency, P.O. Box 3962, Sharjah, United Arab Emirates; P.O. Box 2190, Ajman,United Arab Emirates; Kigali, Rwanda; Ras-al-Khaimah, United Arab Emirates[LIBERIA]MAHAB GHODSS CONSULTING ENGINEERING CO. (a.k.a. MAHAB GHODSSCONSULTING ENGINEERING COMPANY; a.k.a. MAHAB GHODSS CONSULTINGENGINEERS SSK; a.k.a. MAHAB QODS ENGINEERING CONSULTING CO.), 16Takharestan Alley, Dastgerdy Avenue, P.O. Box 19395-6875, Tehran 1918781185, Iran; No. 17, Dastgerdy Avenue, Takharestan Alley, 19395-6875, Tehran1918781185, Iran; Registration ID 48962 (Iran) issued 1983; all offices worldwide[IRAN] Attorney Advertising
  9. 9. SDN List Entrants (cont‘d)NAFT IRAN INTERTRADE COMPANY LTD (a.k.a. NAFTIRAN INTERTRADECO. (NICO) LIMITED; a.k.a. NAFTIRAN INTERTRADE COMPANY (NICO);a.k.a. NAFTIRAN INTERTRADE COMPANY LTD; a.k.a. NICO), 41, 1stFloor, International House, The Parade, St Helier JE2 3QQ, Jersey; PetroPars Building, Saadat Abad Ave, No 35, Farhang Blvd, Tehran, Iran; alloffices worldwide [IRAN]NAFTIRAN TRADING SERVICES CO. (NTS) LIMITED, 47 Queen AnneStreet, London W1G 9JG, United Kingdom; 6th Floor NIOC Ho, 4 VictoriaSt, London SW1H 0NE, United Kingdom; UK Company Number 02600121(United Kingdom); all offices worldwide [IRAN] Attorney Advertising
  10. 10. SDN List Entrants (cont‘d)RUNNING BROOK, LLC (USA), Miami, FL; Business Registration Document#L00000010931 (United States); US FEIN 030510902 (United States)[SDNTK]TAHA, Abdul Rahman S. (a.k.a. TAHER, Abdul Rahman S.; a.k.a. YASIN,Abdul Rahman; a.k.a. YASIN, Abdul Rahman Said; a.k.a. YASIN, Aboud);DOB 10 Apr 1960; POB Bloomington, Indiana USA; citizen United States;Passport 27082171 (United States) issued 21 Jun 1992; alt. PassportM0887925 (Iraq); SSN 156-92-9858 (United States); U.S.A. Passportissued 21 Jun 1992 in Amman, Jordan (individual) [SDGT] Attorney Advertising
  11. 11. OFAC‘s Historic Legal Authorities International Emergency Economic Powers Act of 1977 (―IEEPA‖) ―unusual and extraordinary the national security, foreign policy, or economy of the United States‖ Trading with the Enemy Act of 1917 (―TWEA‖) Attorney Advertising
  12. 12. Burma► Positive political developments – release of Aung San Suu Kyi and others  Jan. 2012: ►Sen. Mitch McConnell ―impressed‖ with reforms ►Sec. Clinton - U.S. to exchange ambassadors ►EU agrees to ease sanctions; boost aidBut…Business as usual for OFAC sanctions Attorney Advertising
  13. 13. Burma► Hyrbid – most complicated (31 CFR 537)  Ban on imports of Burmese-origin goods  Blocked property – Government officials  No general prohibition on export of goods/services Attorney Advertising
  14. 14. Burma► Prohibition on export of financial services - broad definition; unique to Burma sanctions ► Transfer of funds, directly or indirectly, from U.S. or by U.S. person to Burma; or ► Providing, directly or indirectly, to persons in Burma: banking, brokerage, insurance, investment, money remittance services; loans, guarantees, L/C or other extensions of credit Attorney Advertising
  15. 15. Burma► Query:can a U.S. company sell on open account terms to a Burmese buyer paying from a non- blocked account?► Other aspects of BSR:  NGO activity – exception to financial services prohibition  New investment prohibition – Gov‘t. contracts  Facilitation prohibition – divestiture exception Attorney Advertising
  16. 16. Libya► 31CFR 570► General License No. 7A – Sept. 19, 2011  Removed Libyan National Oil Corporation and subs: Arabian Gulf Oil Company; Brega Petroleum Marketing Company; Mediterranean Oil Services Company; Mediterranean Oil Services GmbH; National Oil Fields and Terminals Catering Company; North African Geophysical Exploration Company; Oilinvest Netherlands B.V.► Unblocked property and interests in property Attorney Advertising
  17. 17. Libya► General License No. 8A – Sept. 23, 2011► Authorizes all transactions involving Gov‘t. of Libya, (including agencies, instrumentalities, controlled entities, and Central Bank of Libya), provided:  (1) all funds, including cash, securities, bank accounts, and investment accounts, and precious metals blocked pursuant to E.O. 13566 or the LSR as of Sept. 19, 2011, remain blocked (expect for NOC under General License No. 7A); and  (2) the transactions do not involve any persons listed in the Annex to General License 8A.​​ Attorney Advertising
  18. 18. Libya► General License No. 11► Unblocked all property and interests in property of the Gov‘t. of Libya, etc. except:  all funds, including cash, securities, bank accounts, and investment accounts, and precious metals of the Libyan Investment Authority (―LIA‖) and entities owned or controlled by the LIA Attorney Advertising
  19. 19. Syria - Pre-Arab Spring 2011► E.O. 13338 (5/11/04 – refers to IEPPA authority)I, GEORGE W. BUSH, President of the United States of America, herebydetermine that the actions of the Government of Syria in supportingterrorism, continuing its occupation of Lebanon, pursuing weapons ofmass destruction and missile programs, and undermining the UnitedStates and international efforts with respect to the stabilization andreconstruction of Iraq constitute an unusual and extraordinary threat tothe national security, foreign policy and economy of the United States andhereby declare a national emergency to deal with that threat.► Attorney Advertising
  20. 20. Syria – Pre-Arab Spring 2011► E.O. 13338 Main Effects:  Prohibited export/re-export of USML, CCL items, and any products of the U.S. (except food and medicine)  Blocked all property and interests in property that are in/come within U.S., or are/come within possession or control of U.S. persons, including overseas branches for those found by Sec. of Treasury, in consultation with Sec. of State, to: Attorney Advertising
  21. 21. Syria – Pre-Arab Spring 2011 Those contributing significantly to Syrian Government‘s ability to provide safe haven/support to Hamas, Hizballah, Palestinian Islamic Jihad, etc. Those contributing significantly to Syrian Government‘s military presence in Lebanon Those contributing significantly to Syrian Government‘s development of chemical, biological, or nuclear weapons Attorney Advertising
  22. 22. Syria – Summer 2011► E.O. 13582 (8/17/11) – broader sanctions► Blocks ALL assets of Syrian Government► Prohibits:  new investment in Syria by U.S. persons;  export/re-export, sale/supply, directly or indirectly, from U.S. or by U.S. persons of any services to Syria;  import or involvement with any transaction/dealing by U.S. persons, including purchasing/selling, transporting, brokering, financing, facilitating, or guaranteeing, in or related to petroleum or petroleum products of Syrian origin; and  any approval, financing, facilitation, or guarantee by a U.S. person, wherever located, of a transaction by a foreign person where the transaction could not be handled directly. Attorney Advertising
  23. 23. Syria – Summer 2011- Winter 2012 ► 15 General Licenses – 8/18/11 – 2/22/12 General License 1 - Syrian Diplomatic Missions in the United States​ General License 2 - Authorizing Provision of Certain Legal Services with Respect to Syria​​ General License 3 - Entries in Certain Accounts for Normal Service Charges Authorized with Respect to Syria​ General License 4 - Exportation or Reexportation to Syria of Items Subject to the Export Administration​ Regulations; Exportation or Reexportation of Services Ordinarily Incident to Exportations or Reexportations of Items Licensed or Otherwise Authorized and Related Services​​ General License 5 - Exportation of Certain Services Incident to Internet-Based Communications Authorized​​ General License 6 - Noncommercial, Personal Remittances Authorized​​ General License 7​ - Winding Down Contracts Involving the Government of Syria; Divestiture of a U.S. Persons Investments or Winding Down of Contracts Involving Syria​ General License 8 ​ - Official Activities of International Organizations​ General License 9 - Transactions Related to U.S. Persons Residing in Syria​​ General License 10​ - Operation of Accounts​ General License 11 - Authorizing Certain Services in Support of Nongovernmental Organizations Activities in Syria​​​ General License 12​- Third-country Diplomatic and Consular Funds Transfers​ General License 13 - Allowable Payments for Overflights of Syrian Airspace​​ General License 14 - Transactions Related to Telecommunications Authorized​​ General License 15 - Certain Transactions Related to Patents, Trademarks, and Copyrights Authorized​ Attorney Advertising
  24. 24. Syria► General License Highlights  G.L. No. 4 – Export/Re-export of items (and related services) subject to EAR; harmonizes with BIS and defers licensing to BIS  Food and medicine ―EAR 99‖ – NLR  Food and medicine on CCL – BIS license; no specific OFAC license required Attorney Advertising
  25. 25. Syria► G.L.No. 7 - Winding Down Contracts and Divestitures  Limited Window – in effect prior to 8/18/11; completed by 11/25/11  Reporting requirement – within 10 days of completing transaction  Possible voluntary self-disclosure scenario Attorney Advertising
  26. 26. Sudan► 31 CFR 538► Triggerfor change: Republic of South Sudan; July 9, 2011► April,2011: OFAC Guidance – SSR would not apply to South Sudan, but certain transactions subject to OFAC specific license Attorney Advertising
  27. 27. Sudan► July 9 - Dec. 8, 2011 – SSR prohibited U.S. partiestransacting/facilitating business regardingpetro/petrochemical industries, without OFAC license► From Dec. 8, 2011 – 2 G.L.s issued: (1) activities involvingpetro/petrochemical industries in South Sudan and relatedfinancial transactions and (2) transshipping goods,technology, and services through Sudan to/from South Sudanand related financial transactions Attorney Advertising
  28. 28. Sudan► G.L. payment restriction –  Transactions from banks and other financial institutions owned/controlled by the Government of Sudan or located in Sudan ―must first transit through a depository institution that is not owned or controlled‖ by the Government of Sudan. Attorney Advertising
  29. 29. Cuba 31 CFR 515 2009 - Administration eased sanctions 1/25/11 – amendments to Cuban Assets Control Regulations encourage greater educational, cultural, religious, and journalistic activities and expand licensing of remittances Attorney Advertising
  30. 30. Cuba► Travel under G.L.  Faculty, staff, and students - accredited U.S. schools  Employees of producers/distributors of ag commodities, medicine, or medical devices  Employees of telecom services providers – 1) travel- related transactions to participate in meetings for marketing, negotiating, performing contracts, or establishing facilities to provide services; 2) directly incident to marketing, negotiating, accompanying delivery, or servicing in Cuba of telecom items authorized for commercial export to Cuba by BIS Attorney Advertising
  31. 31. Cuba Comprehensive sanctions Regs prohibit persons subject to U.S.jurisdiction from dealing in any property inwhich Cuba/Cuban national has or had anyinterest General prohibition on exports – ALLexports must be licensed by OFAC Attorney Advertising
  32. 32. Cuba► What can be legally exported?  Exports of ag, medicine, and medical devices are subject to BIS license  BIS has favorable licensing policy  Permissible payment terms: ►cash in advance; or ►third-country banks that are not U.S. persons or Cuban Government entities Attorney Advertising
  33. 33. Iran―In Greece, Hellenic Petroleum, the country‘s leadingrefiner, also suspended purchases of Iranian crudeoil — not because of the impending European Unionembargo, but because banking payments to Iranhave been rendered unworkable by the financialsanctions already in place, Reuters reported.‖Source: NYT, April 3, 2012 Attorney Advertising
  34. 34. Iran► 31 CFR 560► Companies and individuals are facing criminal and civil penalties for ITR violations► Facilitation, conspiracy, aiding & abetting► U.S. and foreign parties at risk Attorney Advertising
  35. 35. Iran► Key Points of ITR► General prohibition on exports/re-exports, directly or indirectly, of goods, technology, or services, from the U.S. or by a U.S. person, wherever located, to Iran or the Government of Iran, without OFAC license► No U.S. person ―brokering‖ = providing services Attorney Advertising
  36. 36. Iran► Generalprohibition on a person exporting from the U.S. any goods, technology or services, if that person knows or has reason to know items are destined ultimately for Iran  Don‘t ask, don‘t tell does not work! Attorney Advertising
  37. 37. Iran► Export prohibition includes:  U.S. items intended for use in production of, for commingling with, or for incorporation into goods, technology or services to be directly/ indirectly supplied, transshipped or re-exported exclusively or predominately to Iran or the Government of Iran.  Narrow exception: substantial transformation in third country Attorney Advertising
  39. 39. Iran – Recent Timeline► July 1, 2010 - Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (CISADA) – aimed at petro refining industry; non- U.S. persons  Investment of $20M in Iranian petro resources  Provided, leased, sold $1M (annual $5M) in refined products  Provided, leased, sold goods/services to Iran to maintain or expand refining capabilities Attorney Advertising
  40. 40. Iran – Recent Timeline► Dec.31, 2011 - National Defense Authorization Act (NDAA) – § 1245 aimed at Central Bank of Iran► Feb.6, 2012 - E.O. 13599 - Blocking Property of the Government of Iran and Iranian Financial Institutions Attorney Advertising
  41. 41. Iran► OFAC General Licenses Survey-Consular Funds Transfers & Transport of Human Remains​-Export/Re-export of Food Items -Personal Communication Services via Internet -Funds Transfers to Iran for Humanitarian Relief -Certain Noncommercial, Personal Remittances to/from Iran Attorney Advertising
  42. 42. Iran► Iran General License A – Feb. 6, 2012  authorized certain transactions under general or specific licenses issued previously► Possible April 6, 2012 expiry on certain specific licenses if no expiry date stated► General License B - remittances Attorney Advertising
  43. 43. Iran► Trade Sanctions Reform and Export Enhancement Act of 2000 (TSRA)  Specific license to export ag, medicine, and medical devices to Iran  OFAC: Still valid and available (2/14/12)  center/sanctions/Programs/Pages/tsra.aspx Attorney Advertising
  44. 44. OFAC Civil Penalties► No Action► Cautionary Letter► Civil Penalty – greater of $250,000 or 2x transaction value per violation► License revocation► Accounts blocked► Criminal – 20 years and $1M per violation Attorney Advertising
  45. 45. OFAC Investigations► Voluntary Self-Disclosure► Cooperation► Egregious v. non-egregious  Compliance with administrative subpoena; statements to investigators; duration; willful or reckless; awareness of conduct Attorney Advertising
  46. 46. OFAC Resource Center► center/faqs/Sanctions/Pages/answer.aspx Attorney Advertising
  47. 47. Thank you Jon P. Yormick Managing AttorneyYormick & Associates Co., LPA Toll Free: +1.866.967.6425 Mobile: + Buffalo | Cleveland Attorney Advertising