Archive for the ‘OFAC’ Category


Jun

8

EU Commission Menacingly Threatens Toothless Blocking Regulation


Posted by at 7:34 pm on June 8, 2018
Category: Foreign CountermeasuresIran SanctionsOFAC

Louis XIVOn June 6, the European Union Commission adopted a delegated regulation amending the Annex to Council Regulation (EC) No. 2271/96 of 22 November 1996.  Council Regulation (EC) No. 2271/96 is the notorious EU blocking regulation which forbids individuals and companies in EU member states from complying with the U.S. embargo on Cuba.   The Annex to that Regulation specifies the laws and regulations that are blocked.  The delegated regulation will add U.S. sanctions on Iran to the Annex, and it will go into force on August 6 unless, between now and then, the EU Council or Parliament objects.

As you might imagine, I think that this is a misguided, if not preposterous, response to the U.S. withdrawal from the Iran nuclear deal.  The blocking regulation, as currently applied to Cuba, has had no effect on the U.S. embargo on Cuba and has instead put businesses in the untenable position of having to decide whether to break U.S. law or EU law.  And, of course, we all know what decision businesses in this position have invariably made in the past and will continue to do so even in the face of the expanded scope of the blocking regulation.

And the reason for that is clear:  OFAC has imposed significant penalties for violating the Cuba sanctions even where the Company was required by the EU blocking regulation to violate those sanctions.  OFAC has ignored the existence of the statute and not even considered it a mitigating factor.  In fact, it could be argued that in at least one case it has considered it an aggravating factor if the European company was attempting to comply with the blocking regulation.  Companies measure the risk of the wrath of OFAC against the toothless enforcement of the EU blocking regulation and decide to bow down to their OFAC overlords, not their European ones.

The U.S. sanctions on Iran can apply to European companies in three situations.  First, the sanctions apply if the European company is a foreign subsidiary of a U.S. company.   Second, they apply if the European company causes the export of goods or services from the United States to Iran.  Third, there are “secondary” sanctions that will apply to certain activities unconnected to the US, like engaging in significant transactions with the Iranian shipping, ship-building and energy sectors.  The laws and regulations added to the blocking regulation would prohibit compliance with the U.S. sanctions in all three instances.

On the other hand, the Annex does not reach all instances of U.S. sanctions on Iran.  Many Iranian entities, such as Bank Saderat, Mahan Air and the Islamic Revolutionary Guard Corps are designated under the Global Terrorism Sanctions Regulations which are not mentioned in the amended Annex. Tidewater Middle East, which operates the port at Bandar Abbas, is designated under the Weapons of Mass Destruction Proliferators Sanctions Regulations, also not added to the amended Annex.

As with all blocking statutes, enforcing this will be a headache.  Article 5 provides that “no person referred to in Article 11 shall comply, … actively or by deliberate omission, with any requirement or prohibition … based on … the laws specified in the Annex.” So let’s say that an EU company decides not to invest in an Iranian oil field project. Was that because of the sanctions or because the company thought it was a bad investment for reasons unrelated to the sanctions, say fear of corruption or geopolitical risks? Suppose an EU company complies with a request from a US customer to provide a certificate that the goods being sold originate from an EU Member State. Is providing that certificate complying with the US law prohibiting U.S. companies from acquiring goods of Iranian origin or just accommodating a US customer’s desire for EU-origin goods?

Of course, the group of companies that the amendment really puts in a pickle are EU subsidiaries of U.S. companies. Article 11 states that the regulation applies to any “legal person incorporated within the Community.” Section 560.215 of the Iranian Transactions and Sanctions Regulations, now added to the Annex, makes it illegal for such EU subsidiary to engage in a transaction with Iran if it would be illegal for a U.S. person to engage in that same transaction.  These two provisions mean that sooner or later these companies will be in the unenviable position of deciding which law to break. And we know which law they will chose to break already, don’t we?

So what exactly does the EU think it’s accomplishing here? The blocking regulation has been in effect with respect to Cuba for 22 years with no appreciable effect on the Cuba embargo. Do the wise men and sages of the European Commission expect that Trump, when he hears of their bold amendment of the Annex, will burst into tears and beg to rejoin the Iran nuclear deal? Do they think this Amendment will cause OFAC to tear the Iranian Transactions and Sanctions Regulations into tiny pieces and scatter them over the Potomac River? Because none of these things is going to happen. You know what will happen? Sanctions lawyers will have a lot more work. That’s it.

Morale of the story (from Louis XIV): “C’est toujours l’impatience de gagner qui fait perdre.”

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Copyright © 2018 Clif Burns. All Rights Reserved.
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May

8

Wind Down Woes By Any Other Name Would Smell As Rotten


Posted by at 8:16 pm on May 8, 2018
Category: Iran SanctionsOFAC

Imam Khomeini by Kaymar Adl [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://www.flickr.com/photos/kamshots/515002010/ [cropped]Today’s revocation of U.S. participation in the Iran nuclear deal principally resurrects a number of secondary sanctions aimed at European allies and other countries. Those that relied on the nuclear deal will now see that commercial arrangements with Iran that they entered into relying on that deal and on their false hopes that the U.S. would not later simply walk away from it will be the collateral damage of the White House’s new trade war on Iran.

Shortly after the announcement of the U.S. withdrawal from the deal, OFAC issued FAQs explaining the action. (Why on earth are these called FAQs? They were issued within seconds of the announcement. How can there already be “frequently asked questions”? Perhaps OFAC thinks that FAQs stands for something else — maybe “frightening answers to questions.”)

Those FAQs preface the explanation of the wind-down provisions with this:

The U.S. government has a past practice of working with U.S. or third-country companies to minimize the impact of sanctions on the legitimate activities of those parties undertaken prior to the imposition of sanctions.

Any hopes that this is a true statement are quickly dashed by looking at the wind-down provisions themselves. Depending on the sanctions, companies have either 90 or 180 days to finish up activities commenced before today’s date. For activities engaged in under General License H — which permits foreign subsidiaries of U.S. companies to engage in certain activities with Iran — the wind-down period is 180 days. If a company has a contract to deliver goods to Iran, then, according to FAQ 2.1, those goods must be “fully delivered” within the wind-down period. Payment can be made outside that period for those fully delivered goods provided that payment is made pursuant to the terms of the written agreement.

But suppose you’ve made an investment in producing a complex item, have started to manufacture it, but can’t complete it within the wind-down period. You’re out of luck. Plus, when the Iranian customer sues you and gets a judgment in the court of your home country, you can’t pay the judgment without violating U.S. law. That’s not a good position to be in.

Another conundrum: what’s meant by fully delivered? Is the item fully delivered if the contract specifies FOB Incoterms 2010 and the item is placed on the boat before the wind-down period expires but is delivered to the customer in Iran after the wind-down period? Your guess is as good as mine, even though under an FOB delivery term the seller has satisfied its delivery obligations once the item is on the boat.

FAQ 2.2 provides the answer, of sorts, to the question about new business in Iran that starts after today but is completed before the wind-down period expires. OFAC says in that case you’re okay, but that if there is an enforcement action based on things done after the period expires, these new activities undertaken after today will be considered in determining the penalty. In other words, engage in new activities after today at your own risk.

Of course, it’s not at all clear what might count as new activities. Suppose you have an office in Tehran to assist in completing the contract. Can you order more paper when the copying machine runs out? Can you order lunch for a working meeting in the office? Hire a temp?

There’s one thing that can be guaranteed by these wind-down provisions:  full employment for sanctions lawyers.

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Copyright © 2018 Clif Burns. All Rights Reserved.
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Mar

27

Indictment of Iranian over Housing Project in Venezuela Raises Questions


Posted by at 9:49 am on March 27, 2018
Category: Criminal PenaltiesIran SanctionsOFAC

Ali Sadr Hasheminejad via http://www.prweb.com/releases/2017/07/prweb14531762.htm [Fair Use]
ABOVE: Ali Sadr Hasheminejad

Last week, Iranian national Ali Sadr Hasheminejad was arrested at Dulles Airport outside Washington DC in connection with a Venezuelan housing construction project undertaken by his family’s business in Iran. According to the indictment, the governments of Venezuela and Iran in 2005 agreed that Iran would cooperate in the building of new housing in Venezuela. Under the agreement, the parties would sign “commercial contracts” to complete the project. Thereafter, the Stratus Group, a private Iranian conglomerate, assumed the construction project.

Stratus incorporated Iranian International Housing Corporation (“IIHC”), an Iranian company which was responsible for carrying out and completing the housing project in Venezuela. IIHC then entered into an agreement with a Venezuelan company to construct the housing for $475,000,000 dollars. Mr. Hasheminejad, the defendant, was a member of the family that controlled the Stratus Group and its subsidiary IIHC.  He was responsible for overseeing the projects finances. Pursuant to Mr. Hasheminejad’s direction, the Venezuelan company transferred funds to IIHC to pay for the project. These funds, because they were to be in US Dollars, transited various unnamed banks in New York. As a result, the indictment alleges that Mr. Hasheminejad caused these banks to export financial services from the United States to Iran in violation of the Iran Transactions and Sanctions Regulations.

For reasons that are not entirely clear, the indictment does not provide any information as to where those wire funds ended up. As IIHC was engaged in a construction project in Venezuela it seems likely, indeed almost certain, that it had accounts in Venezuela and the funds in question were wired to that Venezuelan account so that materials and labor costs for the housing project could be met. There is no reason to believe that the Venezuelan company wired funds to Iran for the Venezuelan project and the indictment never even alleges that this happened.

The destination of the funds is a crucial piece of information. The Iranian Transactions and Sanctions Regulations (“ITSR”) prohibit exporting financial services (e.g. transferring funds) from the United States “to Iran or the Government of Iran.” The wire transactions at issue allegedly caused the U.S. banks to provide financial services, according to the indictment, “to Iran.” But, as those familiar with the ITSR know, the transfer to funds to an Iranian company or individual outside Iran is not a transfer of those funds “to Iran” and is not a violation of those rules. If the funds at issue went ultimately, as it seems they must have, to an IIHC account in Venezuela there would be no violation. Yet the indictment, in tracing the funds transfers, stops at bank accounts in the British Virgin Islands with the exception of some funds that went to the United States to buy property in California.

Perhaps the prosecution does have evidence that some of this money wound up in Iran but, if it does, it oddly chose to leave it out and instead wound up presenting an indictment that does not adequately allege a violation of law.

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Mar

20

OFAC Doesn’t Understand How Digital Currencies Work


Posted by at 1:50 pm on March 20, 2018
Category: CryptocurrenciesOFACVenezuela

Nicolas Maduro via https://commons.wikimedia.org/wiki/File:Nicolas_Maduro_February_2017.png [Fair Use]
ABOVE: Nicolas Maduro

Yesterday the White House issued an executive order prohibiting U.S. persons from transactions in the Petro, the new Venezuelan digital currency. As you might recall, OFAC initially suggested that dealings in the Petro would violate restrictions on providing debt financing to the Venezuelan government, an idea that I said was a foolish misunderstanding of the difference between debt and currency.

The new executive order does what it should have done to begin with: restrict the digital currency directly. Of course, as the only current and guaranteed use for the Petro is to pay Venezuelan taxes and government fees, it is doubtful that the Petro will be of interest to U.S. persons and, as a result, it is hard to see that the new executive order will have much impact, other than, I suppose, preventing U.S. persons  or persons in the U.S. from operating nodes in the P2P network for the Petro.

In addition to banning U.S. persons, the new order gave OFAC the opportunity to wade into digital currencies again and shows fundamental misconceptions about how digital currencies work. Astonishingly, the new FAQs on digital currencies issued with the executive order propose to add digital currency addresses as identifiers on the SDN List:

To strengthen our efforts to combat the illicit use of digital currency transactions under our existing authorities, OFAC may include as identifiers on the SDN List specific digital currency addresses associated with blocked persons.

Oh. My. Goodness. They really said that. Next OFAC will be adding an SDN’s favorite unicorn name as identifiers on the SDN List.

Here’s what’s wrong with this idea of using  digital currency addresses as identifiers on the SDN List: they are only used once (unless you’re particularly clueless). For each payment request, the requester generates a unique public and private key pair. The digital address is a hash of that key pair. The payment request is signed with the private key and sent with the public key, allowing the authentication of the request. When the individual wants to make another payment request, a new key pair and address is generated.

So, if OFAC puts an address on the list, hoping to prevent U.S. persons from sending digital currency to that address, it is a waste of time because it is highly unlikely that address will ever be used again for a payment request (particularly once the address is on the SDN List). Nor will it prevent U.S. persons from receiving money from that address, because  the digital currency can be transferred to a newly-generated address prior to sending the currency. (And this problem is not solved by looking at the last-sent-to address in a blockchain explorer, because that will not establish that the new address is controlled by the same, presumably blocked person. If sent by the blocked person to an address of an unblocked person, the transferred digital currency is no longer blocked because the blocked person no longer has any interest in it.)

Of course, in the unlikely event that the SDN is not savvy enough to use a different address for all of his/her digital currency transactions (or to use wallet software preventing address reuse), then he will get caught by listing his reused address as an identifier. But, I’m guessing the only people re-using the same address for all their digital currency transactions are working at OFAC.

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Copyright © 2018 Clif Burns. All Rights Reserved.
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Mar

8

The Norky Horror Picture Show: Let’s Do The UNPA Warp Again


Posted by at 4:13 pm on March 8, 2018
Category: North Korea SanctionsOFAC

The House of Leaves - Burning 4 by Learning Lark [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://flic.kr/p/7iW4zL [cropped]On March 5, the Office of Foreign Assets Control (“OFAC”) released a completely revised and revamped version of the North Korea Sanctions Regulations. The intent of the revision was to catch up with Executive Orders 13687, 13722, and 13810, as well as with the North Korea Sanctions and Policy Enhancement Act of 2016 and Title III of the Countering America’s Adversaries Through Sanctions Act, all of which came into force since the regulations were originally promulgated in 2010.

Not surprisingly, OFAC continues its war on the Congressionally mandated travel and information exemptions in 50 U.S.C. § 1702(b)(3) and (4), apparently worried that someone might give a copy of the Declaration of Independence or The Federalist Papers to a Nork SDN. Section 510.213 of the new regulations contains the normal travel and informational materials exemptions but section 510.213(a) says this:

(a) United Nations Participation Act. The exemptions described in this section do not apply to transactions involving property or interests in property of persons whose property and interests in property are blocked pursuant to the authority of the United Nations Participation Act, as amended (22 U.S.C. 287c(b)) (UNPA).

And the note to that section says this:

Persons whose property and interests in property are blocked pursuant to the authority of the UNPA include those listed on both OFAC’s Specially Designated Nationals and Blocked Persons List (SDN List) and the Consolidated United Nations Security Council Sanctions List (see https://www.un.org) as well as persons listed on the SDN List for being owned or controlled by, or acting for or on behalf of, such persons.

Of course, to add extra unnecessary confusion, the introductory text to the new rules in the Federal Register says this:

The exemptions described in this section do not apply to any transactions involving property or interests in property of certain persons whose property and interests in property are blocked pursuant to the provisions of E.O. 13551, E.O. 13722, or E.O. 13810 and that are blocked pursuant to the authority of the UNPA in addition to IEEPA.

This pretty much renders the Note to section 510.213 useless. The list of persons blocked under the UNPA includes everyone designated under those three orders and given program tag listing of DPRK2, DPRK3 and DPRK4. The problem is that is a much bigger list than those on the Consolidated United Nations Security Council Sanctions List. There are 133 North Korean individuals and entities on the UN List, whereas there are 314 North Korean individuals and entities designated on the SDN List under DPRK2, DPRK3 and DPRK4.

The UNPA gives the President the power “whenever the United States is called upon by the Security Council to apply measures which said Council has decided are to be employed to give effect to its decisions under said Charter” to issue executive orders “to the extent necessary to apply such measures.” Without question, when a Security Council Resolution requires member states to block particular entities and individual, the President has the power to block them under UNPA.  So OFAC can, if it wants, forbid U.S. persons from giving copies of The Interview, The Bible or John Stuart Mill’s On Liberty to any party on the UN List, no matter how silly and pointless such a restriction would be.

But the Security Council Resolutions at issue here under which the Executive Orders were issued do not say block these particular individuals and whoever the heck else you want to block while you’re at it. So individuals blocked by OFAC that aren’t also blocked under UN Security Council Resolutions are not lawfully blocked under the UNPA and the full extent of the travel and informational materials exemptions in section 1702(b) of IEEPA have to be applied by OFAC to those individuals not also on the UN Sanctions List. Don’t bet on that ever happening.

Photo Credit: The House of Leaves – Burning 4 by Learning Lark [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://flic.kr/p/7iW4zL [cropped]. Copyright 2009 Learning Lark

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Copyright © 2018 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)