Tag: SDN

OFAC and Private Funds

An SEC-registered investment adviser entered into a settlement agreement with the U.S. Treasury Department’s Office of Foreign Assets Control for allegedly failing to maintain a compliance program. The problem was triggered when the adviser’s foreign affiliate caused one of its clients to invest in a Cayman Islands fund that appeared on OFAC’s list of Specially Designated Nationals. Genesis Asset Managers, LLP agreed to a $112,500 fine for an apparent violation of the Iranian Transactions Regulations (31 C.F.R. part 560) that occurred in 2007.

OFAC claimed that Genesis did not maintain an OFAC compliance program at the time the investment was made. Of course, Genesis was not required to do so.

These were the aggravating factors in this case:

  • Genesis failed to exercise a minimal degree of caution or care in the conduct that led to the apparent violation
  • Officers of Genesis were aware of the conduct giving rise to the apparent violation
  • Substantial economic benefit was conferred to Iran
  • Genesis did not have an OFAC compliance program in place at the time of the apparent violation

These were the mitigating factors:

  • Genesis has not received a penalty notice or Finding of Violation from OFAC for substantially similar violations
  • Genesis substantially cooperated with OFAC’s investigation
  • Genesis voluntarily self-disclosed the apparent violation
  • Genesis took appropriate remedial action
  • Genesis may not have fully understood its OFAC obligations under U.S. law.

I find the last one strange. Every firm needs to comply with the OFAC regulations that prohibit transactions with parties on OFAC’s list of Specially Designated Nationals. Genesis is based on Britain so maybe the firm was bit confused about the extra-territorial reach of US law across the banking and investment systems.

Advisers should adopt risk-based procedures to ensure compliance with OFAC regulations. Most advisers and fund managers are not subject to a formal regulatory requirement to adopt written AML procedures or know-your-customer programs. That does not mean that such programs are bad ideas.

An adviser that can effectively demonstrate a reasonable OFAC/AML compliance program may be able to avoid heightened scrutiny from regulators. And investors are increasingly expecting their fund managers to have AML programs in place. If a violation does occur, the existence of a formal program can help mitigate the damage. In its enforcement guidelines, OFAC has stated that it may consider the “existence, nature and adequacy of a [firm’s] risk-based OFAC compliance program” in determining whether to bring an enforcement action and the amount of any penalty imposed.

It’s fairly easy to license a system and check your investors and business partners against the OFAC list and other sanctions lists.

Sources:

What You Need to Know About U.S. Sanctions Against Drug Traffickers

As part of OFAC‘s Specially Designated National List, OFAC includes narcotics kingpins. OFAC has published What You Need to Know About U.S. Sanctions Against Drug Traffickers (.pdf).

On December 3, 1999, the President signed into law the Foreign Narcotics Kingpin Designation Act (the “Kingpin Act”), 21 U.S.C. § 1901-1908, 8 U.S.C § 1182. The related regulations are styled the “Foreign Narcotics Kingpin Sanctions Regulations” (31 C.F.R. Part 598).

The Kingpin Act blocks all property and interests in property, subject to U.S. jurisdiction, owned or controlled by significant foreign narcotics traffickers as identified by the President. In addition, the Kingpin Act blocks the property and interests in property, subject to U.S. jurisdiction, of foreign persons designated by the Secretary of Treasury, in consultation with the Attorney General, the Director of Central Intelligence, the Director of the Federal Bureau of Investigation, the Administrator of the Drug Enforcement Administration, the Secretary of Defense, and the Secretary of State, who are found to be: (1) materially assisting in, or providing financial or technological support for or to, or providing goods or services in support of, the international narcotics trafficking activities of a person designated pursuant to the Kingpin Act; (2) owned, controlled, or directed by, or acting for or on behalf of, a person designated pursuant to the Kingpin Act; or (3) playing a significant role in international narcotics trafficking.

Significant foreign narcotics traffickers and foreign persons designated by the Secretary of the Treasury are referred to collectively as Specially Designated Narcotics Traffickers. Foreign persons designated under the Kingpin Act are referred to as “[SDNTK]s” on OFAC’s listing of “Specially Designated Nationals and Blocked Persons” to differentiate them from the Specially Designated Narcotics Traffickers named under Executive Order 12978.

U.S. persons are prohibited from engaging in any transaction or dealing in property or interests in property of [SDNTK]s and from engaging in any transaction that evades or avoids the prohibitions of the Kingpin Act. These prohibitions affect trade transactions as well as accounts, securities, and other assets.

Updates to OFAC’s SDN List

FinCEN updated the SDN list with companies and individuals associated with the Mugabe regime in Zimbabwe: Treasury Designates Mugabe Regime Cronies.

The U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) today designated four Mugabe regime cronies and a number of entities owned or controlled by two of them. The financial and logistical support they have provided to the regime has enabled Robert Mugabe to pursue policies that seriously undermine democratic processes and institutions in Zimbabwe.

“The Mugabe regime continues to resist the call of the Zimbabwean people to loosen its corrupt and violent hold on power,” said OFAC Director Adam J. Szubin.  “The United States supports the people of Zimbabwe in their struggle to achieve a political and economic system built on fairness and transparency rather than patronage and self-dealing.”

Today’s designations include John Bredenkamp, a well-known Mugabe insider involved in various business activities, including tobacco trading, gray-market arms trading and trafficking, equity investments, oil distribution, tourism, sports management, and diamond extraction. Through a sophisticated web of companies, Bredenkamp has financially propped up the regime and provided other support to a number of its high-ranking officials. He also has financed and provided logistical support to a number of Zimbabwean parastatal entities.

The following entities owned or controlled by John Bredenkamp also are designated: Alpha International (Private) Ltd., Breco (Asia Pacific) Ltd., Breco (Eastern Europe) Ltd., Breco (South Africa) Ltd., Breco (U.K.) Ltd., Breco Group, Breco International, Breco Nominees Ltd., Breco Services Ltd., Corybantes Ltd., Echo Delta Holdings Ltd., Kababankola Mining Company, Masters International Ltd., Masters International, Inc., Piedmont (UK) Limited, Raceview Enterprises, Scottlee Holdings (Pvt) Ltd., Scottlee Resorts, Timpani Ltd., and Tremalt Ltd.

Also designated today is Muller Conrad Rautenbach (a.k.a. Billy Rautenbach). Billy Rautenbach is a Zimbabwean businessman who has maintained close relations with the Mugabe regime. He has provided support to senior regime officials during Zimbabwe’s intervention in the Democratic Republic of the Congo and also provided logistical support for large-scale mining projects in Zimbabwe that benefit a small number of corrupt senior officials there. Today’s designations include an entity owned and controlled by Billy Rautenbach, Ridgepoint Overseas Developments Limited.

In addition, OFAC is designating Nalinee Joy Taveesin, a Thai businesswoman who has facilitated a number of financial, real-estate, and gem-related transactions on behalf of Grace Mugabe, Gideon Gono, and a number of other Zimbabwean Specially Designated Nationals (SDNs). Ironically, Nalinee Taveesin has participated in a number of initiatives on corruption and growth challenges in Africa and Southeast Asia while secretly supporting the kleptocratic practices of one of Africa’s most corrupt regimes.

Finally, OFAC is designating Mahmood Awang Kechik, a Malaysian urologist and one of Robert Mugabe’s physicians and business advisors. Kechik has used his medical practice to conceal the ultimate destination of medical equipment shipped to Zimbabwe, and he has transacted secretly with a number of SDNs, including Gideon Gono and Constantine Chiwenga, to generate wealth for these regime officials and the Government of Zimbabwe.

Today’s action was taken pursuant to Executive Order 13469, which targets, among others, individuals and entities who provide financial and other support to the Government of Zimbabwe and Zimbabwean SDNs. As a result of Treasury’s action, any assets of the individuals and entities designated today that are within U.S. jurisdiction must be frozen. Additionally, U.S. persons are prohibited from conducting financial or commercial transactions with these individuals or entities.

Specially Designated Nationals and Blocked Persons List Updated

Here are the new bad guys on the OFAC’s Specially Designated Nationals list:

AW-MOHAMED, Ahmed Abdi (a.k.a. ABUZUBAIR, Muktar Abdulrahim; a.k.a. AW MOHAMMED, Ahmed Abdi; a.k.a. “ABU ZUBEYR”; a.k.a. “GODANE”; a.k.a. “GODANI”; a.k.a. “SHAYKH MUKHTAR”); DOB 10 Jul 1977; POB Hargeysa, Somalia; nationality Somalia (individual) [SDGT]

EL HABHAB, Redouane (a.k.a. “ABDELRAHMAN”), Iltisstrasse 58, Kiel 24143, Germany; DOB 20 Dec 1969; POB Casablanca, Morocco; nationality Germany; National ID No. 1007850441 (Germany) issued 27 Mar 2001 expires 26 Mar 2011; Passport 1005552350 (Germany) issued 27 Mar 2001 expires 26 Mar 2011; currently incarcerated in Lubeck, Germany (individual) [SDGT]

ISSA, Issa Osman (a.k.a. ATTO, Abdullah; a.k.a. BUR, Abdullah; a.k.a. SUDANI, Abdala; a.k.a. “AFADEY”; a.k.a. “MUSSE”); DOB 1973; POB Malindi, Kenya; nationality Kenya (individual) [SDGT]

ROBOW, Mukhtar (a.k.a. ALI, Mujahid Mukhtar Robow; a.k.a. ALI, Mukhtar Abdullahi; a.k.a. ALI, Shaykh Mukhtar Robo; a.k.a. RUBU, Mukhtar Ali; a.k.a. “ABU MANSOUR”; a.k.a. “ABU MANSUR”); DOB 1969; alt. DOB 10 Oct 1969; POB Xudur, Somalia; alt. POB Keren, Eritrea; nationality Eritrea; National ID No. 1372584 (Kenya); Passport 0310857 (Eritrea) issued 21 Aug 2006 expires 20 Aug 2008; (Following data derived from an Eritrean passport issued under the alias name of Mukhtar Abdullahi Ali: Alt. DOB: 10 October 1969; Alt. POB: Keren Eritrea; nationality: Eritrean; National ID No.: 1372584, Kenya; Passport No.: 0310857, Eritrea, Issue Date 21 August 2006, Expire Date 20 August 2008) (individual) [SDGT]

Full SDN lists.

Opening Securities and Futures Accounts from an OFAC Perspective

The Office of Foreign Assets Control published new guidance specific to the securities industry on 11/06/2008: Opening Securities and Futures Accounts from an OFAC Perspective.

A strong OFAC compliance program consists of procedures that are similar to those found in a brokerage firm’s Customer Identification Program (“CIP”). Firms should use risk-based measures for verifying the identity of each new customer who opens an account. In establishing procedures, firms should identify and consider their size (e.g., total assets under management), their location, their customer base, the types of accounts they maintain, the methods by which accounts can be opened (e.g., in person or non face-to-face), and the types of identifying information available for each customer. Firms should also assess risks posed by each customer and transaction, asking questions such as:

  • Is the customer regulated by a Federal functional regulator, widely known, or listed on an exchange?
  • Has the firm had any previous experience with the customer or does it have prior knowledge about the customer?
  • Is the firm facilitating a U.S. person’s investment in a foreign issuer or other company that conducts business in a sanctioned country?
  • Is the customer located in a high-risk foreign jurisdiction that is considered to be poorly regulated or in a known offshore banking or secrecy haven?
  • Is the customer located or does it maintain accounts in countries where local privacy laws, regulations, or provisions prevent or limit the collection of client identification or beneficial ownership information?

Prior to entering into a business relationship with a client, you should screen the new client’s identification information, as well as the customer’s proposed transaction(s), against OFAC’s Specially Designated Nationals and Blocked Persons list (“SDN list”) [which is available at
http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx], and applicable OFAC sanctions programs.

The paper highlights a few key differences between OFAC compliance and CIP requirements. OFAC requires you to look deeper into the beneficial ownership of a client. CIP is limited to the “person that opens a new account.”

The other key difference is that OFAC does not permit you to reallocate your legal liability to a third party such as an introducing firm. OFAC takes the position that you can still be “held liable for any OFAC violations that occur due to the third parties’ negligence.”

Specially Designated Nationals and Blocked Persons List Updated

The Office of Foreign Assets Control has just updated the Specially Designated Nationals and Blocked Persons List.

It is a big list. The .pdf file is 404 pages long. The separate file of additions in 2008 is 106 pages long.

Here are the new bad guys added on October 30, 2008:

ABDELRAHIM, Abdelbasit (a.k.a. ABDUL RAHIM, Abdul Basit Fadil; a.k.a. ABDULRAHIM, Abdulbasit; a.k.a. ABOU BASSIR; a.k.a. ABU BASIR; a.k.a. ADBULRAHIM MAHOUD, Abdulbasit Fadil; a.k.a. AL ZAWY, Abdel Bassit Fadil; a.k.a. AL-ZAWI, ‘Abd Al-Basit Fadhil; a.k.a. AL-ZWAY, ‘Abd Al-Basit Fadil; a.k.a. MANSOUR, Abdallah; a.k.a. MANSOUR, Abdullah; a.k.a. MANSUR, ‘Abdallah), undetermined; DOB 2 Jul 1968; POB GDABIA, LIBYA; alt. POB Ajdabiyah, Libya; nationality United Kingdom (individual) [SDGT]

ABU MU’AWIYA (a.k.a. AL USTA, Abdelrazag Elsharif; a.k.a. AL-MULAY, ‘Abd; a.k.a. ALUSTA, ‘Abd Al-Razzaq Al-Sharif; a.k.a. ELOSTA, Abdelrazag Elsharif; a.k.a. SHARIF, ‘Abd al- Razzaq), undetermined; DOB 20 Jun 1963; POB SOGUMA, LIBYA; nationality United Kingdom (individual) [SDGT]

AL HAK, Al Haj Abd (a.k.a. AL MABROOK, Muftah; a.k.a. AL-FATHALI, Al-Mabruk; a.k.a. AL-FATHALI, Al-Mabruk Muftah Muhammad; a.k.a. EL MABRUK, Muftah; a.k.a. EL MOBRUK, Maftah; a.k.a. ELMABRUK, Maftah Mohamed; a.k.a. ELMABRUK, Mustah; a.k.a. MAFTAH, Elmobruk; a.k.a. “AL HAQQ, Al Hajj Abd”; a.k.a. “AL-HAQ, Haj ‘Abd”; a.k.a. “AL-HAQQ, Al-Hajj ‘Abd”), undetermined; DOB 1 May 1950; POB Libya; nationality Libya (individual) [SDGT]

The Specially Designated Nationals List (SDN)

The Office of Foreign Assets Control in the Treasury Department keeps the Specially Designated Nationals List (SDN).  The Specially Designated Nationals List is a publication of OFAC which lists individuals and organizations with whom United States citizens and permanent residents are prohibited from doing business.