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Friday, 05 June 20
U.S. SANCTIONS COMPLIANCE GUIDANCE RELEASED FOR THE GLOBAL MARITIME, ENERGY AND METALS SECTORS - AKIN GUMP
 Key Points
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On May 14, 2020, OFAC, the Department of State and the U.S. Coast Guard jointly released guidance for persons involved in the maritime industry regarding common deceptive shipping practices used to subvert U.S. and United Nations sanctions programs targeting Iran, North Korea and Syria.
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The guidance highlights certain deceptive practices employed in maritime activity that could signal sanctions evasion.
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The guidance also contains specific measures that the maritime industry and energy and metals sectors can take to tailor their sanctions compliance programs to avoid sanctions violations or otherwise supporting illicit shipping activities.
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This Guidance is part of a sustained focus on the international shipping industry, including the U.S. Government’s latest enforcement actions in the shipping sector on June 2, 2020.
The Guidance
On May 14, 2020, the Department of the Treasury’s Office of Foreign Assets Control (OFAC), the Department of State and the U.S. Coast Guard jointly released guidance (the “Guidance”) regarding common deceptive shipping practices in order to aid persons involved in the maritime industry, and energy and metals sectors, in tailoring their due diligence and sanctions compliance policies and procedures. The Guidance is particularly targeted towards ship owners, managers, operators, brokers, ship chandlers, flag registries, port operators, shipping companies, freight forwarders, classification service providers, commodity traders, insurance companies and financial institutions. The shipping industry continues to present particularly challenging issues associated with U.S. sanctions compliance, including the involvement of numerous parties in particular voyages all with different, yet overlapping risks.
The Guidance continues a further and concerted effort by OFAC to focus in particular on the shipping industry and builds on prior advisories that it has issued directed at the shipping industry, including one issued on September 4, 2019, entitled “Sanctions Risks Related to Shipping Petroleum and Petroleum Products from Iran” that also identified specific deceptive shipping practices and risk mitigation measures for the industry. As the U.S. Government’s latest enforcement actions on June 2, 2020 demonstrate, OFAC sanctions enforcement attention is squarely focused on the international shipping industry.
The Guidance also provides important insights for companies operating in the maritime sector regarding the criteria that OFAC applies when evaluating an effective sanctions compliance program for such companies.
Below we summarize key points from the Guidance that are relevant for the shipping sector, including a summary of deceptive practices highlighted in the Guidance, a summary of general practices for effective identification of potential sanctions evasion and summaries of guidance for certain actors in the maritime industry and country-specific guidance.
Deceptive Shipping Practices
The Guidance provides a summary of common tactics utilized to facilitate sanctionable or illicit maritime trade linked to Iran, North Korea and Syria, including:
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Disabling or manipulating the Automatic Identification System (AIS) on vessels to conceal a vessel’s port of call or other information regarding its voyage.
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Physically altering vessel identification to obscure the identities of sanctioned vessels or vessels engaging in sanctionable activities.
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Falsifying cargo and vessel documents, particularly with respect to shipments involving petrochemicals, petroleum, petroleum products, metals (steel, iron) or sand to disguise their origin.
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Ship-to-Ship (STS) Transfers used to conceal origin/destination of products.
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Voyage irregularities to disguise the ultimate destination or origin of cargo, including indirect routing, unscheduled detours or transit or transshipment of cargo through third countries.
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False flags and flag hopping (i.e., repeatedly registering vessels with new flag states).
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Use of complex ownership or management to disguise the ultimate beneficial owner of cargo or commodities in order to avoid sanctions or other enforcement actions.
General Practices for Effective Identification of Sanctions Evasion
The Guidance also highlights, and provides details regarding, the following practices for effective identification of potential sanctions evasion:
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Institutionalizing a sanctions compliance program, including through the implementation of written standardized operational compliance policies, procedures, standards of conduct and safeguards.
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Establishing AIS best practices and contractual requirements that make disabling/manipulating AIS for illegitimate reasons grounds for termination of contracts or investigations.
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Monitoring ships throughout the entire transaction lifecycle, including through supplementing AIS with Long Range Identification and Tracking (LRIT) and receiving periodic LRIT signals on a frequency informed by the entity’s risk assessment.
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Conducting “Know Your Customer” due diligence on customers and counterparties, which could include “maintaining the names, passport ID numbers, address(es), phone number(s), email address(es), and copies of photo identification of each customer’s beneficial owner(s).”
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Exercising supply chain due diligence, including, as appropriate, conducting due diligence to ensure that recipients and counterparties to a transaction are not sending or receiving commodities that may trigger sanctions, such as Iranian petroleum or North Korea-origin coal, and implementing controls that allow for verification-of-origin and recipient checks for ships that conduct STS transfers.
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Incorporating the above “best practices” into contracts.
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Sharing information about sanctions evasion techniques and threats amongst industry groups.
Annex A: Actor-specific Guidance
In Annex A, the Guidance provides bulleted lists of guidance and information for particular actors within the maritime industry, including: maritime insurance companies, flag registry managers, port state control authorities, shipping industry associations, regional and global commodity trading, supplier, and brokering companies, financial institutions, ship owners, operators, and charterers, classification societies, vessel captains and crewing companies.
Below we summarize the guidance with respect to ship owners, operators and charterers, vessel captains and crewing companies.
Ship Owners, Operators, and Charterers:
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Identify vessels that, in the past two years, have a pattern of AIS manipulation not consistent with the International Convention for the Safety of Life at Sea and terminating business relationships with clients that continue to use those vessels.
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Keep and analyze records, including, where possible, photographs, of delivery and recipient vessels and/or recipients located at ports when possible, to enhance end-use verification.
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Protect employees who reveal illegal or sanctionable behavior from retaliation.
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Incorporate data into due diligence practices from organizations that provide commercial shipping data.
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Communicate to counterparts as necessary and appropriate (e.g., ship owners, managers, charterers, operators) an expectation that they have adequate and appropriate compliance policies.
Vessel Captains:
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Ensure deck officers are aware of the International Maritime Organization’s (IMO) AIS regulations, including the requirement to consistently broadcast AIS transmissions.
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Communicate to ship owners and charterers that vessels are monitored for AIS disablement and that any occurrences of AIS disablement will be investigated.
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Understand vessels’ AIS history to determine whether they may have been involved in illicit activities.
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Before engaging in ship-to-ship transfers, verify the other vessel’s name, IMO number and flag, and ensure there is a legitimate business purpose for the transfer.
Crewing Companies:
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Ensure crewmembers are aware of IMO guidance in relation to illicit shipping and the reasons why certain practices are unsafe.
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Communicate to clients that crews are monitored for AIS disablement and that any occurrences of AIS disablement will be investigated.
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Understand vessels’ AIS history to determine whether it may have been involved in illicit activities.
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Ensure that crewmembers who reveal illegal or sanctionable activity are protected from retaliation and providing a confidential mechanism for reporting sanctionable conduct.
Annex B: Country Guidance
In Annex B, the Guidance summarizes relevant provisions of U.S. and U.N. sanctions programs concerning North Korea, Iran and Syria and actions prohibited under said programs relevant to the maritime industry. It also highlights a few points with respect to recent deceptive practices to facilitate illicit shipping to North Korea, Syria, and Iran which are summarized below.
North Korea:
North Korea reportedly exported 3.7 million metric tons of coal between January and August 2019, in violation of U.N. sanctions. Further, while under United Nations Security Council Resolution 2397, North Korea is limited to importing a maximum of 500,000 barrels of petroleum per year, from January to October 2019. North Korea ports received 221 tanker deliveries, which, if fully laden, would result in approximately 3.89 million barrels of imports. According to the Guidance, these illicit exports and imports are primarily effectuated via ship-to-ship transfers in Chinese territorial seas. Image 1 below depicts the most common areas in which such ship-to-ship transfers take place.
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Common Locations of Ship-to-Ship Transfers subverting North Korean Sanctions1 |
North Korea is also reportedly acquiring vessels destined for scrapping and non-ocean-going barges that do not transmit AIS signals to engage in illicit import/export operations.
Syria:
The Guidance notes that “the supply chain and petroleum-related shipments [to Syria] create significant sanctions risk for those in the maritime industry.” As an example, it highlights the September 2019 OFAC action against Maritime Assistance LLC for facilitating the sale and delivery of jet fuel to Russian military forces operating in Syria. It also highlights the OFAC action in the November 2018 scheme in which Iranian and Russian entities engaged in a payment offsetting arrangement in which the sale and shipment of Iranian oil to Syria provided funding to Iran and proxy groups such as Hizballah, the Islamic Resistance Movement (HAMAS) and the Islamic Revolutionary Guard Corps-Quds Force (IRGC-QF).
Iran:
The Guidance did not provide specific guidance with respect to deceptive shipping practices used to subvert Iran-related sanctions—rather, it noted that the IRGC-QF continues to try to evade U.S. sanctions “by obfuscating the origin, destination, and recipient of oil shipments,” stating that “the use of such deceptive tactics is unique neither to Iran nor to Iran’s petroleum industry.”
Companies in the shipping industry or whose businesses intersect the shipping sector should assess their sanctions risk in light of this latest U.S. government guidance and make necessary modifications or enhancements to their compliance programs to mitigate this risk.
Source: Akin Gump, Strauss Hauer & Feld LLP
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Tuesday, 09 June 20
BUNKER SUPPLY CONTRACTS - KEY CONSIDERATIONS FOR THE BUYER - GARD
KNOWLEDGE TO ELEVATE
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Monday, 08 June 20
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- Kideco Jaya Agung - Indonesia
- Antam Resourcindo - Indonesia
- SMC Global Power, Philippines
- Australian Coal Association
- Straits Asia Resources Limited - Singapore
- Coal and Oil Company - UAE
- London Commodity Brokers - England
- Tamil Nadu electricity Board
- Interocean Group of Companies - India
- Maharashtra Electricity Regulatory Commission - India
- ASAPP Information Group - India
- South Luzon Thermal Energy Corporation
- Lanco Infratech Ltd - India
- Toyota Tsusho Corporation, Japan
- Tata Chemicals Ltd - India
- Asmin Koalindo Tuhup - Indonesia
- Merrill Lynch Commodities Europe
- Manunggal Multi Energi - Indonesia
- Bhushan Steel Limited - India
- Central Electricity Authority - India
- Directorate Of Revenue Intelligence - India
- Energy Link Ltd, New Zealand
- Bharathi Cement Corporation - India
- Karbindo Abesyapradhi - Indoneisa
- New Zealand Coal & Carbon
- Georgia Ports Authority, United States
- Petrochimia International Co. Ltd.- Taiwan
- Karaikal Port Pvt Ltd - India
- Kartika Selabumi Mining - Indonesia
- Miang Besar Coal Terminal - Indonesia
- Independent Power Producers Association of India
- Siam City Cement - Thailand
- Carbofer General Trading SA - India
- Coastal Gujarat Power Limited - India
- Salva Resources Pvt Ltd - India
- Meenaskhi Energy Private Limited - India
- Pendopo Energi Batubara - Indonesia
- Directorate General of MIneral and Coal - Indonesia
- Posco Energy - South Korea
- Kalimantan Lumbung Energi - Indonesia
- Ministry of Transport, Egypt
- Mercator Lines Limited - India
- Indonesian Coal Mining Association
- Semirara Mining and Power Corporation, Philippines
- Cement Manufacturers Association - India
- Rio Tinto Coal - Australia
- Parry Sugars Refinery, India
- GVK Power & Infra Limited - India
- Baramulti Group, Indonesia
- Edison Trading Spa - Italy
- Malabar Cements Ltd - India
- Holcim Trading Pte Ltd - Singapore
- Vizag Seaport Private Limited - India
- OPG Power Generation Pvt Ltd - India
- Trasteel International SA, Italy
- Aditya Birla Group - India
- Sinarmas Energy and Mining - Indonesia
- Simpson Spence & Young - Indonesia
- Siam City Cement PLC, Thailand
- The State Trading Corporation of India Ltd
- Rashtriya Ispat Nigam Limited - India
- VISA Power Limited - India
- Marubeni Corporation - India
- LBH Netherlands Bv - Netherlands
- Neyveli Lignite Corporation Ltd, - India
- Maheswari Brothers Coal Limited - India
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- Kohat Cement Company Ltd. - Pakistan
- Kobexindo Tractors - Indoneisa
- Cigading International Bulk Terminal - Indonesia
- Madhucon Powers Ltd - India
- Orica Mining Services - Indonesia
- Power Finance Corporation Ltd., India
- Thai Mozambique Logistica
- Bahari Cakrawala Sebuku - Indonesia
- Sojitz Corporation - Japan
- Jaiprakash Power Ventures ltd
- Borneo Indobara - Indonesia
- India Bulls Power Limited - India
- Bangladesh Power Developement Board
- Sakthi Sugars Limited - India
- San Jose City I Power Corp, Philippines
- Banpu Public Company Limited - Thailand
- Goldman Sachs - Singapore
- Kepco SPC Power Corporation, Philippines
- Indika Energy - Indonesia
- Medco Energi Mining Internasional
- Jindal Steel & Power Ltd - India
- Romanian Commodities Exchange
- Globalindo Alam Lestari - Indonesia
- Global Business Power Corporation, Philippines
- Orica Australia Pty. Ltd.
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Coalindo Energy - Indonesia
- Formosa Plastics Group - Taiwan
- Intertek Mineral Services - Indonesia
- GN Power Mariveles Coal Plant, Philippines
- Wilmar Investment Holdings
- PNOC Exploration Corporation - Philippines
- TNB Fuel Sdn Bhd - Malaysia
- GMR Energy Limited - India
- Timah Investasi Mineral - Indoneisa
- Gujarat Mineral Development Corp Ltd - India
- Anglo American - United Kingdom
- Alfred C Toepfer International GmbH - Germany
- IHS Mccloskey Coal Group - USA
- Semirara Mining Corp, Philippines
- International Coal Ventures Pvt Ltd - India
- Billiton Holdings Pty Ltd - Australia
- Bhoruka Overseas - Indonesia
- Vedanta Resources Plc - India
- White Energy Company Limited
- Grasim Industreis Ltd - India
- Metalloyd Limited - United Kingdom
- Bhatia International Limited - India
- Bayan Resources Tbk. - Indonesia
- Parliament of New Zealand
- Eastern Coal Council - USA
- Mjunction Services Limited - India
- Indogreen Group - Indonesia
- Altura Mining Limited, Indonesia
- Aboitiz Power Corporation - Philippines
- Leighton Contractors Pty Ltd - Australia
- Attock Cement Pakistan Limited
- Krishnapatnam Port Company Ltd. - India
- Economic Council, Georgia
- Global Coal Blending Company Limited - Australia
- Dalmia Cement Bharat India
- European Bulk Services B.V. - Netherlands
- Deloitte Consulting - India
- Oldendorff Carriers - Singapore
- Port Waratah Coal Services - Australia
- Minerals Council of Australia
- SMG Consultants - Indonesia
- Sindya Power Generating Company Private Ltd
- GAC Shipping (India) Pvt Ltd
- The Treasury - Australian Government
- Central Java Power - Indonesia
- Chamber of Mines of South Africa
- Sree Jayajothi Cements Limited - India
- Electricity Generating Authority of Thailand
- Kaltim Prima Coal - Indonesia
- Latin American Coal - Colombia
- Larsen & Toubro Limited - India
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Thiess Contractors Indonesia
- Global Green Power PLC Corporation, Philippines
- Agrawal Coal Company - India
- Petron Corporation, Philippines
- Bank of Tokyo Mitsubishi UFJ Ltd
- Energy Development Corp, Philippines
- Planning Commission, India
- Pipit Mutiara Jaya. PT, Indonesia
- Mercuria Energy - Indonesia
- Ceylon Electricity Board - Sri Lanka
- Price Waterhouse Coopers - Russia
- Renaissance Capital - South Africa
- Meralco Power Generation, Philippines
- Ambuja Cements Ltd - India
- Ministry of Mines - Canada
- The University of Queensland
- ICICI Bank Limited - India
- PTC India Limited - India
- MS Steel International - UAE
- Wood Mackenzie - Singapore
- Ministry of Finance - Indonesia
- Jorong Barutama Greston.PT - Indonesia
- Gujarat Electricity Regulatory Commission - India
- AsiaOL BioFuels Corp., Philippines
- Commonwealth Bank - Australia
- Star Paper Mills Limited - India
- Videocon Industries ltd - India
- Eastern Energy - Thailand
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Ind-Barath Power Infra Limited - India
- SN Aboitiz Power Inc, Philippines
- Indian Energy Exchange, India
- Offshore Bulk Terminal Pte Ltd, Singapore
- Binh Thuan Hamico - Vietnam
- Bukit Makmur.PT - Indonesia
- Xindia Steels Limited - India
- PowerSource Philippines DevCo
- Kapuas Tunggal Persada - Indonesia
- Sarangani Energy Corporation, Philippines
- Australian Commodity Traders Exchange
- Heidelberg Cement - Germany
- Indo Tambangraya Megah - Indonesia
- Makarim & Taira - Indonesia
- Bukit Asam (Persero) Tbk - Indonesia
- Samtan Co., Ltd - South Korea
- Mintek Dendrill Indonesia
- Essar Steel Hazira Ltd - India
- Riau Bara Harum - Indonesia
- Singapore Mercantile Exchange
- Gujarat Sidhee Cement - India
- IEA Clean Coal Centre - UK
- Africa Commodities Group - South Africa
- Iligan Light & Power Inc, Philippines
- CIMB Investment Bank - Malaysia
- Bukit Baiduri Energy - Indonesia
- CNBM International Corporation - China
- Chettinad Cement Corporation Ltd - India
- Vijayanagar Sugar Pvt Ltd - India
- Sical Logistics Limited - India
- PetroVietnam Power Coal Import and Supply Company
- McConnell Dowell - Australia
- TeaM Sual Corporation - Philippines
- Kumho Petrochemical, South Korea
- Barasentosa Lestari - Indonesia
- Therma Luzon, Inc, Philippines
- Savvy Resources Ltd - HongKong
- Electricity Authority, New Zealand
- Bulk Trading Sa - Switzerland
- Uttam Galva Steels Limited - India
- Standard Chartered Bank - UAE
- Indian Oil Corporation Limited
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