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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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- San Jose City I Power Corp, Philippines
- Offshore Bulk Terminal Pte Ltd, Singapore
- Madhucon Powers Ltd - India
- Uttam Galva Steels Limited - India
- Orica Mining Services - Indonesia
- Alfred C Toepfer International GmbH - Germany
- IEA Clean Coal Centre - UK
- Indonesian Coal Mining Association
- Thai Mozambique Logistica
- Dr Ramakrishna Prasad Power Pvt Ltd - India
- Dalmia Cement Bharat India
- Altura Mining Limited, Indonesia
- Standard Chartered Bank - UAE
- Meenaskhi Energy Private Limited - India
- Savvy Resources Ltd - HongKong
- Dong Bac Coal Mineral Investment Coporation - Vietnam
- VISA Power Limited - India
- Antam Resourcindo - Indonesia
- Heidelberg Cement - Germany
- Renaissance Capital - South Africa
- Kumho Petrochemical, South Korea
- Global Coal Blending Company Limited - Australia
- Bhushan Steel Limited - India
- PetroVietnam Power Coal Import and Supply Company
- Energy Development Corp, Philippines
- Romanian Commodities Exchange
- Iligan Light & Power Inc, Philippines
- Gujarat Electricity Regulatory Commission - India
- Banpu Public Company Limited - Thailand
- Kohat Cement Company Ltd. - Pakistan
- PNOC Exploration Corporation - Philippines
- PTC India Limited - India
- Kobexindo Tractors - Indoneisa
- OPG Power Generation Pvt Ltd - India
- Jindal Steel & Power Ltd - India
- Interocean Group of Companies - India
- SN Aboitiz Power Inc, Philippines
- SMC Global Power, Philippines
- Baramulti Group, Indonesia
- India Bulls Power Limited - India
- Semirara Mining and Power Corporation, Philippines
- New Zealand Coal & Carbon
- The Treasury - Australian Government
- Krishnapatnam Port Company Ltd. - India
- South Luzon Thermal Energy Corporation
- Kartika Selabumi Mining - Indonesia
- Tamil Nadu electricity Board
- Marubeni Corporation - India
- Trasteel International SA, Italy
- GAC Shipping (India) Pvt Ltd
- Ministry of Mines - Canada
- The University of Queensland
- Medco Energi Mining Internasional
- Ceylon Electricity Board - Sri Lanka
- Minerals Council of Australia
- ASAPP Information Group - India
- Sakthi Sugars Limited - India
- Sojitz Corporation - Japan
- Kepco SPC Power Corporation, Philippines
- Videocon Industries ltd - India
- Eastern Coal Council - USA
- Gujarat Mineral Development Corp Ltd - India
- Makarim & Taira - Indonesia
- Eastern Energy - Thailand
- Directorate General of MIneral and Coal - Indonesia
- Africa Commodities Group - South Africa
- Orica Australia Pty. Ltd.
- Semirara Mining Corp, Philippines
- Jaiprakash Power Ventures ltd
- Maharashtra Electricity Regulatory Commission - India
- Wilmar Investment Holdings
- Kideco Jaya Agung - Indonesia
- Australian Coal Association
- Indian Energy Exchange, India
- Independent Power Producers Association of India
- Straits Asia Resources Limited - Singapore
- Pipit Mutiara Jaya. PT, Indonesia
- Larsen & Toubro Limited - India
- Formosa Plastics Group - Taiwan
- Indo Tambangraya Megah - Indonesia
- Posco Energy - South Korea
- International Coal Ventures Pvt Ltd - India
- Bahari Cakrawala Sebuku - Indonesia
- Manunggal Multi Energi - Indonesia
- Intertek Mineral Services - Indonesia
- Attock Cement Pakistan Limited
- Toyota Tsusho Corporation, Japan
- Miang Besar Coal Terminal - Indonesia
- ICICI Bank Limited - India
- Port Waratah Coal Services - Australia
- Riau Bara Harum - Indonesia
- Lanco Infratech Ltd - India
- Bangladesh Power Developement Board
- Chamber of Mines of South Africa
- Mintek Dendrill Indonesia
- TeaM Sual Corporation - Philippines
- Vedanta Resources Plc - India
- Carbofer General Trading SA - India
- Petron Corporation, Philippines
- Siam City Cement PLC, Thailand
- Bukit Makmur.PT - Indonesia
- Samtan Co., Ltd - South Korea
- Rashtriya Ispat Nigam Limited - India
- Planning Commission, India
- Leighton Contractors Pty Ltd - Australia
- Coal and Oil Company - UAE
- Grasim Industreis Ltd - India
- Star Paper Mills Limited - India
- LBH Netherlands Bv - Netherlands
- Bhatia International Limited - India
- Wood Mackenzie - Singapore
- Simpson Spence & Young - Indonesia
- Agrawal Coal Company - India
- Truba Alam Manunggal Engineering.Tbk - Indonesia
- Georgia Ports Authority, United States
- Jorong Barutama Greston.PT - Indonesia
- Karaikal Port Pvt Ltd - India
- Vizag Seaport Private Limited - India
- GN Power Mariveles Coal Plant, Philippines
- CIMB Investment Bank - Malaysia
- Metalloyd Limited - United Kingdom
- Chettinad Cement Corporation Ltd - India
- Kapuas Tunggal Persada - Indonesia
- Bukit Asam (Persero) Tbk - Indonesia
- Bharathi Cement Corporation - India
- Thiess Contractors Indonesia
- CNBM International Corporation - China
- Barasentosa Lestari - Indonesia
- Tata Chemicals Ltd - India
- Binh Thuan Hamico - Vietnam
- Malabar Cements Ltd - India
- Pendopo Energi Batubara - Indonesia
- Maheswari Brothers Coal Limited - India
- PowerSource Philippines DevCo
- Filglen & Citicon Mining (HK) Ltd - Hong Kong
- Sinarmas Energy and Mining - Indonesia
- Indian Oil Corporation Limited
- Deloitte Consulting - India
- McConnell Dowell - Australia
- Asia Pacific Energy Resources Ventures Inc, Philippines
- Bank of Tokyo Mitsubishi UFJ Ltd
- Meralco Power Generation, Philippines
- Bayan Resources Tbk. - Indonesia
- Cigading International Bulk Terminal - Indonesia
- Price Waterhouse Coopers - Russia
- Ambuja Cements Ltd - India
- Aditya Birla Group - India
- Asmin Koalindo Tuhup - Indonesia
- Parliament of New Zealand
- Edison Trading Spa - Italy
- Ind-Barath Power Infra Limited - India
- Mercator Lines Limited - India
- Indika Energy - Indonesia
- Timah Investasi Mineral - Indoneisa
- Essar Steel Hazira Ltd - India
- Bhoruka Overseas - Indonesia
- Goldman Sachs - Singapore
- Vijayanagar Sugar Pvt Ltd - India
- Siam City Cement - Thailand
- Energy Link Ltd, New Zealand
- Coalindo Energy - Indonesia
- TNB Fuel Sdn Bhd - Malaysia
- Billiton Holdings Pty Ltd - Australia
- SMG Consultants - Indonesia
- GMR Energy Limited - India
- Xindia Steels Limited - India
- IHS Mccloskey Coal Group - USA
- AsiaOL BioFuels Corp., Philippines
- The State Trading Corporation of India Ltd
- Ministry of Transport, Egypt
- Globalindo Alam Lestari - Indonesia
- Mercuria Energy - Indonesia
- Rio Tinto Coal - Australia
- Oldendorff Carriers - Singapore
- Indogreen Group - Indonesia
- Anglo American - United Kingdom
- Kaltim Prima Coal - Indonesia
- Petrochimia International Co. Ltd.- Taiwan
- Sree Jayajothi Cements Limited - India
- Bulk Trading Sa - Switzerland
- Kalimantan Lumbung Energi - Indonesia
- Electricity Authority, New Zealand
- White Energy Company Limited
- Borneo Indobara - Indonesia
- Salva Resources Pvt Ltd - India
- Central Java Power - Indonesia
- Electricity Generating Authority of Thailand
- Mjunction Services Limited - India
- Central Electricity Authority - India
- Latin American Coal - Colombia
- Australian Commodity Traders Exchange
- Parry Sugars Refinery, India
- Sindya Power Generating Company Private Ltd
- Commonwealth Bank - Australia
- Therma Luzon, Inc, Philippines
- Global Business Power Corporation, Philippines
- Cement Manufacturers Association - India
- Coastal Gujarat Power Limited - India
- Sarangani Energy Corporation, Philippines
- Power Finance Corporation Ltd., India
- Bukit Baiduri Energy - Indonesia
- Global Green Power PLC Corporation, Philippines
- Neyveli Lignite Corporation Ltd, - India
- Ministry of Finance - Indonesia
- Singapore Mercantile Exchange
- Sical Logistics Limited - India
- Directorate Of Revenue Intelligence - India
- London Commodity Brokers - England
- Holcim Trading Pte Ltd - Singapore
- European Bulk Services B.V. - Netherlands
- Aboitiz Power Corporation - Philippines
- Gujarat Sidhee Cement - India
- Merrill Lynch Commodities Europe
- MS Steel International - UAE
- GVK Power & Infra Limited - India
- Karbindo Abesyapradhi - Indoneisa
- Economic Council, Georgia
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