Customs and International Trade Law Blog : International Trade Lawyer & Attorney : Becker & Poliakoff Law Firm : Customs Law, Border Protection

I am pleased to introduce to you a new periodical, "World Export Controls Review - the journal of export controls and compliance," published by Brightlaw Media Ltd., London, England.  The first issue published in March 2011 is free.  The April 2011 publication contains my article entitled "Good Practice: Responding to an OFAC Administrative Subpoena" (available only upon request).

The publication reports on sanctions programs such as the United States has with Burma, Iran, and Libya, as well as general international trade topics such as "U.S. Tightens Controls on Foreign Workers" or "Evolving Intent Standards in U.S. Prosecutions". The publication is truly for the legal experts in international trade and export controls.

helps its readers stay on top of:

• Developments in export control regulation and policy around the world,
   
• Changing enforcement policies and practice governing export and re-export,
   
• Legal implications of changing distribution technologies, 
   
• Best practice in trade regulation compliance, and
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• Encryption, technology transfer and end-use and end-user controls.

I hope you enjoy reading the article, and will subscribe to the publication. 

Peter Quinter, Partner

Customs and International Trade Department

pquinter@becker-poliakoff.com or (954) 270-1864

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Pinnacle Aircraft Parts, Inc., based in Miami, Florida, just paid $225,000 to the U.S. Office of Foreign Assets Control ("OFAC") regarding OFAC's investigation of a jet engine that may have been shipped to Iran.  This case is unique in that OFAC did not assess the fine because the jet engine was actually shipped to Iran, but because Pinnacle Aircraft Parts failed to properly comply with it subpoena to provide all records about that shipment.

OFAC certainly has the authority to issue an administrative subpoena, and to demand documents for any alleged sale of a jet engine to Iran. See 31 CFR Section 501.602, which states:  

Every person is required to furnish under oath, in the form of reports or otherwise, from time to time and at any time as may be required by the Director, Office of Foreign Assets Control, complete information relative to any transaction,...

Pinnacle received such a subpoena demanding "all correspondence and other documents" related to the payment and transportation of the jet engine.  Through its outside legal counsel, Pinnacle provided 260 pages of responsive documents, however, according to the OFAC's Enforcement Information notice for November 16, 2010. 

[Pinnacle] failed to submit a copy of a post-sale e-mail - which Pinnacle had provided to its [legal] counsel - indicating that the aircraft engine was likely destined for Iran...

OFAC determined that the failure to produce the responsive document was "egregious", resulting in almost the maximum penalty of $250,000. OFAC concluded that Pinnacle "knowingly withheld" the relevant documentation. Pinnacle's unfortunate reliance on the incorrect advice of its outside legal counsel, usually a huge mitigating factor, only resulted in a 10% discount.

I have only one question for the lawyer or law firm that advised its client not to disclosure the e-mail to OFAC:  Did you attend the International Law Section of the Florida Bar's September 24, 2010 seminar on OFAC at which I discussed this very topic?  See prior Blog post dated August 30, 2010 entitled "Forbidden Places for Tourism and Trade".

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I welcome your responses. Please click on the "COMMENTS" box below.

Peter Quinter, Partner, Customs and International Trade Department

pquinter@becker-poliakoff.com or (954) 270-1864

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Please make plans to attend the Forbidden Place-Tourism and Trade  seminar on Friday, September 24, 2010. This seminar will take place at the J.W. Marriott Hotel, Miami, Florida. This half-day seminar will address a variety of recent regulations administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. Topics to be addressed include travel to and trade with restricted countries, immigration aspects of tourism to sanctioned countries, and representing a client who is the subject of an investigation or penalty by the OFAC.

Click on this highlighted link for a pdf of the full brochure for the agenda of the event.  Our featured luncheon guest speaker is Charles Bishop, Sanctions Coordinator, OFAC.  Mr. Bishop has primarily been involved with administering the Cuban Assets Control Regulations, including license applications for Service Providers, Carrier Service Providers, Travel Service Providers, and Remittance Forwarders.

Please call The Florida Bar's International Law Section at 850-561-5831 to register over the phone, fax your registration to 850-561-5816 or register on-line at www.floridabar.org/CLE.    Attorneys who attend will receive Continuing Legal Education (CLE) credits.

A block of rooms has been reserved at the J.W. Marriott Hotel Miami at the rate of $114 single/double occupancy. To make reservations, please call the hotel directly at (305) 329-3500. Reservations must be made by September 3, 2010 to assure the group rate and availability. Group rate is valid 3 days before and 3 days after the event, based on availability. After September 3rd, the group rate will be granted on a "space available" basis. 

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For comments or questions, please contact me.

Peter Quinter, Partner, Customs and International Trade Department

pquinter@becker-poliakoff.com or (954) 270-1864

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Maersk Line, Ltd. paid the U.S. Office of Foreign Assets Control (OFAC) $3 million to settle allegations of violations of the U.S. trade embargo with Sudan and Iran that Maersk committed between 2003 and 2007.   How the world's largest ocean transportation company committed such violations is a good story. How Maersk's lawyer was able to limit the payment to $3 million is also important to understand.

According to the OFAC Enforcement Information for July 28, 2010,

OFAC's investigation alleged that Maersk provided unlicensed shipping services for 4,714 shipments of cargo originating in or bound for Sudan and Iran. These services involved the transportation of such cargo on vessels owned, operated, and/or chartered by Maersk's parent, A.P. Moller-Maersk A/S on at least one leg of the cargo's journey to or from Sudan and Iran.

This is very interestingly worded by OFAC.  As A.P. Moller-Maersk A/S, a Danish conglomerate, is not bound by the U.S. laws regarding trade sanctions with Sudan and Iran, it could provide unrestricted vessels services in those countries.  If, however, any part of the cargo to or from those countries were transported on a U.S.-flagged vessel, then a violation of the U.S. laws would occur.  Cargo is often shifted from ship to ship between the port of departure and the port of delivery, and A.P. Moller -Maersk did not carefully trace the cargo from Sudan and Iran as well as it should have to prevent the cargo from touching a U.S.-flagged vessel.

Using OFAC's Economic Sanction Enforcement Guidelines effective November 9, 2009, the penalty against Maersk could have been $61 million.  Even though Maersk did not voluntarily self-disclosure the violations to OFAC, the Settlement and payment of only $3 million reflects the mitigating factors of:

• the non-egregious nature of the violation;
• no violations by Maersk in the prior 5 years;
• substantial and effective remediation measures were implemented by Maersk; and
• substantial and full cooperation with OFAC officials during the investigation.

For non-U.S. based multinationals, compliance with U.S. trade laws and regulations enforced by OFAC and the export controls enforced by the Bureau of Industry and Security of the U.S. Department of Commerce is often confusing.   Moreover, if the world's largest, most sophisticated shipping company, and one with an excellent reputation for service and integrity, is doing business with Iran and Sudan, what does that say about the effectiveness of the U.S. sanctions and trade embargo programs?

For comments, complete the form below or contact 

Peter Quinter, Chair, Customs and International Trade Department

pquinter@becker-poliakoff.com or (954) 270-1864 

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