[Federal Register Volume 68, Number 19 (Wednesday, January 29, 2003)]
[Proposed Rules]
[Pages 4422-4429]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-1809]


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DEPARTMENT OF THE TREASURY

Office of Foreign Assets Control

31 CFR Parts 501 and 515


Reporting and Procedures Regulations; Cuban Assets Control 
Regulations: Publication of Economic Sanctions Enforcement Guidelines

AGENCY: Office of Foreign Assets Control, Treasury.

ACTION: Proposed rule with request for comments.

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SUMMARY: The Office of Foreign Assets Control (``OFAC'') of the U.S. 
Department of the Treasury is publishing for public comment an updated 
version of its internal Economic Sanctions Enforcement Guidelines. 
These Guidelines are being published as separate appendices to two 
parts of the Code of Federal Regulations: general provisions are being 
published as an appendix to the Reporting and Procedures Regulations, 
31 CFR part 501, and specific provisions focusing on Cuba are being 
published as an appendix to the Cuban Assets Control Regulations, 31 
CFR part 515.

DATES: Written comments must be received on or before March 31, 2003.

ADDRESSES: Comments may be submitted by mail, by facsimile, or through 
OFAC's Web site.
    Mailing address: Chief of Records, ATTN Request for Comments, 
Office of Foreign Assets Control, Department of the Treasury, 1500 
Pennsylvania Avenue, NW., Washington, DC 20220.
    Facsimile number: 202/622-1657.
    OFAC's Web site: http://www.treas.gov/offices/enforcement/ofac/comment.html.

FOR FURTHER INFORMATION CONTACT: Chief of Records, tel.: 202/622-2500, 
or Chief Counsel, tel.: 202/622-2410.

SUPPLEMENTARY INFORMATION:

Electronic Availability

    This document and additional information concerning OFAC are 
available from OFAC's Web site http://www.treas.gov/offices/enforcement/ofac/index.html or via facsimile through a 24-hour fax-on-
demand service, tel: 202/622-0077. Comments on these Guidelines may be 
submitted electronically through OFAC's Web site http://www.treas.gov/offices/ enforcement/ofac/comment.html.

Procedural Requirements; Request for Comment

    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., 
it is hereby certified that this rule would not have a significant 
economic impact on a substantial number of small entities. OFAC's 
Guidelines impose no regulatory burdens on the public. The Guidelines 
simply explain OFAC's enforcement practices based on existing 
substantive and procedural rules. Accordingly, no regulatory 
flexibility analysis is required. A regulatory assessment is not 
required because this rule is not a ``significant regulatory action'' 
as defined in Executive Order 12866.
    Comments must be submitted in writing. The addresses and deadline 
for submitting comments appear near the beginning of this notice. OFAC 
will not accept comments accompanied by a request that all or part of 
the submission be treated confidentially because of its business 
proprietary nature or for any other reason. All comments received by 
the deadline will be a matter of public record and will be made 
available on OFAC's Web site http://www.treas.gov/offices/enforcement/ofac/index.html.

Paperwork Reduction Act

    The collections of information related to the Reporting and 
Procedures Regulations and the Cuban Assets Control Regulations have 
been previously approved by the Office of Management and Budget 
(``OMB'') under control number 1505-0164. A small adjustment to that 
collection has been submitted to OMB in order to take into account the 
voluntary disclosure rule proposed in this notice. An agency may not 
conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a valid control number 
assigned by OMB.
    The new collection of information is contained in subpart B of part 
III of the new Appendix to part 501--Economic Sanctions Enforcement 
Guidelines. This subpart explains that when apparent violations are 
voluntarily disclosed by the actor to OFAC, the proposed penalty will 
generally be mitigated by at least 50%. This voluntary disclosure rule 
provides an incentive for persons who have violated economic sanctions 
laws to come forward and provide OFAC information that it can use to 
better enforce its economic sanctions programs.
    The likely submitters who will avail themselves of the voluntary 
disclosure rule are financial institutions, business organizations, 
other entities, and individuals who find that they have violated a 
sanctions prohibition and wish to disclose their violation.
    The estimated total annual reporting and/or recordkeeping burden: 
50 hours. The estimated annual burden per respondent/record keeper: 1 
hour.

[[Page 4423]]

Estimated number of respondents and/or record keepers: 50. Estimated 
annual frequency of responses: once or less, given that OFAC expects 
that persons who voluntarily disclose their violations will take better 
care to avoid future violations.
    Comments are invited on: (a) Whether this new collection of 
information is necessary for the proper performance of the functions of 
the agency, including whether the information has practical utility; 
(b) the accuracy of the agency's estimate of the burden of the 
collection of information; (c) ways to enhance the quality, utility, 
and clarity of the information to be collected; (d) ways to minimize 
the burden of the collection of information on respondents, including 
through the use of automated collection techniques or other forms of 
information technology; and (e) estimates of capital or start-up costs 
and costs of operation, maintenance, and purchase of services to 
provide information.
    Comments concerning the above information, the accuracy of 
estimated average annual burden, and suggestions for reducing this 
burden should be directed to OMB, Paperwork Reduction Project, control 
number 1505-0164, Washington, DC, 20503, with a copy to the Office of 
Foreign Assets Control, Department of the Treasury, 1500 Pennsylvania 
Ave., NW.,--Annex, Washington, DC 20220. Any such comments should be 
submitted not later than March 31, 2003. Comments on aspects of this 
proposed rule other than those involving collections of information 
subject to the PRA should not be sent to OMB.

Background

    OFAC hereby publishes as appendices to 31 CFR parts 501 and 515 its 
Guidelines for the enforcement of the various economic sanctions 
programs it administers. These Guidelines review OFAC's procedures for 
determining whether an economic sanctions violation has occurred and 
outline the range of enforcement options available, including the 
imposition of a civil monetary penalty. A schedule of proposed 
penalties for certain violations of the Cuban Assets Control 
Regulations, 31 CFR part 515, is published as a separate appendix to 
those particular regulations. These Guidelines serve as a general 
framework for OFAC's enforcement activities, but OFAC may depart from 
them in particular cases.
    The primary mission of OFAC is to administer and enforce economic 
sanctions against targeted foreign countries, terrorists and terrorist 
organizations, and narcotic traffickers in furtherance of U.S. foreign 
policy and national security objectives. OFAC acts under general 
Presidential wartime and national emergency powers, as well as specific 
legislation, to prohibit transactions and freeze (or ``block'') assets 
subject to U.S. jurisdiction. Economic sanctions are designed to 
deprive the target of the use of its assets and deny the target access 
to the U.S. financial system and the benefits of trade, transactions, 
and services involving U.S. markets, businesses, and individuals. These 
same authorities have also been used to protect assets subject to U.S. 
jurisdiction of countries subject to foreign occupation and to further 
important U.S. nonproliferation goals.
    OFAC currently administers and enforces 24 economic sanctions 
programs pursuant to Presidential and Congressional mandates. Active 
enforcement of these programs is a crucial element in preserving and 
advancing the foreign policy and national security objectives that 
underlie these initiatives, usually taken in conjunction with 
diplomatic and occasionally military action. Penalties, both civil and 
criminal, serve as a deterrent to conduct that undermines or prevents 
these sanctions from achieving their foreign policy and national 
security goals. When violations occur, penalties serve a punitive 
purpose.
    The Economic Sanctions Enforcement Guidelines (the ``Guidelines'') 
published today are intended to provide OFAC with a procedural 
framework of general applicability to promote consistency while 
allowing for the appropriate exercise of agency discretion. They are 
also intended to promote the transparency of OFAC's procedures and 
better inform the regulated community. OFAC has always sought to 
maximize voluntary compliance by the public with U.S. sanction laws and 
regulations. To further its commitment to maximize voluntary 
compliance, OFAC is publishing these Guidelines in the Federal Register 
for comment. These Guidelines supersede and replace internal Guidelines 
previously used by OFAC.

Historical Overview of Statutory Authorities and Regulatory Framework

    The United States Department of the Treasury has a long history of 
dealing with economic sanctions. Prior to the War of 1812, Secretary of 
the Treasury Gallatin administered sanctions against Great Britain, in 
the form of the Embargo Act and the Non-Intercourse Act, for British 
harassment of American sailors. In 1861, during the Civil War, Congress 
passed the ``Trading With the Enemy Act,'' which prohibited 
transactions with the Confederacy, called for the forfeiture of goods 
involved in such transactions, and provided a licensing system under 
rules and regulations administered by the Treasury Department. This 
Civil War legislation was updated as the Trading With the Enemy Act of 
1917, 50 U.S.C. App. 1-44, for purposes of responding to World War I.
    OFAC and The Trading with the Enemy Act of 1917. OFAC is the 
successor to the Office of Foreign Funds Control (the ``FFC''), which 
was established at the advent of World War II following the German 
invasion of Norway in 1940. The FFC's initial purpose, in exercising 
authorities under Section 5(b) of the Trading With the Enemy Act of 
1917 (``TWEA''), was to prevent Nazi use of the occupied countries' 
holdings of foreign exchange and securities and to prevent forced 
repatriation of funds belonging to nationals of those countries. These 
controls were later extended to protect assets of other invaded 
countries.
    After the United States formally entered World War II, the FFC 
played a leading role in economic warfare against the Axis powers by 
blocking enemy assets and prohibiting foreign trade and financial 
transactions. These assets also would serve as a future source of war 
reparations. The FFC program was administered by the Secretary of the 
Treasury throughout the war. After the cessation of hostilities, most 
foreign property subject to protective blocking was gradually released 
by licenses under the Foreign Funds Control Regulations (the ``FFCR''). 
Most enemy property was vested by the U.S. Government during and 
immediately after the war. Responsibility for administering the FFCR 
was transferred to the Attorney General (Office of Alien Property), 
effective October 1, 1948.
    OFAC was formally created in December 1950, following the entry of 
China into the Korean War, when President Truman declared a national 
emergency under TWEA in response to the threat of international 
communism and blocked all Chinese and North Korean assets subject to 
U.S. jurisdiction. Economic sanctions against these countries, later 
expanded to include Vietnam and Cambodia, were promulgated at 31 CFR 
part 500. Part 505 was added in 1953 to restrict offshore trade with 
the Soviet Bloc in items of the kind controlled for export from the 
United States for national security reasons.
    In 1963, pursuant to TWEA, President Kennedy imposed a trade 
embargo and ordered the blocking of assets of Cuba

[[Page 4424]]

and Cuban nationals in response to hostile acts against the United 
States by the Castro regime. Regulations implementing these sanctions 
are set forth at 31 CFR part 515. In 1966, the Justice Department 
returned responsibility for administering the FFCR to the Treasury 
Department, and these regulations were set forth at 31 CFR part 520.
    Section 16 of TWEA provides for corporate criminal penalties of up 
to $1,000,000, and individual criminal penalties not to exceed $100,000 
or ten years' imprisonment, or both, per count. Fines for criminal 
violations may be increased pursuant to 18 U.S.C. 3571. TWEA also 
provides for forfeiture of property that is the subject of a violation. 
TWEA authorizes civil penalties of up to $50,000 per count, adjusted 
for inflation to $55,000. It also allows the respondent to request an 
agency hearing, with the right to prehearing discovery, and, if the 
respondent elects this option, the civil penalty may be imposed only 
after such a hearing.
    The International Emergency Economic Powers Act. In 1977, the 
Congress passed the International Emergency Economic Powers Act 
(``IEEPA''), 50 U.S.C. 1701-06, replacing TWEA as the statutory 
authority for a Presidential declaration of a national emergency in 
peacetime for the purpose of imposing economic sanctions. Pre-existing 
programs continue to be administered under TWEA, but new programs under 
TWEA may be established only during wartime. At this time, sanctions 
remain in place under TWEA solely with respect to (1) comprehensive 
sanctions against Cuba, (2) a residual blocking of North Korean assets 
previously blocked and an ongoing prohibition against the importation 
of certain goods from North Korea without an OFAC license, and (3) 
certain offshore trade in strategic goods with the former Soviet Bloc.
    A significant distinction between the two statutes is that, until 
recently, IEEPA contained no Presidential vesting authority. With the 
passage of the USA PATRIOT Act of 2001, Pub. L. No. 107-56, IEEPA was 
amended to permit the vesting of assets under defined circumstances. 
While IEEPA does not authorize forfeiture absent an exercise of vesting 
authority, it does provide civil and criminal penalty authority, but in 
amounts less than those provided in TWEA. OFAC relies upon the U.S. 
Customs Service, operating under separate statutory authority, for the 
forfeiture of seized property.
    IEEPA provides for civil penalties not to exceed $10,000, adjusted 
for inflation to $11,000. Criminal penalties range up to $50,000, or, 
if a natural person, up to ten years imprisonment, or both. Fines for 
criminal violations may be increased pursuant to 18 U.S.C. 3571.
    National Emergencies under IEEPA. The first use of IEEPA occurred 
in 1979, in response to the Iranian hostage crisis. President Carter 
blocked over twelve billion dollars in Iranian assets subject to U.S. 
jurisdiction, enabling those assets to be used as leverage in 
negotiating the release of the U.S. hostages. Although most of the 
prohibitions contained in these sanctions were lifted prospectively by 
general license in 1981 in accordance with the Algiers Accords, 
transactions involving Iranian property within the United States or in 
the possession or control of U.S. persons remain regulated pursuant to 
31 CFR part 535, that is, permitted only by general license. Import 
sanctions were imposed against Iran by President Reagan in 1987, under 
the authority of the International Security and Development Cooperation 
Act of 1985 (``ISDCA''), 22 U.S.C. 2349aa-9. Since this statute does 
not provide for criminal or civil penalty authority, OFAC relied upon 
the U.S. Customs Service, operating under separate statutory authority, 
for the imposition of criminal and civil penalties (including 
forfeiture of merchandise). President Clinton invoked IEEPA in 1995 to 
prohibit all trade with and investment in Iran, imposing the most 
comprehensive economic sanctions currently in place short of an assets 
freeze. Regulations implementing these sanctions are set forth at 31 
CFR part 560.
    President Reagan invoked IEEPA in 1985 to impose a trade embargo 
against the Sandinista regime in Nicaragua, and then again in 1986 to 
impose comprehensive economic sanctions, including an assets freeze, 
against the Government of Libya. The Libyan Sanctions Regulations 
remain in place at this time and are set forth at 31 CFR part 550. In 
1986, Congress passed the Comprehensive Anti-Apartheid Act, prohibiting 
trade in certain goods and new investment in South Africa by codifying 
and expanding Executive Branch sanctions against that country imposed 
under IEEPA in 1985.
    President Bush invoked IEEPA in 1988 to impose comprehensive 
economic sanctions against the Noriega regime in Panama, which 
sanctions were lifted after the U.S. invasion of that country in 1989. 
Assets of the Government of Panama remained blocked until the new 
government settled claims against it by U.S. persons. President Bush 
invoked IEEPA again in 1990 in response to the Iraqi invasion of 
Kuwait. Kuwaiti assets subject to U.S. jurisdiction were protected 
under an assets freeze until the Government of Kuwait was restored. 
Although OFAC did not conduct a formal census of these assets, the 
total Kuwaiti assets blocked under this program were estimated to 
exceed sixty billion dollars. Punitive sanctions against Iraq, 
including a comprehensive assets freeze, also were imposed in 1990 and 
remain in effect as set forth at 31 CFR part 575.
    Since 1990, other countries have been subject to economic sanctions 
imposed under IEEPA, calibrated to respond to the given situation and 
U.S. foreign policy and national security objectives. Many ``country-
based'' sanctions programs have a nexus to the U.S. government's 
response over time to the threat to U.S. national security and foreign 
policy posed by international terrorism. The Secretary of State has 
designated seven countries--Cuba, North Korea, Libya, Iran, Iraq, Sudan 
and Syria--as supporting international terrorism. Most of these 
countries are subject to comprehensive economic sanctions.
    In 1995, President Clinton used IEEPA to deal with the threat to 
U.S. foreign policy and national security posed by terrorists who 
threaten to disrupt the Middle East Peace Process. This marked an 
expansion in the use of economic sanctions as a tool of U.S. foreign 
policy to target groups and individuals, as well as foreign 
governments. The Terrorism Sanctions Regulations are set forth at 31 
CFR part 595. The trend of targeting groups and individuals continued 
later in 1995 when President Clinton invoked IEEPA to block assets and 
prohibit transactions with significant narcotics traffickers centered 
in Colombia. Regulations implementing these sanctions are set forth at 
31 CFR part 536.
    IEEPA has also been invoked to promote the national security and 
foreign policy objectives of the United States with respect to 
nonproliferation. In 1998, certain foreign entities were designated by 
the Secretary of State as promoting the proliferation of weapons of 
mass destruction. As set forth in 31 CFR part 539, OFAC regulations 
prohibit the importation of goods, technology, or services produced or 
provided by these entities. In 2000, President Clinton also invoked 
IEEPA to protect assets of the Russian Federation relating to the 
implementation of the agreement between the United States and Russia on 
the disposition of highly enriched uranium. Transfers of these assets 
in support of the agreements are licensed by OFAC. These protective

[[Page 4425]]

blocking regulations are set forth at 31 CFR part 540.
    Most recently, in Executive Order 13224 of September 23, 2001, 
President George W. Bush declared a national emergency under IEEPA in 
response to the unusual and extraordinary threat to the national 
security, foreign policy, and economy of the United States posed by the 
grave acts of terrorism and threats of terrorism committed by foreign 
terrorists, including the terrorist attacks committed in New York and 
Pennsylvania and at the Pentagon on September 11, 2001. The President 
also relied on the United Nations Participation Act (discussed below) 
as authority for the imposition of economic sanctions, citing United 
Nations Security Council Resolution (``UNSCR'') 1214 of December 8, 
1998, UNSCR 1267 of October 15, 1999, UNSCR 1333 of December 19, 2000, 
and the multilateral sanctions contained therein.
    The Iraq Sanctions Act. An additional statute containing penalty 
authority with respect to Iraq is the Iraq Sanctions Act of 1990 
(``ISA''), Pub. L. 101-513, 104 Stat. 1079, 2047-55. The ISA 
dramatically increased the amount of civil and criminal penalties that 
may be assessed against U.S. persons violating these sanctions. ISA 
provides for civil penalties of up to $250,000, adjusted for inflation 
to $275,000, and criminal penalties of up to $1,000,000 and 12 years 
imprisonment.
    The United Nations Participation Act. The Iraqi sanctions are also 
multilateral and administered under the authority not only of IEEPA but 
also the United Nations Participation Act (the ``UNPA''). The UNPA 
permits the President to incorporate United Nations-mandated economic 
sanctions into domestic law. The UNPA provides for criminal penalties 
of up to $10,000 in fines and up to ten years' imprisonment. Fines for 
criminal violations may be increased pursuant to 18 U.S.C. 3571. The 
UNPA also provides for forfeiture authority. United Nations-sponsored 
multilateral economic sanctions against the Federal Republic of 
Yugoslavia (Serbia & Montenegro) were imposed in 1992 in response to 
the disintegration of the former Yugoslavia and the civil strife 
fomented and genocide committed by the Milosevic regime in Bosnia and 
Herzegovina.
    The Antiterrorism and Effective Death Penalty Act. Title III of the 
Antiterrorism and Effective Death Penalty Act of 1996 (``AEDPA''), Pub. 
L. 104-132, 110 Stat. 1214, makes it a criminal offense to (1) engage 
in a financial transaction with the government of a country designated 
as supporting international terrorism, or (2) provide material support 
or resources to a designated foreign terrorist organization. Violators 
may be fined or imprisoned for not more than ten years, or both. AEDPA 
also provides that any financial institution that knowingly fails to 
retain possession of or control over blocked funds or to report the 
existence of such funds shall be subject to a civil penalty in an 
amount that is the greater of $50,000 per violation, or twice the 
amount of the funds at issue. Regulations implementing these sanctions 
are set forth at 31 CFR parts 596 and 597.
    The Foreign Narcotics Kingpin Designation Act. In 1999, new 
legislation expanded the scope of the 1995 sanctions against narcotics 
traffickers centered in Colombia. The Foreign Narcotics Kingpin 
Designation Act (the ``FNKDA''), 21 U.S.C. 1901-08, provides for 
criminal penalties of up to ten years imprisonment, fines in the 
amounts provided in title 18 of the U.S. Code, or both, or, in the case 
of an entity, fines of not more than $10,000,000 per violation. 
Criminal penalties for any officer, director, or agent range up to 
$5,000,000 or 30 years imprisonment, or both. Civil penalties not to 
exceed $1,000,000 per violation also may be imposed. Regulations 
implementing these sanctions are set forth at 31 CFR part 598.

List of Subjects

31 CFR Part 501

    Administrative practice and procedure, Reporting and recordkeeping 
requirements.

31 CFR Part 515

    Administrative practice and procedure, Banks, Banking, Cuba, 
Currency, Foreign investments in United States, Foreign trade, 
Penalties, Reporting and recordkeeping requirements, Securities, Travel 
restrictions.

    For the reasons set forth in the preamble, 31 CFR parts 501 and 515 
are amended as follows:

PART 501--REPORTING AND PROCEDURES REGULATIONS

    1. Part 501 is amended by adding the following appendix to read as 
follows:

Appendix to Part 501--Economic Sanctions Enforcement Guidelines

    Note: These guidelines provide a procedural framework for the 
enforcement of all economic sanctions programs administered by the 
Office of Foreign Assets Control (``OFAC''). Attention is directed 
to the appendix to the Cuban Assets Control Regulations, 31 CFR part 
515, for additional guidelines specifically dealing with particular 
violations of those regulations.

I. Enforcement of Economic Sanctions; Determination of Violation

    A. OFAC Civil Investigation and Enforcement Action. Civil 
investigation and enforcement with respect to economic sanctions 
violations rest primarily with OFAC, with certain investigations 
conducted by the U.S. Customs Service. OFAC investigations may lead to 
one or more of the following: a cautionary letter, a warning letter, a 
requirement to furnish information, an order to cease and desist, or a 
civil penalty proceeding. In addition to or instead of such actions, if 
the party involved is currently acting pursuant to an OFAC license, 
that license may be suspended or revoked.
    B. OFAC's Evaluation of Violative Conduct. The type of enforcement 
action undertaken by OFAC depends on the nature of the apparent 
violation and the foreign policy goals of the particular sanctions 
program involved. In evaluating whether to initiate a civil penalty 
action, OFAC determines whether there is reasonable cause to believe 
that a violation of the regulations, pertinent statute, or Executive 
Order has occurred. Parts II and III of these Guidelines set forth the 
criteria used by OFAC to determine the appropriate response to an 
apparent violation.
    C. Criminal Investigations and Prosecutions. If the evidence 
suggests willful violations of substantive prohibitions or 
requirements, OFAC may refer those cases to other federal law 
enforcement agencies for criminal investigation. Cases that are 
referred to the Department of Justice for criminal prosecution also may 
be processed by OFAC as civil penalty matters. This is generally done 
after the Justice Department's declination of criminal prosecution or 
the termination of criminal proceedings or as part of a global 
settlement of criminal and civil violations by the Justice Department.

II. License Suspension and Revocation; Cautionary and Warning Letters

    A. License Suspension and Revocation. In addition to or instead of 
other administrative actions, OFAC authorization to engage in 
transactions pursuant to a general or specific license may be suspended 
or revoked for reasons including, but not limited to, the following:
    1. The party has willfully made or caused to be made in any license 
application, or in any report required pursuant to a license, any 
statement that was, at the time and in light of the

[[Page 4426]]

circumstances under which it was made, false or misleading with respect 
to any material fact or has omitted to state in any application or 
report any material fact that was required;
    2. The party has failed to file timely reports or comply with the 
recordkeeping requirements of a general or specific license;
    3. The party has violated any provision of law enforced by the 
Office of Foreign Assets Control or the rules or regulations issued 
under any such provision;
    4. The party has counseled, commanded, induced, procured, or 
knowingly aided or abetted the violation by any other person of any 
provision of any law or regulations referred to above; or
    5. The party has committed any other act or omission that 
demonstrates unfitness to conduct the transactions authorized by the 
general or specific license.
    B. Cautionary Letters. OFAC issues ``cautionary letters'' where an 
OFAC audit or civil investigation results in insufficient evidence to 
conclude that a violation appears to have occurred, but which may 
indicate activity that could lead to a violation in other circumstances 
or cause problems for future transactions. From time to time, when 
financial institutions appear not to be exercising due diligence in 
assuring compliance with OFAC's regulations, but no violation has 
occurred, a cautionary letter may be sent outlining the requirements of 
the regulations and urging greater diligence.
    C. Warning Letters. Warning letters represent OFAC's conclusion 
that an apparent violation of the regulations occurred. In the exercise 
of its discretion, OFAC may determine in certain instances that a 
warning letter, citing the specific facts and relevant law, may achieve 
the same result as a monetary penalty insofar as future compliance with 
OFAC regulations is concerned. A warning letter will fully explain the 
apparent violation and urge future compliance. A warning letter does 
not constitute a final agency determination that a violation has 
occurred.
    1. Financial Transfers. OFAC recognizes the high volume and level 
of automation of international funds transfers processed within the 
United States banking system on a daily basis. With respect to 
financial transfers, OFAC often issues warning letters in lieu of civil 
penalties in cases that appear to involve violations based on 
technicalities, where good faith efforts to comply with the law and no 
aggravating factors are evident. Some examples of cases where a warning 
letter might be issued in lieu of a proposed civil penalty include the 
following:
    (a) Transactions in which there are significant variations in name 
and/or location specified in a funds transfer from those on OFAC's list 
of blocked persons and vessels, specially designated nationals, 
terrorists, narcotics traffickers and foreign terrorist organizations 
(the ``SDN list'') or list of sanctioned countries;
    (b) Transactions where the name of the blocked party is spelled 
differently from the entry on OFAC's SDN list, thus bypassing an 
electronic filter (in these instances, the bank is expected to add the 
spelling variation to its filter);
    (c) Transactions where funds are not intended to be sent to or 
through a blocked or specially designated bank (an ``SDN bank'') but a 
bank employee accidentally enters a code for an SDN bank;
    (d) Transactions where a clerk accidentally hits a ``release'' key 
instead of a ``block'' or ``reject'' key and immediately takes action 
to try to recall the funds;
    (e) Transactions that take place shortly after a new designation 
where the bank has not had time to update its systems and procedures or 
to review its account base;
    (f) Transactions that are of a low value where the cost of pursuing 
a penalty action would likely exceed the enforcement benefit;
    (g) Transactions involving an activity for which a policy 
determination has been made to authorize the activity by specific 
license; and
    (h) Other transactions where the fact pattern and underlying 
transaction would appear to warrant a warning letter as opposed to a 
civil penalty action.
    2. Exports and Imports. Warning letters may be issued in response 
to apparent violations solely involving the importation and exportation 
of goods and/or services valued at $500 or less, unless aggravating 
factors are present. Unauthorized importations in conjunction with 
travel involving Cuba are addressed in the appendix to the Cuban Assets 
Control Regulations, 31 CFR Part 515.

III. Civil Penalties

    Prohibitions against engaging in various types of transactions in 
the context of economic sanctions programs are set forth in applicable 
statutes, Executive Orders, and regulations administered by OFAC. The 
criteria for initiating civil penalty enforcement action may differ 
depending upon the substantive nature of the apparent violation at 
issue and existing foreign policy and national security objectives. For 
purposes of the discussion below, ``proposed penalty'' is the amount 
set forth in the prepenalty notice, as distinct from the final amount 
imposed in the penalty notice.

A. Most Frequent Categories of Violations Resulting in Civil Penalty 
Action, and the Penalties Proposed by OFAC

    1. Prohibited Dealing in Blocked Property or Fund Transfers 
(including Rejected Transfers). If the apparent violative transaction 
at issue is a prohibited dealing in blocked property by a person 
subject to the jurisdiction of the United States, the proposed penalty 
generally will be the lesser of either the statutory maximum or the 
dollar value of the transaction involved. For example, the dollar value 
may be the value of the property dealt in or the amount of the funds 
transfer that a financial institution failed to block or reject.
    2. Imports and Exports. In import cases, the dollar value used in 
proposing a penalty generally will be the transaction value for imports 
of goods, technology, or services into the United States, as 
demonstrated by commercial invoices, bills of lading, signed Customs 
declarations, or similar documents. In U.S. Customs Service seizures 
where no transaction value can be demonstrated by credible evidence, 
the dollar value generally will be the foreign value as determined by 
U.S. Customs Service. Where neither the transactional nor U.S. Customs 
Service-determined foreign value is established in the administrative 
record, a default value of $10 per item imported generally will be 
assigned. For importations of Cuban-origin goods in conjunction with 
travel-related transactions involving Cuba, please refer to the 
appendix to the Cuban Assets Control Regulations, 31 CFR part 515. For 
exports, the dollar value used in proposing a civil penalty generally 
will be the U.S. domestic value of the goods, technology, or services.
    3. Performance of a Contract; New Investment. The proposed penalty 
for the performance of a contract or new investment generally will be 
the lesser of the statutory maximum or the value of the contract or 
investment.
    4. Travel-Related Violations. Proposed penalties for travel-related 
transactions involving Cuba are set forth in the appendix to the Cuban 
Assets Control Regulations, 31 CFR part 515. Please note that other 
sanctions programs, including the Iraqi Sanctions

[[Page 4427]]

Regulations (31 CFR part 575) and the Libyan Sanctions Regulations (31 
CFR part 550), may include restrictions on travel-related transactions, 
violations of which will be dealt with on a case-by-case basis.
    5. Travel, Carrier, and Remittance-forwarding Service Provider 
Violations (Cuba). The criteria for imposition of civil penalties for 
violations relating to the provision of travel, carrier, and 
remittance-forwarding service providers are contained in (1) the 
appendix to 31 CFR part 515 with respect to service providers not 
authorized by OFAC to provide such services and (2) the annual Service 
Provider Program Circular issued by OFAC with respect to service 
providers holding OFAC authorization.
    6. Requirement to Furnish Information; Reporting and Recordkeeping. 
The following criteria shall apply for purposes of proposing a penalty, 
except in the instance of authorized service providers under the Cuban 
Assets Control Regulations, which criteria appear in the annual Service 
Provider Program Circular issued by OFAC:
    (a) Each failure to respond to a requirement to furnish 
information, issued pursuant to 31 CFR 501.602, generally will result 
in a proposed penalty in the amount of $10,000, irrespective of whether 
any other violation is alleged;
    (b) Late filing of a required report generally will result in a 
proposed penalty in the amount of $2,000, if filed within the first 
month after it is due. Each failure to comply with a reporting 
requirement, whether set forth in regulations or in a specific license, 
generally will result in a proposed penalty in the amount of $5,000 if 
the report is beyond one month late. If the report concerns blocked 
assets, however, the proposed penalty generally will include an 
additional $1,000 for every month beyond the second month that the 
report is not submitted, up to five years or the statutory maximum, 
whichever is lower.
    (c) The first failure to maintain records in conformance with the 
requirements of OFAC's regulations or of a specific license generally 
will result in a proposed penalty in the amount of $2,000. Each 
additional offense in this regard generally will result in a proposed 
penalty in the amount of $10,000.

B. Evaluation of Mitigating and Aggravating Factors

    In determining a settlement amount or penalty assessment at the 
penalty notice stage, OFAC generally will balance the mitigating and 
aggravating factors present in the administrative record, as well as 
weigh any administrative considerations that the agency may deem 
appropriate.
    1. Mitigation and mitigating factors. The degree to which a 
proposed penalty is mitigated is determined by the blend of mitigating 
factors and aggravating factors present. The history of mitigation with 
respect to cases having substantially identical fact patterns generally 
will govern the degree of mitigation to be applied in subsequent cases. 
However, departures from these Guidelines or from prior history will be 
considered where appropriate. OFAC may attach more importance to a 
particular factor, and administrative considerations may also be taken 
into account. The individual circumstances of a violation, including 
the balance of factors present, will also influence the outcome. OFAC 
encourages evidentiary submissions indicating the presence or absence 
of a mitigating or aggravating factor. In the case of funds transfer 
violations by banks or other financial institutions, depending on the 
balance of mitigating and aggravating factors present, penalties 
generally will be mitigated 25-50% from the amount proposed in the 
prepenalty notice. In all other instances, penalties for violations 
generally will be mitigated 10% to 75% from the amount proposed in the 
prepenalty notice depending upon the balance of mitigating and 
aggravating factors present. Typical mitigating factors include, but 
are not limited to, the following:
    (a) Voluntary disclosure;
    (b) First offense (but see the appendix to 31 CFR part 515 for 
certain Cuba travel-related violations);
    (c) Compliance program in place at time of violation;
    (d) If no compliance program, implementation of one upon the 
respondent's discovery of or OFAC notification of the violation;
    (e) Other remedial measures taken;
    (f) Provision of a written response to a prepenalty notice;
    (g) Useful enforcement information provided during an OFAC audit, 
investigation, or penalty proceeding;
    (h) Part of comprehensive settlement with U.S. Customs Service;
    (i) Other U.S. government enforcement action already completed;
    (j) Lack of relevant commercial experience;
    (k) Clerical error, inadvertence, or mistake of fact;
    (l) Evidence in the administrative record that a transaction(s) 
could have been licensed by OFAC under an existing licensing policy had 
an application been submitted;
    (m) Apparent language barrier or other impediment to understanding 
of regulations (individuals only);
    (n) Humanitarian nature of transaction;
    (o) Such other matters as justice may require.
    2. Aggravating Factors. Typical aggravating factors include, but 
are not limited to, the following:
    (a) Willfulness;
    (b) Second or subsequent offense (but see the appendix to 31 CFR 
part 515 for certain Cuba travel-related violations);
    (c) Apparent disregard of prior notice from U.S. government 
concerning transactions at issue;
    (d) No remedial measure taken after notice or discovery;
    (e) Deliberate effort to hide or conceal the violation;
    (f) Extraordinary adverse economic sanctions impact;
    (g) Lack of compliance program at the time of the violation;
    (h) Familiarity with economic sanctions programs.
    3. Voluntary Disclosure. When apparent violations are voluntarily 
disclosed by the actor to OFAC, the proposed penalty generally will be 
mitigated at least 50% from the amount that would otherwise be proposed 
under these Guidelines. A disclosure to OFAC is considered to be a 
voluntary disclosure where OFAC is notified of possible sanctions 
violations. Notification to OFAC may not be considered to be a 
voluntary disclosure if OFAC previously received information concerning 
the transactions from another source, including but not limited to 
another regulatory or law enforcement agency or another person's 
blocking or funds-transfer rejection report. Responding to an 
administrative subpoena or other inquiry from OFAC does not constitute 
a voluntary disclosure. Similarly, the submission of a license 
application does not constitute a voluntary disclosure unless it is 
also accompanied by a separate disclosure.
    4. First Offense. Proposed penalties for apparent violations that 
constitute a first offense generally will be mitigated at least 25% in 
the penalty notice, unless aggravating factors are also present. 
Significant exceptions to this rule include apparent violations 
involving willful misconduct or gross negligence and those involving 
certain travel-related transactions described in the appendix to 31 CFR 
part 515 (where the proposed penalties already distinguish between 
first and subsequent offenses). In determining whether an apparent 
violation constitutes a first or subsequent offense, a distinction 
generally will be made

[[Page 4428]]

between prior OFAC penalty cases ending in an assessed civil monetary 
penalty and those settled prior to a finding of violation. Another 
factor considered is whether the OFAC regulations previously violated 
were similar to those of the new case under review. For example, all 
apparent reporting violations will be considered to be similar, as will 
those involving a failure to block financial transfers or failure to 
respond to a request for information. An apparent violation generally 
will be considered a first offense if no similar violation has been 
found within the past five years.

C. Settlement Generally

    Settlements of penalty cases may be proposed at any stage of a 
civil penalty proceeding prior to the issuance of a final agency 
determination of violation. A settlement does not constitute a final 
agency determination that a violation has occurred.

D. Settlement Prior to Issuance of Prepenalty Notice

    1. Initiating settlement. OFAC may settle a matter without 
initiating a formal action through the issuance of a prepenalty notice. 
A party may request an informal settlement with OFAC prior to OFAC's 
issuance of a prepenalty notice. To do so, the party may request in 
writing that OFAC withhold issuance of a prepenalty notice for a period 
of up to 60 days for the exclusive purpose of reaching settlement. If 
the applicable statute of limitations is close to expiring, OFAC may 
condition the entry into or continuation of informal settlement 
negotiations on an agreement to execute a waiver with respect to the 
statute of limitations. If such a waiver is not executed, OFAC may 
decide that there should be no informal settlement period and issue a 
prepenalty notice.
    2. Settlement process. In informal settlement negotiations prior to 
the issuance of a prepenalty notice, OFAC will inform the party of the 
apparent violations OFAC intends to cite in the prepenalty notice, as 
well as the penalty amount to be proposed therein. Whenever possible, 
settlements will be negotiated in accordance with the mitigation 
provisions set forth above; however, each settlement will be viewed on 
its own merits, as factors present in one case may not appear in 
another.
    3. Settlements of multiple violations. A settlement initiated for 
one apparent violation may also involve a comprehensive or global 
settlement of multiple apparent violations covered by other prepenalty 
notices, apparent violations for which a prepenalty has yet to be 
issued by OFAC, or previously unknown violations reported to OFAC 
during the penalty proceeding.

E. Settlement Following Issuance of Prepenalty Notice

    1. Initiating settlement. After a prepenalty notice is issued and 
served, OFAC may settle the matter through informal negotiations at 
OFAC's initiation, at the request of the respondent or its authorized 
representative, or through the respondent's payment of the proposed 
penalty in full.
    2. Settlement process. Settlements generally will be negotiated in 
accordance with the mitigation provisions set forth above. If a matter 
is settled at the prepenalty stage, that is, before a final penalty 
notice is issued, the claim proposed in the prepenalty notice will be 
withdrawn, the respondent will not be required to take a written 
position on the allegations contained in the prepenalty notice, and 
OFAC will not make a final determination as to whether a violation 
occurred. In the event no settlement is reached, the period specified 
for written response remains in effect unless additional time is 
granted by OFAC.
    3. Settlements of multiple violations. As in the case of 
settlements prior to the issuance of a prepenalty notice, settlements 
following the issuance of a prepenalty notice may be comprehensive 
(global) settlements of multiple apparent violations covered by other 
prepenalty notices or for which a prepenalty notice has yet to be 
issued.

F. Cancellation of Proceedings

    In the absence of a settlement, OFAC generally will not cancel a 
penalty proposed in a prepenalty notice absent evidence substantiating 
that the party named in the prepenalty notice did not commit or is not 
responsible for the violation charged, or unless such cancellation is 
otherwise appropriate for policy or legal reasons.

G. Assessment and Imposition of Final Penalty

    1. Consideration of response to prepenalty notice. Prior to OFAC's 
issuance of a penalty notice, the cited party may respond to the 
allegations in OFAC's prepenalty notice. If a response is submitted, 
OFAC will carefully and fully consider all explanations contained in 
the response and weigh all information presented in making a final 
determination whether a violation has occurred, whether a penalty 
notice should be issued and, if so, in what amount the penalty should 
be assessed. If the response discloses new apparent economic sanctions 
violations, a revised prepenalty notice may be issued citing the newly-
disclosed apparent violations. When possible criminal conduct is 
revealed in the response, the case may be referred for further 
investigation.
    2. Issuance of penalty notice. Absent a settlement of allegations, 
OFAC generally will issue a penalty notice in accordance with the 
procedures set forth in the applicable regulations. OFAC will consider 
all information in the administrative record before assessing the final 
penalty amount. The penalty generally will be assessed in an amount 
that reflects the mitigating and aggravating factors present in the 
record, determined in accordance with the mitigation provisions set 
forth above.
    3. Penalty assessment in absence of response to prepenalty notice. 
Where OFAC receives no response to a prepenalty notice within the time 
prescribed in the applicable regulations, a penalty notice generally 
will be issued, taking into account the mitigating and/or aggravating 
factors present in the record. If there are no mitigating factors 
present in the record, or the record contains a preponderance of 
aggravating factors, the proposed prepenalty amount generally will be 
assessed as the final penalty.
    4. Referral to Financial Management Division. The imposition of a 
penalty pursuant to a penalty notice creates a debt due the U.S. 
Government. OFAC advises Treasury's Financial Management Division 
(``FMD'') upon the imposition of a penalty. FMD will take follow-up 
action to collect the penalty assessed if it is not paid within the 
prescribed time period set forth in the penalty notice.
    5. Final agency action and judicial review. The imposition of a 
penalty pursuant to a penalty notice constitutes final agency action, 
which is subject to judicial review.

H. Disposition of Funds and Merchandise

    1. Seizure, forfeiture, and release generally. Where import or 
export violations of economic sanctions occur, the U.S. Customs Service 
may have seized the goods involved pursuant to separate statutory 
authorities. OFAC usually coordinates with the U.S. Customs Service 
regarding the disposition of seized goods for purposes of resolving the 
penalty action. Where OFAC lacks civil forfeiture authority, OFAC may 
provide a recommendation to the U.S. Customs Service regarding 
disposition of seized goods. The forfeiture of the goods may be 
considered in addition to or in lieu of monetary penalties in 
determining the

[[Page 4429]]

most equitable and appropriate penalty. OFAC may authorize or recommend 
to the U.S. Customs Service the release of any funds or merchandise 
involved in the violative transaction upon the payment of the penalty 
assessed or settlement negotiated by OFAC. In settlements involving 
seized goods, the disposition of the goods generally will be an element 
of OFAC's agreement. When there has been no payment of an assessed 
monetary penalty, OFAC generally will recommend the forfeiture of the 
seized goods or funds to the U.S. Customs Service.
    2. Seizure of blocked property. Where the funds or merchandise 
seized by the U.S. Customs Service constitute property blocked pursuant 
to the controlling Executive Order, statute, or regulations, such 
property generally remains blocked. Those who might claim an interest 
in the blocked property should refer to provisions in the Reporting and 
Procedures Regulations, 31 CFR part 501, and in the regulations or 
other legal authorities governing the relevant economic sanctions 
program for additional information.

PART 515--CUBAN ASSETS CONTROL REGULATIONS

    1. Part 515 is amended by adding the following appendix to read as 
follows:

Appendix to Part 515--Cuba Travel-Related and Certain Other Violations 
of 31 CFR Part 515

    Note to Appendix to Part 515: This appendix provides a schedule of 
proposed civil monetary penalties for certain violations of the Cuban 
Assets Control Regulations, 31 CFR part 515. The civil penalty process 
is described in detail in subpart G of 31 CFR part 515 and in the 
appendix to the Reporting and Procedures Regulations, 31 CFR part 501.

A. Traveler Violations/Amounts for Prepenalty Notices

    1. Tourist travel-related transactions:

First trip: $7,500
Each additional trip: $10,000

    2. Business travel-related transactions:

First trip: $15,000
Each additional trip: $25,000

    3. Travel-related transactions involving unlicensed visits to close 
relatives:

First trip: warning letter
Each additional trip--
    Prior to agency notice*: $1,000
    Subsequent to agency notice*: $4,000

    4. Travel-related transactions where no specific license was issued 
under 31 CFR 515.560(a)(3)-(12) but where there is evidence that the 
purpose of the travel fits within one of the categories of licensable 
activities:

Each trip prior to agency notice*: $3,000
Each trip subsequent to agency notice*: $10,000

    5. Exports (or attempted exports) of unauthorized funds in which 
Cuba or a Cuban national has an interest: Value of unauthorized funds

    Note to A.5.: Additional remittance forwarding penalties may be 
considered.

    6. Unauthorized use of a credit card in Cuba:

First trip: $1,000
Each additional trip: $2,000

    7. Importations of Cuban-origin goods in conjunction with travel-
related violations:

Where aggregate value of goods is $500 or less: $250
Where aggregate value of goods exceeds $500: $250 plus excess value 
above $500


    Note to A.7.: Value generally will be determined by the 
transactional value, if evidenced by a receipt, signed Customs 
declaration, or similar document or, if none, the foreign value as 
determined by the U.S. Customs Service. In the absence of either, a 
default value of $10 per item generally will be assigned to the 
goods, except in the case of boxes of cigars, which generally will 
be valued at $250.

B. Provision of Travel, Carrier and Remittance Forwarding Services by 
Persons Not Authorized as Service Providers

    1. Provision of remittance forwarding services:

Prior to agency notice*: $2,000
Subsequent to agency notice*: $15,000

    2. Provision of travel services:

Prior to agency notice*: $2,000, plus $500 per person assisted
Subsequent to agency notice*: $15,000, plus $500 per person assisted

    3. Provision of carrier services:

Prior to agency notice*: $5,000, plus $500 per person assisted
Subsequent to agency notice*: $25,000, plus $500 per person assisted

    Note to B.: Other violations that arise in the context of the 
Cuba program are addressed in the main text of these Guidelines as 
published in the appendix to 31 CFR part 501. Violations by persons 
authorized as Service Providers are addressed in the annual Service 
Provider Program Circular issued by OFAC.

    * For purposes of determining prepenalty amounts as set forth in 
this appendix, the term ``agency notice'' means any evidence in the 
administrative record of written or oral communication between OFAC 
and the party alleged to have committed a violation concerning the 
same or a substantially similar violation. This evidence may 
include, but is not limited to, a warning letter, a cease and desist 
order, a prepenalty notice, or a notation of a telephonic 
conversation or letter from OFAC advising the party that the conduct 
is in violation of applicable regulations. A party may dispute the 
adequacy of agency notice in its response to the prepenalty notice.

    Dated: January 13, 2003.
R. Richard Newcomb,
Director, Office of Foreign Assets Control.

    Approved: January 13, 2003.
Kenneth E. Lawson,
Assistant Secretary (Enforcement), Department of the Treasury.
[FR Doc. 03-1809 Filed 1-24-03; 12:16 pm]
BILLING CODE 4810-25-P