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U.S. Government Implementation of New Iran Sanctions Legislation at the End of September 2010, the U.S

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U.S. Government Implementation of New Iran Sanctions Legislation at the End of September 2010, the U.S Outbound Trade Compliance Washington, D.C. Client Alert Focus on Iran October 12, 2010 U.S. Government Implementation of New Iran Sanctions Legislation At the end of September 2010, the U.S. Government took several actions to In This Issue: implement the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 ("CISADA"), issuing regulations and making sanctions determinations U.S. Government Implementation of concerning several non-U.S. entities. With these actions, the Obama New Iran Sanctions Legislation Administration has shown its willingness to use the U.S. Government's new Imposition of ISA Sanctions on legislative authority. Companies investing in or doing business with Iran's energy NICO sector should expect to face increasing publicity and scrutiny–official, unofficial, Application of the ISA's "Special formal, and informal–by various parts of the U.S. Government and likely also the Rule" press. New Designations on the SDN List By way of background, CISADA amended the Iran Sanctions Act, 50 U.S.C. § Regulations Implementing 1701 note ("ISA"), to authorize the imposition of sanctions on persons that sell CISADA's Government Contracting refined petroleum products to Iran, support Iran's efforts to develop its domestic Restrictions petroleum refining capabilities, support the enhancement of Iran's ability to import refined petroleum products, or engage in certain other activities in or related to Regulations Implementing CISADA's Codification of the U.S. Iran. Baker & McKenzie previously issued a separate Client Alert on CISADA, Economic Embargo on Iran which can be read here. In August 2010, the U.S. Treasury Department's Office of Foreign Assets Control ("OFAC") took a first step to implement CISADA by publishing in the Federal Register the Iranian Financial Sanctions Regulations ("IFSR"), also pursuant to CISADA. Baker & McKenzie previously issued a separate Client Alert on the IFSR, which can be read here. Additional actions taken by the U.S. Government in September 2010 include the following: Imposition of ISA sanctions on Naftiran Intertrade Company ("NICO"), a wholly-owned Swiss subsidiary of the National Iranian Oil Company ("NIOC"); Application of the ISA's "Special Rule" to Total of France, ENI of Italy, Statoil of Norway, and Royal Dutch Shell of the Netherlands; New designations on the Specially Designated Nationals and Blocked Persons List ("SDN List") for eight Iranian government officials involved in human rights abuses after Iran's disputed 2009 elections; Issuance of regulations implementing CISADA's government contracting restrictions; and Issuance of regulations implementing CISADA's codification of the U.S. economic embargo against Iran. This Client Alert summarizes these developments in the order listed above. Imposition of ISA Sanctions on NICO During a September 30, 2010 press conference (transcript here), Deputy Secretary of State James B. Steinberg announced that the U.S. Government had made a determination under the ISA to sanction Naftiran Intertrade Company ("NICO") for what was described as providing hundreds of millions of dollars of financing for the development of Iran's petroleum sector. NICO is the first person to be sanctioned under the ISA. Deputy Secretary Steinberg announced that the sanctions imposed on NICO include an end to Export-Import Bank assistance, heightened export restrictions, prohibitions on its credit from U.S. financial institutions, and prohibitions on U.S. Government contracting. The State Department appears to have imposed more than the minimum number of sanctions required under the ISA or CISADA. Deputy Secretary Steinberg acknowledged during the press conference that NICO would not have been eligible for most of these benefits prior to the imposition of the ISA sanctions due to the preexisting prohibition on U.S. person dealings with Iranian government entities. Nonetheless, the sanctions against NICO are intended by the U.S. Government to discourage non-U.S. companies from doing business with this NIOC subsidiary. The State Department is expected to issue a notice soon in the Federal Register regarding the determination under the ISA to sanction NICO. Application of the ISA's "Special Rule" At the same press conference, Deputy Secretary Steinberg announced that Total, ENI, Statoil, and Royal Dutch Shell would benefit from the "Special Rule" in the ISA. This provision, which was added to the ISA by CISADA, permits the President to decide either not to initiate or to terminate an ISA investigation of sanctionable activities where: (1) the sanctionable person is no longer engaged in or has taken significant verifiable steps toward stopping sanctionable activity and (2) the sanctionable person provides reliable assurances that it will not knowingly engage in such activities in the future. Deputy Secretary Steinberg said that these four companies had agreed to withdraw from, and not to undertake new sanctionable activity in, Iran. However, he noted that the State Department is continuing or launching investigations into other non-U.S. companies that have not withdrawn from Iran's petroleum sector. In a related posting on its website, the State Department publicized the names of other companies that are reducing their energy-related business with Iran. The companies cited in this posting include, in addition to the four above, BP (United Kingdom), Glencore (Switzerland), GS Engineering & Construction (South Korea), Independent Petroleum Group (Kuwait), Lloyds of London (United Kingdom), LUKOIL (Russia), Reliance (India), NYK Line Ltd. (Hong Kong), Repsol (Spain), Trafigura (Switzerland), Tupras (Turkey), and Vitol (Switzerland). The State Department has not indicated whether it is considering applying the Special Rule to these entities as well. 2 Focus on Iran October 12, 2010 New Designations on the SDN List On September 28, 2010, President Obama signed Executive Order 13553, pursuant to CISADA, to authorize the designation on the SDN List of officials in the Government of Iran found to have been involved in serious human rights abuses against persons in Iran on or after the June 2009 elections. In this regard, CISADA Section 105 requires the President to block the property of such individuals and to make such individuals ineligible for visas to travel to the United States. All of a blocked person's property and interests in property that are or come within the United States or within the possession or control of U.S. persons are blocked. U.S. persons are prohibited from any direct or indirect dealings with blocked persons. On September 29, 2010, OFAC announced new designations on the SDN List for eight Iranians who are high-level officials in the Government of Iran that the U.S. Government has determined were involved in serious human rights abuses against persons in Iran on or after the June 2009 elections. On its website, OFAC published a list of these eight new SDNs. As additional individuals could be designated in the future, all screenings should be conducted against the current version of the SDN List. Regulations Implementing CISADA's Government Contracting Restrictions Also on September 29, 2010, the U.S. Government published in the Federal Register interim regulations to implement new government contracting restrictions, as required by CISADA Sections 102(b)(3) and 106. These contracting rules took effect on September 29, 2010, but interested parties may submit written comments to the U.S. Government on or before November 29, 2010. CISADA Section 102(b)(3) requires prospective U.S. Government contractors to certify that they, and any person they own or control, are not involved in any sanctionable activity under the ISA (related to investments, refined petroleum products, and weapons of mass destruction). As we interpret this CISADA provision, a contractor need not be formally sanctioned by the U.S. Government pursuant to the ISA to be barred from U.S. Government contracting so long as the contractor is involved in sanctionable activities. These new regulations duplicate the certification language found in CISADA and the ISA. The regulations also provide a formal mechanism for U.S. Government agencies and prospective contractors to seek a waiver from the certification requirement, which may be granted on a case-by-case basis if in the national interest of the United States. False certifications can result in contract termination, suspension of the contractor, and/or debarment of the contractor for up to three years. CISADA Section 106 bans U.S. Government agencies from contracting with companies that export "sensitive technology" to Iran (defined as technology used to block the free flow of information in Iran or otherwise restrict free speech). These new regulations partially implement this restriction, with further implementation expected at a later date. Contractors found to have exported "sensitive technology" to Iran will be identified in the Excluded Parties List System, which is used for federal procurement. 3 Focus on Iran October 12, 2010 www.bakermckenzie.com Regulations Implementing CISADA's Codification of the For further information please contact U.S. Economic Embargo on Iran On September 28, 2010, OFAC published in the Federal Register a final rule For the full text of CISADA, click here implementing changes to the Iranian Transactions Regulations, 31 C.F.R. Part Edward E. Dyson, Partner 560 ("ITR"), required by CISADA Section 103, which strengthens and codifies the +1 202 452 7004 U.S. economic embargo on Iran.
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