Recently arrangements in legal proceedings in the civil area have been promoted by the Office of foreign assets Control (OFAC) and these suggest that cover-ups, no crimes, they can lead to strict sanctions.
Companies that cooperate with the OFAC to access
they can evade penalties of major consequences
Frequently companies that cooperate with the OFAC, that they admit their illicit acts and put a remedy to prevent violations future escape harsher procedures compliance, and they receive minor punishments.
In fact, Some companies eventually cooperating, after withdrawal by administrative processes OFAC, and that they usually evade penalties criminal completely - sentences that in addition to the damage to his reputation, They even more severe consequences, including the prison for some of its members and devastating financial impact.
Therefore it is very useful for professionals who understand the new cooperation process OFAC. That is it in a nutshell, cooperation produces clemency; Therefore, it professionals need to understand how to lead in this process, and thus provide its customers a set of options to handle any possible violation.
Or even for offenders - or have not decided to cooperate with OFAC - they are now targets of criminal investigations, the range of penalties provided by the administrative processes of the OFAC provides an important comparison that defence lawyers should use when trying to get the possible minimum sentences for customers.
The OFAC He has published relatively benign punishment for violations of economic sanctions for offenders cooperating with the investigation of the OFAC. Cooperation in these cases, means not self-unreported.
Even it involves immediate cooperation after learning that are investigated. There is a great disparity between the administrative penalties imposed by OFAC, and the criminal penalties for, entities can be exposed.
The Guide to follow the economic sanctions of the OFAC is of the Appendix A to the 31 C.F.R.. 501. Prohibited transaction is seen as an offence separately, and, Depending on the value of the transaction, entails a "amount applicable to a program" between $1,000.00 and $250,000.00 $.
The value of the transaction is generally the domestic value of US goods or services involved or, in the event that an entity transfer or attempt to transfer funds, the amount of funds to be transferred.
When the OFAC determines that a violation deserves a civil action, then first has a pre-penal notice. This pre-penal notice is not a final action, and therefore it is not a judicial review at the moment (31 C.F.R. & 501.703).
The notice shall contain a "pena as the basis" based on the total amount of the "set amount", adjusted by two values: whether the infringement has been "scandalous", If the infringement to been "revealed by their own free will".
- To prevent an infringement as "scandalous" depends of a "analysis of the General factors", that you basically add the determination of the totality of the circumstances. Inappropriate behavior, and offences that damage the objectives of sanctions programs (example: sell arms to hostile Nations), they are safer to be classified as "scandalous" that cases involving such, infringements without knowledge, or harmless violations, (How to keep business on a regular basis with an entity or sanctioned nation). Efforts to cover up "evil deeds" they can increase the chances of deserving a title of "scandalous".
- The second classification is "revealed on their own". To meet such categorization, an entity must notify the OFAC of an infringement, "before or at the same time" OFAC or another governmental entity, "discover appears it to rape", or any similar apparently substantial violation". A voluntary disclosure of authorship, can reduce the sentence of an offender in a 50%.
Once the criminal base has been established, willing to settings for the "General relevant factors applicable. These factors include "substantial cooperation" with the OFAC, What merits of a 25 to 40 % reduction, but for entities that have voluntarily revealed themselves (and thus they have already reduced your account by half) is considered only a "mitigating factor". The "first-time offenders" -defined as entities with a history clean in the OFAC by the 5 previous years - generally receive a reduction of the 25 %.
It is important to note that none of these discounts is mutually exclusive. Like this, first-time offenders who cooperate You can receive the benefit of both reductions. OFAC can even go beyond, adjusting calculations in penalties based on any other relevant information, including correction measures applied, and the impact/severity of the violation.