This week we highlight Professor John Coffee Jr.’s article “Hobson’s CHOICE: The Financial CHOICE Act of 2017 and the Future of SEC Administrative Enforcement”, analyzing the Financial CHOICE Act and in particular its impact on SEC enforcement. This post was published in the Columbia law school’s blog on corporations and the capital markets.
On June 16, 2017, the Trump administration issued a national security presidential memorandum entitled “Strengthening the Policy of the United States Towards Cuba” (the “Presidential Memorandum”). Related to this announcement, the White House issued a Cuba Fact Sheet, OFAC issued a new set of Frequently Asked Questions (FAQs) and the Department of Transportation also issued a new set of FAQs relating to the President’s announcement.
On February 3, 2017, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) issued a press release announcing sanctions against 25 individuals and entities that the U.S. government has associated with the supply chains of technology and materials being used by Iran to support its ballistic missile program. OFAC also designated individuals and entities acting on behalf of, or providing support to, Iran’s Islamic Revolutionary Guard Corps-Qods Force (IRGC-QF) and Lebanon’s Hizballah. Notably, the OFAC press release emphasizes that these actions are “fully consistent with the United States’ commitments under the Joint Comprehensive Plan of Action (JCPOA)”—the nuclear deal reached with Iran and implemented last year.
On February 2, 2017, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) issued Cyber-related General License (GL) 1, a general license that authorizes certain transactions with Russia’s Federal Security Service (Federalnaya Sluzhba Bezopasnosti or FSB). GL 1 authorizes U.S. persons (i.e., individuals and companies) to request, receive, use, pay for or deal in licenses, permits, certifications, or notifications issued or registered by the FSB for information technology (IT) products in Russia, provided that (i) the relevant IT goods or technology are subject to the U.S. Export Administration Regulations (EAR) and are licensed or otherwise authorized by the U.S. Department of Commerce’s Bureau of Industry and Security (BIS); and (ii) payment of fees to the FSB for such licenses and other authorization or notification does not exceed $5,000 in any calendar year. GL 1 also authorizes transactions or activities that are necessary and ordinary incident to complying with law enforcement or administrative actions or investigations involving the FSB or rules and regulations administered by the FSB.
On January 13, 2017, the Obama administration announced that it would lift sanctions imposed on Sudan issued under the Sudanese Sanctions Regulations (SSR), which are administered by the Treasury Department’s Office of Foreign Assets Control (OFAC). The action reverses nearly 20 years of U.S. policy toward Sudan, a country that had been the target of a comprehensive trade embargo due to human rights abuses and support for international terrorism. The United States has stated that its decision comes after months of bilateral engagement with Sudan, which has revealed that country’s support for key U.S. foreign policy goals, such as ceasing hostilities in conflict areas, including Darfur, and enhancing counterterrorism cooperation.
Overview of Actions Taken by the United States
On December 29, 2016, President Obama announced that he was sanctioning nine individuals and entities: the Main Intelligence Directorate (aka Glavnoe Razvedyvatel’noe Upravlenie) (GRU) and the Federal Security Service (aka Federalnaya Sluzhba Bezopasnosti) (FSB), two Russian intelligence services; four individual officers of the GRU; and three companies that were stated to have provided material support to the GRU’s cyber operations. In addition, two Russian individuals were sanctioned for using cyber-enabled means to cause misappropriation of funds and personal identifying information. These actions mark the first expansion of the Specially Designated Nationals (SDN) List to include entities and individuals under the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) cybersecurity program since it was established on April 1, 2015. The 2015 client alert can be found here.
On Tuesday, November 15, 2016, the Securities and Exchange Commission (SEC) announced that Chair Mary Jo White will resign as SEC Commissioner effective January 20, 2017, concurrently with the end of President Obama’s term of office. The SEC has five commissioners who are appointed by the President with the advice and consent of the Senate. To ensure that the SEC remains nonpartisan, no more than three commissioners may belong to the same political party. There are already two vacancies on the commission, and, because of congressional gridlock, President Obama’s nominations to fill these vacancies—one Republican and one Democrat—have not been confirmed by the Senate. In light of Chair White’s resignation, President-elect Trump will have the opportunity to appoint three commissioners, including at least two Republicans. Given President-elect Trump’s plan to “dismantle” the Dodd-Frank Act, some anticipate a more laissez-faire approach to regulation and enforcement by the SEC in the future.
On Monday, October 17, 2016, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) and the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) implemented amendments to the Cuban Assets Control Regulations (CACR) and Export Administration Regulations (EAR), respectively, that further ease U.S. sanctions and export controls targeting Cuba, particularly in the areas of medical research, pharmaceuticals, and trade and commerce between the United States and Cuba. These changes continue the administration’s policy of easing sanctions on Cuba to support the Cuban people and follow prior regulatory changes that occurred in January 2015, September 2015, January 2016 and March 2016. This latest action follows a Presidential Policy Directive (PPD) issued on October 14, 2016, which sets out the vision, priority objectives and actions required for normalization of relations between the United States and Cuba (see here).