FCPA Compliance and Ethics Blog

March 6, 2013

Marine Transportation and Anti-Money Laundering

My recent article on the marine transportation industry and the Foreign Corrupt Practices Act (FCPA) generated some discussion ranging wider than simply the port agent issue regarding interaction with foreign government officials. One of the discussion points was how and where a company should pay the crew. One of the sacrosanct rules that I learned while working at Halliburton was that payments to any third parties had to be made to either (1) the location where the services were delivered or (2) the location where the third party was domiciled. It was called ‘Offshore Payments’ and the legal department was charged with making sure that all contracts specified payments to be delivered into one of the aforementioned locations. The rule was designed to comply with Anti-Money Laundering (AML) rules and regulations. This concept also appears in the FCPA as a red flag if a third party desires to be paid outside either of the locations stated because a corrupt entity or person could use funds already in the banking or financial system to disguise any movement that might reveal the corrupt action, such as a bribe to a foreign governmental official.

Obviously you cannot pay a ship’s crew in the location where the services are delivered if those services are delivered at sea. So that would seem to leave jurisdiction where a crew member is domiciled. But in addition to the home domicile there are other AML issues such as the bank to which the payments are wired into from the US.. The Financial Action Task Force (FATF) Recommendations on the International Standards on Combating Money Laundering and the Financing of Terrorism and Proliferation set out several in its White Paper released last year. These included due diligence on payees to determine politically exposed persons and specially designed individuals, record keeping, controls regarding payee banks and financial institutions and reporting of suspicious transactions, among others. In others words, there are many concerns about paying third parties; even those third parties a company might not normally consider in their own compliance regime.

Based upon these conversations, I thought a deeper look into AML issues was warranted. Fortunately Carol Switzer, President of the Open Compliance and Ethics Group (OCEG) just penned another piece in her series in Compliance Week on compliance related issues. This month Switzer has taken a look at AML issues in an article entitled “The Complex Mechanics of Money Laundering” and compended with the article is another of OCEG/Compliance Week, GRC Illustrated Series, where in an illustrated manner, they review how to build an effective AML program.

Switzer explains that there are several laws which deal with AML compliance. They include “the Intelligence Reform & Terrorism Prevention Act of 2004, which amended the BSA; the Money Laundering and Financial Crimes Strategy Act; and the Money Laundering Suppression Act).” There are numerous regulatory and enforcement agencies with domestic AML oversight. They include “the U.S. Department of the Treasury and its Financial Crimes Enforcement Network (FinCEN), to the Security and Exchange Commission to the Dodd-Frank Act’s Consumer Financial Protection Bureau (CFPB) to the New York Stock Exchange, IRS, FBI, and a number of federal banking regulators.”

In the illustrated section following Switzer’s article, it sets out three basic steps which are (1) Define the Risk; (2) Quantify the Risk; and (3) Manage the Risk.

I.                   Define the Risk

It all begins with a comprehensive organizational analysis so that you can understand how much exposure your organization has and where it originates. A company should keep track of the places it does business and how it does business, either directly or through third parties. A company should determine where threats are hiding in its operations and to identify any specific AML issues posed by a particular products or service line. A company should also understand the enhanced risks posed by any specific geographic markets and then identify the risks inherent in different customer types.

II.                Quantify the Risks

Under this prong, a company should determine the quantitative impact of defined risks, both from a customer and asset perspective, while understanding how operating locations may affect these identified risks. Next a business should profile and risk rate customers and assets based on risk attributes including customer geography, business structure, sources of funds, business type, products and services utilized and other factors. From these factors a company should then formulate a comprehensive business risk assessment.

III.             Manage the Risk

Based on steps one and two a company should then implement an AML program consisting of people, processes, and controls proportional to the quantified risks which can ensure compliance, visibility, and protection. This Step III has four subparts.

  1. Design: A company should define its internal roles and responsibilities. There should be designated risk categories which will inform the appropriate level of due diligence. A company should build and implement both suspicious activity controls and transaction monitoring.
  2. Implement: This step involves the establishment of policies and procedures and training of employees and relevant third parties there. To the extent possible OCEG recommends using technology to monitor, review, escalate, and report suspicious activities using a risk-based and practical approach. Lastly, they recommend that companies should exchange knowledge with industry peers and experts.
  3. Test and Analyze: A company should regularly test its controls and monitor personnel and third parties. A company should evaluate the data that it receives. Finally, as with all compliance regimes, there should be a confidential reporting mechanism to report suspicious activities or other violations.
  4. Report: A company should report suspicious activity and any AML controls system weaknesses should be scheduled for analysis. A company should also document and file any suspicious activity for both its own internal use and regulatory reporting requirements.

A company must continually capture and update its understanding of threats and system weaknesses to influence continued evolution of an effective AML program. This should be coupled with the continuous evolution of your AML program because the nature of money laundering is ever-evolving as criminals construct new and “improved” methods to hide the proceeds of crime and funds for financing criminal action, making it ever more difficult to monitor and stop.

So how about the payment issue in marine transport industry and the ship’s crew? Most US companies no longer own and crew the ships they use to transport product or cargo and will typically use a charter party. The charterer gives orders for the employment of the vessel and payment of the crew. If your company is in such a position I would suggest that it make the following inquiries of your charter party. 1) Does the charter party have an International Organization for Standardization (ISO) program and policy in place for the hiring and paying of employees?; 2) Does the charter party vet all employees to include license checks; verify bank address to employee address and obtain background checks thereon?; 3) Does your charter party ensure that all banking transactions made to the employees are documented starting with hours worked, signature from masters and payments made to employees home country only?

If you are in the marine transport industry and use a third party to pay those working on your behalf you need to review the third party’s AML program. The same is true for any other business which uses a third party company to make payments to others outside the US.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2013

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