By Saskia Rietbroek and Robert L Williams III
May 21, 2022
On March 16, the Financial Crimes Enforcement Network (FinCEN) distributed a guidance paper entitled FinCEN Alert on Real Estate, Luxury Goods, and Other High Value Assets Involving Russian Elites, Oligarchs, and their Family Members. One section dealt with precious metals, stones and jewelry (PMSJs).
The FinCEN alert guidance warns gold and diamond dealers that sanctioned Russian elites and their proxies might pay a visit, attempting to use PMSJs to evade sanctions. Which sanctions apply to the gold and diamond sector? How can compliance professionals use the FinCEN advisory to detect sanctions evasion?
FinCEN is the US’ financial intelligence unit, a Treasury agency separate from OFAC, which does not administer or enforce sanctions. FinCEN oversees the Bank Secrecy Act, a major US law that prevents money laundering and terrorist financing.
As part of its mission to safeguard the financial system and promote national security, FinCEN regularly issues alerts to financial institutions about money laundering or terrorist-financing threats and vulnerabilities to enable the institutions to guard against such threats.
Ideal for Concealing Illicit Wealth
In its March 16 alert, FinCEN points out the value of PMSJs for industrial, personal consumption, investments and as portable and practical replacements for currency. PMSJs are ideal for concealing illicit wealth without increased scrutiny because the underlying commodity – in this case, gold – is legal.
PSMJs may also be used to launder funds at the “integration” stage, where the gold, diamonds, or currency re-enters into the legitimate economy.
Sanctions evasion has similarities with money laundering in that the perpetrator tries to obscure something while moving value. Money laundering conceals the dirty origin of the money, and in sanctions evasion, it is the link to a sanctioned country, individual, or entity.
In the advisory, FinCEN unfurled red flags for:
- transactions involving PMSJ trading companies, particularly in Asia,
- firms with a nexus to sanctioned Russian elites and their proxies, and
- high-value or frequent transactions involving mining operations with opaque and complex corporate structures that are or have been owned or controlled by sanctioned Russian elites or their proxies.
Financial Sanctions Escape Route
State-owned banks dominate Russia’s large financial services sector and rely on the Western financial system to conduct international business.
The financial sanctions imposed by the US, EU and UK cut off major parts of the Russian financial system and economy from access to this infrastructure and the US dollar or Euro more broadly. While gold held in the Russian central bank’s vault is beyond the reach of the Western adversaries, sanctions placed on the central bank rendered the bulk of Russia’s $600 billion in foreign exchange reserves useless.
As a result of these actions, sanctioned Russian actors may seek to evade sanctions through the non-banking sector, including gold or precious metals dealers.
Before the invasion of Ukraine in February, the US had already imposed debt and equity sanctions on Russian oil, energy and banking companies. But Russian precious metals, such as gold and diamonds, have been unscathed.
After the invasion of Ukraine, this changed. OFAC extended Russia-related debt and equity restrictions to Alrosa, a Russian diamond mining company and the world’s largest, controlling 90% of Russia’s diamond mining capacity. The sanctions were not an outright freeze on Alrosa’s assets, nor a complete ban on doing business with the company. Instead, Alrosa was listed pursuant to Directive 3 under EO 14024, which prohibits transactions and dealings by those in the US in new debt of longer than 14 days or new equity of Russian state-owned entities.
EO 14068 of March 11, 2022, prohibits importing into the US non-industrial diamonds. These are the articles defined at HTSUS subheadings 7102.31.00 and 7102.39.00, including any subsequent revisions to the list of HTSUS classifications.
When importing such products of Russian Federation origin to jurisdictions outside the US does not involve a sanctioned person or an otherwise prohibited transaction, they do not expose non-US persons to sanctions under EO 14068. As of May 10, the EU has not imposed an import ban on diamonds. Key diamond trading cities such as Antwerp (Belgium), Dubai and Mumbai are not covered by the sanctions.
EO 14024 Permits Variety of Sanctions
A 2021 Executive Order, EO 14024, permits the US to impose a variety of sanctions. OFAC has issued several directives under this EO, specifying prohibitions relating to persons adjudged subject to the applicable directive. The following gold-related transactions involving Russia or the Russian Federation may be prohibited:
- US persons, including gold dealers, distributors, wholesalers, buyers, individual traders, refineries, and financial institutions, are generally prohibited from engaging in or facilitating prohibited transactions, including gold-related transactions in which blocked persons have an interest.
- US persons are prohibited from engaging in any transaction involving the central bank of the Russian Federation, the National Wealth Fund of the Russian Federation, or the Ministry of Finance of the Russian Federation, pursuant to Directive 4 under EO 14024, “Prohibitions Related to Transactions Involving the Central Bank of the Russian Federation, the National Wealth Fund of the Russian Federation, and the Ministry of Finance of the Russian Federation (Russia-related Sovereign Transactions Directive).
- US financial institutions are generally prohibited from processing transactions, including gold-related transactions, involving foreign financial institutions adjudged subject to the prohibitions of Directive 2 under EO 14024, “Prohibitions Related to Correspondent or Payable-Through Accounts and Processing of Transactions Involving Certain Foreign Financial Institutions” (Russia-related CAPTA Directive).
- Non-US persons are prohibited from causing or conspiring to cause US persons to violate US sanctions, and engaging in conduct that evades or avoids a violation of OFAC sanctions.
Further, gold-related transactions involving the Russian Federation may be sanctionable under EO 14024 of 2021 or other Russia-related sanctions authorities. For example, EO 14024 authorizes sanctions against:
- Persons deemed responsible for or complicit in, or to have directly or indirectly engaged or attempted to engage in, deceptive or structured transactions or dealings to circumvent US sanctions. This could include using assets such as gold or other precious metals.
- Persons determined to operate or to have operated in the financial services sector of the Russian Federation economy. This could include those engaging in gold-related transactions involving the Russian Federation.
- Persons who have materially assisted, sponsored or provided financial, material, or technological support for, or goods or services to or in support of, persons blocked under EO 14024. This could include transactions in gold or other precious metals that involve such blocked persons.
Sanctions Evasion Case Typology Using Gold
Russia is a major exporter of gold and could illicitly trade it in unregulated precious metals markets to obtain foreign currency. Traders that don’t mind violating sanctions can buy or sell the gold, which can be physically moved around the world, outside of the financial system, making it difficult to track.
A 2018 case involving Venezuelan gold shows how this can be done. In 2018, Saab, a Colombian businessman with close ties to President Maduro of Venezuela, reportedly signed a contract with a Venezuelan Bank to acquire Venezuelan currency to purchase gold from local miners. The Venezuelan bank was designated in 2019 under EO 13850, as amended, for operating in the financial sector of the Venezuelan economy.
According to OFAC, some of this gold was sent to Caracas to be refined, sold to the central bank of Venezuela (also under US sanctions since April 2019) and subsequently shuttled out of Venezuela to destinations such as the UAE and Turkey.
Turkish entities, meanwhile, purchased gold from the government of Venezuela, depositing money in accounts in Turkey, which in turn would transfer funds to an account held by the central bank of Venezuela in Turkey.
OFAC did not provide more details on how these financial transactions occurred but designated Saab and a Turkey-based shell company for sanctions in July 2019. OFAC later designated three individuals and 16 entities with commercial links to Saab in September 2019.
Proceed with Extreme Caution
The US government is giving high priority to enforcing Russian sanctions and deterring sanctions evasion. US diamond traders should proceed with “extreme caution” with imports to ensure products are not sourced from sanctioned places or companies.
Any US jewelry business transacting with Alrosa or Alrosa USA should evaluate the status of any deal and work to ensure it does not violate the debt/equity sanctions. For example, contracts with payments longer than 14 days should be amended to shorten the terms or be closed.
Besides the enhanced due diligence/know your customer procedures, you will need to investigate the true individuals/entities behind transactions. You will need to be vigilant against efforts to evade the expansive sanctions and other US-imposed restrictions implemented in connection with Russia’s war with Ukraine.
Compliance officers may use the FinCEN March 11 alert information to enhance their anti-money laundering (AML) monitoring systems for more effective reporting of suspicious activity. Red flags listed in the alert serve as a guide to what constitutes suspicious transactions and the areas a bank examiner or auditor is interested in.
Companies can attempt to avoid the Russian sanctions regulations altogether by ensuring they have a process to safeguard against dealings with prohibited entities. One recommendation is to have updated written policies and procedures for screening all Russian parties that may be subject to a transaction. This includes not only the SDN List but also the List of Foreign Financial Institutions Subject to Correspondent Account or Payable-Through Account Sanctions (CAPTA List), and the Non-SDN Menu-Based Sanctions List (NS-MBS List), to determine which of these sanctions are applicable.
In addition, it is good practice to obtain ownership information from the screened entity to confirm it is not owned or controlled by a sanctioned party. US companies should be proactive and ensure they know about all the applicable Russian sanctions and the necessary reporting requirements.
Filing a Suspicious Activity Report
If institutions decide to file a suspicious activity report (SAR) on transactions involving suspected sanctioned Russian elites, the entry, “Fin-2022-RUSSIALUXURY” should be included in Field 2 of the SAR.
Longstanding FinCEN guidance provides clarity for financial institutions seeking to satisfy their obligation to file a SAR on a transaction involving a designated person when also filing a blocking report with OFAC. FinCEN, The SAR Activity Review, Issue 8, Section 5 “Revised Guidance on Filing Suspicious Activity Reports Relating to the Office of Foreign Assets Control List of Specially Designated Nationals and Blocked Persons,” pp. 38-40, (April 2005) states:
- “[t]o the extent that the financial institution is in possession of information not included on the blocking report filed with [OFAC], a separate [SAR] should be filed with FinCEN including that information. This guidance also does not affect a financial institution’s obligation to file a [SAR] even if it has filed a blocking report with [OFAC], to the extent that the facts and circumstances surrounding the [OFAC] match are independently suspicious and are otherwise required to be reported under the existing FinCEN regulations. In those cases, the [OFAC] blocking report would not satisfy a financial institution’s [SAR] filing obligation….When a financial institution files a reject report on a transaction, the financial institution is obligated to file a [SAR] to the extent that the facts and circumstances surrounding the rejected funds transfer are suspicious.”
Saskia Rietbroek, CSS, is the Executive Director at ACSS. Saskia is a Certiﬁed Sanctions Specialist (CSS) and Certified Anti-Money Laundering Specialist (CAMS) and an industry leader in ﬁnancial crime topics. Saskia has over 15 years of Sanctions/AML experience in the US, Latin America and Europe. Her global footprint enables Saskia to apply valuable expertise and insight into international training and ﬁnancial crime compliance projects.
Robert L Williams III, CAMS, CCI, CRFCC, is a financial crimes prevention professional with nearly 20 years of sanctions compliance experience at three international banks: AVP, Senior Associate Credit Agricole), BNP Paribas (designated OFAC compliance officer and Standard Chartered Bank (Sanctions Advisory. He is an AML/KYC consultant seeking to pivot to the brave new world” of crypto/fintech/blockchain, after acquiring two crypto compliance certificates in March and June of 2021.