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Case No. ZI-537
[ ], Managing Director
Aperta Ltd
12 Mollins Court Westfield Park
Cumbernauld 068 9HP
United Kingdom
Dear Mr. [ ],
This replies to your letter of October 3, 2011, on behalf of Aperta Ltd, to the Office of Foreign Assets Control ("OFAC"), requesting guidance as to whether Aperta Ltd may continue providing Services to ZB Bank, an entity that appears on OFAC's List of Specially Designated Nationals and Blocked Persons (the "SDN List"). You write that Aperta Ltd is a company registered in the United Kingdom and that it also has a wholly owned subsidiary, Aperta Inc., that is registered in the United States. You write further that Aperta Ltd provides software solutions, including image-based check processing services, to ZB Bank, an entity that appears on the SDN List....
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1) As it relates to the genre of guidance letters issued to non-U.S. companies concerning activities appearing to be outside the scope of OFAC’s primary sanctions jurisdiction, Case No. ZI-537 is notable for two reasons.
2) PRIMARY SANCTIONS
Having a U.S. subsidiary does not render a non-U.S. person a “U.S. person” or otherwise subject to OFAC’s primary sanctions jurisdiction, provided that the actual transaction at issue has no U.S. nexus. (Compare Case No. IA-2016-329758-1; foreign entity is not a U.S. person where it "employs a small number of U.S. persons," "carries out ancillary activities in the United States" and "partners with U.S. universities in various ways."). OFAC’s characterization of the law as it relates to the fact pattern is nonetheless notable:
“To the extent that no U.S. persons, including Aperta Inc., are involved directly or indirectly in the transaction...