The OFAC 50% ownership rule is a compliance requirement that, when overlooked, can lead to severe penalties and reputation damage. What exactly is the 50% rule and for which companies is it most relevant?

50% Rule: What is It?

Sorry, German soccer lovers—this 50% rule relates to Denied Party Screening. In 2014,the United States Department of the Treasury’s Office of Foreign Assets Control (OFAC) clarified 2008 guidance in relation to doing business with companies that are not on any OFAC denied parties lists (DPL), but that are in fact owned by people or companies that are on the DPL. The European Union has similar regulations and, as far as OFAC is concerned, the math is simple: if one or more people or entities that are on a DPL own in total 50% or more of an entity that is not listed, that (latter) entity is considered to be under the control of one or more denied parties and cannot be engaged for business.

That seems clear enough, but the bonus question is of course: how do you find out if the company you are planning to do business with is not controlled by actors on the DPL? And how exactly does the math work: is it direct ownership only or do other relations count as well (e.g., what if a denied person’s spouse owns 50.01%)?

Digging Deeper

The only opportunity to flag if an entity is 50% owned by a denied party is to have this information available when denied (or restricted) party screening occurs. Especially for companies with larger transaction volumes and many one-time sales, this implies a gigantic amount of research, which is practically impossible given the usual limited resources compliance departments have available.  Luckily, there are a few companies that have done the research and are also keeping it up to date. Tag their lists on to the regular DPL when screening and all bases are covered.

It’s relevant to note that the amount of research is staggering and performed in old fashion digging style. Typically, entities appearing on the DPL are well aware of that fact and bury their ownership in (at first sight) legit companies three or four layers deep, which is more research than most companies can handle, especially when large parts of it may be in a foreign language.

Obviously, some verticals are subject to both more scrutiny and fraud attempts when it comes to the 50% ownership rule. That soccer jersey sale might not raise too many flags but, for example, in the financial sector, the movement of dual-use goods or complex international agreements (oil, anyone?) calls attention to the necessity to screen all parties involved to the finest detail possible. Or not, in which case preparing for some generous penalties, revoking of business licenses and perhaps jailtime would be time well spent. Recent cases (2018-2020) have seen OFAC dish out penalties in excess of $1.3 billion with a growing part of that related to 50% ownership. In general, most (higher) penalties have been related to the financial sector (the first high profile case was the 50% penalty imposed on Barclays Bank).

As for the relationship part, it is only the actual names on the debarred lists that count towards the 50%. Ownership by their known family and (political) friends does not count toward the 50%, as long as these relations are not on the OFAC lists themselves. Practically, though, a few eyebrows or more should be raised if those relationships do come to light. Either way, if it is under the header of due diligence, reasonable care, or ‘know your customer’ (KYC), the burden is on the exporter/seller to ensure no laws are violated and goods do not end up in debarred hands.

A Closer Look

To illustrate the reach of the 50% rule, consider the following from the aforementioned Barclays case. Barclays US worked with Barclays Bank of Zimbabwe Limited on some of its customers that were not on OFAC’s Specially Designated Nationals and Blocked Persons List (SDN List). Yet, the Industrial Development Corporation of Zimbabwe was on the list (since 2008) and owns 50% or more of these customers. That means Barclays should have effectively blocked these customers and not engaged with them. When business was conducted, Barclays violated the 50% rule and was penalized.

Parting Thoughts

‘What Lies Beneath’ is not only a movie that can keep you up at night. The guidance on OFAC compliance regulations dictates that exporters must be aware of who they are conducting business with, even if that requires a look underneath the surface. That responsibility cannot be ignored.