What is a request for interpretive guidance and when do OFAC lawyers tend to make such requests?
Interviewee: A request for interpretive guidance is a formal request made to OFAC for interpretive guidance relating to an existing or proposed transaction. Many times, the sanctions regulations are difficult to interpret because they are vague. However, when requesting guidance from OFAC, one must be prepared to explain a real transaction with real facts, circumstances, and identities of people involved because OFAC doesn’t provide guidance on hypothetical situations. You would want to have a transaction in mind that is going to occur in the future or one that has already occurred in the past. The request for interpretive guidance will help you determine whether or not the transaction is, in fact, lawful.
Is it more common to make such requests before a violation or after a violation?
Interviewee: In a situation where you think a violation may have occurred, you might not want to file a request for interpretive guidance to OFAC because once you file that letter explaining the situation, you may have already admitted to an offense and OFAC may carry out an unmitigated enforcement action against you. If you think your past act might have violated sanctions, the most prudent thing to do is to consult an attorney who can evaluate the situation and then, if necessary, file a voluntary self-disclosure with OFAC so that you can get credit for voluntarily disclosing your violation. If you want to make future transactions, then a request for interpretive guidance is a good course of action because you’re getting guidance from the agency regarding a transaction that you want to undertake. If it’s unlawful, then you simply won’t undertake it.
How is the work of an OFAC lawyer different from that of a criminal defense lawyer?
Interviewee: These are very different areas of law. For starters, OFAC is an administrative agency and the administrative rules and procedures for OFAC violations or investigations are vastly different than the rules and procedures in a federal criminal action. In many ways, you have less rights in the administrative process because there are certain constitutional protections that don’t apply to you in the administrative setting the way they do in a criminal setting.
Can any criminal lawyer handle an OFAC issue?
Interviewee: Yes, any licensed attorney can handle an OFAC issue but it makes sense to retain somebody who has experience with the sanctions and OFAC. However, there is an interesting overlap of criminal law and OFAC in that some people are often charged with criminal violations of OFAC regulations. In that regard, having an attorney that has experience with both criminal law and OFAC sanctions can be very useful because they understand the regulatory nuances on the OFAC side of the situation but they are also familiar with federal criminal procedure.
How much information does OFAC provide to explain why someone has been served an administrative subpoena?
Interviewee: When you get served an administrative subpoena, it means that you’re subject to U.S. jurisdiction and that the agency thinks that you have violated certain sanctions regulations. OFAC tends to explain where their concerns come from in the letter that accompanies the subpoena, but they don’t always explain the full extent of their knowledge about your transactions. The best course of action is to answer all of the questions and requests made in the subpoena truthfully and completely.