Filing a Request for Interpretive Guidance
An interpretive-guidance request is a request to OFAC for an advisory opinion about a transaction a person wants to make prior to doing the transaction. An individual or business can ask OFAC for its opinion on whether or not the transaction would be authorized in order to protect themselves from inadvertently violating the sanctions.
It can take between four to six months for guidance on basic transactions. If it is a complex transaction, OFAC could take up to a year to issue a response.
Before Filing a Request
Before filing a request a person must identify the transaction they want to take and the parties, goods, services, and technology that will be involved in the transaction. Once those have been identified, it is important to analyze whether the proposed activity is consistent with U.S. foreign policy or national security objectives. It is also important to identify whether there are any statements of licensing policy, general licenses, or exemptions that might be applicable to the proposed activity.
There is no hearing in an interpretive guidance request. The process includes gathering evidence and then drafting a request for interpretive guidance. Once the request has been filed, you must wait until OFAC provides its opinion. When you have the opinion, you then either know that OFAC agrees with you that the activity is authorized or that OFAC believes the transaction is not authorized.
It is helpful to have an OFAC sanctions attorney file your request. Because sanctions are a very policy-driven area of law your request can benefit from having an analysis of how your proposed transaction
Burden of Proof
There is no burden of proof in an interpretive guidance request other than a full description of the transaction. There must be specific, non-hypothetical information about the transaction, including who you are going to work with and what you want to do before OFAC will provide an advisory opinion about the transaction. OFAC will not respond to anonymous requests.
Evidence and Documentation
The type of evidence or documentation you need to provide OFAC in a request for interpretive guidance depends on the transaction about which you are asking. If it is a more complicated transaction you might have to include all the information related to all parts of the transaction. If it is a simpler request you can probably just put it in letter form. In summary, there is no specific evidence required.
How long a request for interpretive guidance can take depends on the complexity of such requests, however, it generally does not take long to prepare a request for interpretive guidance. Once the request for interpretive guidance has been filed, it can take OFAC anywhere from four to six months, or even longer, to respond depending on the complexity of the request and whether there is a backlog of prior requests at OFAC.
There is no appeal of a request for interpretive guidance because there is no permission granted or denied with an interpretive guidance request, simply an advisory opinion. If you believe OFAC’s opinion is incorrect and you want to submit additional information for OFAC’s consideration you can revise and refile your request for reconsideration.
Lack of Response from OFAC
With a request for interpretive guidance, you can refile the request. An OFAC information specialist can be reached on the phone to check on the status of your interpretive guidance and hopefully put you in touch with the licensing officer considering your request. It is important to note that OFAC can be very busy and it may take the agency many months to respond to your request. Unless your request is critical to US foreign policy or national security objectives, you can expect a considerable delay.
The Benefit of Having an Attorney Help with the Request
The benefit of having an OFAC sanctions lawyer help with this kind of request is that you can include in your request a discussion of the underlying policies that justifies the imposition of the sanctions. By engaging the services of a knowledgeable OFAC attorney, you can get an analysis of the policy to justify why your requested course of action is consistent with US policy. Hopefully, that will improve the chances of getting a favorable opinion from OFAC.