Administrative Subpoena Lawyer
The Office of Foreign Assets Control (OFAC) may serve administrative subpoenas to individuals and companies as part of its investigative efforts to enforce U.S. sanctions. If you, or your company, or organization, has received an OFAC administrative subpoena, that means the agency has already opened preliminary sanctions investigation and seeks further information about potential sanctions violations.
An administrative subpoena from OFAC tends to involve transactions with designated countries or entities. The subpoena normally seeks information from the sanctions-related records that are legally required to maintain for a minimum of five years. At times, the subpoena may be too broad, and providing all relevant documents may be burdensome. The Enforcement Officer assigned to your case may be contacted in an effort to narrow the scope of the information sought by OFAC. Nonetheless, this process can be burdensome especially where you or your organization may not have a compliance program. Consulting an experienced OFAC Administrative Subpoena Lawyer on how to proceed would best the place to start your response to OFAC.
DID I RECEIVE AN ADMINISTRATIVE SUBPOENA FROM OFAC?
You will know if what you have received is an OFAC subpoena. Each OFAC administrative subpoena clearly states at the top, in large bold black letters, “ADMINISTRATIVE SUBPOENA”. The subpoena will have an assigned enforcement case number marked with the letters “ENF.” Subpoenas are usually mailed to individuals personally or to a company’s CEO or president.
WHY WOULD I RECEIVE A SUBPOENA FROM OFAC?
OFAC serves administrative subpoenas to those that they suspect may have relevant information on possible violations of U.S. sanctions. Typically a person or company engaging in activities that may have reached outside of the bounds of U.S. sanctions or general license authorizations receive an OFAC administrative subpoena.
A person who had financial or business ties to an SDN person may receive an administrative subpoena. Whether the person was recently designated or previously placed on the SDN list, and administrative subpoena will help OFAC determine the legality of your conduct under US sanctions. A transfer of funds to your account from someone associated with OFAC-designated persons (“SDN’s”) is one example where an OFAC-issued subpoena may be warranted. In such instances, you may receive a subpoena from OFAC inquiring about the source and facts surrounding the wire transfer.
I RECEIVED AN ADMINISTRATIVE SUBPOENA – WHAT DO I DO NEXT?
You are required by law to respond to the administrative subpoena. 31 CFR Section 501.602 is cited to remind subpoena recipients that a written response is required and that the response must be factually accurate. The response must also be filed no later than 30 days from the date on the subpoena. However, you may request for time extensions.
The OFAC administrative subpoena response should be addressed to the OFAC Enforcement Officer that is assigned to your case. The name of the Enforcement Officer handling your case can be found in the administrative subpoena. Your completed written response should be submitted in the form of a PDF via e-mail to the assigned Enforcement Officer. While most correspondence will likely occur through email, the written response should also be physically mailed to the assigned Enforcement Officer at the Department of Treasury, Office of Foreign Assets Control, Office of Enforcement, 1500 Pennsylvania Ave NW, Washington, DC.
WHAT DO I INCLUDE IN MY RESPONSE TO THE ADMINISTRATIVE SUBPOENA?
The written response you will include in your submission to OFAC should provide detailed information on all questions posed by OFAC in the subpoena. If inquired about transaction(s), then details on payments and related explanations should be presented, in addition to any supporting documents. Relevant documents may include shipping documents, financing and payment documents, and correspondence with involved parties (e-mails, messenger applications, etc.). Also, OFAC may demand descriptions of the relationship between the recipient of the subpoena and each party involved in the transaction or activity at issue.
OFAC’s Economic Sanctions Enforcement Guidelines should be used in drafting the written response to the subpoena. The guidelines outline factors OFAC Enforcement Officers use to calculate penalties and steer decision-making on enforcement matters and. Some of the factors include whether the violation was willful or reckless, whether there was an effort to conceal the misconduct that led to the violation, the parties’ commercial sophistication, whether a compliance program existed, and remedial measures taken (which we will dive into below). Providing an analysis using the guidelines framework provided is strategic to assuage the weight of OFAC’s enforcement response. Since Enforcement Officers use this framework, it is recommended any subpoena response include this.
If you or your organization are on the hook for possible U.S. sanctions violations, your subpoena response should include remedial measures to prevent future violations. OFAC appreciates and considers when you institute a compliance program or provide a description of updates made to your already-existing compliance practices. Minor adjustments in software or providing staff with further compliance training are helpful to prove to OFAC that the same mistakes will not happen again.
In general, it is important that you address all the questions asked in the subpoena and provide brief summaries on any attachments that support your answers. But be wary, any information provided to OFAC in response to the subpoena may be passed down to other federal agencies for criminal investigation and potential prosecution. Hence its especially important that your subpoena response is narrowly tailored to the specific inquiries to provide OFAC accurate, satisfactory information without exposing you or your organization to further needless scrutiny. We suggest working with experienced OFAC Administrative Subpoena Attorneys that specialize in the field of OFAC sanctions to draft and put together your subpoena response.
WHAT IF I DON’T RESPOND TO THE ADMINISTRATIVE SUBPOENA FROM OFAC?
Refusing to respond to an OFAC administrative subpoena may result in OFAC’s imposition of civil penalties. Or worse, criminal charges may be filed against you under 18 U.S.C. §1001 for falsifying or concealing material facts queried in the administrative subpoena.
Incorrect handling of an OFAC administrative response may result in a violation and cause OFAC to impose penalties, refer the matter for criminal investigation and subsequent prosecution, or issue a Finding of Violation, as seen here. Avoid doing so by retaining an OFAC Administrative Subpoena Lawyer. The OFAC Sanctions Lawyers at the Zarkesh Law Firm, P.C. would be more than happy to evaluate your case at a time most convenient for you.