Sometimes those on an OFAC sanctions list want to be removed -- either because they're no longer engaging in the behavior first alleged, or they were put on the list by mistake, maybe because of a same-name mix up.
OFAC -- the Treasury Department's Office of Foreign Assets Control -- keeps and administers the list of targeted foreign countries and regimes, terrorists, international narcotics traffickers, proliferators of weapons of mass destruction, and other threats to U.S. national security.
Acting under Presidential orders or sometimes specific legislation, OFAC can block transactions with targeted people and entities, and freeze their assets in the United States or under U.S. jurisdiction.
So how do you get off an OFAC sanctions list?
Here's what the agency said in an FAQ series published Thursday:
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1. How do I file a request for removal from an OFAC sanctions list? To request removal from any OFAC sanctions list, including the SDN [Specially Designated Nation] List, simply write to OFAC and request removal. This begins the OFAC removal review process. Send your written request (or “petition”) to OFAC by postal mail or email. Address hard copy petitions to:
Office of Foreign Assets Control
Office of the Director
U.S. Department of the Treasury
1500 Pennsylvania Avenue, N.W.
Washington, D.C. 20220
For faster delivery, email your petition [here]. OFAC cannot accept removal requests by telephone.
Requests should include:
The listed person’s name and contact person’s name and mailing address (including email address);
The date of the relevant OFAC listing action (such as the designation or identification); and
A request for the reconsideration of OFAC’s determination, including a detailed description of why the listed person should be removed.
Additional information may also be submitted, such as arguments or evidence that establishes that an insufficient basis exists for the listing or that the circumstances resulting in the listing no longer apply, pursuant to 31 C.F.R. § 501.807, Procedures Governing Delisting from the Specially Designated Nationals and Blocked Persons List.
Some examples of situations that may result in delisting include: a positive change in behavior, the death of an SDN, the basis for the designation no longer exists, or the designation was based on mistaken identity.
2. Do I need to hire an attorney in order to file a petition for removal? No. OFAC accepts petitions directly from listed persons or from their representatives.
3. How will I know if OFAC received my email petition? For petitions received via email, OFAC will email an acknowledgement of receipt generally within seven business days. If you do not receive an acknowledgment email within 10 business days, you should email OFAC [here] and include the text of your original petition, and OFAC will respond as quickly as possible. For mailed petitions, OFAC will respond usually within 15 business days. If you provide an email address, OFAC will respond via email.
4. How long does the entire petition process take? Each petition case is unique. Petitioners must establish that delisting is appropriate, as set forth in OFAC’s regulations (31 C.F.R. § 501.807). If OFAC requires additional information or clarification from the petitioner in order to evaluate the delisting request, it will send the petitioner one or more questionnaires. If needed, OFAC typically endeavors to send the first questionnaire within 90 days from the date the petition is received by OFAC. Because OFAC often learns new information in response to a questionnaire, it is not uncommon for OFAC to send one or more follow-up questionnaires and to engage in additional research to verify claims made by a petitioner.
Though each case is unique, OFAC applies the same standards to petition reviews across all sanctions programs. Review timing depends upon a range of factors including: whether OFAC needs additional information, how timely and forthcoming the petitioner is in responding to OFAC’s requests, and the specific facts of the case. Incomplete answers to questionnaires or incomplete documentation often cause delays.
5. Why do lawyers representing an SDN require OFAC authorization to get paid? OFAC authorization is required to engage in any transaction that otherwise would be prohibited. U.S. persons are prohibited from engaging in transactions involving property and interests in property of persons on the SDN List. In almost all of its sanctions programs, OFAC has issued general licenses (GLs) authorizing the provision of certain legal services to SDNs, including representation of SDNs in connection with delisting requests. Receipt of payment for such services from sources outside of the United States is also authorized by GL in many programs, and is routinely authorized by specific license in others. If OFAC’s regulations for the specific program(s) under which a person was designated do not contain such a GL, the attorney must apply for a specific license from OFAC Licensing.
6. What can you tell me about OFAC’s listing process? In making a listing determination, OFAC draws on information from many sources, including but not limited to relevant United States government agencies, foreign governments, United Nations expert panels, and press and other open source reporting. OFAC investigators then carry out a thorough investigation, including a review of the totality of the information. The findings and conclusion of that investigation are then documented in a formal evidentiary memorandum that sets out the evidence supporting a determination that the person meets one or more of the criteria specified in the sanctions authority. Before OFAC’s final determination is made, proposed listing actions are subjected to review by the Departments of the Treasury, Justice, State, and other U.S. agencies as warranted.
7. If my petition for removal is denied, can I reapply? Yes. You may reapply using the same process as for the original petition. If you present new arguments and evidence, OFAC may reach a different conclusion. However, if you fail to present new arguments or evidence, and there has been no change in circumstances, OFAC will again deny your application.
8. How can I obtain an update on the status of my petition? To obtain an update on your petition, email OFAC [here]. OFAC strives to reply to all emails within two business days.
Richard L. Cassin is the publisher and editor of the FCPA Blog.