The United States Department of Treasury Office of Foreign Assets Control (“OFAC”) has just sent you an Administrative Subpoena requesting information pertaining to certain activities they suspect you to have been engaged in. What do you do??????
One of OFAC’s prime intelligence gathering tools is the Administrative Subpoena. Here they ask you to provide a description of all your dealings with a specific country, person, or entity. In addition, they will ask you for documentation related to those dealings. What you say here may lead to further investigation or to you being penalized.
So what you do at this phase is incredibly important. You need a lawyer. You need one for a number of reasons: 1. you need someone to interpret the sanctions regulations for you; 2. uou need one to determine whether a transaction really took place; 3. you need one to put forth your statements in a manner that directly answers OFAC and gives them what they are specifically looking for; and 4. you need one to ensure that you don’t look as if you are hiding anything or concealing a material fact from OFAC.
OFAC is generally looking for general information about what has occurred around a specific incident. However, there is other important information OFAC looks for including:
1. The extent of the transactions;
2. Over what time period the transactions occurred;
3. The role you played in the transaction.
Typically you have 30 days to respond to the Administrative Subpoena. If you are close to the due date of the response and you are still unsure what to do, then you should hire an attorney and have them request an extension for you. OFAC has in the past allowed for extensions when good cause can be shown.
It is important that you keep in mind that your response to an OFAC Administrative Subpoena is given pursuant to 18 U.S.C. 1001, which is criminal statute covering the falsification or concealment of material facts in statements made in a matter under the jurisdiction of the U.S. federal government. Punishment for violating 18 U.S.C. 1001 includes fines, and/or imprisonment for up to five years, or both. Therefore, you have to take your response to an OFAC Administrative Subpoena very seriously.
The most important thing to do with OFAC is also the most simple: answer them. While it can be a very intimidating process, it is just best to give OFAC what they want so they can continue their investigation. Just make sure you go about it the right way and retain an attorney to help you.