OFAC Attorney – Compliance & Defense Services
Nationally Recognized OFAC Lawyers Working Closely with Individuals and Businesses Subject to OFAC Regulations
SEC Defense Team Lead
Former DOJ Trial Attorney
The Office of Foreign Assets Control (OFAC) is a division of the United States Treasury that is responsible for imposing and enforcing a broad range of sanctions against parties identified as posing a threat to the national security, foreign policy or economy of the United States. Any person or organization that is either a U.S. citizen or owns property in the United States is subject to OFAC regulation. However, the laws and regulations enforced by OFAC attorneys are constantly changing, making it challenging for businesses to understand their obligations.
If your business is under investigation by OFAC, or there is reason to believe that your business is not in full compliance, it is imperative that you seek an experienced OFAC compliance attorney. At Oberheiden, P.C., we’ve assembled a veteran team of experienced OFAC attorneys and former federal agents to help companies better understand what is expected of them. We work closely with organizations across all industries to create comprehensive OFAC compliance programs that can keep your business out from under the federal government’s microscope.
At first glance, it’s easy to assume that because OFAC deals with major national security threats such as terrorism and international drug smuggling, most businesses do not need to worry about OFAC compliance. However, part of OFAC’s mandate is to investigate U.S. companies that do business overseas. Thus, it is important for any company that has customers or suppliers abroad to take the necessary steps to develop an OFAC compliance program.
The following are situations that, if present, require an OFAC compliance program:
- A business regularly deals with an individual, organization or country on the OFAC sanctions list;
- A business conducts a large amount of business abroad;
- A business experiences a changing customer base due to a merger or acquisition;
- A business provides electronic products and services; and
- A business has previously been cited for a violation or had a past encounter with OFAC.
At Oberheiden, P.C., our OFAC compliance attorneys have extensive experience working with all types of organizational clients, ensuring that they operate within the bounds of the OFAC laws and regulations.
What Does an OFAC Compliance Program Include?
As is the case with any compliance program, the policies and procedures set out in an OFAC compliance program should be custom-tailored to a business’s unique risks. However, the U.S Treasury provides general guidance on what an OFAC sanctions compliance program (SCP) should contain.
According to OFAC, “senior management’s commitment to, and support of, an organization’s risk-based SCP is one of the most important factors in determining its success.” In this vein, the OFAC attorney expects to see that management takes the company’s compliance obligations seriously, for example, by ensuring that the compliance team is afforded adequate resources and support. Depending on the size of the organization and its compliance responsibilities, this may entail naming a dedicated OFAC compliance officer. Regardless, it is imperative that management create a “culture of compliance” throughout the organization. This includes creating a means for employees to report potential violations and creating policies and procedures to address potential violations.
Any organization subject to OFAC oversight must conduct a “holistic review of the organization from top-to-bottom and assess its touchpoints to the outside world” to assess the business’ current and ongoing compliance risks. When assessing a company’s compliance risks, it is imperative that management does not only look at the current legal framework but also continually re-assesses the potential risks as these regulations frequently change. OFAC expects organizations to not only identify risks but also seek to better understand the root cause of the risks.
Internal Controls – OFAC Compliance Program
An OFAC compliance program should also contain detailed, easy-to-understand internal controls intended to provide employees with the information they need to avoid any possible violations. These internal controls should be disseminated among all employees, and management should take significant efforts to ensure all employees understand their compliance obligations. Essentially, internal controls should provide a way for an organization to detect and address all potential violations.
Testing and Auditing
Once a compliance program is established, an organization should undergo periodic testing and auditing to ensure that its SCP continues to comply with the changing landscape. This provides businesses with a better understanding of potential weaknesses in their current program and gives them the opportunity to address them. Audits and tests can be conducted internally or externally; however, it is crucial that the party conducting the audit or test remains objective and has the authority and confidence to issue suggestions.
A compliance program is only effective if the company’s employees understand their compliance obligations. Thus, training is an essential element of any OFAC sanctions compliance program. A training program is not a one-time event, and organizations should arrange for periodic, job-specific training that indicates management’s commitment to remaining in compliance.
The Importance of a Compliance Program
An OFAC compliance program accomplishes several things. As with any compliance protocol, an OFAC compliance program helps management ensure that the organization remains compliant with all changing laws and regulations. Of course, it is imperative that all employees, managers and other stakeholders fully adopt the compliance program to effectively avoid violations.
However, given the ever-changing nature of businesses’ compliance obligations, occasional and inadvertent violations are not uncommon. And being found in violation of an OFAC sanction can bring a business to a grinding halt. An OFAC enforcement action can result in civil or criminal liability. The seriousness of the violation depends significantly on the nature of the conduct giving rise to the violation. For example, a violation of the Trading with the Enemy Act carried a civil penalty of $91,816 per violation, while violating the Foreign Narcotics Kingpin Designation Act brings a civil penalty of $1.5 million per violation. Further, each prohibited transaction or act typically constitutes a violation, meaning it is common for the subject of an OFAC investigation to face dozens of possible violations based on a single course of conduct.
The second reason why an OFAC compliance program is so important is that having a comprehensive OFAC compliance program in effect can result in a more favorable outcome in the event of an OFAC investigation. According to the U.S. Treasury, “OFAC will consider favorably subject persons that had effective SCPs at the time of an apparent violation.” More specifically, OFAC may “consider the existence, nature, and adequacy of an SCP” when determining whether to find an organization in violation of an OFAC sanction. Thus, an OFAC compliance program not only helps companies avoid inadvertent misconduct but also positions them more favorably in the event of an alleged violation.
Why Look to Oberheiden, P.C. for Assistance with OFAC Compliance, Sanctions Defense and Investigations
When you are looking for an OFAC lawyer, it is important you select a law firm with specific experience handling all aspects of OFAC compliance matters and investigations. This is a uniquely complex area of law, and not all attorneys have the knowledge, experience or dedication necessary to ensure a favorable outcome.
At Oberheiden, P.C., we regularly represent individuals and businesses in a wide range of OFAC-related matters, including:
- OFAC sanctions;
- Defending against OFAC investigations and enforcement matters;
- OFAC administrative subpoenas;
- Unblocking of frozen funds or assets;
- Internal investigations and case reviews;
- Filing an interpretive guidance request;
- Voluntary self-disclosures;
- Removal from the specially designated nationals (SDN) list; and
- OFAC licensing.
Regardless of the issues you or your business faces, the nationally respected OFAC lawyers at Oberheiden, P.C. are here to help.
Frequently Asked Questions:
I just received an OFAC administrative subpoena, what does this mean?
OFAC is one of the few federal entities that can issues administrative subpoenas. An administrative subpoena is similar to a traditional subpoena with one major exception—there is no judicial oversight required. Thus, OFAC lawyer is able to use its judgment when sending out subpoenas. While a judge does not need to sign off on an administrative subpoena, you can still be found in contempt for failing to comply. However, if you have a comprehensive OFAC compliance program on the books, it may help you avoid being found in violation. If you recently received an OFAC administrative subpoena, it is important that you reach out to the OFAC investigation and defense OFAC attorneys at Oberheiden, P.C. as soon as possible to begin working on a defense.
If I’ve already been contacted by OFAC, is it too late to devise a compliance program?
Yes and no. Because OFAC has already reached out to you to begin an investigation, one of the major benefits of a compliance program becomes irrelevant because it won’t help you avoid a potential violation in the first place. However, developing a later-than-ideal compliance program can still help the outcome of the investigation. Although it may seem counterintuitive, OFAC attorney considers the development of a compliance program as an indication that you take the regulations seriously—not as an admission of liability. Additionally, there may be other important steps to take to mitigate being found in violation. Thus, regardless of whether your business has a compliance program on the books, it is important to reach out to an OFAC compliance lawyer at Oberheiden, P.C. as soon as you realize you are the subject of an investigation.
Who Does OFAC Regulate?
OFAC’s mandate is to implement and enforce sanctions against foreign threats to the United States. While OFAC can impose sanctions against another country, group or person in a foreign country, because it is a U.S entity, it cannot “regulate” these parties. Instead, OFAC regulated U.S. citizens and business, as well as those physically present in the United States, by limiting their ability to conduct business with or otherwise support sanctioned parties. Thus, OFAC attorney can only bring official actions against the following parties:
- U.S. permanent residents;
- Any entity organized under U.S. laws;
- Any entity or individual located on U.S. soil;
- Foreign entities owned or operated by U.S. citizens.
If you or your business has been contacted by OFAC, reach out to the dedicated OFAC compliance attorney at Oberheiden, P.C. for immediate assistance.
Contact the OFAC Lawyers at Oberheiden, P.C. Today
If your business engages with any customers, clients, suppliers, or retailers overseas, it is imperative that you develop a comprehensive and robust OFAC sanctions compliance program to mitigate the risks your company faces. At Oberheiden, P.C., our veteran team of OFAC compliance & defense attorneys have centuries of combined experience working with companies across all industries to create effective compliance programs. Several of our senior OFAC attorneys formerly worked for the federal government, investigating OFAC violations. This provides us with unique insight into these complex regulations and what the federal government expects from your business. To learn more, and to schedule a free OFAC lawyer consultation, call Oberheiden, P.C., at 888-680-1745. You can also reach us through our online contact form.