What are the potential consequences of an investigation of the OFAC?
OFAC sees itself as playing a very important role in protecting the national security of the United States, and therefore it takes its program of sanctions very seriously. Punishes the intentional infringements and those which are purely accidental. When your compliance office deems appropriate, make criminal recommendations to the Department of Justice.
The Justice Department has the authority to criminally prosecute certain violations of sanctions programs. A remarkable investigation of OFAC which resulted in prosecutions, It involved the programme of the United Nations "oil for food" in Iraq.
By the same, receipt of a summons issued by OFAC must be treated with an appropriate level of care., as a potential matter linked to white collar crimes.
Penalties criminal and civilian for violating the terms of a the OFAC sanctions program they may be severe. In recent years, some offenders have faced fines of more than $ 10 million. Even in smaller cases, the penalties can exceed the value of the infringing transaction, Since the OFAC sees these penalties with deterrent purposes.
Depending on the status that outline a programme of sanctions in particular, offenders can face to maximum criminal penalties of 20 years in prison and a fine of one million dollars, as well as provisions for confiscation of assets, It allows the Government claim ownership involved in rape.
The civil penalties can be of up to $250,000.00 $, or a sum equal to twice the amount of the transaction, It is the basis of the violation. In addition these civil penalties are for infringement, so if there are multiple transactions, the maximum penalty can be fairly high.
Determine the OFAC penalties should be imposed?
OFAC evaluates the different potential infringements in accordance with the economic sanctions compliance guidelines, which entered into force from November of the 2009.
OFAC has wide discretion to implement different types of enforcement actions, Depending on the facts involved individuals, including, send a letter of warning, impose a monetary punishment or by issuing an order of ceasefire and withdrawal.
The discretionary exercise of the OFAC are informed of many "General factors", including whether the violation was intentional or by mistake, damage to the targets of the sanctions, the existence of a compliance program which note the OFAC, the response of the company to implement solutions to rape; and finally cooperation showing that company for OFAC procedures.
If OFAC imposes a civil punishment, the amount of the penalty of base is primarily calculated according to two key factors:
- Was the infringement "scandalous"? OFAC does not define this term.
- Was there a voluntary disclosure of the violation? A voluntary breach disclosure, will result in a discount of the 50% the penalty imposed by OFAC base.
After determining the base penalty, OFAC will consider mitigating or aggravating factors, decreasing or increasing the amount before making a final determination of criminal. The parties can send letters identifying the mitigating factors and advocating for minor penalties.
How should you handle a subpoena of the OFAC?
A citation should be treated with the greatest seriousness, as much as one would a grand jury subpoena or a subpoena from of the Securities Exchange Commission (Comisión Nacional Bancaria and values).
Even more so than in these other contexts, the receiver should have on hand to a Attorney with specialized knowledge in the OFAC sanctions programs, exceptions to the programs and the art of making a request of mitigating circumstances to the OFAC prior to an assessment of a civil penalty.
After receipt of the subpoena, your company lawyer should contact staff in compliance with OFAC issued citation, in order to find out all possible information about the nature of the research.
Could also ask for more time to respond to the subpoena, Since it is possible that the apparent infringement subject to citation is only the tip of the iceberg of the problems of your company with the OFAC.
Given the incentives to voluntarily report violations and cooperate with the OFAC, you could take advantage of this opportunity to conduct an internal investigation to make so your company can provide not only information that OFAC is requesting, but also information about possible violations.
What can be done to ensure compliance with the regulations of OFAC in the future?
Some types of international trade with countries that are under sanctions of the OFAC they can even be performed in a manner permitted by law. For example, Occasionally there are licenses available to sell agricultural products or provide humanitarian services in countries that are subject to comprehensive sanctions programs.
Lawyers with experience in the OFAC and in export controls can assist a company to obtain such licenses or permissions in such a way that such transactions can be carried out.
Additionally, for companies that are involved in any international trade and finance would be wise to have a with the OFAC compliance program It has been reviewed and approved by an experienced Advisor.
The program would require a routine process of selection of clients, suppliers and other partners, compared against the list of specially designated. Hopefully these steps shall be the recipient of a summons from the OFAC.