Dispelling the Top 3 Myths Surrounding Removal From the OFAC SDN List
Myth #1: It Is Not Possible to be Removed of the OFAC SDN ListWrong. I hear this from other lawyers and from potential clients who have spoken to other lawyers all the time. This is absolutely not true. For example, in the past year alone, our firm has removed three individuals and one company from the OFAC SDN List. Three of those clients were designated pursuant to the Foreign Narcotics Kingpin Designation Act ("Kingpin Act") and one of them was designated under the Liberia Sanctions program. So it is very possible to do and a simple look at OFAC's Recent Actions Page on their website will prove that to be true.
That said, OFAC removals often times do require a request for reconsideration to be filed through the appropriate channels. Those reconsiderations should address the basis of the designation from a perspective of either a case of mistaken designation or a change in circumstances warranting a removal.
Myth #2: It Only Takes a Few Months to be Removed From the OFAC SDN ListOn the other end of the spectrum from Myth #1 is the notion that an SDN removal is possible and will occur very quickly. I have had discussions with prospective clients in the past where they were told by other lawyers that it only takes a couple of months to be removed. This stood in stark contrast to my projected 2-3 year time range estimate for removal.
The Center for Economic Sanctions and Reform (CESAR) is currently working on a project to track and analyze the number of removals and the duration of SDN designations. While the project is still in the works the numbers concerning proliferators of weapons of mass destruction designations under Executive Order 13382 are available, and those numbers are telling. For example, the average length of a designation of a party who has been removed from the SDN List for an EO 13382 designation is 874 days, or approximately 2 years and 3 months.
Myth #3: Once OFAC Makes a Decision That's It.Again, not true. Once OFAC renders a decision on an SDN reconsideration request, it does not necessarily mean that's the end of the road. There are two alternatives. Alternative #1 involves the submission of a new administrative reconsideration request, which claims a change in circumstances or provides newly acquired evidence in support of reconsideration.
Alternative #2 is a lawsuit against OFAC in U.S. District Court in Washington, DC under the Administrative Procedure Act (APA). That alternative requires a showing to the court that OFAC's decision on the reconsideration request was arbitrary and capricious, a fairly high standard to meet, but nonetheless an alternative forum in which to protest an OFAC SDN designation.