Washington, D.C. – The Charity & Security Network (C&SN) hosted the second of its Ask an Expert Series: Navigating OFAC/BIS Licensing & Sanctions on Nov. 16, 2023. C&SN’s Ashleigh Subramanian-Montgomery hosted leading sanctions attorneys on a panel that explored the often confusing and technical nuances of navigating regulatory requirements under sanctions regimes implemented by both the U.S. Department of the Treasury’s Office of Foreign Asset Control (OFAC) and the U.S. Department of Commerce’s Bureau of Industry and Security (BIS), in some of the most complicated crisis zones, such as Afghanistan, Myanmar, North Korea, and Syria.
Sanctions, despite mounting evidence of their inefficacy in achieving ill-defined U.S. foreign policy goals and their detrimental impacts on innocent civilians, economies, and civil society, are increasingly being used as a “tool of first resort” by the U.S. government. This webinar aimed to support NGOs in understanding sanctions compliance and unpacking approaches, questions, and appeal processes (BIS) for general licenses, specific licenses, and export licenses.
The panelists included:
- Andrea al-Attar, attorney, principal at Al-Attar Law, and former OFAC enforcement officer;
- James Min, partner at LimNexus and experienced in building sanctions and export control compliance measures for NGOs;
- Chelsea Ellis, associate at LimNexus and specialist in international trade, export controls, and sanctions; and
- Amelia Schmidt, counsel at KaiserDillon with substantial regulatory expertise in U.S. export control laws and sanctions.
Due to the sensitive nature of the content of the webinar and in order to foster open discussion, the webinar took place under Chatham House Rule and was not recorded. Neither the webinar nor this post should be considered official legal advice.
Throughout the webinar, the panelists shared insights into how OFAC, BIS, and Export Administration Regulations (EAR) are structured and how NGOs can best navigate their frameworks to effectively engage with these agencies. Panelists shared approximate time frames for licensing and clarification requests and underscored the importance of good record-keeping, documenting, and providing correct information relevant to the specific request. For example, in making a request to BIS, it is important for NGOs to be able to provide the following information:
- What is it you are trying to export?
- Where is it going?
- Who is it going to?
- How is it going to be used?
Panelists also spoke about the difficulties that NGOs can face in the financial system despite OFAC general licenses and sanctions policies permitting certain activities, such as those permitted under the new and amended baseline general licenses (GLs) that the U.S. Treasury Department issued in December 2022 following the adoption of UN Security Council Resolution 2664. Despite humanitarian and peacebuilding activities being expressly permitted by these new and amended GLs, sometimes financial institutions are either uneducated on these authorizations or choose to avoid the risk of processing transactions to high-risk areas where aid is needed altogether, otherwise known as derisking. Therefore, referencing and including specific language from OFAC general licenses and guidance is extremely helpful in engaging with financial actors.
The panelists also touched on their experience requesting specific licenses through OFAC. A key point noted by the panelists was to remember the audience when submitting a request to OFAC, as not everyone reading the application will understand the context as intimately as NGOs conducting programming and operations. Therefore, it is crucial to include as much information as possible as to how the license will be used for humanitarian aid or other activities that help civilian populations and to humanize the license application by detailing how it will be implemented to benefit those in need.
The webinar provided a comprehensive overview of how to not only engage with OFAC, BIS, and EAR, but also how to use these interactions as a means of advocating for the missions of NGOs. The webinar also included a Q&A session where participants were able to ask more specifically tailored questions to panelists about certain country contexts and general licenses pertaining to Syria, Venezuela, and Gaza. While sanctions continue to be a “tool of first resort” among policymakers, conversations like this webinar will continue to be critical to navigating the complex regulatory environments that sanctions present, and carve out solutions to ensure that NGOs may continue to operate in areas where their work is most needed.