NLG Cuba Subcommittee Action Alert November 2003 

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Defending rights of U.S. travelers to Cuba with Form Responses to OFAC Letters

NLG & CCR Offer a Referral Network for Cuba Travel Attorneys

There has been a sharp increase since January 2001 in U.S. government actions, threatening and attempting to fine persons who have visited Cuba and allegedly spent money there without a U.S. license.

The NLG has long opposed these restrictions and related enforcement actions as being illegal and unconstitutional. We suggest that anyone who has received a letter along these lines from the U.S. Dept. of the Treasury, Office of Foreign Assets Control ("OFAC"), should be sure to respond timely, and seek legal advice.

A network of lawyers who are willing to provide such representation and have received basic training in this area has been established. To either obtain a referral or to become part of that network, contact:

Matthew Scott
Cuba Travel Program Coordinator,
Center for Constitutional Rights
666 Broadway, 7th Floor
New York, NY  10012
(212) 614-6470

or

the NLG Cuba Subcommittee,
c/o Law Office of Arthur Heitzer
aheitzer@igc.org
633 W. Wisconsin Ave  Suite 1410
Milwaukee, WI  53203
414-273-1040 ext. 12  fax 414-273-4859

Procedural Phases of Fighting a Civil Penalty from OFAC

The OFAC has a complex set of reguations concerning the required exchange of notices and responses between itself and a person accused of illegal travel-related transactions in Cuba. The failure to meet any of the procedural steps could result in an accused person losing his or her rights. The NLG has developed a chart of this process, shown in miniature at left.

To go to a page with a full size printable copy of this chart, click here or on the image.

To download a copy in Microsoft Word format, right click here and select "save as" or "save target as".



Sample Letters

Following are two form responses to OFAC notices, which have been used by others. The first is a form response to an OFAC "Requirement to Furnish Information"; and the second is a form response to OFAC's reformulated "Pre-Penalty
Notice (as of September 11, 2003)."
 

DISCLAIMER:
This information supplied as a public service.  It does not constitute legal advice.  Although we strive to provide quality information, we make no guarantees, claims, or promises about accuracy, completeness or adequacy of the information provided.  Legal advice must be specifically tailored to individual needs, and the relevant laws, regulations, or interpretations are constantly changing.  Nothing contained herein substitutes for consultation with a competent legal counselor.  It is always best to consult with a qualified attorney who can address your specific situation. At the same time, it is important to realize that the time limits which OFAC asserts may be strictly enforced. Effective September 11, 2003, these include:

1. 20 business days to reply for a Request to Furnish Information ("RFI")
2. 60 calendar days to reply to a PrePenalty Notice ("PPN")
3. 30 calendar days to reply to a Penalty Notice ("PN") including to
   request a hearing

 

Sample Letter #1: Response to an RFI

[Note: OFAC has attempted to fine some people up to $10,000 merely for failing to timely reply to an RFI 31 C.F.R. 501.602 pursuant to its regulation. While we believe such an action is both unconstitutional and unreasonable, a timely response is prudent, which may include language similar to the following.]

[DATE]

U.S. Department of the Treasury
Office of Foreign Assets Control (OFAC)
Attn: Mr./Ms. ______________________
1500 Pennsylvania Avenue, N.W. (Annex)
Washington, D.C. 20220
FAX: 202 622-0447

Re: [INSERT YOUR NAME] (FAC #CU-[INSERT "CU" NUMBER FROM OFAC LETTER TO YOU])

Dear Mr./Ms. _______________________:

This letter is in response to your "Requirement to Furnish Information" letter to me, dated [INSERT DATE OF OFAC LETTER TO YOU] and received by me [INSERT DATE YOU ACTUALLY RECEIVED THE LETTER]. For the reasons stated below, I respectfully decline to respond.

OFAC’s regulations of transactions incidental to travel, and OFAC’s demand for information pursuant to such regulations are a violation of the rights of U.S. citizens to travel abroad, to seek information through foreign travel relevant to public issues, and to exchange information and views with foreign persons, all as guaranteed by the First and Fifth Amendments to the Constitution of the United States.

Furthermore, OFAC’s regulations regarding transactions incidental to travel, and OFAC’s demand for information pursuant to such regulations constitute discriminatory enforcement of the laws on the basis of national origin and political viewpoint, in violation of the First and Fifth Amendments to the Constitution of the United States. The imposition of any penalties is also discriminatory. Such conduct is arbitrary and capricious and in violation of the Administrative Procedure Act. In this respect, it is noted that substantial numbers of Cuban-Americans and others travel to Cuba with the knowledge of OFAC, in apparent violation of the Cuban Assets Control Regulations, but without consequence.

Furthermore, with respect to any further communication, I assert my privilege against self-incrimination under the Fifth Amendment to the Constitution of the United States.

 

Sincerely,

 

_________________

(To download a copy of the RFI reply letter in Microsoft Word format, right click here and select "save as" or "save target as".)

Sample Letter #2: Response to PPN

[Note: Consultation with a lawyer regarding a PrePenalty notice is highly recommended. The best response to such a notice will depend on the details of your case, which only a lawyer can competently evaluate in consultation with you. The following sample letter is best reserved for emergencies or as a starting point for developing a letter that suits one’s particular circumstances.]

[DATE]

Chief of Civil Penalties
Office of Foreign Assets Control
U.S. Treasury Department
1500 Pennsylvania Avenue, NW.
Washington DC 20220

Re: Response to Prepenalty Notice

FAC No. CU-[INSERT "CU" NUMBER FROM LETTER RECEIVED FROM OFAC]
[INSERT YOUR NAME]
[Either print this letter on stationery or add other lines here with address and phone.]

Dear Chief of Civil Penalties:

This letter is in response to the above-referenced Prepenalty Notice dated [INSERT DATE OF PREPENALTY NOTICE], which was postmarked on [INSERT DATE OF POSTMARK ON ENVELOPE] and  received on [INSERT DATE NOTICE RECEIVED].

I assert my Fifth Amendment privilege against self-incrimination. I specifically reserve my right to amend or supplement this response, or to raise at a later time facts and arguments here omitted. In addition, I invoke my right to a hearing in connection with this matter. Without waiving any of my rights, I offer the following affirmative defenses:

1. The Office of Foreign Assets Control’s (“OFAC”) action, including the proposed penalty, is arbitrary and capricious, and fails to set forth the basis upon which said penalty or the amount thereof is based;
   
   
2. OFAC’s action, including the penalty proposed, violates my due process rights;
   
   
3. OFAC’s action, including the penalty proposed, is a violation of my rights to travel abroad, to seek information through foreign travel relevant to public issues, and to exchange information and views with foreign persons, all as guaranteed by the First and Fifth Amendments to the Constitution of the United States;
   
   
4. OFAC’s action, including the penalty proposed, constitutes discriminatory enforcement of the laws on the bases of race, color, national origin, political viewpoint and association, in violation of the laws and the Constitution of the United States, including the First and Fifth Amendments, and is arbitrary and capricious (in this respect, it is noted that substantial numbers of Cuban-Americans and others travel to Cuba with the knowledge of OFAC, in apparent violation of the Cuban Assets Control Regulations, but without consequence);
   
   
5. The Cuban Assets Control Regulations discriminate based on national origin by allowing Cuban-Americans broader license to travel to Cuba than persons of different ethnic and national origin, and are not narrowly tailored to meet a compelling government interest, in violation of the Equal Protection Clause;
   
   
6. OFAC’s proposed penalty violates my rights under the Excessive Fines Clause of the Eighth Amendment;
   
   
7. OFAC’s action, including the penalty proposed, is invalid because it relies on a presumption that compels me to give evidence against myself in violation of the privilege against self-incrimination under the Fifth Amendment to the Constitution of the United States; and
   
   
8. OFAC is precluded from asserting the claims set forth in the Notice by reason of the prejudice to me and to the detriment thereof, all of which has resulted from the agency’s failure to pursue said claim in a timely fashion.
   
   

I hereby request that OFAC voluntarily dismiss this matter in the interest of justice.

 

Signature and date:_______________________________

(To download a copy of the PPN reply letter in Microsoft Word format, right click here and select "save as" or "save target as".)

 

Additional Notes:

To be timely, the response must be postmarked within 63 calendar days of the date of a prepenalty notice served by mail, which is the date printed on the notice, or the postmark on the envelope in which arrived, not the date it was actually received. The response must be typewritten or word processed. The envelope in which the response is mailed should be marked, “Urgent: Part 501 Action.”

On their face, the regulations also require additional information which we believe people have a Fifth Amendment right not to give. The sample above asserts this right and it does not include this additional information. A response that complied fully with the regulations would specifically admit or deny (or declare lack of sufficient knowledge to admit or deny) every allegation made in the notice, state the nature of all defenses or claims for mitigation, express any additional or new matter or arguments, and include a financial statement if the person responding intends to plead financial hardship in paying the proposed penalty. Whether or not to include such responses or additional information may be a matter to be considered by you and your attorney.