Yesterday, the United States Department of the Treasury’s Office of Foreign Assets Control (OFAC) designated four (4) individuals and two (2) entities pursuant to the Foreign Narcotics Trafficking Kingpin Designation Act (Kingpin Act). According to Treasury’s press release, one of the designated individuals, Shah Mohammad Barakzai, has already been arrested and sentenced on narcotics charges in Afghanistan. Despite that arrest and sentencing, OFAC took aim at Barakzai and alleged members of his organization. These members included a doctor, Abdul “Doctor” Hadi, who is accused of using his pharmaceutical background to process opium, and two money exchange houses which OFAC alleges were used by Barakzai’s organization.

Kingpin Act designations are made in two tiers: Tier I and Tier II. Tier I Kingpins are those identified by the President on or about June 1st of every year. These are typically thought of as the main narcotics traffickers or those at the head of large scale international narcotics trafficking operations. Tier II Kingpins are those thought to be providing material assistance or support to the Tier I Kingpins’ activities. In addition, those entities owned or controlled by a Tier I Kingpin become susceptible to a Tier II Kingpin designation as they are generally thought to be an extension of the Tier I Kingpin and as a result providing material support to such individual.

What’s interesting about this set of designations is that there doesn’t seem to be any tie to a Tier I designation, although it seems from OFAC’s press release that they are holding out Barakzai in that role. It may be possible that OFAC can designate a Tier I Kingpin at anytime of the year, however, I have never seen the legal authority which would explicitly state that, and it would be in contravention of the Judicial Review Commission Report on Foreign Assets Control submitted to Congress a year after the Kingpin Act was passed. Therefore, it is unclear whether or not these parties can challenge their Tier II designations based on a lack of connection to a Tier I Kingpin. I think, however, it would still make an interesting argument in any request for reconsideration of these designations.