The DOJ recently revised its policy regarding voluntary disclosures of export control and sanctions violations. The new policy builds on the guidance NSD issued in October 2016 and continues to emphasize voluntary self-disclosure, rewarding cooperating companies with a presumption in favor of a non-prosecution agreement, and significant reductions in penalties.
The new policy includes three key changes from the October 2016 guidance, all of which provide further incentives for corporations to voluntarily self-disclose violations to the DOJ.
- The policy clarifies the benefits available to companies that voluntarily disclose a violation, fully cooperate, and timely and appropriately remediate. Specifically, absent aggravating factors, there is a presumption that the company will receive a non-prosecution agreement and will not be assessed a fine. If aggravating circumstances exist, but the company satisfies all other criteria, then the policy states that DOJ will recommend a fine that is at least 50 percent lower than what would otherwise be available and the DOJ will not require the imposition of a monitor. The prior guidance did not provide this presumption and did not assign any tangible benefits to companies that met certain criteria.
- The revised policy clarifies that disclosures of potentially willful conduct made to regulatory agencies, and not to DOJ, will not qualify for the benefits provided in the VSD Policy.
- The revised policy was drafted to resemble guidance from other DOJ components in an effort to standardize voluntary disclosure policies. Specifically, the definitions of “Voluntary Self-Disclosure,” “Full Cooperation,” and “Timely and Appropriate Remediation” closely follow those provided in the FCPA Corporate Enforcement Policy.
The revised policy became effective on December 13, 2019. It applies only to export control and sanctions matters brought by the National Division’s Counterintelligence and Export Control Section. It does not apply to any other section in the NSD, any other part of the DOJ, or any other agency.