DOJ revises export control and sanctions enforcement policy

The Voluntary Self-Disclosure Policy builds on guidance the National Security Division (NSD) issued in October 2016 and will be formally incorporated into the Justice Manual. Companies are encouraged to voluntarily self-disclose all potentially willful violations of the statutes implementing the U.S. government’s primary export control and sanctions regimes—the Arms Export Control Act, the Export Control Reform Act, and the International Emergency Economic Powers Act—directly to the NSD.

The revised policy differs from its predecessor guidance in three key ways. Firstly, the policy clarifies the benefits available to companies that voluntarily disclose a violation, fully cooperate with the NSD, and timely and appropriately remediate. Absent aggravating factors, the revised policy states that “there is a presumption that the company will receive a non-prosecution agreement and will not be assessed a fine.”

If aggravating circumstances warrant an enforcement action other than an NPA, but the company satisfies all other criteria, the policy states the Justice Department will recommend a fine at least 50 percent lower than what would otherwise be available under the alternative fine provision and will not require the imposition of a monitor. The prior guidance did not provide a presumption of any kind and did not assign any concrete benefits to companies that met certain criteria.

Secondly, the revised policy clarifies disclosures of potentially willful conduct made to regulatory agencies, and not to the Justice Department, will not qualify for the benefits provided in the revised policy.

Thirdly, the revised policy more closely resembles existing and analogous guidance from the Justice Department “in an effort to standardize, to the extent possible, DOJ voluntary disclosure policies,” the agency said. Specifically, the definitions of “voluntary self-disclosure,” “full cooperation,” and “timely and appropriate remediation” closely mirror those provided in the FCPA Corporate Enforcement Policy.

The policy applies only to export control and sanctions matters brought by the NSD’s Counterintelligence and Export Control Section. It does not apply to any other section in the NSD and any other part of the DOJ or any other agency.