August 4, 2023
Sanctions & Export Controls: Feds Offer Guidance on Voluntary Self-Disclosure of Violations
The DOJ, Commerce (BIS) & Treasury (OFAC) recently issued guidance in the form of a “Compliance Note” regarding the voluntary self-disclosure to these agencies of violations of US sanctions and export control laws. A recent Hunton Andrews Kurth memo provides an overview of the Compliance Note, which lays out how timely, voluntary self-disclosure of potential violations can significantly mitigate civil or criminal liability.
For example, this excerpt from the memo discusses the position of the DOJ’s National Security Division on how voluntary self-disclosure can eliminate criminal penalties for violations:
The Compliance Note clarifies DOJ’s position that moving forward, where a company voluntarily self-discloses potentially criminal violations of US sanctions and export laws, fully cooperates, and timely and appropriately remediates the violations, NSD generally will not seek a guilty plea; rather, there will be a presumption that the company will receive a non-prosecution agreement and will not pay a criminal fine.
The memo notes that the presumption will not apply in cases with certain aggravating factors, such as pervasive criminal misconduct, concealment or involvement by upper management, repeated violations of national security laws, the export of particularly sensitive items or the export of material to end users who make the Nat Sec folks’ hair stand on end.
– John Jenkins