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The following are responses to certain "Frequently Asked Questions" relating to the purposes and operation of the Bureau of Industry and Security (BIS) Administrative Case Review Board (ACRB). These "FAQs" are intended to provide general information about the ACRB, its membership, its purpose and how it functions within BIS. Nothing contained herein is intended to create any rights or benefits, substantive or procedural, enforceable by any party against BIS, its officers and employees, or any other person. The ACRB procedures, membership and functions described herein are subject to continual review and may be modified from time to time at the discretion of the Assistant Secretary.
On April 6, 2005, BIS updated these FAQs to inform the public of a change in the membership to the ACRB and address public comments about voluntary self-disclosures and respondent's accessibility to the administrative case process. Specifically, BIS updated the answers to Questions 2, 6 and 9, and added two new questions, number 12 and 13, and corresponding answers.
A. The ACRB is an internal BIS committee that advises the Assistant Secretary for Export Enforcement at important stages of administrative cases and assists the Assistant Secretary and other Export Enforcement (EE) officials and attorneys in the Office of Chief Counsel for Industry and Security (OCC) to determine EE's positions related to the prosecution of administrative cases. A primary goal of the ACRB is to help promote administrative and legal best practices in EE enforcement policy and to ensure that all positions taken by EE in administrative enforcement cases are consistent, fair, and in line with overall BIS program and enforcement goals.
A. The ACRB has four members the Deputy Assistant Secretary for Export Enforcement, the Chief Counsel for Industry and Security, the Director of the Office of Antiboycott Compliance (OAC), and the Director of the Office of Export Enforcement (OEE). In the event an ACRB member is unable to participate in the review of a particular case, a substitute from such member's office may be designated and act in the member's place at the discretion of the Assistant Secretary.
A. The Assistant Secretary continues to be ultimately responsible for BIS enforcement matters and, in conjunction with the legal responsibility of the Chief Counsel, continues to have final decision-making authority for determining EE's position with respect to administrative enforcement cases. OCC will continue to represent BIS in enforcement matters, including prosecuting administrative enforcement cases and negotiating settlements, where appropriate, on EE's behalf. The ACRB represents an internal BIS procedure for regularly advising the Assistant Secretary on administrative enforcement matters and assisting the Assistant Secretary in reviewing and approving positions to be taken by EE at various stages in the prosecution of administrative cases. The ACRB does not, however, adjudicate cases or otherwise modify the existing administrative enforcement process for respondents. Administrative law judges will continue to address any disputes between the parties and administer cases where EE and a respondent do not mutually agree to settle the case, and the Assistant Secretary will continue to approve any final EE determination in the resolution of a case.
A. Any significant positions that EE takes in the course of prosecuting administrative cases are subject to review and/or approval by the ACRB, including, for example:
A. The ACRB typically meets once a week (although it may meet more or less frequently, as needed) for the purpose of reviewing and coordinating with EE and OCC representatives the various administrative cases currently pending before BIS. Included in the background materials provided to the members before ACRB meetings are copies of significant written correspondence from a respondent or respondent's counsel to the OCC attorney responsible for the case.
The participants at ACRB meetings discuss a variety of issues related to ongoing administrative cases (including litigation strategy, relevant precedent, aggravating and mitigating circumstances, any unique factual circumstances of a case) as well as options for how EE should proceed at important stages of each case. The Assistant Secretary remains responsible for any final EE decisions with respect to administrative cases (e.g., approving settlements, final agency decisions to proceed (or not proceed) on a case, etc.). The ACRB assists the Assistant Secretary by advising the Assistant Secretary as necessary to ensure the Assistant Secretary's timely involvement at important stages of administrative cases and by assisting the Assistant Secretary in reviewing and approving certain positions taken by EE during the course of such proceedings.
A. The OCC attorney assigned to the case is the proper conduit through which to communicate any mitigating factors or other relevant arguments that should be considered by EE in deciding how it should pursue an administrative enforcement case. The OCC attorney will consider any points or arguments in mitigation that the respondent or his attorney wants to make during the course of settlement discussions, and these factors will be reflected in the attorney's legal advice to EE and in discussions with the ACRB. Additionally, OEE and OAC personnel are prepared to participate in settlement discussions as appropriate.
The ACRB will continue to rely significantly on the judgment and discretion of the EE enforcement personnel and OCC attorneys in formulating its advice to the Assistant Secretary and otherwise carrying out its duties. In addition, the ACRB will review and consider significant written communications submitted by respondents and their attorneys to the OCC attorney charged with prosecuting the case.
A. Settlement negotiations will continue to be held between OCC attorneys - who are responsible for prosecuting administrative cases on behalf of EE - and respondents or their legal representatives. Therefore, any communications relating to the case, including those relating to settlement negotiations, should be made directly to the OCC attorney handling the case. There may be occasional short delays as the ACRB and the Assistant Secretary are consulted in the course of settlement negotiations. On the other hand, because settlement offers will occur only after taking relevant factors into account, including relevant precedent, the unique factual circumstances of the case, and any mitigating factors related to respondent's case (including voluntary self-disclosure), such negotiations ultimately should be more efficient.
A. No. The ACRB is an internal BIS committee that advises the Assistant Secretary as necessary and helps the Assistant Secretary and others in EE determine the Bureau's litigation positions at important stages of administrative cases. The ACRB is not an adjudicatory body, nor is it designed to mediate between OCC attorneys prosecuting a case and respondents in administrative cases. Many of the issues discussed at ACRB meetings, such as other cases pending before EE, settlement positions, and litigation strategy, would be inappropriate for discussion with the public or with individual respondents or their counsel present.
A. In certain circumstances, as in the past, BIS officials who are members of the ACRB may choose to participate in meetings with respondents or their counsel, particularly where the BIS official and the OCC attorney responsible for the case feel that such involvement will be helpful in resolving a difficult issue. In any event, the OCC attorney responsible for prosecuting an administrative case remains the appropriate conduit for communicating with BIS.
A. Any respondent has the right to challenge EE decisions by contesting the case before an administrative law judge. No position taken by EE during the course of an administrative proceeding can directly affect a respondent's rights over his objection, because unless the parties mutually agree to a settlement (which must be approved and signed by the Assistant Secretary), penalties can only be imposed after a hearing before an administrative law judge and the entry of an order approved by the Under Secretary for Industry and Security.
A. The ACRB was not designed to increase or decrease penalties. The primary goal of the ACRB is to assist the Assistant Secretary in promoting legal and administrative best practices in EE enforcement policy and to advise the Assistant Secretary in a timely manner at important stages of administrative cases. Because enforcement policies, including penalties sought, are subject to continual review, it is possible that from time to time past practices will be evaluated and, if necessary, adjusted to reflect more accurately BIS program and enforcement goals. In part, the ACRB is intended to help the Assistant Secretary ensure that any change in enforcement policy by BIS management is implemented in an orderly fashion and based on principles of fairness and consistency.
A. The ACRB gives significant consideration to voluntary self-disclosures. A voluntary self-disclosure is one of the "great weight" mitigating factors in BIS's Penalty Guidance and is the most significant mitigating factor. It is the ACRB's general practice to begin with a 50 percent reduction in the maximum fine as credit for filing a voluntary self-disclosure and then make any appropriate adjustments to the penalty, up or down, based upon the presence of any other mitigating factors or aggravating factors, such as an effective compliance program or a serious disregard for export compliance. The exact penalty recommendation is based upon a totality of circumstances. The concept that a person should only receive a warning letter for filing a voluntary self-disclosure does not provide the proper message since such a policy would provide little to no incentive for persons to follow the law. Further, in addition to the mitigation of any penalty, BIS is now publicly acknowledging voluntary self-disclosures by publicizing them in press releases and settlement agreements.
A. No. The ACRB has not limited a respondent's access to the decision makers in the administrative review process. While it is logistically impossible for the BIS officials to meet with all respondents, the ACRB members do review and consider the significant written submissions filed by all respondents and may request further information or clarification from them, through OCC. And, as stated above, respondents have the opportunity to request in-person meetings with BIS officials who are ACRB members, Further, since the establishment of the ACRB, the Assistant Secretary is more extensively involved at all stages of the case review process. The creation of the ACRB, as well as publication of BIS's Penalty Guidance and public acknowledgment of voluntary self-disclosures, demonstrate BIS's commitment and effort to making the administrative case review process accessible, transparent, and fair.