The Department of Justice (“DOJ” or the “Department”) released its new Corporate Enforcement and Voluntary Self-Disclosure Policy (“CEP”) on March 10, 2026, establishing, for the first time, a single, comprehensive framework governing all corporate criminal matters handled by the Department, with the exception of antitrust offenses. While the CEP shares similarities with prior division-specific DOJ policies, a comparison to the previous Environmental Crimes Section’s Voluntary Self-Disclosure Policy (“ECS Policy”) reveals notable differences that maritime industry personnel should understand. As this policy landscape continues to evolve, stakeholders will need to monitor how these differences play out in practice before drawing conclusions about the new policy’s practical impact.
Background
Both the DOJ’s new CEP and the prior ECS Policy attempt to encourage responsible corporate behavior by providing incentives for companies to voluntarily self-disclose misconduct, cooperate with investigations, and remediate wrongdoing. The prior ECS Policy, drafted in accordance with the Deputy Attorney General’s September 2022 memorandum regarding corporate criminal enforcement policies, focused specifically on environmental criminal matters and the concerns they implicate, including protection of the environment, public health, worker safety, wildlife, and natural resources. The new CEP, by contrast, supersedes all division-specific policies and applies broadly to all corporate criminal matters handled by the Department, with the exception of antitrust violations under 15 U.S.C. §§ 1-38.
Objectives and Three-Part Framework—Elements of the New CEP
The CEP is designed to accomplish six primary goals: (1) drive early, voluntary self-disclosure of criminal conduct; (2) promote timely and effective enforcement of criminal laws, including holding culpable individuals accountable; (3) reduce harm; (4) facilitate prompt remedial action, including requiring companies to compensate victims and address corporate deficiencies; (5) help ensure consistency across the Department; and (6) transparently describe the Department’s policies and decision-making. These goals are intended to be met through a structured, tiered framework, based on each company’s conduct and cooperation.
Part I: Declination. Under the most favorable pathway, prosecutors will decline to prosecute a company that voluntarily self-discloses misconduct to an appropriate DOJ criminal component, fully cooperates with the investigation, timely remediates, and presents no aggravating circumstances related to the nature, seriousness, egregiousness, or pervasiveness of the misconduct. Even where aggravating circumstances exist, prosecutors have discretion to recommend a declination after weighing the severity of those circumstances against the company’s self-disclosure, cooperation, and remediation efforts. All declinations under the CEP will be made public.
Part II: “Near Miss” Voluntary Self-Disclosures. For companies that fully cooperate and remediate, but are determined to be ineligible for full declination because the disclosure did not qualify as a voluntary disclosure and/or there were aggravating factors that warranted criminal resolution, the Department shall provide a Non-Prosecution Agreement (“NPA”)[1] in cases where particularly egregious circumstances are absent. Prosecutors shall allow a term length for the NPA of fewer than three years, shall not require an independent compliance monitor, and shall provide a fine reduction of at least 50 percent but not more than 75 percent off the low end of the U.S. Sentencing Guidelines range.
Part III: Other Resolutions. For companies that do not qualify under Parts I or II, prosecutors maintain discretion to determine the appropriate resolution, including form, term length, compliance obligations, and monetary penalty. Yet, the company will not receive, nor will the Department recommend to the sentencing court, a reduction of more than 50 percent off the fine under the Sentencing Guidelines. Although prosecutors will still have discretion to determine the specific percentage of reduction, a presumption exists that any reduction will be taken from the low-end of the range for companies that fully cooperate and remediate.
Comparing the CEP to the Prior ECS Policy: What’s New
A More Certain Path to Declination. One of the most potentially consequential changes is the heightened certainty and clearer form of outcome for a company that self-reports, fully cooperates, and remediates in a timely manner. Under the prior ECS Policy, the best a company could expect was that the government would “not seek a guilty plea,” which left open the possibility of an NPA or Deferred Prosecution Agreement (“DPA”).[2] Both options impose ongoing obligations and carry potential consequences for any breach of the agreement.
Under the CEP, a qualifying company can receive a Part I declination, or, at worst, a “near miss” NPA, unless the government identifies particularly egregious or multiple aggravating circumstances. This distinction fits with the proposed framework’s goals of rewarding companies who self-disclose wrongdoing, cooperate with DOJ investigations, and remediate misconduct.
The “Near Miss” Pathway: A Potential Major Departure. One of the more significant factors of the CEP is contained in the Part II framework for “near miss” situations. Part II applies where a company fully cooperated and timely remediated but fell short of a declination either because its self-report did not qualify as self-disclosure or because aggravating factors warrant a criminal resolution. In these circumstances, the CEP provides that the DOJ shall provide an NPA absent “particularly egregious or multiple aggravating circumstances,” with a term length of fewer than three years, no monitor requirement, and a 50–70-percent fine reduction.
The inclusion of a mandatory NPA for companies that fall within the definition of a “near miss” is potentially a significant departure from the prior ECS Policy. The previous ECS Policy framework provided only that, if a guilty plea is warranted, and notwithstanding a Voluntary Self-Disclosure, prosecutors would “consider a reduction in the number and type of charges the company must plead guilty to” as well as more lenient recommendations on fines, probation periods, and conditions. Until now, ECS has flatly refused to agree to an NPA in any case involving an environmental violation.
Whether the introduction of a mandatory NPA for “near misses” under the CEP will alter existing ECS practices warrants close attention.
Divergent Aggravating Factors. Another pointed difference between the new CEP and the superseded ECS Policy relates to the description of the aggravating factors that may limit the benefits of voluntary self-disclosure.
Under the ECS Policy, aggravating factors included misconduct that: (1) posed a threat of serious adverse impact to the environment, public health and safety, worker safety, wildlife, or natural resources; (2) involved knowing endangerment of or serious injury or death to any individual; (3) was deeply pervasive throughout the company; (4) involved concealment or obstruction of justice by senior management; (5) was followed by lack of full cooperation; or (6) was followed by lack of timely and appropriate remediation. These factors aligned with the ECS Policy’s prosecutorial priorities and the environmental context inherent in its enforcement mandate.
The aggravating circumstances listed in the new CEP now focus on the “nature and seriousness of the offense” including the “egregiousness or pervasiveness of the misconduct within the company, severity of harm caused by the misconduct, or corporate recidivism, specifically, a criminal adjudication or resolution either within the last five years or otherwise based on similar misconduct by the entity engaged in the current misconduct.”
How prosecutors will weigh these different factors, and whether consistency will emerge across the DOJ’s divisions, remains to be seen.
The Monitorship Question: Different Default Positions. Both policies address the question of independent compliance monitorships, but with notable distinctions in their approach.
Under the former ECS Policy, when a company made a qualifying voluntary self-disclosure, fully cooperated, and remediated, ECS would “not require the imposition of an independent compliance monitor, if the company demonstrates at the time of resolution that it has implemented and tested an effective compliance program.” This language suggested that the absence of a monitor is contingent on demonstrating compliance program effectiveness, yet this benefit only applies in the context of a favorable resolution.
The new CEP, however, introduces a noteworthy element: under Part II of the policy, which addresses “near miss” voluntary self-disclosures or cases involving aggravating factors that nonetheless warrant resolution rather than declination, the DOJ will “not require an independent compliance monitor” as part of the standard benefits package, even when providing an NPA rather than a declination. This creates a potential pathway where a company facing aggravating circumstances could still avoid monitorship while receiving an NPA. That said, industry stakeholders will want to observe how resolutions of this type are executed.
Fine Reductions: A Critical Clarification. Perhaps one of the most important distinctions involves the calculations of fine reductions. The CEP provides specific percentage reductions, including reductions of “at least 50% but not more than 75% off the low end of the U.S. Sentencing Guidelines fine range” for Part II resolutions and up to 50 percent for Part III cases.
However, the former ECS Policy clarified that the Sentencing Guidelines framework does not directly apply to environmental offenses.[3] This distinction is critical: companies facing potential environmental criminal liability should recognize that the specific percentage-based fine reduction framework articulated in the CEP does not apply to fines for environmental offenses. The prior ECS Policy contemplated that prosecutors will “recommend to the sentencing court a more lenient criminal fine” without specifying quantified reductions. Therefore, it is unclear how fines related to environmental criminal offenses will be treated under the CEP.
Looking Ahead
The new CEP provides important guidance, but the true contours of the policy will only emerge through application. Both the CEP and prior ECS Policy emphasize that decisions will be made on a case-by-case basis at the “sole discretion” of the relevant prosecutorial authorities. The CEP explicitly notes that it seeks to “transparently describe the Department’s policies and decision making” and requires that all CEP declinations be made public, which should provide ongoing insights into how these standards are applied.
For now, industry stakeholders should be aware of the provisions of the new CEP and, with the advice of counsel, approach any disclosure decision with careful understanding as to which part of the policy, and which aggravating factors, fine calculation methods, and resolution pathways, might govern their particular circumstances. As the DOJ and ECS accumulate experience under the new CEP, clearer patterns may emerge. Until then, a cautious and measured approach is warranted.
[1] An NPA is a voluntary, contractual agreement in which DOJ agrees not to file criminal charges and the company or individual under investigation agrees to meet certain conditions, usually including the payment of a fine. NPAs do not require an admission of wrongdoing and are not filed with the court.
[2] A DPA is also a voluntary, contractual agreement, but it involves the filing of a criminal complaint, a detailed admission of wrongdoing, the payment of a fine and restitution, and adherence to probation-like conditions. The adjudication of the criminal charge is deferred, however, and, if the defendant successfully completes the deferral period, the charge is dismissed without a finding of guilt.
[3] The policy states, “Because the fine guidelines in § 8C2.2 through § 8C2.9 of the U.S. Sentencing Guidelines (U.S.S.G.) Manual, Chapter 8 (Sentencing of Organizations), do not apply to environmental offenses, a specific percentage reduction of any fine is not part of this policy.”
