U.S.S.G. §8B2.1

(a) To have an effective compliance and ethics program, for purposes of subsection (f) of §8C2.5 (Culpability Score) and subsection (b)(1) of §8D1.4

(Recommended Conditions of Probation ― Organizations), an organization

shall—

(1) exercise due diligence to prevent and detect criminal conduct; and

(2) otherwise promote an organizational culture that encourages ethical

conduct and a commitment to compliance with the law.

Such compliance and ethics program shall be reasonably designed, implemented, and enforced so that the program is generally effective in preventing and detecting criminal conduct. The failure to prevent or detect the

instant offense does not necessarily mean that the program is not generally

effective in preventing and detecting criminal conduct.

(b) Due diligence and the promotion of an organizational culture that encourages ethical conduct and a commitment to compliance with the law within

the meaning of subsection (a) minimally require the following:

(1) The organization shall establish standards and procedures to prevent

and detect criminal conduct.

(2) (A) The organization’s governing authority shall be knowledgeable

about the content and operation of the compliance and ethics program and shall exercise reasonable oversight with respect to the

implementation and effectiveness of the compliance and ethics

program.

(B) High-level personnel of the organization shall ensure that the organization has an effective compliance and ethics program, as

described in this guideline. Specific individual(s) within high-level personnel shall be assigned overall responsibility for the

compliance and ethics program.

(C) Specific individual(s) within the organization shall be delegated

day-to-day operational responsibility for the compliance and ethics program. Individual(s) with operational responsibility shall

report periodically to high-level personnel and, as appropriate, to

the governing authority, or an appropriate subgroup of the governing authority, on the effectiveness of the compliance and ethics program. To carry out such operational responsibility, such

individual(s) shall be given adequate resources, appropriate authority, and direct access to the governing authority or an appropriate subgroup of the governing authority.

(3) The organization shall use reasonable efforts not to include within the

substantial authority personnel of the organization any individual

whom the organization knew, or should have known through the exercise of due diligence, has engaged in illegal activities or other conduct inconsistent with an effective compliance and ethics program.

(4) (A) The organization shall take reasonable steps to communicate periodically and in a practical manner its standards and procedures, and other aspects of the compliance and ethics program,

to the individuals referred to in subparagraph (B) by conducting

effective training programs and otherwise disseminating information appropriate to such individuals’ respective roles and responsibilities.

(B) The individuals referred to in subparagraph (A) are the members

of the governing authority, high-level personnel, substantial authority personnel, the organization’s employees, and, as appropriate, the organization’s agents.

(5) The organization shall take reasonable steps—

(A) to ensure that the organization’s compliance and ethics program

is followed, including monitoring and auditing to detect criminal

conduct;

(B) to evaluate periodically the effectiveness of the organization’s

compliance and ethics program; and

(C) to have and publicize a system, which may include mechanisms

that allow for anonymity or confidentiality, whereby the organization’s employees and agents may report or seek guidance regarding potential or actual criminal conduct without fear of retaliation.

(6) The organization’s compliance and ethics program shall be promoted

and enforced consistently throughout the organization through (A) appropriate incentives to perform in accordance with the compliance and

ethics program; and (B) appropriate disciplinary measures for engaging in criminal conduct and for failing to take reasonable steps to prevent or detect criminal conduct.

(7) After criminal conduct has been detected, the organization shall take

reasonable steps to respond appropriately to the criminal conduct and

to prevent further similar criminal conduct, including making any

necessary modifications to the organization’s compliance and ethics

program.

(c) In implementing subsection (b), the organization shall periodically assess

the risk of criminal conduct and shall take appropriate steps to design,

implement, or modify each requirement set forth in subsection (b) to reduce

the risk of criminal conduct identified through this process.

Commentary

Application Notes:

1. Definitions.—For purposes of this guideline:

“Compliance and ethics program” means a program designed to prevent and detect criminal

conduct.

“Governing authority” means (A) the Board of Directors; or (B) if the organization does not

have a Board of Directors, the highest-level governing body of the organization.

“High-level personnel of the organization” and “substantial authority personnel” have

the meaning given those terms in the Commentary to §8A1.2 (Application Instructions ― Organizations).

“Standards and procedures” means standards of conduct and internal controls that are reasonably capable of reducing the likelihood of criminal conduct.

2. Factors to Consider in Meeting Requirements of this Guideline.—

(A) In General.—Each of the requirements set forth in this guideline shall be met by an organization; however, in determining what specific actions are necessary to meet those requirements, factors that shall be considered include: (i) applicable industry practice or the

standards called for by any applicable governmental regulation; (ii) the size of the organization; and (iii) similar misconduct.

(B) Applicable Governmental Regulation and Industry Practice.—An organization’s

failure to incorporate and follow applicable industry practice or the standards called for by

any applicable governmental regulation weighs against a finding of an effective compliance

and ethics program.

(C) The Size of the Organization.—

(i) In General.—The formality and scope of actions that an organization shall take to

meet the requirements of this guideline, including the necessary features of the organization’s standards and procedures, depend on the size of the organization.

(ii) Large Organizations.—A large organization generally shall devote more formal operations and greater resources in meeting the requirements of this guideline than

shall a small organization. As appropriate, a large organization should encourage

small organizations (especially those that have, or seek to have, a business relationship with the large organization) to implement effective compliance and ethics programs.

(iii) Small Organizations.—In meeting the requirements of this guideline, small organizations shall demonstrate the same degree of commitment to ethical conduct and

compliance with the law as large organizations. However, a small organization may

meet the requirements of this guideline with less formality and fewer resources than

would be expected of large organizations. In appropriate circumstances, reliance on

existing resources and simple systems can demonstrate a degree of commitment that,

for a large organization, would only be demonstrated through more formally planned

and implemented systems.

Examples of the informality and use of fewer resources with which a small organization may meet the requirements of this guideline include the following: (I) the governing authority’s discharge of its responsibility for oversight of the compliance and ethics program by directly managing the organization’s compliance and ethics efforts;

(II) training employees through informal staff meetings, and monitoring through regular “walk-arounds” or continuous observation while managing the organization;

(III) using available personnel, rather than employing separate staff, to carry out the

compliance and ethics program; and (IV) modeling its own compliance and ethics program on existing, well-regarded compliance and ethics programs and best practices of

other similar organizations.

(D) Recurrence of Similar Misconduct.—Recurrence of similar misconduct creates doubt

regarding whether the organization took reasonable steps to meet the requirements of this

guideline. For purposes of this subparagraph, “similar misconduct” has the meaning

given that term in the Commentary to §8A1.2 (Application Instructions ― Organizations).

3. Application of Subsection (b)(2).—High-level personnel and substantial authority personnel

of the organization shall be knowledgeable about the content and operation of the compliance

and ethics program, shall perform their assigned duties consistent with the exercise of due diligence, and shall promote an organizational culture that encourages ethical conduct and a commitment to compliance with the law.

If the specific individual(s) assigned overall responsibility for the compliance and ethics program

does not have day-to-day operational responsibility for the program, then the individual(s) with

day-to-day operational responsibility for the program typically should, no less than annually,

give the governing authority or an appropriate subgroup thereof information on the implementation and effectiveness of the compliance and ethics program.

4. Application of Subsection (b)(3).—

(A) Consistency with Other Law.—Nothing in subsection (b)(3) is intended to require conduct inconsistent with any federal, state, or local law, including any law governing employment or hiring practices.

(B) Implementation.—In implementing subsection (b)(3), the organization shall hire and promote individuals so as to ensure that all individuals within the high-level personnel and

substantial authority personnel of the organization will perform their assigned duties in a

manner consistent with the exercise of due diligence and the promotion of an organizational

culture that encourages ethical conduct and a commitment to compliance with the law under subsection (a). With respect to the hiring or promotion of such individuals, an organization shall consider the relatedness of the individual’s illegal activities and other misconduct (i.e., other conduct inconsistent with an effective compliance and ethics program) to

the specific responsibilities the individual is anticipated to be assigned and other factors

such as: (i) the recency of the individual’s illegal activities and other misconduct; and

(ii) whether the individual has engaged in other such illegal activities and other such misconduct.

5. Application of Subsection (b)(6).—Adequate discipline of individuals responsible for an offense is a necessary component of enforcement; however, the form of discipline that will be appropriate will be case specific.

6. Application of Subsection (b)(7).—Subsection (b)(7) has two aspects.

First, the organization should respond appropriately to the criminal conduct. The organization

should take reasonable steps, as warranted under the circumstances, to remedy the harm resulting from the criminal conduct. These steps may include, where appropriate, providing restitution

to identifiable victims, as well as other forms of remediation. Other reasonable steps to respond

appropriately to the criminal conduct may include self-reporting and cooperation with authorities.

Second, the organization should act appropriately to prevent further similar criminal conduct,

including assessing the compliance and ethics program and making modifications necessary to

ensure the program is effective. The steps taken should be consistent with subsections (b)(5)

and (c) and may include the use of an outside professional advisor to ensure adequate assessment

and implementation of any modifications.

7. Application of Subsection (c).—To meet the requirements of subsection (c), an organization

shall:

(A) Assess periodically the risk that criminal conduct will occur, including assessing the following:

(i) The nature and seriousness of such criminal conduct.

(ii) The likelihood that certain criminal conduct may occur because of the nature of the

organization’s business. If, because of the nature of an organization’s business, there

is a substantial risk that certain types of criminal conduct may occur, the organization

shall take reasonable steps to prevent and detect that type of criminal conduct. For

example, an organization that, due to the nature of its business, employs sales personnel who have flexibility to set prices shall establish standards and procedures designed to prevent and detect price-fixing. An organization that, due to the nature of

its business, employs sales personnel who have flexibility to represent the material

characteristics of a product shall establish standards and procedures designed to prevent and detect fraud.

(iii) The prior history of the organization. The prior history of an organization may indicate types of criminal conduct that it shall take actions to prevent and detect.

(B) Prioritize periodically, as appropriate, the actions taken pursuant to any requirement set

forth in subsection (b), in order to focus on preventing and detecting the criminal conduct

identified under subparagraph (A) of this note as most serious, and most likely, to occur.

(C) Modify, as appropriate, the actions taken pursuant to any requirement set forth in subsection (b) to reduce the risk of criminal conduct identified under subparagraph (A) of this note

as most serious, and most likely, to occur.

Background: This section sets forth the requirements for an effective compliance and ethics program.

This section responds to section 805(a)(5) of the Sarbanes–Oxley Act of 2002, Public Law 107–204,

which directed the Commission to review and amend, as appropriate, the guidelines and related policy

statements to ensure that the guidelines that apply to organizations in this chapter “are sufficient to

deter and punish organizational criminal misconduct.”

The requirements set forth in this guideline are intended to achieve reasonable prevention and

detection of criminal conduct for which the organization would be vicariously liable. The prior diligence

of an organization in seeking to prevent and detect criminal conduct has a direct bearing on the appropriate penalties and probation terms for the organization if it is convicted and sentenced for a

criminal offense.