[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4353 Introduced in House (IH)]







105th CONGRESS
  2d Session
                                H. R. 4353

 To amend the Securities Exchange Act of 1934 and the Foreign Corrupt 
   Practices Act of 1977 to improve the competitiveness of American 
     business and promote foreign commerce, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             July 30, 1998

 Mr. Bliley (for himself and Mr. Oxley) introduced the following bill; 
            which was referred to the Committee on Commerce

_______________________________________________________________________

                                 A BILL


 
 To amend the Securities Exchange Act of 1934 and the Foreign Corrupt 
   Practices Act of 1977 to improve the competitiveness of American 
     business and promote foreign commerce, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``International Anti-Bribery and Fair 
Competition Act of 1998''.

SEC. 2. AMENDMENTS TO THE FOREIGN CORRUPT PRACTICES ACT GOVERNING 
              ISSUERS.

    (a) Prohibited Conduct.--Section 30A(a) of the Securities Exchange 
Act of 1934 (15 U.S.C. 78dd-1) is amended--
            (1) by amending subparagraph (A) of paragraph (1) to read 
        as follows:
                    ``(A)(i) influencing any act or decision of such 
                foreign official in his official capacity, (ii) 
                inducing such foreign official to do or omit to do any 
                act in violation of the lawful duty of such official, 
                or (iii) securing any improper advantage; or'';
            (2) by amending subparagraph (A) of paragraph (2) to read 
        as follows:
                    ``(A)(i) influencing any act or decision of such 
                party, official, or candidate in its or his official 
                capacity, (ii) inducing such party, official, or 
                candidate to do or omit to do an act in violation of 
                the lawful duty of such party, official, or candidate, 
                or (iii) securing any improper advantage; or''; and
            (3) by amending subparagraph (A) of paragraph (3) to read 
        as follows:
                    ``(A)(i) influencing any act or decision of such 
                foreign official, political party, party official, or 
                candidate in his or its official capacity, (ii) 
                inducing such foreign official, political party, party 
                official, or candidate to do or omit to do any act in 
                violation of the lawful duty of such foreign official, 
                political party, party official, or candidate, or (iii) 
                securing any improper advantage; or''.
    (b) Officials of International Organizations.--Paragraph (1) of 
section 30A(f) of such Act is amended to read as follows:
            ``(1)(A) The term `foreign official' means any officer or 
        employee of a foreign government or any department, agency, or 
        instrumentality thereof, or of a public international 
        organization, or any person acting in an official capacity for 
        or on behalf of any such government or department, agency, or 
        instrumentality, or for or on behalf of any such public 
        international organization.
            ``(B) For purposes of subparagraph (A), the term `public 
        international organization' means--
                    ``(i) an organization that is designated by 
                Executive order pursuant to section 1 of the 
                International Organizations Immunities Act (22 U.S.C. 
                288); or
                    ``(ii) an international organization providing 
                commercial communications services, as defined in 
                section 5(a) of the International Anti-Bribery Act of 
                1998, except that the term `public international 
                organization' does not include any such international 
                organization providing commercial communications 
                services that has achieved a pro-competitive 
                privatization.''.
    (c) Alternative Jurisdiction Over Acts Outside the United States.--
Section 30A of such Act (15 U.S.C. 78dd-1) is amended--
            (1) by adding at the end the following:
    ``(g) Alternative Jurisdiction.--
            ``(1) It shall also be unlawful for any issuer organized 
        under the laws of the United States, or a State, territory, 
        possession, or commonwealth of the United States or a political 
        subdivision thereof and which has a class of securities 
        registered pursuant to section 12 of this title or which is 
        required to file reports under section 15(d) of this title, or 
        for any officer, director, employee, or agent of such issuer or 
        any stockholder thereof that is a United States person, acting 
        on behalf of such issuer, to corruptly do any act outside the 
        United States in furtherance of an offer, payment, promise to 
        pay, or authorization of the payment of any money, or offer, 
gift, promise to give, or authorization of the giving of anything of 
value to any of the persons or entities set forth in paragraphs (1), 
(2), and (3) of subsection (a) of this section for the purposes set 
forth therein, irrespective of whether such issuer or such officer, 
director, employee, agent, or stockholder makes use of the mails or any 
means or instrumentality of interstate commerce in furtherance of such 
offer, gift, payment, promise, or authorization.
            ``(2) As used in this subsection, the term `United States 
        person' means a national of the United States (as defined in 
        section 101 of the Immigration and Nationality Act (8 U.S.C. 
        1101)) or any corporation, partnership, association, joint-
        stock company, business trust, unincorporated organization, or 
        sole proprietorship organized under the laws of the United 
        States or any State, territory, possession, or commonwealth of 
        the United States, or any political subdivision thereof.'';
            (2) in subsection (b), by striking ``Subsection (a)'' and 
        inserting ``Subsections (a) and (g)''; and
            (3) in subsection (c), by striking ``subsection (a)'' and 
        inserting ``subsections (a) and (g)''.
    (d) Penalties.--Section 32(c) of the Securities Exchange Act of 
1934 (15 U.S.C. 78ff(c)) is amended--
            (1) in paragraph (1)(A), by striking ``section 30A(a)'' and 
        inserting ``subsection (a) or (g) of section 30A'';
            (2) in paragraph (1)(B), by striking ``section 30A(a)'' and 
        inserting ``subsection (a) or (g) of section 30A''; and
            (3) by amending paragraph (2) to read as follows:
            ``(2)(A) Any officer, director, employee, or agent of an 
        issuer, or stockholder acting on behalf of such issuer, who 
willfully violates subsection (a) or (g) of section 30A of this title 
shall be fined not more than $100,000, or imprisoned not more than 5 
years, or both.
            ``(B) Any officer, director, employee, or agent of an 
        issuer, or stockholder acting on behalf of such issuer, who 
        violates subsection (a) or (g) of section 30A of this title 
        shall be subject to a civil penalty of not more than $10,000 
        imposed in an action brought by the Commission.''.

SEC. 3. AMENDMENTS TO THE FOREIGN CORRUPT PRACTICES ACT GOVERNING 
              DOMESTIC CONCERNS.

    (a) Prohibited Conduct.--Section 104(a) of the Foreign Corrupt 
Practices Act of 1977 (15 U.S.C. 78dd-2(a)) is amended--
            (1) by amending subparagraph (A) of paragraph (1) to read 
        as follows:
                    ``(A)(i) influencing any act or decision of such 
                foreign official in his official capacity, (ii) 
                inducing such foreign official to do or omit to do any 
                act in violation of the lawful duty of such official, 
                or (iii) securing any improper advantage; or'';
            (2) by amending subparagraph (A) of paragraph (2) to read 
        as follows:
                    ``(A)(i) influencing any act or decision of such 
                party, official, or candidate in its or his official 
                capacity, (ii) inducing such party, official, or 
                candidate to do or omit to do an act in violation of 
                the lawful duty of such party, official, or candidate, 
                or (iii) securing any improper advantage; or''; and
            (3) by amending subparagraph (A) of paragraph (3) to read 
        as follows:
                    ``(A)(i) influencing any act or decision of such 
                foreign official, political party, party official, or 
                candidate in his or its official capacity, (ii) 
                inducing such foreign official, political party, party 
                official, or candidate to do or omit to do any act in 
                violation of the lawful duty of such foreign official, 
                political party, party official, or candidate, or (iii) 
                securing any improper advantage; or''.
    (b) Penalties.--Section 104(g) of the Foreign Corrupt Practices Act 
of 1977 (15 U.S.C. 78dd-2(g)) is amended--
            (1) by amending paragraph (1) to read as follows:
            ``(1)(A) Any domestic concern that violates subsection (a) 
        or (i) of this section shall be fined not more than $2,000,000.
            ``(B) Any domestic concern that violates subsection (a) or 
        (i) of this section shall be subject to a civil penalty of not 
        more than $10,000 imposed in an action brought by the Attorney 
        General.''; and
            (2) by amending paragraph (2) to read as follows:
            ``(2)(A) Any officer, director, employee, or agent of a 
        domestic concern, or stockholder acting on behalf of such 
        domestic concern, who willfully violates subsection (a) or (i) 
        of this section shall be fined not more than $100,000 or 
        imprisoned not more than 5 years, or both.
            ``(B) Any officer, director, employee, or agent of a 
        domestic concern, or stockholder acting on behalf of such 
        domestic concern, who violates subsection (a) or (i) of this 
        section shall be subject to a civil penalty of not more than 
        $10,000 imposed in an action brought by the Attorney 
        General.''.
    (c) Officials of International Organizations.--Paragraph (2) of 
section 104(h) of the Foreign Corrupt Practices Act of 1977 (15 U.S.C. 
78dd-2(h)) is amended to read as follows:
            ``(2)(A) The term `foreign official' means any officer or 
        employee of a foreign government or any department, agency, or 
        instrumentality thereof, or of a public international 
        organization, or any person acting in an official capacity for 
        or on behalf of any such government or department, agency, or 
        instrumentality, or for or on behalf of any such public 
        international organization.
            ``(B) For purposes of subparagraph (A), the term `public 
        international organization' means--
                    ``(i) an organization that is designated by 
                Executive order pursuant to section 1 of the 
                International Organizations Immunities Act (22 U.S.C. 
                288); or
                    ``(ii) an international organization providing 
                commercial communications services, as defined in 
                section 5(a) of the International Anti-Bribery Act of 
                1998, except that the term `public international 
                organization' does not include any such international 
                organization providing commercial communications 
                services that has achieved a pro-competitive 
                privatization.''.
    (d) Alternative Jurisdiction Over Acts Outside the United States.--
Section 104 of the Foreign Corrupt Practices Act of 1977 (15 U.S.C. 
78dd-2) is further amended--
            (1) by adding at the end the following:
    ``(i) Alternative Jurisdiction.--
            ``(1) It shall also be unlawful for any United States 
        person to corruptly do any act outside the United States in 
        furtherance of an offer, payment, promise to pay, or 
        authorization of the payment of any money, or offer, gift, 
        promise to give, or authorization of the giving of anything of 
        value to any of the persons or entities set forth in paragraphs 
        (1), (2), and (3) of subsection (a), for the purposes set forth 
        therein, irrespective of whether such United States person 
        makes use of the mails or any means or instrumentality of 
        interstate commerce in furtherance of such offer, gift, 
        payment, promise, or authorization.
            ``(2) As used in this subsection, the term `United States 
        person' means a national of the United States (as defined in 
        section 101 of the Immigration and Nationality Act (8 U.S.C. 
        1101)) or any corporation, partnership, association, joint-
        stock company, business trust, unincorporated organization, or 
        sole proprietorship organized under the laws of the United 
        States or any State, territory, possession, or commonwealth of 
        the United States, or any political subdivision thereof.'';
            (2) in subsection (b), by striking ``Subsection (a)'' and 
        inserting ``Subsections (a) and (i)'';
            (3) in subsection (c), by striking ``subsection (a)'' and 
        inserting ``subsection (a) or (i)''; and
            (4) in subsection (d)(1), by striking ``subsection (a)'' 
        and inserting ``subsections (a) and (i)''.
    (e) Technical Amendment.--Section 104(h)(4)(A) of the Foreign 
Corrupt Practices Act of 1977 (15 U.S.C. 78dd-2(h)(4)(A)) is amended by 
striking ``For purposes of paragraph (1), the'' and inserting ``The''.

SEC. 4. AMENDMENTS TO THE FOREIGN CORRUPT PRACTICES ACT REGARDING OTHER 
              PERSONS.

    Title I of the Foreign Corrupt Practices Act of 1977 is amended by 
inserting after section 104 (15 U.S.C. 78dd-2) the following new 
section:

``SEC. 104A. PROHIBITED FOREIGN TRADE PRACTICES BY PERSONS OTHER THAN 
              ISSUERS OR DOMESTIC CONCERNS.

    ``(a) Prohibition.--It shall be unlawful for any person other than 
an issuer (as defined in section 30A of the Securities Exchange Act of 
1934) or a domestic concern (as defined in section 104 of this Act), or 
for any officer, director, employee, or agent of such person or any 
stockholder thereof acting on behalf of such person, while in the 
territory of the United States, corruptly to make use of the mails or 
any means or instrumentality of interstate commerce or to do any other 
act in furtherance of an offer, payment, promise to pay, or 
authorization of the payment of any money, or offer, gift, promise to 
give, or authorization of the giving of anything of value to--
            ``(1) any foreign official for purposes of--
                    ``(A)(i) influencing any act or decision of such 
                foreign official in his official capacity, 
(ii) inducing such foreign official to do or omit to do any act in 
violation of the lawful duty of such official, or (iii) securing any 
improper advantage; or
                    ``(B) inducing such foreign official to use his 
                influence with a foreign government or instrumentality 
                thereof to affect or influence any act or decision of 
                such government or instrumentality, in order to assist 
                such person in obtaining or retaining business for or 
                with, or directing business to, any person;
            ``(2) any foreign political party or official thereof or 
        any candidate for foreign political office for purposes of--
                    ``(A)(i) influencing any act or decision of such 
                party, official, or candidate in its or his official 
                capacity, (ii) inducing such party, official, or 
                candidate to do or omit to do an act in violation of 
                the lawful duty of such party, official, or candidate, 
                or (iii) securing any improper advantage; or
                    ``(B) inducing such party, official, or candidate 
                to use its or his influence with a foreign government 
                or instrumentality thereof to affect or influence any 
                act or decision of such government or instrumentality, 
                in order to assist such person in obtaining or 
                retaining business for or with, or directing business 
                to, any person; or
            ``(3) any person, while knowing that all or a portion of 
        such money or thing of value will be offered, given, or 
        promised, directly or indirectly, to any foreign official, to 
        any foreign political party or official thereof, or to any 
        candidate for foreign political office, for purposes of--
                    ``(A)(i) influencing any act or decision of such 
                foreign official, political party, party official, or 
                candidate in his or its official capacity, (ii) 
                inducing such foreign official, political party, party 
                official, or candidate to do or omit to do any act in 
                violation of the lawful duty of such foreign official, 
                political party, party official, or candidate, or (iii) 
                securing any improper advantage; or
                    ``(B) inducing such foreign official, political 
                party, party official, or candidate to use his or its 
                influence with a foreign government or instrumentality 
                thereof to affect or influence any act or decision of 
                such government or instrumentality, in order to assist 
                such person in obtaining or retaining business for or 
                with, or directing business to, any person.
    ``(b) Exception for Routine Governmental Action.--Subsection (a) of 
this section shall not apply to any facilitating or expediting payment 
to a foreign official, political party, or party official the purpose 
of which is to expedite or to secure the performance of a routine 
governmental action by a foreign official, political party, or party 
official.
    ``(c) Affirmative Defenses.--It shall be an affirmative defense to 
actions under subsection (a) of this section that--
            ``(1) the payment, gift, offer, or promise of anything of 
        value that was made, was lawful under the written laws and 
        regulations of the foreign official's, political party's, party 
        official's, or candidate's country; or
            ``(2) the payment, gift, offer, or promise of anything of 
        value that was made, was a reasonable and bona fide 
        expenditure, such as travel and lodging expenses, incurred by 
        or on behalf of a foreign official, party, party official, or 
        candidate and was directly related to--
                    ``(A) the promotion, demonstration, or explanation 
                of products or services; or
                    ``(B) the execution or performance of a contract 
                with a foreign government or agency thereof.
    ``(d) Injunctive Relief.--
            ``(1) When it appears to the Attorney General that any 
        person to which this section applies, or officer, director, 
        employee, agent, or stockholder thereof, is engaged, or about 
        to engage, in any act or practice constituting a violation of 
        subsection (a) of this section, the Attorney General may, in 
        his discretion, bring a civil action in an appropriate district 
        court of the United States to enjoin such act or practice, and 
        upon a proper showing, a permanent injunction or a temporary 
        restraining order shall be granted without bond.
            ``(2) For the purpose of any civil investigation which, in 
        the opinion of the Attorney General, is necessary and proper to 
        enforce this section, the Attorney General or his designee are 
        empowered to administer oaths and affirmations, subpoena 
        witnesses, take evidence, and require the production of any 
        books, papers, or other documents which the Attorney General 
        deems relevant or material to such investigation. The 
        attendance of witnesses and the production of documentary 
        evidence may be required from any place in the United States, 
or any territory, possession, or commonwealth of the United States, at 
any designated place of hearing.
            ``(3) In case of contumacy by, or refusal to obey a 
        subpoena issued to, any person, the Attorney General may invoke 
        the aid of any court of the United States within the 
        jurisdiction of which such investigation or proceeding is 
        carried on, or where such person resides or carries on 
        business, in requiring the attendance and testimony of 
        witnesses and the production of books, papers, or other 
        documents. Any such court may issue an order requiring such 
        person to appear before the Attorney General or his designee, 
        there to produce records, if so ordered, or to give testimony 
        touching the matter under investigation. Any failure to obey 
        such order of the court may be punished by such court as a 
        contempt thereof.
            ``(4) All process in any such case may be served in the 
        judicial district in which such person resides or may be found. 
        The Attorney General may make such rules relating to civil 
        investigations as may be necessary or appropriate to implement 
        the provisions of this subsection.
    ``(e) Penalties.--
            ``(1)(A) Any juridical person that violates subsection (a) 
        of this section shall be fined not more than $2,000,000.
            ``(B) Any juridical person that violates subsection (a) of 
        this section shall be subject to a civil penalty of not more 
        than $10,000 imposed in an action brought by the Attorney 
        General.
            ``(2)(A) Any natural person who willfully violates 
        subsection (a) of this section shall be fined not more than 
        $100,000 or imprisoned not more than 5 years, or both.
            ``(B) Any natural person who violates subsection (a) of 
        this section shall be subject to a civil penalty of not more 
        than $10,000 imposed in an action brought by the Attorney 
        General.
            ``(3) Whenever a fine is imposed under paragraph (2) upon 
        any officer, director, employee, agent, or stockholder of a 
        juridical person, such fine may not be paid, directly or 
        indirectly, by such juridical person.
    ``(f) Definitions.--For purposes of this section:
            ``(1) The term `person', when referring to an offender, 
        means any natural person other than a national of the United 
        States (as defined in section 101 of the Immigration and 
        Nationality Act (8 U.S.C. 1101) or any corporation, 
        partnership, association, joint-stock company, business trust, 
        unincorporated organization, or sole proprietorship organized 
        under the law of a foreign nation or a political subdivision 
        thereof.
            ``(2)(A) The term `foreign official' means any officer or 
        employee of a foreign government or any department, agency, or 
        instrumentality thereof, or of a public international 
        organization, or any person acting in an official capacity for 
        or on behalf of any such government or department, agency, or 
        instrumentality, or for or on behalf of any such public 
        international organization.
            ``(B) For purposes of subparagraph (A), the term `public 
        international organization' means--
                    ``(i) an organization that is designated by 
                Executive order pursuant to section 1 of the 
                International Organizations Immunities Act (22 U.S.C. 
                288); or
                    ``(ii) an international organization providing 
                commercial communications services, as defined in 
                section 5(a) of the International Anti-Bribery Act of 
                1998, except that the term `public international 
                organization' does not include any such international 
                organization providing commercial communications 
                services that has achieved a pro-competitive 
                privatization.
            ``(3)(A) A person's state of mind is knowing, with respect 
        to conduct, a circumstance or a result if--
                    ``(i) such person is aware that such person is 
                engaging in such conduct, that such circumstance 
                exists, or that such result is substantially certain to 
                occur; or
                    ``(ii) such person has a firm belief that such 
                circumstance exists or that such result is 
                substantially certain to occur.
            ``(B) When knowledge of the existence of a particular 
        circumstance is required for an offense, such knowledge is 
        established if a person is aware of a high probability of the 
        existence of such circumstance, unless the person actually 
        believes that such circumstance does not exist.
            ``(4)(A) The term `routine governmental action' means only 
        an action which is ordinarily and commonly performed by a 
        foreign official in--
                    ``(i) obtaining permits, licenses, or other 
                official documents to qualify a person to do business 
                in a foreign country;
                    ``(ii) processing governmental papers, such as 
                visas and work orders;
                    ``(iii) providing police protection, mail pick-up 
                and delivery, or scheduling inspections associated with 
                contract performance or inspections related to transit 
                of goods across country;
                    ``(iv) providing phone service, power and water 
                supply, loading and unloading cargo, or protecting 
                perishable products or commodities from deterioration; 
                or
                    ``(v) actions of a similar nature.
            ``(B) The term `routine governmental action' does not 
        include any decision by a foreign official whether, or on what 
        terms, to award new business to or to continue business with a 
        particular party, or any action taken by a foreign official 
        involved in the decision-making process to encourage a decision 
        to award new business to or continue business with a particular 
        party.''.

SEC. 5. TREATMENT OF INTERNATIONAL ORGANIZATION PROVIDING COMMERCIAL 
              COMMUNICATIONS SERVICES.

    (a) Definition.--For purposes of this section, the term 
``international organization providing commercial communications 
services'' means--
            (1) the International Telecommunications Satellite 
        Organization established pursuant to the Agreement Relating to 
        the International Telecommunications Satellite Organization; 
        and
            (2) the International Mobile Satellite Organization 
        established pursuant to the Convention on the International 
        Maritime Organization.
    (b) Extension of Legal Process.--Except as specifically and 
expressly required by mandatory obligations in international agreements 
to which the United States is a party, an international organization 
providing commercial communications services, its officials, and its 
records shall not be accorded immunity from suit or legal process for 
any act or omission taken in connection with such organization's 
capacity as a provider, directly or indirectly, of commercial 
telecommunications services to, from, or within the United States.
    (c) Elimination or Limitation of Exceptions.--The President shall 
take all actions necessary to eliminate or to limit substantially any 
exceptions to subsection (b).

SEC. 6. ENFORCEMENT AND MONITORING.

    (a) Reports Required.--Not later than July 1 of 1999 and each of 
the 5 succeeding years, the Secretary of Commerce shall submit to the 
Committee on Commerce of the House of Representatives and the Committee 
on Banking, Housing, and Urban Affairs of the Senate a report that 
contains the following information with respect to implementation of 
the Convention:
            (1) Ratification.--A list of the countries that have 
        ratified the convention, the dates of ratification by such 
        countries, and the entry into force for each such country.
            (2) Domestic legislation.--A description of domestic laws 
        enacted by each party to the Convention that implement 
        commitments under the Convention, and assessment of the 
        compatibility of such laws with the Convention.
            (3) Enforcement.--As assessment of the measures taken by 
        each party to the Convention during the previous year to 
        fulfill its obligations under the Convention and achieve its 
        object and purpose including--
                    (A) an assessment of the enforcement of the 
                domestic laws described in paragraph (2);
                    (B) an assessment of the efforts by each such party 
                to promote public awareness of such domestic laws and 
                the achievement of such object and purpose; and
                    (C) an assessment of the effectiveness, 
                transparency, and viability of the monitoring process 
                for the Convention, including its inclusion of input 
                from the private sector and non-governmental 
                organizations.
            (4) Laws prohibiting tax deduction of bribes.--An 
        explanation of the domestic laws enacted by each party to the 
        Convention that would prohibit the deduction of bribes in the 
        computation of domestic taxes.
    (b) Definition.--For purposes of this section, the term 
``Convention'' means the Convention on Combating Bribery on Foreign 
Public Officials in International Business Transactions adopted on 
November 21, 1997, and signed on December 17, 1997, by the United 
States and 32 other nations.
                                 <all>