[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 2375 Engrossed in Senate (ES)]
105th CONGRESS
2d Session
S. 2375
_______________________________________________________________________
AN ACT
To amend the Securities Exchange Act of 1934 and the Foreign Corrupt
Practices Act of 1977, to strengthen prohibitions on international
bribery and other corrupt practices, 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 Act of
1998''.
SEC. 2. AMENDMENTS RELATING TO ISSUERS OF SECURITIES.
(a) Prohibited Conduct.--Section 30A(a) of the Securities Exchange
Act of 1934 (15 U.S.C. 78dd-1(a)) is amended--
(1) in paragraph (1)--
(A) by striking ``(B)'' and inserting ``(D)''; and
(B) by striking subparagraph (A) and inserting the
following:
``(A) influencing any act or decision of such
foreign official in his official capacity;
``(B) inducing such foreign official to do or omit
to do any act in violation of the lawful duty of such
official;
``(C) securing any improper advantage; or'';
(2) in paragraph (2)--
(A) by striking ``(B)'' and inserting ``(D)''; and
(B) by striking subparagraph (A) and inserting the
following:
``(A) influencing any act or decision of such
party, official, or candidate in its or his official
capacity;
``(B) 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;
``(C) securing any improper advantage; or''; and
(3) in paragraph (3)--
(A) by striking ``(B)'' and inserting ``(D)''; and
(B) by striking subparagraph (A) and inserting the
following:
``(A) influencing any act or decision of such
foreign official, political party, party official, or
candidate in its or his official capacity;
``(B) 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;
``(C) securing any improper advantage; or''.
(b) Officials of International Organizations.--Section 30A(f) of
the Securities Exchange Act of 1934 (15 U.S.C. 78dd-1(f)) is amended--
(1) by striking paragraph (1) and inserting the following:
``(1) The term--
``(A) `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, department, agency, or instrumentality, or
for or on behalf of any such public international
organization; and
``(B) `public international organization' means an
organization that has been so designated by Executive
order pursuant to section 1 of the International
Organizations Immunities Act (22 U.S.C. 288).''; and
(2) in paragraph (3)(A)(v), by inserting before the period
``to those referred to in clauses (i) through (iv)''.
(c) Alternative Jurisdiction Over Acts Outside of the United
States.--Section 30A of the Securities Exchange Act of 1934 (15 U.S.C.
78dd-1) is amended--
(1) by redesignating subsection (f) as subsection (g);
(2) by inserting after subsection (e) the following:
``(f) Alternative Jurisdiction.--
``(1) In general.--It shall be unlawful for an issuer, or
for any United States person that is an officer, director,
employee, or agent of such issuer or any stockholder thereof,
acting on behalf of that issuer, to corruptly do any act
outside of 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 any thing of value to any of the persons or entities
referred to in paragraphs (1), (2), and (3) of subsection (a),
for the purposes set forth therein, whether or not that issuer
(or that officer, director, employee, agent, or stockholder)
makes use of the mails or any means or instrumentality of
interstate commerce in furtherance of the offer, gift, payment,
promise, or authorization.
``(2) Applicability.--This subsection applies only to an
issuer that--
``(A) is 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
``(B) has a class of securities registered pursuant
to section 12 or that is required to file reports under
section 15(d).
``(3) United states person.--In this subsection, the term
`United States person' means--
``(A) a national of the United States (as defined
in section 101 of the Immigration and Nationality Act
(8 U.S.C. 1101)); and
``(B) 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.'';
(3) in subsection (b), by striking ``Subsection (a)'' and
inserting ``Subsections (a) and (f)''; and
(4) in subsection (c), by striking ``subsection (a)'' and
inserting ``subsections (a) and (f)''.
(d) Penalties.--Section 32(c) of the Securities Exchange Act of
1934 (15 U.S.C. 78ff(c)) is amended--
(1) by striking ``section 30A(a) of this title'' each place
that term appears and inserting ``subsection (a) or (f) of
section 30A''; and
(2) in paragraph (2)--
(A) in subparagraph (A), by striking ``or
director'' and inserting ``, director, employee, or
agent'';
(B) by striking subparagraph (B); and
(C) by redesignating subparagraph (C) as
subparagraph (B).
SEC. 3. AMENDMENTS RELATING TO 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) in paragraph (1)--
(A) by striking ``(B)'' and inserting ``(D)''; and
(B) by striking subparagraph (A) and inserting the
following:
``(A) influencing any act or decision of such
foreign official in his official capacity;
``(B) inducing such foreign official to do or omit
to do any act in violation of the lawful duty of such
official;
``(C) securing any improper advantage; or'';
(2) in paragraph (2)--
(A) by striking ``(B)'' and inserting ``(D)''; and
(B) by striking subparagraph (A) and inserting the
following:
``(A) influencing any act or decision of such
party, official, or candidate in its or his official
capacity;
``(B) 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;
``(C) securing any improper advantage; or''; and
(3) in paragraph (3)--
(A) by striking ``(B)'' and inserting ``(D)''; and
(B) by striking subparagraph (A) and inserting the
following:
``(A) influencing any act or decision of such
foreign official, political party, party official, or
candidate in its or his official capacity;
``(B) 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;
``(C) securing any improper advantage; or''.
(b) Officials of International Organizations.--Section 104(h) of
the Foreign Corrupt Practices Act of 1977 (15 U.S.C. 78dd-2(h)) is
amended--
(1) by striking paragraph (2) and inserting the following:
``(2) The term--
``(A) `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, department, agency, or instrumentality, or
for or on behalf of any such public international
organization; and
``(B) `public international organization' means an
organization that has been so designated by Executive
order pursuant to section 1 of the International
Organizations Immunities Act (22 U.S.C. 288).''; and
(2) in paragraph (4)(A)(v), by inserting before the period
``to those referred to in clauses (i) through (iv)''.
(c) Alternative Jurisdiction Over Acts Outside of the United
States.--Section 104 of the Foreign Corrupt Practices Act of 1977 (15
U.S.C. 78dd-2) is amended--
(1) by redesignating subsection (h) as subsection (i);
(2) by inserting after subsection (g) the following:
``(h) Alternative Jurisdiction.--
``(1) In general.--It shall be unlawful for a United States
person to corruptly do any act outside of 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 any thing of
value to any of the persons or entities referred to in
paragraphs (1), (2), and (3) of subsection (a), for the
purposes set forth therein, whether or not that United States
person makes use of the mails or any means or instrumentality
of interstate commerce in furtherance of the offer, gift,
payment, promise, or authorization.
``(2) Definition.--In this subsection, the term `United
States person' means--
``(A) a national of the United States (as defined
in section 101 of the Immigration and Nationality Act
(8 U.S.C. 1101)); and
``(B) 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.'';
(3) in subsection (b), by striking ``Subsection (a)'' and
inserting ``Subsections (a) and (h)'';
(4) in subsection (c), by striking ``subsection (a)'' and
inserting ``subsections (a) and (h)''; and
(5) in subsection (d), by striking ``subsection (a) of this
section'' and inserting ``subsection (a) or (h)''.
(d) Penalties.--Section 104(g) of the Foreign Corrupt Practices Act
of 1977 (15 U.S.C. 78dd-2(g)) is amended--
(1) by striking ``subsection (a)'' each place that term
appears and inserting ``subsection (a) or (h)'';
(2) in paragraph (1), by inserting ``that is not a natural
person'' after ``domestic concern'' each place that term
appears; and
(3) in paragraph (2)--
(A) by striking ``Any officer'' each place that
term appears and inserting ``Any natural person that is
an officer'';
(B) in subparagraph (A), by striking ``or
director'' and inserting ``, director, employee, or
agent'';
(C) by striking subparagraph (B); and
(D) by redesignating subparagraph (C) as
subparagraph (B).
(e) Technical Amendment.--Section 104(i)(4)(A) of the Foreign
Corrupt Practices Act of 1977 (15 U.S.C. 78dd-2(h)(4)(A)), as
redesignated by subsection (c) of this section, is amended by striking
``For purposes of paragraph (1), the'' and inserting ``The''.
SEC. 4. AMENDMENT RELATING TO OTHER PERSONS.
The Foreign Corrupt Practices Act of 1977 (15 U.S.C. 78dd et seq.)
is amended by inserting after section 104 the following new section:
``SEC. 104A. PROHIBITED FOREIGN TRADE PRACTICES BY PERSONS OTHER THAN
ISSUERS OR DOMESTIC CONCERNS.
``(a) Prohibited Conduct.--It shall be unlawful for any covered
person, or for any officer, director, employee, or agent of such
covered person or any stockholder thereof, acting on behalf of such
covered 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) influencing any act or decision of such
foreign official in the official capacity of the
foreign official;
``(B) inducing such foreign official to do or omit
to do any act in violation of the lawful duty of such
official;
``(C) securing any improper advantage; or
``(D) inducing such foreign official to use the
influence of that official 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 covered 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) influencing any act or decision of such
party, official, or candidate in its or his official
capacity;
``(B) 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;
``(C) securing any improper advantage; or
``(D) 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 covered 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) influencing any act or decision of such
foreign official, political party, party official, or
candidate in its or his official capacity;
``(B) 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;
``(C) securing any improper advantage; or
``(D) inducing such foreign official, political
party, 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 covered person in obtaining or
retaining business for or with, or directing business to, any
person.
``(b) Exception for Routine Governmental Action.--Subsection (a)
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) 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 country of the foreign official, political
party, party official, or candidate; 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) In general.--When it appears to the Attorney General
that any covered person, or officer, director, employee, agent,
or stockholder of a covered person, is engaged, or about to
engage, in any act or practice constituting a violation of
subsection (a), the Attorney General may, in the discretion of
the Attorney General, 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) Civil investigations.--For the purpose of any civil
investigation that, in the opinion of the Attorney General, is
necessary and proper to enforce this section, the Attorney
General, or a designee thereof, may administer oaths and
affirmations, subpoena witnesses, take evidence, and require
the production of any books, papers, or other documents that
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) Subpoenas.--In the 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 in which 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 a designee
thereof, 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) Process.--All process in any action referred to in
this subsection may be served in the judicial district in which
such person resides or may be found.
``(5) Rules.--The Attorney General may make such rules
relating to civil investigations as may be necessary or
appropriate to implement this subsection.
``(e) Penalties.--
``(1) Juridical persons.--Any covered person that is a
juridical person that violates subsection (a)--
``(A) shall be fined not more than $2,000,000; and
``(B) shall be subject to a civil penalty of not
more than $10,000, imposed in an action brought by the
Attorney General.
``(2) Natural person.--Any covered person who is a natural
person and who--
``(A) willfully violates subsection (a) shall be
fined not more than $100,000, or imprisoned not more
than 5 years, or both;
``(B) violates subsection (a) shall be subject to a
civil penalty of not more than $10,000, imposed in an
action brought by the Attorney General.
``(3) Payment of fines.--Whenever a fine is imposed under
paragraph (2) upon any officer, director, employee, agent, or
stockholder of a covered person, such fine may not be paid,
directly or indirectly, by that covered person.
``(f) Applicability; Other Laws.--This section does not apply--
``(1) to any issuer of securities to which section 30A of
the Securities Exchange Act of 1934 applies; or
``(2) to any domestic concern to which section 104 of this
Act applies.
``(g) Definitions.--For purposes of this section--
``(1) the term--
``(A) `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; and
``(B) `public international organization' means an
organization that has been designated by Executive
order pursuant to section 1 of the International
Organizations Immunities Act (22 U.S.C. 288);
``(2) the state of mind of a covered person is `knowing'
with respect to conduct, a circumstance, or a result if--
``(A) such covered person is aware that such
covered person is engaging in such conduct, that such
circumstance exists, or that such result is
substantially certain to occur; or
``(B) such covered person has a firm belief that
such circumstance exists or that such result is
substantially certain to occur;
``(3) if knowledge of the existence of a particular
circumstance is required for an offense, such knowledge is
established if a covered person is aware of a high probability
of the existence of such circumstance, unless the covered
person actually believes that such circumstance does not exist;
``(4) the term `covered person' means--
``(A) any natural person, other than a national of
the United States (as defined in section 101(a) of the
Immigration and Nationality Act); and
``(B) any corporation, partnership, association,
joint-stock company, business trust, unincorporated
organization, or sole proprietorship that is organized
under the law of a foreign nation or a political
subdivision thereof; and
``(5) the term `routine governmental action'--
``(A) means only an action that is ordinarily and
commonly performed by a foreign official--
``(i) in obtaining permits, licenses, or
other official documents to qualify a person to
do business in a foreign country;
``(ii) in processing governmental papers,
such as visas and work orders;
``(iii) in providing police protection,
mail pickup and delivery, or scheduling
inspections associated with contract
performance or inspections related to transit
of goods across country;
``(iv) in providing phone service, power
and water supply, loading and unloading cargo,
or protecting perishable products or
commodities from deterioration; or
``(v) in actions of a similar nature to
those referred to in clauses (i) through (iv);
and
``(B) does not include any decision by a foreign
official regarding 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 decisionmaking process to
encourage a decision to award new business to or
continue business with a particular party.''.
Passed the Senate July 31, 1998.
Attest:
Secretary.
105th CONGRESS
2d Session
S. 2375
_______________________________________________________________________
AN ACT
To amend the Securities Exchange Act of 1934 and the Foreign Corrupt
Practices Act of 1977, to strengthen prohibitions on international
bribery and other corrupt practices, and for other purposes.