[Congressional Record Volume 144, Number 106 (Friday, July 31, 1998)]
[Senate]
[Pages S9647-S9649]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 INTERNATIONAL ANTI-BRIBERY ACT OF 1998

  Mr. GORTON. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of Calendar No. 510, S. 2375.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will report.
  The legislative clerk read as follows:

       A bill (S. 2375) 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.

  The Senate proceeded to consider the bill.
  Mr. GORTON. Mr. President, I ask unanimous consent that the bill be 
considered read a third time and passed; that the motion to reconsider 
be laid upon the table; and that any statement relating to the bill 
appear at the appropriate place in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The bill (S. 2375) was considered read the third time and passed, as 
follows:

                                S. 2375

       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

[[Page S9648]]

     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--

[[Page S9649]]

       ``(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.''.

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