[Congressional Record Volume 144, Number 150 (Tuesday, October 20, 1998)]
[House]
[Pages H11670-H11672]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
INTERNATIONAL ANTI-BRIBERY ACT OF 1998
Mr. BLILEY. Mr. Speaker, I ask unanimous consent to take from the
Speaker's table the Senate 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
[[Page H11671]]
other corrupt practices, and for other purposes, with Senate amendments
to the House amendments thereto, disagree to the Senate amendments
numbered 2 through 6 and concur in the Senate amendment numbered 1 with
an amendment.
The Clerk read the title of the Senate bill.
The Clerk read the Senate amendments to the House amendments and the
further House amendment as follows:
Senate amendments to House amendments:
Page 21 of the House engrossed amendments, strike out all
after line 9 over to and including line 5 on page 26.
Page 26, line 6, of the House engrossed amendments, strike
out ``SEC. 6'' and insert ``SEC. 5''.
Page 28 of the House engrossed amendments, strike out all
after line 3, down to and including line 9.
Page 28, line 10, of the House engrossed amendments, strike
out ``(8) and insert ``(7)''.
Page 28, line 14 of the House engrossed amendments, strike
out ``(9)'' and insert ``(8)''.
Page 28, line 19 of the House engrossed amendments, strike
out ``(10)'' and insert ``(9)''.
House amendment to Senate amendments:
In lieu of the matter proposed to be stricken by such
amendment strike line 8 on page 23 of the House engrossed
amendments and all that follows through line 2 on page 25 and
insert the following:
(c) Extension of Legal Process.--
(1) In general.--Except as required by international
agreements to which the United States is a party, an
international organization providing commercial
communications services, its officials and employees, 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.
(2) No effect on personal liability.--Paragraph (1) shall
not affect any immunity from personal liability of any
individual who is an official or employee of an international
organization providing commercial communications services.
(3) Effective date.--This subsection shall take effect on
May 1, 1999.
(d) Elimination or Limitation of Exceptions.--
(1) Action required.--The President shall, in a manner that
is consistent with requirements in international agreements
to which the United States is a party, expeditiously take all
appropriate actions necessary to eliminate or to reduce
substantially all privileges and immunities that are accorded
to an international organization described in subparagraph
(A) or (B) of subsection (a)(1), its officials, its
employees, or its records, and that are not eliminated
pursuant to subsection (c).
(2) Designation of agreements.--The President shall
designate which agreements constitute international
agreements to which the United States is a party for purposes
of this section.
Mr. BLILEY (during the reading). Mr. Speaker, I ask unanimous consent
that the amendments be considered as read and printed in the Record.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Virginia?
There was no objection.
The SPEAKER pro tempore. Is there objection to the original request
of the gentleman from Virginia?
Mr. DINGELL. Mr. Speaker, reserving the right to object, I do not
think I would object, but under my reservation, Mr. Speaker, I yield to
the gentleman from Virginia (Mr. Bliley).
Mr. BLILEY. Mr. Speaker, with this unanimous-consent request the
House is amending Senate amendments to the House passed version of S.
2375, the International Anti-Bribery Act of 1998. Under this unanimous-
consent request we are disagreeing to five of the Senate amendments and
agreeing to one Senate amendment with an amendment. This action
reflects the compromise reached with the Senate and the administration
regarding the elimination of privileges and immunities afforded in a
governmental organization. The legislation before the House today
contains several changes from the text of H.R. 4353 as passed by the
House. The changes delete redundant language in the legislation with
respect to the requirements contained in international agreements
addressed by the legislation, clarify aspects of the President's role
in implementing the legislation, does not include the Federal
Communications Commission where it already has appropriate statutory
authority and provides a transition period for the effective date of a
provision eliminating certain immunities. While there will be no report
filed with this amendment, the committee report of H.R. 4353 contains
explanatory material which we intend to be considered as legislative
history, and we supplement this with additional information in the
Record, including explanation of the changes made.
Mr. Speaker, I want to thank the gentleman from Massachusetts (Mr.
Markey) without whose help we would not be here tonight.
Mr. Speaker, I thank the gentleman from Michigan (Mr. Dingell) for
having yielded to me for an explanation.
This legislation contains amendments to S. 2375 as amended by H.R.
4353, the International Anti-Bribery and Fair Competition Act of 1998.
The House bill passed by voice vote on October 9, 1998. The Senate sent
it back with some changes taking out provisions we believe are
important. Working with the other body and the Administration we have
reached an agreement which retains the House language with a few
adjustments.
I urge members to support this legislation, which will help achieve a
more equitable and transparent business environment by reducing both
foreign bribery and unfair privileges and immunities. While no one
should be above the law, unfortunately, in the international business
environment, some are.
This legislation is designed to help level the playing field for
American companies doing business overseas. One way it does this by
implementing the O-E-C-D Convention on Combating Bribery of Foreign
Public Officials. It does so by changing our domestic anti-bribery law,
the Foreign Corrupt Practices Act of F-C-P-A. The FCPA is one of the
world's strictest anti-bribery laws. Americans business believes this
law puts them at a disadvantage since most of our trading partners do
not have similarly strong laws against bribery of foreign officials.
Some of our competitors have even made bribery tax deductible! I
believe contracts should go to the best competitor, not the biggest
briber.
The Convention has no binding mechanism to make other nations
actually adopt their own anti-bribery laws in accordance with its
requirements. To help address this potential problem we added a
reporting requirement to the legislation.
Chairman Oxley and I also added a section which helps level the
playing field with respect to the intergovernmental satellite
organizations, INTELSAT and Inmarsat. No one should be above the law,
and this bill seeks to eliminate the unfair privileges and immunities
of these organizations. Further, this legislation ensures the bribery
of officials in these organizations will not escape from the coverage
of the FCPA until they are pro-competitively privatized. The
beneficiaries will not only be competing private American satellite
companies and their workers, but also consumers who will see the lower
prices that increased competition brings.
While there will be no report filed with this amendment, the
Committee report for H.R. 4353 explains the sections that were not
changed and the managers intend that it be considered as legislative
history with respect to the House's views as to the background and
purpose of this legislation and for those sections discussed in the
report and not changed in this amendment. See House Rpt. 105-802
(October 8, 1998), for H.R. 4353 as passed by the House on October 9,
1998. The Committee held a legislative hearing September 10, 1998, on
this bill which should also be considered as part of the legislative
history for this legislation.
The legislation before the House today contains several changes from
the text of H.R. 4353 as passed by the House. The managers also intend
that the Committee report be considered legislative history with
respect to the subsections which were modified, subsections 5(c) and
5(d), to the extent it is relevant, and we include here additional
explanation such changes in order to provide a more complete
legislative history for the legislation we are considering today.
First, subparagraph 5(c)(1) was modified to delete redundant terms.
Thus the phrase ``specifically and expressly required by mandatory
obligations in international agreements'' was replaced with the phrase
``required by international agreements.'' We expect the requirements of
such agreements to be narrowly construed and thus the additional
language is not necessary. A new subparagraph 5(c)(3) was added to
provide a transition period for the organizations described in
subparagraph 5(a)(1) and their Signatories prior to the elimination of
privileges and immunities under section 5(c). This is a transition in
terms of effective date but should not be construed as providing any
immunity for conduct occurring prior to the transition date.
Section 5(d) was also modified. First, subparagraph 5(c)(1) was
modified to delete redundant terms. Thus the phrase ``specifically
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and expressly required by mandatory obligations in international
agreements'' was replaced with the phrase ``required by international
agreements.'' We expect the requirements of such agreements to be
narrowly construed and thus the additional language is not necessary.
We intend that immunities in connection with such organizations
activities in connection their capacity as providers, directly or
indirectly, of commercial communication services, will be eliminated.
Thus, for example they would not be immune for bribery of foreign
officials to further their business activities, violations of antitrust
laws or any other laws, subject to the qualifications in this
subsection. Second, subparagraphs 5(d)(1) and 5(d)(2) of H.R. 4353 were
combined into one subparagraph. All of the actions required of the
Administration under 5(d)(1) (dealing with immunities for suit or legal
process in connection with such organizations' capacity as a provider,
directly or indirectly, of commercial telecommunications services) in
H.R. 4353 were also covered also by 5(d)(2) in H.R. 4353 (which sought
elimination or substantial reduction of all immunities not eliminated
pursuant to subparagraph 5(d)(1)). These subsections were combined into
a single 5(d)(1) which applies to all privileges and immunities. The
managers intend that the President will vigorously and expeditiously
pursue the elimination or substantial reduction of such privileges and
immunities. The reference to the Federal Communications Commission was
eliminated from this subsection because the Commission already has the
authority under the Communications Act of 1934, as amended, and the
Communications Satellite Act of 1962, as amended, to condition entry
into the U.S. market on waiver of privileges or immunities. Such
waivers should be required where the Commission determines that such
immunities result in inappropriate or undesirable advantages in the
U.S. market, or where doing so would otherwise facilitate the
attainment of the policies and objectives in this legislation, the
Communications Satellite Act of 1962 or the Telecommunications Act of
1934 or would otherwise serve the public interest. This includes but is
not limited to conditioning entry by COMSAT and other Signatories into
the U.S. domestic market on waiver of immunities. Conditioning such
entry is consistent with existing Commission policy which has been
implemented a number of times in the past as described in the
background section of the report on H.R. 4353. The Commission also has
the authority under the Communications Act of 1934 and the
Communications Satellite Act of 1962 to condition entry to the U.S.
market with respect to services of the organizations described in
subparagraph 5(a)(1) (or their successors) in order to obtain the
policy set by subparagraph 5(a)(2). Subparagraph 5(d)(2) permits the
President to designate which agreements constitute international
agreements for the purposes of this section. This is included for the
purpose of allowing the President flexibility as the whether the
INTELSAT Headquarters Agreement is an international agreement for the
purposes of this section. Subparagraph 5(d)(2) was included because
some raised a concern whether this agreement was an ``international''
agreement since it was an agreement between one nation and an
international organization. We do not address this particular question
but rather leave it to the President to determine and intend that his
authority to make the determination as to whether the Headquarters
Agreement constitutes an international agreement for the purposes of
this section be ongoing. This subparagraph is not intended to cover any
additional agreements which may be adopted subsequent to the enactment
of this legislation.
This legislation we are considering today is particularly important
because privileges and immunities are a competitive advantage of the
intergovernmental satellite organizations which harms competition in
the United States communications market.
Another important aspect of the legislation is that it also says that
the Foreign Corrupt Practices Act (FCPA) will continue to apply to
intergovernmental satellite organizations until they achieve a pro-
competitive privatization. The legislation sets such pro-competitive
privatization as U.S. government policy and says that in order for a
privatization to be pro-competitive it must be consistent with ``the
United States policy of obtaining full and open competition to such
organizations (or their successors), and non-discriminatory market
access, in the provision of satellite service.'' See section 5(a)(2).
Bribery of such organizations is subject to the FCPA until the
President makes a certification pursuant to section 5(b)(1), that a
pro-competitive privatization has been achieved. For the purposes of
seciton 5(b)(1) the President is to make a determination under
subparagraph 5(a)(2) as to whether such privatization is consistent
with the policy described in that subparagraph.
Overall, this legislation is designed to reduce to the minimum
possible level the privileges and immunities of the intergovernmental
satellite organizations. To the extent such immunities can be
eliminated without abrogating international agreements the legislation
does so subject to the May 1, 1999 effective date. To the extent such
immunities are not thus eliminated, the managers intend the United
States to seek their elimination as quickly as possible using all
appropriate measures necessary to do so.
I would like to thank Chairman Oxley for cosponsoring this
legislation, and for helping to move it through the Committee process
by a voice vote. He has been a leader on international issues and this
is one more example of his talents. I am also pleased to have the input
of the Ranking Minority Member, Mr. Dingell. His help made a good bill
even better. I would like to thank as well the Ranking Minority Member
on the subcommittee, Mr. Manton for his co-sponsorship fine service to
our Committee. I also wish to thank Mr. Markey, who was the first
cosponsor joining Chairman Oxley and I in moving this bill forward. He
and I have worked closely on this issue and I greatly appreciate his
advocacy and assistance. Finally, I would also like to thank Senator
Burns for his cooperation in reaching a final deal and Secretary Daley
and his staff and other hardworking Administration officials for
helping us move this important legislation forward.
(Mr. DINGELL asked and was given permission to revise and extend his
remarks.)
Mr. DINGELL. Further reserving the right to object, Mr. Speaker, I
support the position of the gentleman from Virginia (Mr. Bliley).
Mr. Speaker, I want to make one thing clear: I firmly believe that it
is in the vital interests of American workers and American business
that this Congress pass legislation this year implementing the OECD
anti-bribery convention.
I understand the proposal before us includes an extraneous matter
involving satellites which represents a compromise with the
Administration, Comsat, and at least one Senator. My concern is that
this is all happening in the very last minutes of this Congress, and
may jeopardize passage of this legislation. I have not heard any
definitive commitment from the Leadership of the other body that it
intends to consider this matter.
Let me explain the legislative situation we face. There has never
been any controversy over the provisions in this bill implementing the
OECD anti-bribery convention. The only issue in controversy has been
the extraneous satellite provisions.
The Senate has now passed legislation ratifying and implementing the
anti-bribery convention on two different occasions, and, both times
they have passed it without the satellite provisions that my good
friend Chairman Bliley has put in the House bill. The most certain way
to ensure enactment of the anti-bribery legislation would be for my
Republican Colleagues to concur with the Senate amendment and send that
bill to the President.
Mr. Speaker, I certainly hope that action on this matter can be
completed, because if it's not, American workers and American firms
that must compete in international markets where bribery is prevalent,
will pay the price.
Mr. Speaker, I withdraw my reservation of objection.
The SPEAKER pro tempore. Is there objection to the initial request of
the gentleman from Virginia?
There was no objection.
A motion to reconsider was laid on the table.
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