[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

[[Page H11672]]

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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