§ 78dd-3. — Prohibited foreign trade practices by persons other than issuers or domestic concerns.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 15USC78dd-3]
TITLE 15--COMMERCE AND TRADE
CHAPTER 2B--SECURITIES EXCHANGES
Sec. 78dd-3. 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 that is
subject to section 78dd-1 of this title or a domestic concern (as
defined in section 78dd-2 of this title), 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 person, such fine may not
be paid, directly or indirectly, by such 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 1101 of title 8 \1\ 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.
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\1\ So in original. A closing parenthesis probably should appear.
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(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 288 of title 22; or
(ii) any other international organization that is designated
by the President by Executive order for the purposes of this
section, effective as of the date of publication of such order
in the Federal Register.
(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.
(5) The term ``interstate commerce'' means trade, commerce,
transportation, or communication among the several States, or
between any foreign country and any State or between any State and
any place or ship outside thereof, and such term includes the
intrastate use of--
(A) a telephone or other interstate means of communication,
or
(B) any other interstate instrumentality.
(Pub. L. 95-213, title I, Sec. 104A, as added Pub. L. 105-366, Sec. 4,
Nov. 10, 1998, 112 Stat. 3306.)
Codification
Section was enacted as part of Pub. L. 95-213, the Foreign Corrupt
Practices Act of 1977, and not as part of act June 6, 1934, ch. 404, 48
Stat. 881, the Securities Exchange Act of 1934, which comprises this
chapter.
