
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 15USC78dd-2]

 
                      TITLE 15--COMMERCE AND TRADE
 
                    CHAPTER 2B--SECURITIES EXCHANGES
 
Sec. 78dd-2. Prohibited foreign trade practices by domestic 
        concerns
        

(a) Prohibition

    It shall be unlawful for any domestic concern, other than an issuer 
which is subject to section 78dd-1 of this title, or for any officer, 
director, employee, or agent of such domestic concern or any stockholder 
thereof acting on behalf of such domestic concern, to make use of the 
mails or any means or instrumentality of interstate commerce corruptly 
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 domestic concern 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 domestic concern 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 domestic concern in obtaining or retaining 
    business for or with, or directing business to, any person.

(b) Exception for routine governmental action

    Subsections (a) and (i) 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) 
or (i) 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 domestic 
concern 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) or (i) 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. 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) Guidelines by Attorney General

    Not later than 6 months after August 23, 1988, the Attorney General, 
after consultation with the Securities and Exchange Commission, the 
Secretary of Commerce, the United States Trade Representative, the 
Secretary of State, and the Secretary of the Treasury, and after 
obtaining the views of all interested persons through public notice and 
comment procedures, shall determine to what extent compliance with this 
section would be enhanced and the business community would be assisted 
by further clarification of the preceding provisions of this section and 
may, based on such determination and to the extent necessary and 
appropriate, issue--
        (1) guidelines describing specific types of conduct, associated 
    with common types of export sales arrangements and business 
    contracts, which for purposes of the Department of Justice's present 
    enforcement policy, the Attorney General determines would be in 
    conformance with the preceding provisions of this section; and
        (2) general precautionary procedures which domestic concerns may 
    use on a voluntary basis to conform their conduct to the Department 
    of Justice's present enforcement policy regarding the preceding 
    provisions of this section.

The Attorney General shall issue the guidelines and procedures referred 
to in the preceding sentence in accordance with the provisions of 
subchapter II of chapter 5 of title 5 and those guidelines and 
procedures shall be subject to the provisions of chapter 7 of that 
title.

(f) Opinions of Attorney General

    (1) The Attorney General, after consultation with appropriate 
departments and agencies of the United States and after obtaining the 
views of all interested persons through public notice and comment 
procedures, shall establish a procedure to provide responses to specific 
inquiries by domestic concerns concerning conformance of their conduct 
with the Department of Justice's present enforcement policy regarding 
the preceding provisions of this section. The Attorney General shall, 
within 30 days after receiving such a request, issue an opinion in 
response to that request. The opinion shall state whether or not certain 
specified prospective conduct would, for purposes of the Department of 
Justice's present enforcement policy, violate the preceding provisions 
of this section. Additional requests for opinions may be filed with the 
Attorney General regarding other specified prospective conduct that is 
beyond the scope of conduct specified in previous requests. In any 
action brought under the applicable provisions of this section, there 
shall be a rebuttable presumption that conduct, which is specified in a 
request by a domestic concern and for which the Attorney General has 
issued an opinion that such conduct is in conformity with the Department 
of Justice's present enforcement policy, is in compliance with the 
preceding provisions of this section. Such a presumption may be rebutted 
by a preponderance of the evidence. In considering the presumption for 
purposes of this paragraph, a court shall weigh all relevant factors, 
including but not limited to whether the information submitted to the 
Attorney General was accurate and complete and whether it was within the 
scope of the conduct specified in any request received by the Attorney 
General. The Attorney General shall establish the procedure required by 
this paragraph in accordance with the provisions of subchapter II of 
chapter 5 of title 5 and that procedure shall be subject to the 
provisions of chapter 7 of that title.
    (2) Any document or other material which is provided to, received 
by, or prepared in the Department of Justice or any other department or 
agency of the United States in connection with a request by a domestic 
concern under the procedure established under paragraph (1), shall be 
exempt from disclosure under section 552 of title 5 and shall not, 
except with the consent of the domestic concern, be made publicly 
available, regardless of whether the Attorney General responds to such a 
request or the domestic concern withdraws such request before receiving 
a response.
    (3) Any domestic concern who has made a request to the Attorney 
General under paragraph (1) may withdraw such request prior to the time 
the Attorney General issues an opinion in response to such request. Any 
request so withdrawn shall have no force or effect.
    (4) The Attorney General shall, to the maximum extent practicable, 
provide timely guidance concerning the Department of Justice's present 
enforcement policy with respect to the preceding provisions of this 
section to potential exporters and small businesses that are unable to 
obtain specialized counsel on issues pertaining to such provisions. Such 
guidance shall be limited to responses to requests under paragraph (1) 
concerning conformity of specified prospective conduct with the 
Department of Justice's present enforcement policy regarding the 
preceding provisions of this section and general explanations of 
compliance responsibilities and of potential liabilities under the 
preceding provisions of this section.

(g) Penalties

    (1)(A) Any domestic concern that is not a natural person and that 
violates subsection (a) or (i) of this section shall be fined not more 
than $2,000,000.
    (B) Any domestic concern that is not a natural person and that 
violates subsection (a) or (i) 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 that is an officer, director, employee, or 
agent of a domestic concern, or stockholder acting on behalf of such 
domestic concern, who willfully violates subsection (a) or (i) of this 
section shall be fined not more than $100,000 or imprisoned not more 
than 5 years, or both.
    (B) Any natural person that is an officer, director, employee, or 
agent of a domestic concern, or stockholder acting on behalf of such 
domestic concern, who violates subsection (a) or (i) 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 domestic concern, such 
fine may not be paid, directly or indirectly, by such domestic concern.

(h) Definitions

    For purposes of this section:
        (1) The term ``domestic concern'' means--
            (A) any individual who is a citizen, national, or resident 
        of the United States; and
            (B) any corporation, partnership, association, joint-stock 
        company, business trust, unincorporated organization, or sole 
        proprietorship which has its principal place of business in the 
        United States, or which is organized under the laws of a State 
        of the United States or a territory, possession, or commonwealth 
        of the United States.

        (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.

(i) Alternative jurisdiction

    (1) It shall also be unlawful for any United States person to 
corruptly do any act outside 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 anything of value to any of the persons or entities set forth in 
paragraphs (1), (2), and (3) of subsection (a) of this section, for the 
purposes set forth therein, irrespective of whether such United States 
person makes use of the mails or any means or instrumentality of 
interstate commerce in furtherance of such offer, gift, payment, 
promise, or authorization.
    (2) As used in this subsection, the term ``United States person'' 
means a national of the United States (as defined in section 1101 of 
title 8) or 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.

(Pub. L. 95-213, title I, Sec. 104, Dec. 19, 1977, 91 Stat. 1496; Pub. 
L. 100-418, title V, Sec. 5003(c), Aug. 23, 1988, 102 Stat. 1419; Pub. 
L. 103-322, title XXXIII, Sec. 330005, Sept. 13, 1994, 108 Stat. 2142; 
Pub. L. 105-366, Sec. 3, Nov. 10, 1998, 112 Stat. 3304.)

                          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.


                               Amendments

    1998--Subsec. (a)(1)(A). Pub. L. 105-366, Sec. 3(a)(1), amended 
subpar. (A) generally. Prior to amendment, subpar. (A) read as follows:
    ``(A)(i) influencing any act or decision of such foreign official in 
his official capacity, or (ii) inducing such foreign official to do or 
omit to do any act in violation of the lawful duty of such official, 
or''.
    Subsec. (a)(2)(A). Pub. L. 105-366, Sec. 3(a)(2), amended subpar. 
(A) generally. Prior to amendment, subpar. (A) read as follows:
    ``(A)(i) influencing any act or decision of such party, official, or 
candidate in its or his official capacity, or (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,''.
    Subsec. (a)(3)(A). Pub. L. 105-366, Sec. 3(a)(3), amended subpar. 
(A) generally. Prior to amendment, subpar. (A) read as follows:
    ``(A)(i) influencing any act or decision of such foreign official, 
political party, party official, or candidate in his or its official 
capacity, or (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''.
    Subsec. (b). Pub. L. 105-366, Sec. 3(d)(2), substituted 
``Subsections (a) and (i)'' for ``Subsection (a)''.
    Subsec. (c). Pub. L. 105-366, Sec. 3(d)(3), substituted ``subsection 
(a) or (i)'' for ``subsection (a)'' in introductory provisions.
    Subsec. (d)(1). Pub. L. 105-366, Sec. 3(d)(4), substituted 
``subsection (a) or (i)'' for ``subsection (a)''.
    Subsec. (g)(1). Pub. L. 105-366, Sec. 3(b)(1), amended par. (1) 
generally. Prior to amendment, par. (1) read as follows:
    ``(1)(A) Any domestic concern that violates subsection (a) of this 
section shall be fined not more than $2,000,000.
    ``(B) Any domestic concern 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.''
    Subsec. (g)(2). Pub. L. 105-366, Sec. 3(b)(2), amended par. (2) 
generally. Prior to amendment, par. (2) read as follows:
    ``(2)(A) Any officer or director of a domestic concern, or 
stockholder acting on behalf of such domestic concern, 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 employee or agent of a domestic concern who is a United 
States citizen, national, or resident or is otherwise subject to the 
jurisdiction of the United States (other than an officer, director, or 
stockholder acting on behalf of such domestic concern), and 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.
    ``(C) Any officer, director, employee, or agent of a domestic 
concern, or stockholder acting on behalf of such domestic concern, 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.''
    Subsec. (h)(2). Pub. L. 105-366, Sec. 3(c), amended par. (2) 
generally. Prior to amendment, par. (2) read as follows: ``The term 
`foreign official' means any officer or employee of a foreign government 
or any department, agency, or instrumentality thereof, or any person 
acting in an official capacity for or on behalf of any such government 
or department, agency, or instrumentality.''
    Subsec. (h)(4)(A). Pub. L. 105-366, Sec. 3(e), substituted ``The'' 
for ``For purposes of paragraph (1), the'' in introductory provisions.
    Subsec. (i). Pub. L. 105-366, Sec. 3(d)(1), added subsec. (i).
    1994--Subsec. (a)(3). Pub. L. 103-322 substituted ``domestic 
concern'' for ``issuer'' in closing provisions.
    1988--Pub. L. 100-418 substituted ``Prohibited foreign trade'' for 
``Foreign corrupt'' in section catchline and amended text generally, 
revising and restating as subsecs. (a) to (h) provisions of former 
subsecs. (a) to (d).

                  Section Referred to in Other Sections

    This section is referred to in section 78dd-3 of this title; title 7 
section 12a; title 12 section 635; title 18 section 1956; title 22 
sections 2197, 2778, 6301; title 26 sections 162, 952, 964.
