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United States: Securities and Exchange Commission Statement of Policy With Regard to the Foreign Corrupt Practices Act Review Procedure Established by the Department of Justice*
Published online by Cambridge University Press: 04 April 2017
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- Copyright © American Society of International Law 1980
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*
[Reproduced from the U.S. Federal Register, Vol. 45, No. 174 , (September 5, 1980), pp 59001-06. [The Department of Justice Regulations Establishing the Foreign Corrupt Practices Act Review Procedure appear at 19 I.L ”The Foreign Corrupt Practices Act of 1977 appears at 17(1978).]
References
1 Securities Exchange Act Release No. 16593 (Feb.21.1980); 45 FR12674 (Feb. 26,1980); 19 SEC Docket691 (Mar. 4,1980
2 Pub. L 95-213,91 Stat. 1494 (Dec. 19,1977).
3 See, e.g., S. Rep. No. 95-114, 95th Cong., 1st Sess.(1977); H.R. Rep. No. 95-640,95th Cong., 1st Sess.(1977); H.R. Rep. No. 95-831,95th Cong.. 1st Sess.(1977); S. Rep. No. 94-1031,94th Cong., 2d Sess.(1976); Hearings on Political Contributions to Foreign Governments Before the Subcommittee on Multinational Corporations of the Senate Committee on Foreign Relations, 94th Cong., 1stSess., Part. 12 (1975); Hearings on the Activities ofAmerican Multinational Corporations Abroad Before the Subcommittee on International Relations, 94th Cong., 1st Sess. (1975); Prohibiting Bribes to Foreign Officials, Hearing Before theCommittee on Banking, Housing and Urban Affairs,U.S. Senate, 94th Cong. 2d Sess. (1976); Foreign Payments Disclosure, Hearings Before the Subcommittee on Consumer Protection and Finance of the Committee on Interstate and Foreign Commerce, House of Representatives, 94th Cong.,2d Sess. (1978); Foreign Corrupt Practices and Domestic and Foreign Investment Disclosure, Hearing Before the Committee on Banking, Housing and Urban Affairs, U.S. Senate, 95th Cong., 1st Sess.(Mar. 16,1977); Unlawful Corporate Payments Act of 1977, Hearings Before the Committee on Consumer Protection and Finance of the Committee on Interstate and Foreign Commerce, House ofRepresentatives, 95th Cong., 1st Sess. (1977).
4 S. Rep. No. 95-114, supra note 3, at 4. Accord, 13 Weekly Compilation of Presidential Documents 1909(Dec. 21,1977).
5 See S. Rep. No. 95-114, supra note, at 4-5; HJl. Rep. No. 95-640, supra note 3, at 4-5.
6 See S. Rep. No. 95-114, supra note, at 4-5; H.R. Rep. No. 95-640, supra note 3, at 5.
7 H.R. Rep. No. 95-640, supra note, 3, at 5
8 See S. Rep. No. 85-114, supra note 3, at 3.
9 Id at4.
10 H.R. Rep. No. 95-640, supra note 3 , at 4-5.
11 Id.
12 See generally Report of the Securities andExchange Commission on.Questionable and Illegal Corporate Payments and Practices (hereinafter the“Commission's Report“) submitted to the Committeeon Banking, Housing and Urban Affairs, UnitedStates Senate (May 12,1976), reprinted in 642 CCHFed. Sec. L. Rep. PL U (May 19.1976).
13 H.R. Rep. No. 95-831, supra note 3, at 10.
14 Id. As the Commission's Report noted, supra note 12, at 23-24, one of the most troublesome andpervasive circumstances associated with the cases that had come to the Commission's attention was“the accumulation of funds outside the normal channels of financial accountability, placed at thediscretion of one or a very small number ofcorporate executives not required to account forexpenditures from the fund.
15 Section 13(b)(2)(A) of the Securities ExchangeAct 15 U.S.C. 78m(b)(2)(A).
16 Section 13(b)(2)(B) of the Securities ExchangeAct, 15 U.S.C. 78m(b)(2)(B). See Securities ExchangeAct Release No. 16877, (June 9,1980): 45 FR 40134(June 13.1980); 20 SEC Docket 310 (June 24,1980).
17 See S. Rep. No. 95-114. supra note 3; H.R. Rep.No. 95-640, supra note 3: and H.R. Rep, No. 95-640,supra note 3.
18 The term “foreign official” is defined as “any officer or employee of a foreign government or anydepartment agency or instrumentality thereof, or any person acting in an official capacity for or onbehalf of such government or department agency or instrumentality.” The term does not however,include employees “whose duties are essentially ministerial or clerical.” Section 30A(b), 15 U.S.C.
18 dd-l(b).
19 Section 32(c) of the Securities Exchange Act of1934,15 U.S.C. 78ff(c).
20 15U5.C.78dd-l.
21 Securities and Exchange Commission v. Katy Industries. Civil Action No. C78-3476 (N.D. 111., filedAug. 30,1978).
22 See United States v. Roy J. Carver, etano.. Civil Action No. 79-1788 (S.D. Fla., filed April 9,1979); United States v. Finbar B. Kenney and Kenny International Corp.. Civil Action No. 79-2038 (D.D.C., filed Aug. 2,1979).
23 See United States v. Kenny International Corp., Criminal Action No. 79-00372 (D.D.C., filed Aug. 2,1979).
24 In addition, the Department has instituted aForeign Corrupt Practices Act Review Procedure,which is discussed below.
25 See note 1, supra.
26 A number of these reports are cited in theCommission's release requesting comments.
27 SEC News Digest (Feb. 21,1980).
28 See note 1, supra.
29 See note 1, supra.
30 I n this regard, the Commission stated that thosewishing to make application for confidentialtreatment of any part of their submission shouldstate that fact prominently on the first page or coversheet of their comments. See Section 23(a)(3) of theSecurities Exchange Act of 1934, IS U.S.C 78w(a)(3);Rule 24b-2,17 CFR 240.24b-2.
31 Of these fourteen letters, one transmitted aduplicate copy of a trade association's commentsand another took issue with a decision of a differentindependent regulatory agency, which wasunrelated to Section 30A.
32 See 45 FR 20800 (Mar. 31,1980).
33 See Heymamu “The Justice Department's Proposed Program to Provide Advice to Businessesin Connection with Foreign Payments,” and Address Delivered at the Pierre Hotel New York, New York(Nov. 8,1979).
34 In this context, one comment incorrectly assertsthat “the joint administration of Section 30A * * *has resulted in uncoordinated interpretation andenforcement of the Act.” In fact, however, none ofthe cases filed in the past three years reflect anydifference in interpretation between theCommission and the Department of Justice.