9-47.000
FOREIGN CORRUPT
PRACTICES
ACT OF 1977 (AS AMENDED)
9-47.100 Introduction
9-47.110 Policy Concerning
Criminal
Investigations and Prosecutions of the Foreign Corrupt Practices
Act
9-47.130 Civil Injunctive Actions
This chapter contains the Department's policy regarding investigations
and prosecutions of violations of the Foreign Corrupt Practices Act (FCPA).
The FCPA prohibits both United States and foreign corporations and nationals
from offering or paying, or authorizing the offer or payment, of anything of
value to a foreign government official, foreign political party, party
official, or candidate for foreign public office, or to an official of a
public international organization in order to obtain or retain
business. In addition, the FCPA requires publicly-held United States
companies to make and keep books and records which, in reasonable detail,
accurately reflect the disposition of company assets and to devise and
maintain a system of internal accounting controls sufficient to reasonably
assure that transactions are authorized, recorded accurately, and
periodically reviewed.
The Criminal Resource Manual contains a discussion of the law
in this
area
No investigation or prosecution of cases involving alleged violations
of the antibribery provisions of the Foreign Corrupt Practices Act (FCPA) of
1977 (15 U.S.C. §§ 78dd-1, 78dd-2, and 78dd-3) or of related
violations of the FCPA's record keeping provisions (15 U.S.C. § 78m(b))
shall be instituted without the express authorization of the Criminal
Division.
Any information relating to a possible violation of the FCPA should be
brought immediately to the attention of the Fraud Section of the Criminal
Division. Even when such information is developed during the course of an
apparently unrelated investigation, the Fraud Section should be notified
immediately. Close coordination of such investigations and prosecutions
with the Department of State, the United States Securities and Exchange
Commission (SEC) and other interested agencies is essential. Moreover,
pursuant to the 1988 amendment to the FCPA, the Department has established a
FCPA Opinion Procedure. See the Criminal
Resource Manual at 1016. As part of this procedure, which is
administered by the Fraud Section, the Assistant Attorney General (AAG) for
the Criminal Division reviews proposed business conduct that may constitute
a violation of the Act and makes a binding decision on whether the
Department will take an enforcement action should the transaction proceed
further.
Unless otherwise agreed upon by the AAG, Criminal Division,
investigations and prosecutions of alleged violations of the antibribery
provisions of the FCPA will be conducted by Trial Attorneys of the Fraud
Section. Prosecutions of alleged violations of the record keeping provisions,
when such violations are related to an antibribery violation, will also be
conducted by Fraud Section Trial Attorneys, unless otherwise directed by the
AAG, Criminal Division.
The investigation and prosecution of particular allegations of
violations
of the FCPA will raise complex enforcement problems abroad as well
as difficult
issues of jurisdiction and statutory construction. For example,
part of the
investigation may involve interviewing witnesses in foreign
countries concerning
their activities with high-level foreign government officials. In
addition,
relevant accounts maintained in United States banks and subject to
subpoena may
be directly or beneficially owned by senior foreign government
officials. For
these reasons, the need for centralized supervision of
investigations and
prosecutions under the FCPA is compelling.
The SEC has authority to obtain civil injunctions against future
violations of the record keeping and antibribery provisions of the FCPA by
issuers. See 15 U.S.C. § 78u. Civil injunctions against
violations of the antibribery provisions by domestic concerns and foreign
nationals and companies shall be instituted by Trial Attorneys of the
Fraud Section in cooperation with the appropriate United States Attorney,
unless otherwise directed by the AAG, Criminal Division. See
§§ 78dd-2(d), 78dd-3(d).
| November 2000
| USAM Chapter 9-47
|