Page 34 - U.S. FOREIGN CORRUPT PRACTICES ACT

A Resource Guide to the U.S. Foreign Corrupt Practices Act. Second Edition.

materials not in compliance with local regulations
Examples of and to avoid a full inspection of the imported
“Routine Governmental Action” goods. 168 In another case, three subsidiaries of a
global supplier of oil drilling products and services
An action that is ordinarily and commonly
performed by a foreign official in: were criminally charged with authorizing an agent
to make at least 378 corrupt payments (totaling
• obtaining permits, licenses, or other official
documents to qualify a person approximately $2.1 million) to Nigerian Customs
to do business in a foreign country;
Service officials for preferential treatment during
• processing governmental papers, such as visas the customs process, including the reduction or
and work orders;
elimination of customs duties. 169
• providing police protection, mail pickup and
delivery, or scheduling inspections associated Labeling a bribe as a “facilitating payment” in
with contract performance or inspections
related to transit of goods across country; a company’s books and records does not make it
• providing phone service, power and water one. A Swiss offshore drilling company, for example,
supply, loading and unloading cargo, or recorded payments to its customs agent in the
protecting perishable products or commodities
from deterioration; or subsidiary’s “facilitating payment” account, even
• actions of a similar nature. though company personnel believed the payments
were, in fact, bribes. The company was charged
with violating both the FCPA’s anti-bribery and
Whether a payment falls within the exception accounting provisions. 170
is not dependent on the size of the payment, Although true facilitating payments are
though size can be telling, as a large payment is not illegal under the FCPA, they may still violate
more suggestive of corrupt intent to influence a local law in the countries where the company

non-routine governmental action. But, like the is operating, and the OECD’s Working Group on
FCPA’s anti-bribery provisions more generally, the Bribery recommends that all countries encourage
facilitating payments exception focuses on the companies to prohibit or discourage facilitating
purpose of the payment rather than its value. For payments, which the United States has done

instance, an Oklahoma-based corporation violated regularly. 171 In addition, other countries’ foreign
the FCPA when its subsidiary paid Argentine bribery laws, such as the United Kingdom’s, may not
customs officials approximately $166,000 to contain an exception for facilitating payments. 172
secure customs clearance for equipment and Individuals and companies should therefore be
materials that lacked required certifications or aware that although true facilitating payments are
could not be imported under local law and to pay permissible under the FCPA, they may still subject

a lower-than-applicable duty rate. The company’s a company or individual to sanctions. As with any
Venezuelan subsidiary had also paid Venezuelan expenditure, facilitating payments may violate
customs officials approximately $7,000 to permit the FCPA if they are not properly recorded in an
the importation and exportation of equipment and issuer’s books and records. 173

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