The original version of the FCPA, enacted in 1977, contained an exception for payments made to non-U.S. officials who performed duties that were “essentially ministerial or clerical”. In 1988 Congress responded by amending the FCPA under the Omnibus Trade and Competitiveness Act to clarify the scope of the FCPA’s prohibitions on bribery, including the scope of permitted facilitation payments. An expanded definition of “routine governmental action” was included in the final version of the bill, reflecting the intent of Congress that the exceptions apply only to the performance of duties listed in the subcategories of the statute and actions of a similar nature. Congress also meant to make clear that “ordinarily and commonly performed actions”, with respect to permits or licenses, would not include those governmental approvals involving an exercise of discretion by a government official where the actions are the functional equivalent of “obtaining or retaining business for, or with, or directing business to, any person.”

Section 15 U.S.C. § 78dd-3(f)(4)(A) of the FCPA contains an explicit exception to the bribery prohibition for any “facilitation or expediting payment to a foreign official, political party, or party official for 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.” “Routine government action” does not include any decision by a public official to award new business or continue existing business with a particular party. The statute lists examples of what is considered a “routine governmental action” including:

• obtaining permits, licenses, or other official documents to qualify a person to do business in a country;
• processing government papers, such as visas or work orders;
• providing police protection, mail pick-up and delivery, or scheduling inspections associated with contract performance or transit of goods across country;
• providing phone service, power and water supply, loading and unloading cargo, or protecting perishable products from deterioration; and
• actions of a similar nature.

There is no monetary threshold for determining when a payment crosses the line between a facilitation payment and a bribe. The accounting provisions of the FCPA require that facilitation payments must be accurately reflected in an issuer’s books and records, even if the payment itself is permissible under the anti-bribery provisions of the law.

Facilitation payments carry legal risks even if they are permitted under the anti-bribery laws of a particular country. In the U.S., enforcement agencies have taken a narrow view of the exception and have successfully prosecuted FCPA violations stemming from payments that could arguably be considered permissible facilitation payments. Violations of the accounting and recordkeeping provisions of the FCPA are also more likely when a company makes facilitation payments. Countries are increasingly enforcing domestic bribery laws that prohibit such payments. Companies that allow facilitation payments face a slippery slope to educate their employees on the nuances of permissible payments in order to avoid prosecution for prohibited bribes.

U.S. enforcement authorities construe the exception narrowly. Other than as discussed above, there is no definitive guidance on circumstances in which the facilitation payments exception applies. There may be less risk of enforcement by U.S. authorities in cases involving bona fide facilitation payments that are made specifically for one of the purposes enumerated in the FCPA. Companies still face the risk of at least facing a governmental inquiry to explain the circumstances surrounding the payments, possibly resulting in penalties based on an unanticipated restrictive interpretation of the exception. However, it is often the subject of follow-ons in more comprehensive FCPA enforcement action.

Potential non-compliance with the FCPA’s accounting and recordkeeping provisions. While the anti-bribery provisions of the FCPA permit facilitation payments, the accounting and recordkeeping provisions of the law nevertheless require companies making such payments to accurately record them in their books and records. Companies or individuals may be reluctant to properly record such payments, as it shows some semblance of impropriety and effectively creates a permanent record of a violation of local law. However, failure to properly record such expenditures may result in prosecution by the SEC even if the underlying payments themselves are permissible.

One example of prosecution resulting from the misreporting of seemingly permissible facilitation payments involves Triton Energy Corporation, which in 1997 settled an SEC investigation involving multiple alleged FCPA violations, including the misrecording of facilitation payments. An Indonesian subsidiary of the company had been making monthly payments, of approximately $1,000, to low-level employees of a state-owned oil company in order to assure the timely processing of monthly crude oil revenues. The SEC did not charge that these payments violated the anti-bribery provisions of the FCPA; however, these payments were misrecorded in corporate books and therefore violated the FCPA’s accounting and recordkeeping provisions. Triton consented to an injunction against future violations of the FCPA and was fined $300,000.

Increased enforcement of non-U.S. laws that do not recognize an exception for facilitation payments. While the FCPA and certain other national anti-bribery laws contain exceptions for facilitation payments, such payments typically are considered illegal in the country in which they are made; there is not any country in which facilitation payments to public officials of that country are permitted under the written law of the recipient’s country. Accordingly, even if a particular facilitation payment qualifies for an exception of the FCPA, it, nevertheless, is likely to constitute a violation of local law – as well as under anti-bribery laws of other countries that also might apply simultaneously – and thus exposes the payer, his employer and/or related parties to prosecution in one or more jurisdictions. While enforcement to date in this area has been limited, increased global attention to corruption makes future action more likely. Countries that are eager to be seen as combating corruption are prosecuting the payment of small bribes with greater frequency.

Corporate approaches to facilitation payments may exceed the legitimate scope and applicability of the exception. Businesses still struggle with how to address the facilitation payments exception in their compliance policy and procedures, if the subject is covered at all. Businesses should be wary of allowing employees to decide on their own whether a particular payment is permissible. Unless such payments are barred completely or each payment is subject to pre-approval (which in many cases, such as passport control, would be unrealistic), there is always the risk that an employee, agent or other person whose actions may be attributed to the company will make a payment in reliance on the exception when in fact the exception does not apply. In addition, the temptation to improperly record otherwise permissible facilitation payments has been discussed above.

The Administrative Nightmare. If your company allows facilitation payments for its US citizen-employees, what about non-US nationals whose home countries anti-corruption laws ban facilitation payments such as the UK’s Bribery Act which applies to all UK citizens anywhere they work across the globe. The same can hold true for US subsidiaries incorporated in countries which ban facilitation payments, once again UK subsidiaries of US companies. You begin to see all the carveouts and reservations needed in both training and your books and records.

All of this demonstrates how difficult the facilitation payment exception can be to implement, administer and enforcement. A thoughtful analysis should be done by your corporate compliance department.

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