The FCPA excepts from the anti-bribery provisions facilitating payments, small payments to foreign officials made to facilitate or expedite routine governmental action. A routine governmental action is a function or service that a foreign official is ordinarily obligated to perform; a discretionary decision does not qualify. Examples include:
- obtaining permits, licenses, or other official documents to qualify a person to do business in a foreign country;
- processing governmental papers, such as visas or work orders;
- providing police protection, mail services, or scheduling inspections; and
- providing essential services (phone, power, water, sewage), handling cargo, or protecting goods.
The exception is generally understood to apply only where the recipient of the payment is a low- or mid-level foreign official with little discretion in the performance of his function and where the payment is small or nominal.1
The government bears the burden of proving that the exception does not apply to an alleged bribe.
Facilitating payments may still violate the FCPA’s accounting provisions if they are not “accurately and fairly” recorded in “reasonable detail” in an issuer’s books and records.2 In addition, most laws prohibiting bribery in other countries do not include a corresponding exception. The UK Bribery Act is one example. For more on Facilitation Payments in the UK, see here.
1 See United States v. Kay, 359 F.3d 738, 748-49 (5th Cir. 2004).
2 15 USC § 78m(b)(2)(A).