Enter Search TextSubmitSearch Advanced Search     Home     Deposit Insurance     Consumer Protection     Industry Analysis     Regulations & Examinations     Asset Sales     News & Events     About FDIC

		Home > Regulation & Examinations > Laws & Regulations > FDIC Law, Regulations, Related Acts

FDIC Law, Regulations, Related Acts

[Main Tabs]     [Table of Contents - 8000]     [Index]     [Previous Page]     [Next Page]     [Search] 8000 - Miscellaneous Statutes and Regulations FOREIGN SECURITIES EXCHANGES   SEC. 30.  (a)  It shall be unlawful for any broker or dealer, directly or indirectly, to make use of the mails or of any means or instrumentality of interstate commerce for the {{2-26-99 p.9259}}purpose of effecting on an exchange not within or subject to the jurisdiction of the United States, any transaction in any security the issuer of which is a resident of, or is organized under the laws of, or has its principal place of business in, a place within or subject to the jurisdiction of the United States, in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors or to prevent the evasion of this title.   (b)  The provisions of this title or of any rule or regulation thereunder shall not apply to any person insofar as he transacts a business in securities without the jurisdiction of the United States, unless he transacts such business in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate to prevent the evasion of this title. [Codified to 15 U.S.C. 78dd] [Source:  Section 30 of the Act of June 6, 1934 (Pub. L. No. 291; 48 Stat. 904), effective October 1, 1934] FOREIGN CORRUPT PRACTICES BY ISSUERS   SEC. 30A.  (a)   PROHIBITION.—It shall be unlawful for any issuer which has a class of securities registered pursuant to section 12 of this title or which is required to file reports under section 15(d) of this title, or for any officer, director, employee, or agent of such issuer or any stockholder thereof acting on behalf of such issuer, to make use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value to--     (1)  any foreign official for purposes of--       (A)(i)  influencing any act or decision of such foreign official in his official capacity, (ii) inducing such foreign official to do or omit to do any act in violation of the lawful duty of such official, or (iii) securing any improper advantage; or         (B)  inducing such foreign official to use his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality,   in order to assist such issuer in obtaining or retaining business for or with, or directing business to, any person;     (2)  any foreign political party or official thereof or any candidate for foreign political office for purposes of--       (A)(i)  influencing any act or decision of such party, official, or candidate in its or his official capacity, (ii) inducing such party, official, or candidate to do or omit to do an act in violation of the lawful duty of such party, official, or candidate, or (iii) securing any improper advantage; or         (B)  inducing such party, official, or candidate to use its or his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality,   in order to assist such issuer in obtaining or retaining business for or with, or directing business to, any person; or       (3)  any person, while knowing that all or a portion of such money or thing of value will be offered, given, or promised, directly or indirectly, to any foreign official, to any foreign political party or offical thereof, or to any candidate for foreign political office, for purposes of--       (A)(i)  influencing any act or decision of such foreign official, political party, party official, or candidate in his or its official capacity, or (ii) inducing such foreign official, political party, party official, or candidate to do or omit to do any act in violation of the lawful duty of such foreign official, political party, party official, or candidate, or (iii) securing any improper advantage; or {{2-26-99 p.9260}}         (B)  inducing such foreign official, political party, party official, or candidate to use his or its influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality, in order to assist such issuer in obtaining or retaining business for or with, or directing business to, any person.   (b)  Exception for Routine Governmental Action.--Subsections (a) and (g) shall not apply to any facilitating or expediting payment to a foreign official, political party, or party official 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.   (c)  AFFIRMATIVE DEFENSES.--It shall be an affirmative defense to actions under subsections (a) and (g) that--     (1)  the payment, gift, offer, or promise of anything of value that was made, was lawful under the written laws and regulations of the foreign official's, political party's, party official's, or candidate's country; or     (2)  the payment, gift, offer, or promise of anything of value that was made, was a reasonable and bona fide expenditure, such as travel and lodging expenses, incurred by or on behalf of a foreign official, party, party official, or candidate and was directly related to--       (A)  the promotion, demonstration, or explanation of products or services; or       (B)  the execution or performance of a contract with a foreign government or agency thereof.   (d)  GUIDELINES BY THE ATTORNEY GENERAL.--Not later than one year after the date of the enactment of the Foreign Corrupt Practices Act Amendments of 1988, the Attorney General, after consultation with the Commission, the Secretary of Commerce, the United States Trade Representative, the Secretary of State, and the Secretary of the Treasury, and after obtaining the views of all interested persons through public notice and comment procedures, shall determine to what extent compliance with this section would be enhanced and the business community would be assisted by further clarification of the preceding provisions of this section and may, based on such determination and to the extent necessary and appropriate, issue--     (1)  guidelines describing specific types of conduct, associated with common types of export sales arrangements and business contracts, which for purposes of the Department of Justice's present enforcement policy, the Attorney General determines would be in conformance with the preceding provisions of this section; and     (2)  general precautionary procedures which issuers may use on a voluntary basis to conform their conduct to the Department of Justice's present enforcement policy regarding the preceding provisions of this section. The Attorney General shall issue the guidelines and procedures referred to in the preceding sentence in accordance with the provisions of subchapter II of chapter 5 of title 5, United States Code, and those guidelines and procedures shall be subject to the provisions of chapter 7 of that title.   (e)  OPINIONS OF THE ATTORNEY GENERAL.--(1) The Attorney General, after consultation with appropriate departments and agencies of the United States and after obtaining the views of all interested persons through public notice and comment procedures, shall establish a procedure to provide responses to specific inquiries by issuers concerning conformance of their conduct with the Department of Justice's present enforcement policy regarding the preceding provisions of this section. The Attorney General shall, within 30 days after receiving such a request, issue an opinion in response to that request. The opinion shall state whether or not certain specified prospective conduct would, for purposes of the Department of Justice's present enforcement policy, violate the preceding provisions of this section. Additional requests for opinions may be filed with the Attorney General regarding other specified prospective conduct that is beyond the scope of conduct specified in previous requests. In any action brought under the applicable provisions of this section, there shall be a rebuttable presumption that conduct, which is specified in a request by an issuer and for which the Attorney General has issued an opinion that such conduct is in {{2-26-99 p.9261}}conformity with the Department of Justice's present enforcement policy, is in compliance with the preceding provisions of this section. Such a presumption may be rebutted by a preponderance of the evidence. In considering the presumption for purposes of this paragraph, a court shall weigh all relevant factors, including but not limited to whether the information submitted to the Attorney General was accurate and complete and whether it was within the scope of the conduct specified in any request received by the Attorney General. The Attorney General shall establish the procedure required by this paragraph in accordance with the provisions of subchapter II of chapter 5 of title 5, United States Code, and that procedure shall be subject to the provisions of chapter 7 of that title.     (2)  Any document or other material which is provided to, received by, or prepared in the Department of Justice or any other department or agency of the United States in connection with a request by an issuer under the procedure established under paragraph (1), shall be exempt from disclosure under section 552 of title 5, United States Code, and shall not, except with the consent of the issuer, be made publicly available, regardless of whether the Attorney General responds to such a request or the issuer withdraws such request before receiving a response.     (3)  Any issuer who has made a request to the Attorney General under paragraph (1) may withdraw such request prior to the time the Attorney General issues an opinion in response to such request. Any request so withdrawn shall have no force or effect.     (4)  The Attorney General shall, to the maximum extent practicable, provide timely guidance concerning the Department of Justice's present enforcement policy with respect to the preceding provisions of this section to potential exporters and small businesses that are unable to obtain specialized counsel on issues pertaining to such provisions. Such guidance shall be limited to responses to requests under paragraph (1) concerning conformity of specified prospective conduct with the Department of Justice's present enforcement policy regarding the preceding provisions of this section and general explanations of compliance responsibilities and of potential liabilities under the preceding provisions of this section.   (f)  DEFINITIONS.--For purposes of this section:     (1)  The term "foreign official" means any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organization.     (2)(A)  A person's state of mind is "knowing" with respect to conduct, a circumstance, or a result if--         (i)  such person is aware that such person is engaging in such conduct, that such circumstance exists, or that such result is substantially certain to occur; or         (ii)  such person has a firm belief that such circumstance exists or that such result is substantially certain to occur.       (B)  When knowledge of the existence of a particular circumstance is required for an offense, such knowledge is established if a person is aware of a high probability of the existence of such circumstance, unless the person actually believes that such circumstance does not exist.     (3)(A)  The term "routine governmental action" means only an action which is ordinarily and commonly performed by a foreign official in--         (i)  obtaining permits, licenses, or other official documents to qualify a person to do business in a foreign country;         (ii)  processing governmental papers, such as visas and work orders;         (iii)  providing police protection, mail pick-up and delivery, or scheduling inspections associated with contract performance or inspections related to transit of goods across country;         (iv)  providing phone service, power and water supply, loading and unloading cargo, or protecting perishable products or commodities from deterioration; or         (v)  actions of a similar nature.       (B)  The term "routine governmental action" does not include any decision by a foreign official whether, or on what terms, to award new business to or to continue business {{2-26-99 p.9262}}with a particular party, or any action taken by a foreign official involved in the decisionmaking process to encourage a decision to award new business to or continue business with a particular party.   (g)  ALTERNATIVE JURISDICTION.--     (1)  It shall also be unlawful for any issuer organized under the laws of the United States, or a State, territory, possession, or commonwealth of the United States or a political subdivision thereof and which has a class of securities registered pursuant to section 12 of this title or which is required to file reports under section 15(d) of this title, or for any United States person that is an officer, director, employee, or agent of such issuer or a stockholder thereof acting on behalf of such issuer, to corruptly do any act outside the United States in furtherance of an offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value to any of the persons or entities set forth in paragraphs (1), (2), and (3) of subsection (a) of this section for the purposes set forth therein, irrespective of whether such issuer or such officer, director, employee, agent, or stockholder makes use of the mails or any means or instrumentality of interstate commerce in furtherance of such offer, gift, payment, promise, or authorization.     (2)  As used in this subsection, the term "United States person" means a national of the United States (as defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101)) or any corporation, partnership, association, joint-stock company, business trust, unincorporated organization, or sole proprietorship organized under the laws of the United States or any State, territory, possession, or commonwealth of the United States, or any political subdivision thereof. [Codified to 15 U.S.C. 78dd--1] [Source:  Section 30A of the Act of June 6, 1934 (Pub. L. No. 291), as added by section 103(a) of title I of the Act of December 19, 1977 (Pub. L. No. 95--213; 91 Stat. 1495), effective December 19, 1977, and as amended by section 5003(a) of title V of the Act of August 23, 1988 (Pub. L. No. 100--418; 102 Stat. 1415--1419), effective August 23, 1988; sections 2(a)--2(c) of the Act of November 10, 1998, (Pub. L. No. 105--366; 112 Stat. 3302 and 3303), effective November 10, 1998] NOTE   Foreign corrupt practices by domestic concerns.   Section 104 of title I of the Act of December 19, 1977 (Pub. L. No. 95--213; 91 Stat. 1496), effective December 19, 1977, reads as follows: PROHIBITED FOREIGN TRADE PRACTICES BY DOMESTIC CONCERNS   SEC. 104.  (a)   PROHIBITION.--It shall be unlawful for any domestic concern, other than an issuer which is subject to section 30A of the Securities Exchange Act of 1934, or any officer, director, employee, or agent of such domestic concern or any stockholder thereof acting on behalf of such domestic concern, to make use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value to--     (1)  any foreign official for purposes of--       (A)(i)  influencing any act or decision of such foreign official in his official capacity, (ii) inducing such foreign official to do or omit to do any act in violation of the lawful duty of such official, or (iii) securing any improper advantage; or       (B)  inducing such foreign official to use his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality, in order to assist such domestic concern in obtaining or retaining business for or with, or directing business to, any person;     (2)  any foreign political party or official thereof or any candidate for foreign political office for purposes of--       (A)(i)  influencing any act or decision of such party, official, or candidate in its or his official capacity, (ii) inducing such party, official, or candidate to do or omit to {{2-26-99 p.9263}}do an act in violation of the lawful duty of such party, official, or candidate, or (iii) securing any improper advantage; or       (B)  inducing such party, official, or candidate to use its or his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality, in order to assist such domestic concern in obtaining or retaining business for or with, or directing business to, any person; or     (3)  any person, while knowing that all or a portion of such money or thing of value will be offered, given, or promised, directly or indirectly, to any foreign official, to any foreign political party or official thereof, or to any candidate for foreign political office, for purposes of--       (A)(i)  influencing any act or decision of such foreign official, political party, party official, or candidate in his or its official capacity, (ii) inducing such foreign official, political party, party official, or candidate to do or omit to do any act in violation of the lawful duty of such foreign official, political party, party official, or candidate, or (iii) securing any improper advantage; or       (B)  inducing such foreign official, political party, party official, or candidate to use his or its influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality, in order to assist such domestic concern in obtaining or retaining business for or with, or directing business to, any person.   (b)  Exception for Routine Governmental Action.--Subsections (a) and (i) shall not apply to any facilitating or expediting payment to a foreign official, political party, or party official 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.   (c)   AFFIRMATIVE DEFENSES.--It shall be an affirmative defense to actions under subsections (a) and (i) that--     (1)  the payment, gift, offer, or promise of anything of value that was made, was lawful under the written laws and regula tions of the foreign official's, political party's, party official's, or candidate's country; or     (2)  the payment, gift, offer, or promise of anything of value that was made, was a reasonable and bona fide expenditure, such as travel and lodging expenses, incurred by or on behalf of a foreign official, party, party official, or candidate and was directly related to--       (A)  the promotion, demonstration, or explanation of products or services; or       (B)  the execution or performance of a contract with a foreign government or agency thereof.   (d)   INJUNCTIVE RELIEF.--(1)  When it appears to the Attorney General that any domestic concern to which this section applies, or officer, director, employee, agent, or stockholder thereof, is engaged, or about to engage, in any act or practice constituting a violation of subsections (a) and (i) of this section, the Attorney General may, in his discretion, bring a civil action in an appropriate district court of the United States to enjoin such act or practice, and upon a proper showing, a permanent injunction or a temporary restraining order shall be granted without bond.     (2)  For the purpose of any civil investigation which, in the opinion of the Attorney General, is necessary and proper to enforce this section, the Attorney General or his designee are empowered to administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of any books, papers, or other documents which the Attorney General deems relevant or material to such investigation. The attendance of witnesses and the production of documentary evidence may be required from any place in the United States, or any territory, possession, or commonwealth of the United States, at any designated place of hearing.     (3)  In case of contumacy by, or refusal to obey a subpoena issued to, any person, the Attorney General may invoke the aid of any court of the United States within the jurisdiction of which such investigation or proceeding is carried on, or where such person resides or carries on business, in requiring the attendance and testimony of witnesses and the production of books, papers, or other documents. Any such court may issue an order requiring such person to appear before the Attorney General or his designee, there to produce {{2-26-99 p.9264}}records, if so ordered, or to give testimony touching the matter under investigation. Any failure to obey such order of the court may be punished by such court as a contempt thereof. All process in any such case may be served in the judicial district in which such person resides or may be found. The Attorney General may make such rules relating to civil investigations as may be necessary or appropriate to implement the provisions of this subsection.   (e)   GUIDELINES BY THE ATTORNEY GENERAL.--Not later than 6 months after the date of the enactment of the Foreign Corrupt Practices Act Amendments of 1988, the Attorney General, after consultation with the Securities and Exchange Commission, the Secretary Commerce, the United States Trade Representative, the Secretary of State, and the Secretary of the Treasury, and after obtaining the views of all interested persons through public notice and comment procedures, shall determine to what extent compliance with this section would be enhanced and the business community would be assisted by further clarification of the preceding provisions of this section and may, based on such determination and to the extent necessary and appropriate, issue--     (1)  guidelines describing specific types of conduct, associated with common types of export sales arrangements and business contracts, which for purposes of the Department of Justice's present enforcement policy, the Attorney General determines would be in conformance with the preceding provisions of this section; and     (2)  general precautionary procedures which domestic concerns may use on a voluntary basis to conform their conduct to the Department of Justice's present enforcement policy regarding the preceding provisions of this section. The Attorney General shall issue the guidelines and procedures referred to in the preceding sentence in accordance with the provisions of subchapter II of chapter 5 of title 5, United States Code, and those guidelines and procedures shall be subject to the provisions of chapter 7 of that title.   (f)   OPINIONS OF THE ATTORNEY GENERAL.--(1)  The Attorney General, after consultation with appropriate departments and agencies of the United States and after obtaining the views of all interested personsthrough public notice and comment procedures, shall establish a procedure to provide responses to specific inquiries by domestic concerns concerning conformance of their conduct with the Department of Justice's present enforcement policy regarding the preceding provisions of this section. The Attorney General shall, within 30 days after receiving such a request, issue an opinion in response to that request. The opinion shall state whether or not certain specified prospective conduct would, for purposes of the Department of Justice's present enforcement policy, violate the preceding provisions of this section. Additional requests for opinions may be filed with the Attorney General regarding other specified prospective conduct that is beyond the scope of conduct specified in previous requests. In any action brought under the applicable provisions of this section, there shall be a rebuttable presumption that conduct, which is specified in a request by a domestic concern and for which the Attorney General has issued an opinion that such conduct is in conformity with the Department of Justice's present enforcement policy, is in compliance with the preceding provisions of this section. Such a presumption may be rebutted by a preponderance of the evidence. In considering the presumption for purposes of this paragraph, a court shall weigh all relevant factors, including but not limited to whether the information submitted to the Attorney General was accurate and complete and whether it was within the scope of the conduct specified in any request received by the Attorney General. The Attorney General shall establish the procedure required by this paragraph in accordance with the provisions of subchapter II of chapter 5 of title 5, United States Code, and that procedure shall be subject to the provisions of chapter 7 of that title.     (2)  Any document or other material which is provided to, received by, or prepared in the Department of Justice or any other department or agency of the United States in connection with a request by a domestic concern under the procedure established under paragraph (1), shall be exempt from disclosure under section 552 of title 5, United States Code, and shall not, except with the consent of the domestic concern, {{2-26-99 p.9265}}be made publicly available, regardless of whether the Attorney General responds to such a request or the domestic concern withdraws such request before receiving a response.     (3)  Any domestic concern who has made a request to the Attorney General under paragraph (1) may withdraw such request prior to the time the Attorney General issues an opinion in response to such request. Any request so withdrawn shall have no force or effect.     (4)  The Attorney General shall, to the maximum extent practicable, provide timely guidance concerning the Department of Justice's present enforcement policy with respect to the preceding provisions of this section to potential exporters and small businesses that are unable to obtain specialized counsel on issues pertaining to such provisions. Such guidance shall be limited to responses to requests under paragraph (1) concerning conformity of specified prospective conduct with the Department of Justice's present enforcement policy regarding the preceding provisions of this section and general explanations of compliance responsibilities and of potential liabilities under the preceding provisions of this section.   (g)   PENALTIES.--(1)(A)  Any domestic concern that is not a natural person and that violates subsections (a) and (i) of this section shall be fined not more than $2,000,000.       (B)  Any domestic concern that violates subsection (a) shall be subject to a civil penalty of not more than $10,000 imposed in an action brought by the Attorney General.     (2)(A)  Any natural person that is an officer, director, employee, or agent of a domestic concern, or stockholder acting on behalf of such domestic concern, who willfully violates subsection (a) shall be fined not more than $100,000, or imprisoned not more than 5 years, or both.       (B)  Any employee or agent of a domestic concern who is a United States citizen, national, or resident or is otherwise subject to the jurisdiction of the United States (other than an officer, director, or stockholder acting on behalf of such domestic concern), and who willfully violates subsection (a), shall be fined not more than $100,000, or imprisoned not more than 5 years, or both.       (C)  Any officer, director, employee, or agent of a domestic concern, or stockholder acting on behalf of such domestic concern, who violates subsection (a) shall be subject to a civil penalty of not more than $10,000 imposed in an action brought by the Attorney General.     (3)  Whenever a fine is imposed under paragraph (2) upon any officer, director, employee, agent, or stockholder of a domestic concern, such fine may not be paid, directly or indirectly, by such domestic concern.   (h)   DEFINITIONS.--For purposes of this section:     (1)  The term "domestic concern" means--       (A)  any individual who is a citizen, national, or resident of the United States; and       (B)  any corporation, partnership, association, joint-stock company, business trust, unincorporated organization, or sole proprietorship which has its principal place of business in the United States, or which is organized under the laws of a State of the United States or a territory, possession, or commonwealth of the United States.     (2)(A)  The term "foreign official" means any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organization.     (B)  For purposes of subparagraph (A), the term "public international organization" means--       (i)  an organization that is designated by Executive order pursuant to section 1 of the International Organizations Immunities Act (22 U.S.C. 288); or       (ii)  any other international organization that is designated by the President by Executive order for the purposes of this section, effective as of the date of publication of such order in the Federal Register.     (3)(A)  A person's state of mind is "knowing" with respect to conduct, a circumstance, or a result if--         (i)  such person is aware that such person is engaging in such conduct, that such circumstance exists, or that such {{2-26-99 p.9266}}result is substantially certain to occur; or         (ii)  such person has a firm belief that such circumstance exists or that such result is substantially certain to occur.       (B)  When knowledge of the existence of a particular circumstance is required for an offense, such knowledge is established if a person is aware of a high probability of the existence of such circumstance, unless the person actually believes that such circumstance does not exist.     (4)(A)  The term "routine governmental action" means only an action which is ordinarily and commonly performed by a foreign official in--         (i)  obtaining permits, licenses, or other official documents to qualify a person to do business in a foreign country;         (ii)  processing governmental papers, such as visas and work orders;         (iii)  providing police protection, mail pick-up and delivery, or scheduling inspections associated with contract performance or inspections related to transit of goods across country;         (iv)  providing phone service, power and water supply, loading and unloading cargo, or protecting perishable products or commodities from deterioration; or         (v)  actions of a similar nature.       (B)  The term "routine governmental action" does not include any decision by a foreign official whether, or on what terms, to award new business to or to continue business with a particular party, or any action taken by a foreign official involved in the decision-making process to encourage a decision to award new business to or continue business with a particular party.     (5)  The term "interstate commerce" means trade, commerce, transportation, or communication among the several States, or between any foreign country and any State or between any State and any place or ship outside thereof, and such term includes the intrastate use of--       (A)  a telephone or other interstate means of communication, or       (B)  any other interstate instrumentality.   (g)  ALTERNATIVE JURISDICTION.--     (1)  It shall also be unlawful for any issuer organized under the laws of the United States, or a State, territory, possession, or commonwealth of the United Statesor a political subdivision thereof and which has a class of securities registered pursuant to section 12 of this title or which is required to file reports under section 15(d) of this title, or for any United States person that is an officer, director, employee, or agent of such issuer or a stockholder thereof acting on behalf of such issuer, to corruptly do any act outside the United States in furtherance of an offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value to any of the persons or entities set forth in paragraphs (1), (2), and (3) of subsection (a) of this section for the purposes set forth therein, irrespective of whether such issuer or such officer, director, employee, agent, or stockholder makes use of the mails or any means or instrumentality of interstate commerce in furtherance of such offer, gift, payment, promise, or authorization.     (2)  As used in this subsection, the term "United States person" means a national of the United States (as defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101)) or any corporation, partnership, association, joint-stock company, business trust, unincorporated organization, or sole proprietorship organized under the laws of the United States or any State, territory, possession, or commonwealth of the United States, or any political subdivision thereof. [Codified to 15 U.S.C. 78dd--2] [Source:  Section 104 of title I of the Act of December 19, 1977 (Pub. L. No. 95--213; 91 Stat. 1496), effective December 19, 1977; as amended by section 5003(c) of title V of the Act of August 23, 1988 (Pub. L. No. 100--418; 102 Stat. 1419--1424), effective August 23, 1988; section 330005 of title XXXIII of the Act of September 13, 1994 (Pub. L. No. 103--322; 108 Stat. 2142), effective September 13, 1994; sections 3(a)--3(e) of the Act of November 10, 1998 (Pub. L. No. 105--366; 112 Stat. 3304 and 3305), effective November 10, 1998] SEC. 104A.  PROHIBITED FOREIGN TRADE PRACTICES BY PERSONS OTHER THAN ISSUERS OR DOMESTIC CONCERNS {{2-26-99 p.9267}}   (a)  PROHIBITION.--It shall be unlawful for any person other than an issuer that is subject to section 30A of the Securities Exchange Act of 1934 or a domestic concern (as defined in section 104 of this Act), or for any officer, director, employee, or agent of such person or any stockholder thereof acting on behalf of such person, while in the territory of the United States, corruptly to make use of the mails or any means or instrumentality of interstate commerce or to do any other act in furtherance of an offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value to--     (1)  any foreign official for purposes of--       (A)(i)  influencing any act or decision of such foreign official in his offical capacity, (ii) inducing such foreign official to do or omit to do any act in violation of the lawful duty of such official, or (iii) securing any improper advantage; or       (B)  inducing such foreign official to use his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality, in order to assist such person in obtaining or retaining business for or with, or directing business to, any person;     (2)  any foreign political party or offical thereof or any candidate for foreign political office for purposes of--       (A)(i)  influencing any act or decision of such party, official, or candidate in its or his official capacity, (ii) inducing such party, official, or candidate to do or omit to do an act in violation of the lawful duty of such party, official, or candidate, or (iii) securing any improper advantage; or       (B)  inducing such party, official, or candidate to use its or his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality, in order to assist such person in obtaining or retaining business for or with, or directing business to, any person; or     (3)  any person, while knowing that all or a portion of such money or thing of value will be offered, given, or promised, directly or indirectly, to any foreign official, to any foreign political party or official thereof, or to any candidate for foreign political office, for purposes of--       (A)(i)  influencing any act or decision of such foreign official, political party, party official, or candidate in his or its official capacity, (ii) inducing such foreign official, political party, party official, or candidate to do or omit to do any act in violation of the lawful duty of such foreign official, political party, party official, or candidate, or (iii) securing any improper advantage; or       (B)  inducing such foreign official, political party, party official, or candidate to use his or its influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality, in order to assist such person in obtaining or retaining business for or with, or directing business to, any person.   (b)  EXCEPTION FOR ROUTINE GOVERNMENTAL ACTION.--Subsection (a) of this section shall not apply to any facilitating or expediting payment to a foreign official, political party, or party official 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.   (c)  AFFIRMATIVE DEFENSES.--It shall be an affirmative defense to actions under subsection (a) of this section that--     (1)  the payment, gift, offer, or promise of anything of value that was made, was lawful under the written laws and regulations of the foreign official's, political party's, party official's, or candidate's country; or     (2)  the payment, gift, offer, or promise of anything of value that was made, was a reasonable and bona fide expenditure, such as travel and lodging expenses, incurred by or on behalf of a foreign official, party, party official, or candidate and was directly related to--       (A)  the promotion, demonstration, or explanation of products or services; or       (B)  the execution or performance of a contract with a foreign government or agency thereof.   (d)  INJUNCTIVE RELIEF.--     (1)  When it appears to the Attorney General that any person to which this section applies, or officer, director, employee, agent, or stockholder thereof, is engaged, or {{2-26-99 p.9268}}about to engage, in any act or practice constituting a violation of subsection (a) of this section, the Attorney General may, in his discretion, bring a civil action in an appropriate district court of the United States to enjoin such act or practice, and upon a proper showing, a permanent injunction or a temporary restraining order shall be granted without bond.     (2)  For the purpose of any civil investigation which, in the opinion of the Attorney General, is necessary and proper to enforce this section, the Attorney General or his designee are empowered to administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of any books, papers, or other documents which the Attorney General deems relevant or material to such investigation. The attendance of witnesses and the production of documentary evidence may be required from any place in the United States, or any territory, possession, or commonwealth of the United States, at any designated place of hearing.     (3)  In case of contumacy by, or refusal to obey a subpoena issued to, any person, the Attorney General may invoke the aid of any court of the United States within the jurisdiction of which such investigation or proceeding is carried on, or where such person resides or carries on business, in requiring the attendance and testimony of witnesses and the production of books, papers, or other documents. Any such court may issue an order requiring such person to appear before the Attorney General or his designee, there to produce records, if so ordered, or to give testimony touching the matter under investigation. Any failure to obey such order of the court may be punished by such court as a contempt thereof.     (4)  All process in any such case may be served in the judicial district in which such person resides or may be found. The Attorney General may make such rules relating to civil investigations as may be necessary or appropriate to implement the provisions of this subsection.   (e)  PENALTIES.--     (1)(A)  Any juridical person that violates subsection (a) of this section shall be fined not more than $2,000,000.       (B)  Any juridical person that violates subsection (a) of this section shall be subject to a civil penalty of not more than $10,000 imposed in an action brought by the Attorney General.     (2)(A)  Any natural person who willfully violates subsection (a) of this secion shall be fined not more than $100,000 or imprisoned not more than 5 years, or both.       (B)  Any natural person who violates subsection (a) of this section shall be subject to a civil penalty of not more than $10,000 imposed in an action brought by the Attorney General.     (3)  Whenever a fine is imposed under paragraph (2) upon any officer, director, employee, agent, or stockholder of a person, such fine may not be paid, directly or indirectly, by such person.   (f)  DEFINITIONS.--For purposes of this section:     (1)  The term person', when referring to an offender, means any natural person other than a national of the United States (as defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101) or any corporation, partnership, association, joint-stock company, business trust, unincorporated organization, or sole proprietorship organized under the law of a foreign nation or a political subdivision thereof.     (2)(A)  The term foreign official' means any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organization.       (B)  For purposes of subparagraph (A), the term public international organization' means--       (i)  an organization that is designated by Executive order pursuant to section 1 of the International Organizations Immunities Act (22 U.S.C. 288); or       (ii)  any other international organization that is designated by the President by Executive order for the purposes of this section, effective as of the date of publication of such order in the Federal Register.     (3)(A)  A person's state of mind is knowing, with respect to conduct, a circumstance or a result if--         (i)  such person is aware that such person is engaging in such conduct, that such circumstance exists, or that such {{6-29-01 p.9269}}result is substantially certain to occur; or         (ii)  such person has a firm belief that such circumstances exists or that such result is substantially certain to occur.     (B)  When knowledge of the existence of a particular circumstance is required for an offense, such knowledge is established if a person is aware of a high probability of the existence of such circumstance, unless the person actually believes that such circumstance does not exist.     (4)(A)  The term "routine governmental action" means only an action which is ordinarily and commonly performed by a foreign official in--         (i)  obtaining permits, licenses, or other official documents to quality a person to do business in a foreign country;         (ii)  processing governmental papers, such as visas and work orders;         (iii)  providing police protection, mail pick-up and delivery, or scheduling inspections associated with contract performance or inspections related to transit of goods across country;         (iv)  providing phone service, power and water supply, loading and unloading cargo, or protecting perishable products or commodities from deterioration; or         (v)  actions of a similar nature.       (B)  The term "routine governmental action" does not include any decision by a foreign official whether, or on what terms, to award new business to or to continue business with a particular party, or any action taken by a foreign official involved in the decision-making process to encourage a decision to award new business to or continue business with a particular party.     (5)  The term "interstate commerce" means trade, commerce, transportation, or communication among the several States, or between any foreign country and any State or between any State and any place or ship outside thereof, and such term includes the intrastate use of--       (A)  a telephone or other interstate means of communication, or       (B)  any other interstate instrumentality. [Codified to 15 U.S.C. 78dd--3] [Source: Section 4 of the Act of November 10, 1998 (Pub. L. No. 105--366; 112 Stat. 3306), effective November 10, 1998] TRANSACTION FEES *   SEC. 31.  (a)  RECOVERY OF COST OF SERVICES.--The Commission shall, in accordance with this section, collect transaction fees and assessments that are designed to recover the costs to the Government of the supervision and regulation of securities markets and securities professionals, and costs related to such supervision and regulation, including enforcement activities, policy and rulemaking activities, administration, legal services, and international regulatory activities.   (b)  EXCHANGE-TRADED SECURITIES.--Every national securities exchange shall pay to the Commission a fee at a rate equal to 1/300 of one percent of the aggregate dollar amount of sales of securities (other than bonds, debentures, other evidences of indebtedness, and security futures products) transacted on such national securities exchange, except that for fiscal year 2007 or any succeeding fiscal year such rate shall be equal to 1/800 of one percent of such aggregate dollar amount of sales. Fees collected pursuant to this subsection shall be deposited and collected as general revenue of the Treasury.   (c)  Off-Exchange Trades of Exchange Registered Securities.--Each national securities association shall pay to the Commission a fee at a rate equal to 1/300 of one percent of the aggregate dollar amount of sales transacted by or through any member of such association otherwise than on a national securities exchange of securities registered on such an exchange (other than bonds, debentures, other evidences of indebtedness, and security futures products), except that for fiscal year 2007 or any succeeding fiscal year such rate shall be equal to 1/800 of one percent of such aggregate dollar amount of sales. {{6-29-01 p.9270}}Fees collected pursuant to this subsection shall be deposited and collected as general revenue of the Treasury.   (d)  Off-Exchange Trades of Last-Sale-Reported Securities.--     (1)  COVERED TRANSACTIONS.--Each national securities association shall pay to the Commission a fee at a rate equal to 1/300 of one percent of the aggregate dollar amount of sales transacted by or through any member of such association otherwise than on a national securities exchange of securities (other than bonds, debentures, and other evidences of indebtedness, and security futures products) subject to prompt last sale reporting pursuant to the rules of the Commission or a registered national securities association, excluding any sales for which a fee is paid under subsection (c), except that for fiscal year 2007, or any succeeding fiscal year, such rate shall be equal to 1/800 of one percent of such aggregate dollar amount of sale.     (2)  LIMITATION; DEPOSIT OF FEES.--Except as provided in paragraph (3), no amounts shall be collected pursuant to subsection (d) for any fiscal year, except to the extent provided in advance in appropriations Acts. Fees collected during any such fiscal year pursuant to this subsection shall be deposited and credited as offsetting collections to the account providing appropriations to the Commission.     (3)  LAPSE OF APPROPRIATIONS.--If on the first day of a fiscal year a regular appropriation to the Commission has not been enacted, the Commission shall continue to collect fees (as offsetting collections) under this subsection at the rate in effect during the preceding fiscal year, until such a regular appropriation is enacted.   (e)  ASSESSMENTS ON SECURITY FUTURES TRANSACTIONS.--Each national securities exchange and national securities association shall pay to the Commission an assessment equal to $0.02 for each round turn transaction (treated as including one purchase and one sale of a contract of sale for future delivery) on a security future traded on such national securities exchange or by or through any member of such association otherwise than on a national securities exchange, except that for fiscal year 2007 or any succeeding fiscal year such assessment shall be equal to $0.0075 for each such transaction. Assessments collected pursuant to this subsection shall be deposited and collected as general revenue of the Treasury.   (f)  DATES FOR PAYMENT OF FEES.--The fees required by subsections (b), (c), and (d) of this section shall be paid--     (1)  on or before March 15, with respect to transactions and sales occurring during the period beginning on the preceding September 1 and ending at the close of the preceding December 31; and     (2)  on or before September 30, with respect to transactions and sales occurring during the period beginning on the preceding January 1 and ending at the close of the preceding August 31.   (g)  EXEMPTIONS.--The Commission, by rule, may exempt any sale of securities or any class of sales of securities from any fee or assessment imposed by this section, if the Commission finds that such exemption is consistent with the public interest, the equal regulation of markets and brokers and dealers, and the development of a national market system.   (h)  PUBLICATION.--The Commission shall publish in the Federal Register notices of the fee and assessment rates applicable under this section for each fiscal year. [Codified to 15 U.S.C. 78ee] {{6-29-01 p.9270.01}} [Source:  Section 31 of the Act of June 6, 1934 (Pub. L. No. 291; 48 Stat. 904), effective July 1, 1934, as amended by the Act of March 17, 1944 (Pub. L. No. 258; 58 Stat. 117), effective March 17, 1944; and section 22 of the Act of June 4, 1975 (Pub. L. No. 94--29; 89 Stat. 162), effective January 1, 1976; section 405(a) of title IV of the Act of October 11, 1996 (Pub. L. No. 104--290; 110 Stat. 3442), effective October 11, 1996; section 301(b)(14) of title III of the Act of November 3, 1998 (Pub. L. No. 105--353; 112 Stat. 3236), effective November 3, 1998; section 206(f) of title II of the Act of December 21, 2000 (Pub. L. No. 106--554; 114 Stat. 2763A--432), effective December 21, 2000] {{8-30-02 p.9271}} PENALTIES   SEC. 32.  (a)  Any person who willfully violates any provision of this title (other than section 30A), or any rule or regulation thereunder the violation of which is made unlawful or the observance of which is required under the terms of this title, or any person who willfully and knowingly makes, or causes to be made, any statement in any application, report, or document required to be filed under this title or any rule or regulation thereunder or any undertaking contained in a registration statement as provided in subsection (d) of section 15 of this title or by any self-regulatory organization in connection with an application for membership or participation therein or to become associated with a member thereof, which statement was false or misleading with respect to any material fact, shall upon conviction be fined not more than $5,000,000, or imprisoned not more than 20 years, or both, except that when such person is a person other than a natural person, a fine not exceeding $25,000,000 may be imposed; but no person shall be subject to imprisonment under this section for the violation of any rule or regulation if he proves that he had no knowledge of such rule or regulation.   (b)  Any issuer which fails to file information, documents, or reports required to be filed under subsection (d) of section 15 of this title or any rule or regulation thereunder shall forfeit to the United States the sum of $100 for each and every day such failure to file shall continue. Such forfeiture, which shall be in lieu of any criminal penalty for such failure to file which might be deemed to arise under subsection (a) of this section, shall be payable into the Treasury of the United States and shall be recoverable in a civil suit in the name of the United States.   (c)(1)(A)  Any issuer that violates subsection (a) or (g) of section 30A       (B)  Any employee or agent of an issuer who is a United States citizen, national, or resident or is otherwise subject to the jurisdiction of the United States (other than an officer, director, or stockholder acting on behalf of such issuer), and who willfully violates subsection (a) or (g) of section 30A, shall be fined not more than $100,000, or imprisoned not more than 5 years, or both.       (C)  Any officer, director, employee, or agent of an issuer, or stockholder acting on behalf of such issuer, who violates section 30A(a) shall be subject to a civil penalty of not more than $10,000 imposed in an action brought by the Commission.     (2)(A)  Any officer, director, employee, or agent of an issuer, or stockholder acting on behalf of such issuer, who willfully violates subsection (a) or (g) of section 30A of this title shall be fined not more than $100,000, or imprisoned not more than 5 years, or both.       (B)  Any officer, director, employee, or agent of an issuer, or stockholder acting on behalf of such issuer, who violates subsection (a) or (g) of section 30A of this title shall be subject to a civil penalty of not more than $10,000 imposed in an action brought by the Commission.     (3)  Whenever a fine is imposed under paragraph (2) upon any officer, director, employee, agent, or stockholder of an issuer, such fine may not be paid, directly or indirectly, by such issuer. [Codified to 15 U.S.C. 78ff] [Source:  Section 32 of the Act of June 6, 1934 (Pub. L. No. 291; 48 Stat. 904), effective July 1, 1934, as amended by section 9 of the Act of May 27, 1936 (Pub. L. No. 621; 49 Stat. 1380), effective May 27, 1936; section 4 of the Act of June 25, 1938 (Pub. L. No. 719; 52 Stat. 1076), effective June 25, 1938; section 11 of the Act of August 20, 1964 (Pub. L. No. 88--467; 78 Stat. 580), effective August 20, 1964; sections 23 and 27(b) of the Act of June 4, 1975 (Pub. L. No. 94--29; 89 Stat. 162, 163), effective June 4, 1975; sections 103(b)(1) and (2) of the Act of December 19, 1977 (Pub. L. No. 95--213; 91 Stat. 1496), effective December 19, 1977; and section 3 of the Act of August 10, 1984 (Pub. L. No. 98--376; 98 Stat. 1265), effective August 10, 1984; section 5003(b) of title V of the Act of August 23, 1988 (Pub. L. No. 100--418; 102 Stat. 1419), effective August 23, 1988; section 4 of the Act of November 19, 1988 (Pub. L. No. 100--704; 102 Stat. 4680), effective November 19, 1988; section (d) of the Act of November 10, 1998 (Pub. L. No. 105--366; 112 Stat. 3303), effective November 10, 1998; section 1106 of title XI of the Act of July 30, 2002 (Pub. L. No. 107--204; 116 Stat. 810), effective July 30, 2002] {{8-30-02 p.9272}} SEPARABILITY OF PROVISIONS   SEC. 33.  If any provision of this Act, or the application of such provision to any person or circumstances, shall be held invalid, the remainder of the Act, and the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby. [Codified to 15 U.S.C. 78gg] [Source:  Section 33 of the Act of June 6, 1934 (Pub. L. No. 291; 48 Stat. 905), effective July 1, 1934] EFFECTIVE DATE   SEC. 34.  This Act shall become effective on July 1, 1934, except that sections 6 and 12(b), (c), (d), and (e) shall become effective on September 1, 1934; and sections 5, 7, 8, 9(a)(6), 10, 11, 12(a), 13, 14, 15, 16, 17, 18, 19, and 30 shall become effective on October 1, 1934. [Codified to 15 U.S.C. 78hh] [Source:  Section 34 of the Act of June 6, 1934 (Pub. L. No. 291; 48 Stat. 905), effective July 1, 1934] SEC. 35. AUTHORIZATION OF APPROPRIATIONS.   In addition to any other funds authorized to be appropriated to the Commission, there are authorized to be appropriated to carry out the functions, powers, and duties of the Commission, $776,000,000 for fiscal year 2003, of which--     (1)  $102,700,000 shall be available to fund additional compensation, including salaries and benefits, as authorized in the Investor and Capital Markets Fee Relief Act (Public Law 107--123; 115 Stat. 2390 et seq.);     (2)  $108,400,000 shall be available for information technology, security enhancements, and recovery and mitigation activities in light of the terrorist attacks of September 11, 2001; and     (3)  $98,000,000 shall be available to add not fewer than an additional 200 qualified professionals to provide enhanced oversight of auditors and audit services required by the Federal securities laws, and to improve Commission investigative and disciplinary efforts with respect to such auditors and services, as well as for additional professional support staff necessary to strengthen the programs of the Commission involving Full Disclosure and Prevention and Suppression of Fraud, risk management, industry technology review, compliance inspections, examinations, market regulation, and investment management. [Codified to 15 U.S.C. 78kk] [Source:  Section 35 of the Act of June 6, 1934 (Pub. L. No. 291), as added by section 24 of the Act of June 4, 1975 (Pub. L. No. 94--29; 89 Stat. 162), effective June 4, 1975, and amended by the Act of April 13, 1977 (Pub. L. No. 95--20; 91 Stat. 47, effective April 13, 1977; the Act of December 19, 1977 (Pub. L. No. 95--211; 91 Stat. 1492), effective December 19, 1977; the Act of October 6, 1978 (Pub. L. No. 95--425; 92 Stat. 962), effective October 6, 1978; section 401 of title IV of the Act of October 21, 1980 (Pub. L. No. 96--477; 94 Stat. 2291), effective October 21, 1980; section 101 of title I of the Act of December 4, 1987 (Pub. L. No. 100--181; 101 Stat. 1249), effective December 4, 1987; section 8 of the Act of November 19, 1988 (Pub. L. No. 100--704; 102 Stat. 4683), effective November 19, 1988; section 102 of title I of the Act of November 15, 1990 (Pub. L. No. 101--550; 104 Stat. 2713), effective November 15, 1990; section 403 of title IV of the Act of October 11, 1996 (Pub. L. No. 104--290; 110 Stat. 3441), effective October 11, 1996; section 201 of title II of the Act of November 3, 1998 (Pub. L. No. 105--353; 112 Stat. 3233), effective November 3, 1998; section 601 of title VI of the Act of July 30, 2002 (Pub. L. No. 107--204; 116 Stat. 793), effective July 30, 2002] {{8-30-02 p.9273}} REQUIREMENTS FOR THE EDGAR SYSTEM   SEC. 35A.  (1) Of the funds appropriated to the Commission pursuant to section 35 of this title for fiscal year 1988 which are available pursuant to section 35(b) for establishment or operation of the electronic data gathering, analysis, and retrieval ("EDGAR") system, the Commission may not obligate or expend more than $5,000,000 for the establishment or operation of the EDGAR system unless the Commission has made the certification required by subsection (c) of this section.     (2)  Notwithstanding section 35(b), no funds appropriated for fiscal year 1989 may be obligated or expended for the establishment or operation of the EDGAR system, unless the Commission has--       (A)  filed each report required during fiscal year 1988 by subsection (b) of this section; and       (B)  made the certification required by subsection (c) of this section.     (3)  Amounts which are available to the Commission under section 35(b) for the EDGAR contract shall be the exclusive source of funds for the procurement and operation of the systems created under that contract by or on behalf of the Securities and Exchange Commission--       (A)  for the receipt of filings under Federal securities laws, and       (B)  for the automated acceptance and review of the filings and information derived from such filings.     The Commission shall submit a report to the Committees on Banking, Housing, and Urban Affairs and Governmental Affairs of the Senate and the Committees on Energy and Commerce and Government Operations of the House of Representatives on the status of EDGAR development, implementation, and progress at six-month intervals beginning December 31, 1987, and ending at the close of 1990 (unless otherwise extended by the Congress). Such report shall include the following:     (1)  The overall progress and status of the project, including achievement of significant milestones and current project schedule.     (2)  The results of Commission efforts to test new or revised technical solutions for key EDGAR functions. In particular, the following functions shall be addressed and the indicated information provided:       (A)  Automating receipt and acceptance processing, including--         (i)  development and testing progress and results;         (ii)  actual versus estimated development cost; and         (iii)  actual effect of this function on Commission staff needs to assist filers.       (B)  Data tagging (identifying financial data for analysis by EDGAR), including--         (i)  description of the approach selected, identifying the types of financial data to be tagged and the calculations to be performed;         (ii)  comments by the filer population on the approach selected;         (iii)  the results of testing this approach, including information on the number of filers taking part in the test and their representativeness of the overall filer population;         (iv)  actual versus estimated development cost; and         (v)  effect of implementing this function on EDGAR benefits.       (C)  Searching text for keywords, including--         (i)  the technical approach adopted for this function;         (ii)  development and testing progress and results;         (iii)  data storage requirements and search response times as compared to EDGAR pilot system experience;         (iv)  actual versus estimated development cost; and         (v)  effect of implementing this function on EDGAR benefits.     (3)  An update of cost information for the receipt, acceptance and review, and dissemination portions of the system including a comparison of actual costs with original estimated costs and revised estimates of total system cost and total funding needs for the contract. {{8-30-02 p.9274}}     (4)  The status of Commission efforts to obtain and maintain staff with the proper contractual, managerial, and technical expertise to oversee the EDGAR project.     (5)  The fees, revenues, costs, and profits obtained or incurred by the contractor as a result of the required dissemination of information from the system to the public under the EDGAR contract, except that the information required under this paragraph (A) need be obtained from the contractor no more frequently than once each year, and (B) may be submitted to the Congress as a separate confidential document.     (6)  Such other information or recommendations as the Commission considers appropriate.   On or before the date the Commission enters into the contract for the EDGAR system, the Commission shall submit to the Committees on Banking, Housing, and Urban Affairs and Governmental Affairs of the Senate and the Committees on Energy and Commerce and Government Operations of the House of Representatives a certification by the Commission--     (1)  of the total contract costs to the Federal Government of the EDGAR system for each of the 3 succeeding fiscal years;     (2)  that the Commission has analyzed the quantitative and qualitative benefits to be obtained by the establishment and operation of the system and has determined that such benefits justify the costs certified pursuant to paragraph (1);     (3)  that (A) the contract requires the contractor to establish a schedule for the implementation of the system; (B) the Commission has reviewed and approved that schedule; and (C) the contract contains adequate assurances of contractor compliance with that schedule;     (4)  of the capabilities which the system is intended to provide and of the competence of the contractor and of Commission personnel to implement those capabilities; and     (5)  that mandatory filings from a significant test group of registrants will be received and reviewed by the Commission for a period of at least six months before the adoption of any rule requiring mandatory filing by all registrants.   The Commission, by rule or regulation--     (1)  shall provide that any information in the EDGAR system that is required to be disseminated by the contractor--       (A)  may be sold or disseminated by the contractor only pursuant to a uniform schedule of fees prescribed by the Commission;       (B)  may be obtained by a purchaser by direct interconnection with the EDGAR system;       (C)  shall be equally available on equal terms to all persons; and       (D)  may be used, resold, or redisseminated by any person who has lawfully obtained such information without restriction and without payment of additional fees or royalties; and     (2)  shall require that persons, or classes of persons, required to make filings with the Commission submit such filings in a form and manner suitable for entry into the EDGAR system and shall specify the date that such requirement is effective with respect to that person or class; except that the Commission may exempt persons or classes of persons, or filings or classes of filings, from such rules or regulations in order to prevent hardships or to avoid imposing unreasonable burdens or as otherwise may be necessary or appropriate.       (A)  for a period of at least one year after the effective date specified for such person or class under paragraph (2); or       (B)  for a shorter period if the Commission determines that the EDGAR system (i) is reliable, (ii) provides a suitable alternative to such written and printed filings, and (iii) assures that the provision of information through the EDGAR system is as effective and efficient for filers, users, and disseminators as provision of such information in written or printed form. {{12-31-08 p.9275}}   For the purposes of carrying out its responsibilities under subsection (d)(3) of this section, the Commission shall consult with representatives of persons filing, disseminating, and using information contained in filings with the Commission. [Codified to 15 U.S.C. 78ll] [Source: Section 35A of the Act of June 6, 1934 (Pub. L. No. 291), as added by section 102 of title I of the Act of December 4, 1987 (Pub. L. No. 100--181; 101 Stat. 1249), effective December 4, 1987; as amended by section 202 of II of the Act of November 3, 1998 (Pub. L. No. 105--353; 112 Stat. 3234), effective November 3, 1998] SEC. 36. GENERAL EXEMPTIVE AUTHORITY   (a)  AUTHORITY.--     (1)  IN GENERAL.--Except as provided in subsection (b), but notwithstanding any other provision of this title, the Commission, by rule, regulation, or order, may conditionally or unconditionally exempt any person, security, or transaction, or any class or classes of persons, securities, or transactions, from any provision or provisions of this title or of any rule or regulation thereunder, to the extent that such exemption is necessary or appropriate in the public interest, and is consistent with the protection of investors.     (2)  PROCEDURES.--The Commission shall, by rule or regulation, determine the procedures under which an exemptive order under this section shall be granted and may, in its sole discretion, decline to entertain any application for an order of exemption under this section.   (b)  LIMITATION.--The Commission may not, under this section, exempt any person, security, or transaction, or any class or classes of persons, securities, or transactions from section 15C or the rules or regulations issued thereunder or (for purpose of section 15C and the rules and regulations issued thereunder) from any definition in paragraph (42), (43), (44), or (45) of section 3(a). [Codified to 15 U.S.C. § 78mm] [Source:  Section 36 of the Act of June 6, 1934 (Pub. L. No. 291), as added by Section 105(b) of title I of the Act of October 11, 1996 (Pub. L. No. 104--290; 110 Stat. 3424), effective October 11, 1996] SEC. 37 TENNESSEE VALLEY AUTHORITY.   (a)  IN GENERAL.--Commencing with the issuance by the Tennessee Valley Authority of an annual report on Commission Form 10--K (or any successor thereto) for fiscal year 2006 and thereafter, the Tennessee Valley Authority shall file with the Commission, in accordance with such rules and regulations as the Commission has prescribed or may prescribe, such periodic, current, and supplementary information, documents, and reports as would be required pursuant to section 13 if the Tennessee Valley Authority were an issuer of a security registered pursuant to section 12. Notwithstanding the preceding sentence, the Tennessee Valley Authority shall not be required to register any securities under this title, and shall not be deemed to have registered any securities under this title.   (b)  LIMITED TREATMENT AS ISSUER.--Commencing with the issuance by the Tennessee Valley Authority of an annual report on Commission Form 10--K (or any successor thereto) for fiscal year 2006 and thereafter, the Tennessee Valley Authority shall be deemed to be an issuer for purposes of section 10A, other than for subsection (m)(1) or (m)(3) of section 10A. The Tennessee Valley Authority shall not be required by this subsection to comply with the rules issued by any national securities exchange or national securities association in response to rules issued by the Commission pursuant to section 10A(m)(1).   (c)  NO EFFECT ON TVA AUTHORITY.--Nothing in this section shall be construed to diminish, impair, or otherwise affect the authority of the Board of Directors of the Tennessee Valley Authority to carry out its statutory functions under the Tennessee Valley Authority Act of 1933. [Codified to 15 U.S.C. § 78nn] {{12-31-08 p.9276}} [Source: Section 37 of the Act of June 6,1934 (Pub. L. No. 291), as added by section 520(2) of title V of the Act of December 8, 2004 (Pub. L. No. 108--447; 118 Stat. 3267), effective December 8, 2004] SEC. 38. FEDERAL NATIONAL MORTGAGE ASSOCIATION, FEDERAL HOME LOAN MORTGAGE CORPORATION, FEDERAL HOME LOAN BANKS.   (a)  Federal National Mortgage Association and Federal Home Loan Mortgage Corporation.--No class of equity securities of the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation shall be treated as an exempted security for purposes of section, 12, 13, 14, 0r 16.   (b)  FEDERAL HOME LOAN BANKS.--     (1)  REGISTRATION.--Each Federal Home Loan Bank shall register a class of its common stock under section 12(g), not later than 120 days after the date of enactment of the Federal Housing Finance Regulatory Reform Act of 2008, and shall thereafter maintain such registration and be treated for purposes of this title as an "issuer", the securities of which are required to be registered under section 12, regardless of the number of members holding such stock at any given time.     (2)  STANDARDS RELATING TO AUDIT COMMITTEES.--Each Federal Home Loan Bank shall comply with the rules issued by the Commission under section 10A(m).   (c)  DEFINITIONS.--For purposes of this section, the following definitions shall apply:     (1)  FEDERAL HOME LOAN BANK; MEMBER.--The terms "Federal Home Loan Bank" and "member", have the same meanings as in section 2 of the Federal Home Loan Bank Act.     (2)  FEDERAL NATIONAL MORTGAGE ASSOCIATION.--The term "Federal National Mortgage Association" means the corporation created by the Federal National Mortgage Association Charter Act.     (3)  FEDERAL HOME LOAN MORTGAGE CORPORATION.--The term "Federal Home Loan Mortgage Corporation" means the corporation created by the Federal Home Loan Mortgage Corporation Act. [Codified at 15 U.S.C. § 78oo] [Section 1112 of title I of the Act of July 30, 2008 (Pub. L. No. 110--289; 122 Stat. 2677), effective July 30, 2008] [The page following this is 9283.]   *Editor's Note. Section 405(b) of the Act of October 11, 1996 (Pub. L. No. 104--290), provides as follows:   (b)  EFFECTIVE DATES; TRANSITION.--*Cont.   (1)  IN GENERAL.--Except as provided in paragraph (2), the amendment made by subsection (a) [revision of section 31] shall apply with respect to transactions in securities that occur on or after October 1, 1997.   (2)  Off-exchange trades of last sale reported transactions.--The amendment made by subsection (a) [revision of section 31] shall apply with respect to transactions described in section 31(d)(1) of the Securities Exchange Act of 1934 (as amended by subsection (a) of this section) that occur on or after September 1, 1997. Go Back to Text [Main Tabs]     [Table of Contents - 8000]     [Index]     [Previous Page]     [Next Page]     [Search]

regs@fdic.gov

Home    Contact Us    Search    Help    SiteMap    Forms Freedom of Information Act (FOIA) Service Center    Website Policies    USA.gov

FDIC Office of Inspector General