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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 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.

(c)  RULE OF CONSTRUCTION.--No provision of this title that was added by the Wall Street Transparency and Accountability Act of 2010, or any rule or regulation thereunder, shall apply to any person insofar as such person transacts a business in security-based swaps without the jurisdiction of the United States, unless such person transacts such business in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate to prevent the evasion of any provision of this title that was added by the Wall Street Transparency and Accountability Act of 2010. This subsection shall not be construed to limit the jurisdiction of the Commission under any provision of this title, as in effect prior to the date of enactment of the Wall Street Transparency and Accountability Act of 2010.

[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; section 772(b) of title VII of the Act of July 21, 2010 (Pub. L. No. 111--203; 124 Stat. 1867), effective July 21, 2010]


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

(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 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 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 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 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 persons through 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, 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 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 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--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

(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 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 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 COSTS OF ANNUAL APPROPRIATION.--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 annual appropriation to the Commission by Congress.

(b)  EXCHANGE-TRADED SECURITIES.--Subject to subsection (j) of this section, each national securities exchange shall pay to the Commission a fee at a rate equal to $15 per $1,000,000 of the aggregate dollar amount of sales of securities (other than bonds, debentures, other evidences of indebtedness, security futures products, and options on securities indexes (excluding a narrow-based security index)) transacted on such national securities exchange.

(c)  OFF-EXCHANGE TRADES OF EXCHANGE REGISTERED AND LAST-SALE-REPORTED SECURITIES.--Subject to subsection (j) of this section, each national securities association shall pay to the Commission a fee at a rate equal to $15 per $1,000,000 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, other evidences of indebtedness, security futures products, and options on securities indexes (excluding a narrow-based security index)) registered on a national securities exchange or subject to prompt last sale reporting pursuant to the rules of the Commission or a registered national securities association.

(d)  ASSESSMENTS ON SECURITY FUTURES TRANSACTIONS.--Each national securities exchange and national securities association shall pay to the Commission an assessment equal to $0.009 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 and each succeeding fiscal year such assessment shall be equal to $0.0042 for each such transaction.

(e)  DATES FOR PAYMENTS.--The fees and assessments 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 25, 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.

(f)  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.

(g)  PUBLICATION.--The Commission shall publish in the Federal Register notices of the fee and assessment rates applicable under this section for each fiscal year not later than 30 days after the date on which an Act making a regular appropriation to the Commission for such fiscal year is enacted, together with any estimates or projections on which such fees are based.

(h)  PRO RATA APPLICATION.--The rates per $1,000,000 required by this section shall be applied pro rata to amounts and balances of less than $1,000,000.

(i)  DEPOSIT OF FEES.--(1) Offsetting collections Fees collected pursuant to subsections (b), (c), and (d) of this section for any fiscal year--

(A)  shall be deposited and credited as offsetting collections to the account providing appropriations to the Commission; and

(B)  except as provided in subsection (k) of this section, shall not be collected for any fiscal year except to the extent provided in advance in appropriation Acts.

(2)  GENERAL REVENUES PROHOBITED.--No fees collected pursuant to subsections (b), (c), and (d) of this section for fiscal year 2002 or any succeeding fiscal year shall be deposited and credited as general revenue of the Treasury.

(j)  ADJUSTMENTS TO FEE RATES.--

(1)  ANNUAL ADJUSTMENT.--Subject to subsections (i)(1)(B) and (k), for each fiscal year, the Commission shall by order adjust each of the rates applicable under subsections (b) and (c) for such fiscal year to a uniform adjusted rate that, when applied to the baseline estimate of the aggregate dollar amount of sales for such fiscal year, is reasonably likely to produce aggregate fee collections under this section (including assessments collected under subsection (d) of this section) that are equal to the regular appropriation to the Commission by Congress for such fiscal year.

(2)  MID-YEAR ADJUSTMENT.--Subject to subsections (i)(1)(B) and (k), for each fiscal year, the Commission shall determine, by March 1 of such fiscal year, whether, based on the actual aggregate dollar volume of sales during the first 5 months of such fiscal year, the baseline estimate of the aggregate dollar volume of sales used under paragraph (1) for such fiscal year is reasonably likely to be 10 percent (or more) greater or less than the actual aggregate dollar volume of sales for such fiscal year. If the Commission so determines, the Commission shall by order, no later than March 1, adjust each of the rates applicable under subsections (b) and (c) for such fiscal year to a uniform adjusted rate that, when applied to the revised estimate of the aggregate dollar amount of sales for the remainder of such fiscal year, is reasonably likely to produce aggregate fee collections under this section (including fees collected during such five-month period and assessments collected under subsection (d) of this section) that are equal to the regular appropriation to the Commission by Congress for such fiscal year. In making such revised estimate, the Commission shall, after consultation with the Congressional Budget Office and the Office of Management and Budget, use the same methodology required by subsection (l).

(3)  REVIEW.--In exercising its authority under this subsection, the Commission shall not be required to comply with the provisions of section 553 of title 5, United States Code. An adjusted rate prescribed under paragraph (1) or (2) and published under subsection (g) shall not be subject to judicial review.

(4)  EFFECTIVE DATE.--

(A)  ANNUAL ADJUSTMENT.--Subject to subsections (i)(1)(B) and (k), an adjusted rate prescribed under paragraph (1) shall take effect on the later of--

(i)  the first day of the fiscal year to which such rate applies; or

(ii)  60 days after the date on which an Act making a regular appropriation to the Commission for such fiscal year is enacted.

(B)  MID-YEAR ADJUSTMENT.--an adjusted rate prescribed under paragraph (2) shall take effect on April 1 of the fiscal year to which such rate applies.

(k)  LAPSE OF APPROPRIATION.--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 (as offsetting collections) the fees and assessments under subsections (b), (c), and (d) of this section at the rate in effect during the preceding fiscal year, until 30 days after the date such a regular appropriation is enacted.

(l)   DEFINITIONS.--For purposes of this section:

(1)  Target offsetting collection amount.--The target offsetting collection amount for each of the fiscal years 2002 through 2011 is determined according to the following table:

Target offsetting Fiscal year: collection amount
2002  $732,000,000
2003  $849,000,000
2004  $1,028,000,000
2005  $1,220,000,000
2006  $,435,000,000
2007  $881,000,000
2008  $892,000,000
2009  $1,023,000,000
2010  $1,161,000,000
2011  $1,321,000,000

(2)  BASELINE ESTIMATE OF THE AGGREGATE DOLLAR AMOUNT OF SALES.--The baseline estimate of the aggregate dollar amount of sales for any fiscal year is the baseline estimate of the aggregate dollar amount of sales of securities (other than bonds, debentures, other evidences of indebtedness, security futures products, and options on securities indexes (excluding a narrow based security index)) to be transacted on each national securities exchange and by or through any member of each national securities association (otherwise than on a national securities exchange) during such fiscal year as determined by the Commission, after consultation with the Congressional Budget Office and the Office of Management and Budget, using the methodology required for making projections pursuant to section 907 of title 2.

(m)  TRANSMITTAL OF COMMISSION BUDGET REQUESTS.--(1)  BUDGET REQUIRED.--For fiscal year 2012, and each fiscal year thereafter, the Commission shall prepare and submit a budget to the President. Whenever the Commission submits a budget estimate or request to the President or the Office of Management and Budget, the Commission shall concurrently transmit copies of the estimate or request to the Committee on Appropriations of the Senate, the Committee on Appropriations of the House of Representatives, the Committee on Banking, Housing, and Urban Affairs of the Senate, and the Committee on Financial Services of the House of Representatives.

(2)  SUBMISSION TO CONGRESS.--The President shall submit each budget submitted under paragraph (1) to Congress, in unaltered form, together with the annual budget for the Administration submitted by the President.

(3)  CONTENTS.--The Commission shall include in each budget submitted under paragraph (1)--

(A)  an itemization of the amount of funds necessary to carry out the functions of the Commission.

(B)  an amount to be designated as contingency funding to be used by the Commission to address unanticipated needs; and

(C)  a designation of any activities of the Commission for which multi-year budget authority would be suitable.

[Codified to 15 U.S.C. 78ee]

[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; section 991(a) and (d)(1) of title IX of the Act of July 21, 2010 (Pub. L. No. 111--203; 124 Stat. 1950 and 1954), effective October 1, 2011]

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]

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--

(1)  for fiscal year 2011, $1,300,000,000;

(2)  for fiscal year 2012, $1,500,000,000;

(3)  for fiscal year 2013, $1,750,000,000;

(4)  for fiscal year 2014, $2,000,000,000; and

(5)  for fiscal year 2015, $2,250,000,000.

[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; section 991(c) of title IX of the Act of July 21, 2010 (Pub. L. No, 111--203; 124 Stat. 1954), effective October 1, 2011]

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.

(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.

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).

(c)  DERIVATIVES.--Unless the Commission is expressly authorized by any provision described in this subsection to grant exemptions, the Commission shall not grant exemptions, with respect to amendments made by subtitle B of the Wall Street Transparency and Accountability Act of 2010, with respect to paragraphs (65), (66), (68), (69), (70), (71), (72), (73), (74), (75), (76), and (79) of section 3(a), and sections 10B(a), 10B(b), 10B(c), 13A, 15F, 17A(g), 17A(h), 17A(i), 17A(j), 17A(k), and 17A(l); provided that the Commission shall have exemptive authority under this title with respect to security-based swaps as to the same matters that the Commodity Futures Trading Commission has under the Wall Street Transparency and Accountability Act of 2010 with respect to swaps, including under section 4(c) of the Commodity Exchange Act.

[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; section 772a of title VII of the Act of July 21, 2010 (Pub. L. No. 111--203; 124 Stat. 1801), effective July 21, 2010]

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]

[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]

INVESTOR ADVISORY COMMITTEE.

SEC. 39. (a)  ESTABLISHMENT AND PURPOSE.--

(1)  ESTABLISHMENT.--There is established within the Commission the Investor Advisory Committee (referred to in this section as the "Committee").

(2)  PURPOSE.--The Committee shall--

(A)  advise and consult with the Commission on--

(i)  regulatory priorities of the Commission;

(ii)  issues relating to the regulation of securities products, trading strategies, and fee structures, and the effectiveness of disclosure;

(iii)  initiatives to protect investor interest; and

(iv)  initiatives to promote investor confidence and the integrity of the securities marketplace; and

(B)  submit to the Commission such findings and recommendations as the Committee determines are appropriate, including recommendations for proposed legislative changes.

(b)  MEMBERSHIP.--

(1)  IN GENERAL.--The members of the Committee shall be--

(A)  the Investor Advocate;

(B)  a representative of State securities commissions;

(C)  a representative of the interests of senior citizens; and

(D)  not fewer than 10, and not more than 20, members appointed by the Commission, from among individuals who--

(i)  represent the interests of individual equity and debt investors, including investors in mutual funds;

(ii)  represent the interests of institutional investors, including the interests of pension funds and registered investment companies;

(iii)  are knowledgeable about investment issues and decisions; and

(iv)  have reputations of integrity.

(2)  TERM.--Each member of the Committee appointed under paragraph (1)(B) shall serve for a term of 4 years.

(3)  MEMBERS NOT COMMISSION EMPLOYEES.--Members appointed under paragraph (1)(B) shall not be deemed to be employees or agents of the Commission solely because of membership on the Committee.

(c)  CHAIRMAN; VICE CHAIRMAN; SECRETARY; ASSISTANT SECRETARY.--

(1)  IN GENERAL.--The members of the Committee shall elect, from among the members of the Committee--

(A)  a chairman, who may not be employed by an issuer;

(B)  a vice chairman, who may not be employed by an issuer;

(C)  a secretary; and

(D)  an assistant secretary.

(2)  TERM.--Each member elected under paragraph (1) shall serve for a term of 3 years in the capacity for which the member was elected under paragraph (1).

(d)  MEETINGS.--

(1)  FREQUENCY OF MEETINGS.--The Committee shall meet--

(A)  not less frequently than twice annually, at the call of the chairman of the Committee; and

(B)  from time to time, at the call of the Commission.

(2)  NOTICE.--The chairman of the Committee shall give the members of the Committee written notice of each meeting, not later than 2 weeks before the date of the meeting.

(e)  COMPENSATION AND TRAVEL EXPENSES.--Each member of the Committee who is not a full-time employee of the United States shall--

(1)  be entitled to receive compensation at a rate not to exceed the daily equivalent of the annual rate of basic pay in effect for a position at level V of the Executive Schedule under section 5316 of title 5, United States Code, for each day during which the member is engaged in the actual performance of the duties of the Committee; and

(2)  while away from the home or regular place of business of the member in the performance of services for the Committee, be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as persons employed intermittently in the Government service are allowed expenses under section 5703(b) of title 5, United States Code.

(f)  STAFF.--The Commission shall make available to the Committee such staff as the chairman of the Committee determines are necessary to carry out this section.

(g)  REVIEW BY COMMISSION.--The Commission shall--

(1)  review the findings and recommendations of the Committee; and

(2)  each time the Committee submits a finding or recommendation to the Commission, promptly issue a public statement--

(A)  assessing the finding or recommendation of the Committee; and

(B)  disclosing the action, if any, the Commission intends to take with respect to the finding or recommendation.

(h)  COMMITTEE FINDINGS.--Nothing in this section shall require the Commission to agree to or act upon any finding or recommendation of the Committee.

(i)  FEDERAL ADVISORY COMMITTEE ACT.--The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply with respect to the Committee and its activities.

(j)  AUTHORIZATION OF APPROPRIATIONS.--There is authorized to be appropriated to the Commission such sums as are necessary to carry out this section.

[Codified to 15 U.S.C. § 78pp]

[Section 39 added by section 911 of title IX of the Act of July 21, 2010 (Pub. L. No. 111-203; 124 Stat. 1822), effective July 21, 2010]

*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.--
  (1)  EFFECTIVE DATES; TRANSITION.--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
  *Cont.
  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.
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