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25 What Are Facilitating or Expediting Payments? The FCPA’s bribery prohibition contains a narrow exception for “facilitating or expediting payments” made in furtherance of routine governmental action.’ The facili- tating payments exception applies only when a payment is made to further “routine governmental action” that involves non-discretionary acts.' Examples of “routine governmen- tal action” include processing visas, providing police pro- tection or mail service, and supplying utilities like phone service, power, and water. Routine government action does not include a decision to award new business or to continue business with a particular party.'*! Nor does it include acts that are within an official’s discretion or that would consti- tute misuse of an official’s office.’ Thus, paying an official a small amount to have the power turned on ata factory might be a facilitating payment; paying an inspector to ignore the fact that the company does not have a valid permit to operate the factory would not be a facilitating payment. Examples of “Routine Governmental Action” An action which is ordinarily and commonly performed by a foreign official in— "obtaining permits, licenses, or other official documents to qualify a person to do business in a foreign country; = processing governmental papers, such as visas and work orders; " providing police protection, mail pickup and delivery, or scheduling inspections associated with contract performance or inspections related to transit of goods across country; # providing phone service, power and water supply, loading and unloading cargo, or protecting perishable products or commodities from deterioration; or = actions of a similar nature. Whether a payment falls within the exception is not dependent on the size of the payment, though size can be telling, as a large payment is more suggestive of corrupt intent to influence a non-routine governmental action. But, like the FCPA’ anti-bribery provisions more generally, the facilitating payments exception focuses on the purpose of the payment rather than its value. For instance, an Oklahoma- based corporation violated the FCPA when its subsidiary paid Argentine customs officials approximately $166,000 to secure customs clearance for equipment and materials that lacked required certifications or could not be imported under local law and to pay a lower-than-applicable duty rate. The company’s Venezuelan subsidiary had also paid Venezuelan customs officials approximately $7,000 to permit the importation and exportation of equipment and materials not in compliance with local regulations and to avoid a full inspection of the imported goods. In another case, three subsidiaries of a global supplier of oil drilling products and services were criminally charged with authorizing an agent to make at least 378 corrupt payments (totaling approximately $2.1 million) to Nigerian Customs Service officials for pref- erential treatment during the customs process, including the reduction or elimination of customs duties.! Labeling a bribe as a “facilitating payment” in acom- pany’s books and records does not make it one. A Swiss offshore drilling company, for example, recorded pay- ments to its customs agent in the subsidiary’s “facilitat- ing payment” account, even though company personnel believed the payments were, in fact, bribes. The company was charged with violating both the FCPA’s anti-bribery and accounting provisions.’ Although true facilitating payments are not ille- gal under the FCPA, they may still violate local law in the countries where the company is operating, and the OECD's Working Group on Bribery recommends that all countries encourage companies to prohibit or discourage facilitating payments, which the United States has done regularly.’ In addition, other countries’ foreign bribery laws, such as the United Kingdom's, may not contain an exception for facilitating payments.'” Individuals and companies should therefore be aware that although true facilitating payments HOUSE_OVERSIGHT_022527