Sens. Amy Klobuchar (D-Minn.) and Chris Coons (D-Del.) sent a letter ^[1] to the Justice Department Thursday urging the agency to provide “clarity and predictability” in its upcoming guidance on enforcement of U.S. foreign bribery laws.

The senators, who said last week ^[2] they were waiting on Justice Department guidance before introducing potential legislative amendments to the Foreign Corrupt Practices Act, pressed Attorney General Eric Holder to specific issues “to allow law-abiding companies to comply with the FCPA more effectively, while not diminishing the government’s ability to enforce the law.”

Assistant Attorney General Lanny Breuer said in November the Justice Department would introduce guidance on the FCPA, which prohibits payments to foreign officials to win business. The statute has been the subject of a high-profile industry lobbying campaign, spearheaded by the U.S. Chamber of Commerce pushing for legislative amendments to “clarify” the law since October 2010.

Klobuchar and Coons both pressed the DOJ to “seek out the participation of U.S. corporate stakeholders when formulating its guidance.”

“Engagement with the stakeholder community ought to occur prior to the release of guidance,” they wrote. “In the alternative, guidance should be issued in draft form and finalized after a comment period of sufficient length.”

The full list, excerpted from the letter, is provided below:

“[W]e believe that the Department of Justice must provide clear and concrete guidance on:

• the definition of ‘foreign official,’ in particular, the term ‘instrumentality,’ including under what circumstances an employee of an instrumentality who is not exercising the sovereign authority of the state may be considered a ‘foreign official;’
• the benefits, such as non-prosecution, deferred prosecution, and reduced fines, that will be granted in return for self-reporting of violations, cooperating with investigations, and maintaining an FCPA compliance program;
• the scope of internal investigations and other actions required of companies seeking to cooperate with the government in order to qualify for such benefits;
• the requirements for an adequate compliance program and how such requirements vary depending on the size and complexity of a company;
• the methodology used to calculate fines and disgorgements, including the extent to which the Department of Justice will take into account parallel Securities and Exchange Commission enforcement actions and the enforcement actions of competent foreign authorities for the same conduct at issue;
• the extent to which companies may be held liable for the actions of subsidiaries, predecessor entities, and acquired entities;
• the requisite levels of intent required to incur liability, including the circumstances under which actions or knowledge of an employee will be imputed to the company;
• the methodology used to determine whether a payment is a ‘reasonable and bona fide expenditure…directly related to…the promotion, demonstration, or explanation of products or services;’ and
• the applicability of the FCPA to transactions of de minimis value.”

The campaign to amend the FCPA faces opposition from the Justice Department and from anti-corruption groups, who argue legislative changes are an attempt to weaken the anti-bribery law.

“To be clear, it is both necessary and desirable that companies pay adequate attention to compliance efforts, and in certain cases, adequate anti-corruption initiatives may require a significant corporate commitment,” Klobuchar and Coons wrote. “Over-compliance, however, can have a negative effect on product development, export promotion, and workforce expansion.”