H. R. 4781

One Hundred Third Congress

of the

United States of America

AT THE SECOND SESSION

Begun and held at the City of Washington on Tuesday,

the twenty-fifth day of January, one thousand nine hundred and ninety-four

An Act

To facilitate obtaining foreign-located antitrust evidence by authorizing the Attorney

General of the United States and the Federal Trade Commission to provide,

in accordance with antitrust mutual assistance agreements, antitrust evidence

to foreign antitrust authorities on a reciprocal basis; and for other purposes.

Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘International Antitrust Enforcement Assistance Act of 1994’’.

SEC. 2. DISCLOSURE TO A FOREIGN ANTITRUST AUTHORITY OF ANTITRUST EVIDENCE.

In accordance with an antitrust mutual assistance agreement

in effect under this Act, subject to section 8, and except as provided

in section 5, the Attorney General of the United States and the

Federal Trade Commission may provide to a foreign antitrust

authority with respect to which such agreement is in effect under

this Act, antitrust evidence to assist the foreign antitrust authority—

(1) in determining whether a person has violated or is

about to violate any of the foreign antitrust laws administered

or enforced by the foreign antitrust authority, or

(2) in enforcing any of such foreign antitrust laws.

SEC. 3. INVESTIGATIONS TO ASSIST A FOREIGN ANTITRUST AUTHORITY IN OBTAINING ANTITRUST EVIDENCE.

(a) REQUEST FOR INVESTIGATIVE ASSISTANCE.—A request by

a foreign antitrust authority for investigative assistance under this

section shall be made to the Attorney General, who may deny

the request in whole or in part. No further action shall be taken

under this section with respect to any part of a request that has

been denied by the Attorney General. (b) AUTHORITY TO INVESTIGATE.—In accordance with an antitrust mutual assistance agreement in effect under this Act, subject

to section 8, and except as provided in section 5, the Attorney

General and the Commission may, using their respective authority

to investigate possible violations of the Federal antitrust laws,

conduct investigations to obtain antitrust evidence relating to a

possible violation of the foreign antitrust laws administered or

enforced by the foreign antitrust authority with respect to which

such agreement is in effect under this Act, and may provide such

antitrust evidence to the foreign antitrust authority, to assist the

foreign antitrust authority—
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(1) in determining whether a person has violated or is

about to violate any of such foreign antitrust laws, or

(2) in enforcing any of such foreign antitrust laws.

(c) SPECIAL SCOPE OF AUTHORITY.—An investigation may be

conducted under subsection (b), and antitrust evidence obtained

through such investigation may be provided, without regard to

whether the conduct investigated violates any of the Federal antitrust laws.

(d) RIGHTS AND PRIVILEGES PRESERVED.—A person may not

be compelled in connection with an investigation under this section

to give testimony or a statement, or to produce a document or

other thing, in violation of any legally applicable right or privilege.

(e) CONFORMING AMENDMENTS.—

(1) ANTITRUST CIVIL PROCESS ACT.—The Antitrust Civil

Process Act (15 U.S.C. 1311 et seq.) is amended—

(A) in section 2—

(i) in subsection (d)—

(I) by striking ‘‘or any’’ and inserting ‘‘, any’’,

and

(II) by inserting before the semicolon ‘‘or, with

respect to the International Antitrust Enforcement

Assistance Act of 1994, any of the foreign antitrust

laws’’, and

(ii) by adding at the end the following:

‘‘(k) The term ‘foreign antitrust laws’ has the meaning

given such term in section 12 of the International Antitrust

Enforcement Assistance Act of 1994.’’, and

(B) in the first sentence of section 3(a)—

(i) by inserting ‘‘or, with respect to the International Antitrust Enforcement Assistance Act of 1994,

an investigation authorized by section 3 of such Act’’

after ‘‘investigation’’, and (ii) by inserting ‘‘by the United States’’ after

‘‘proceeding’’. (2) FEDERAL TRADE COMMISSION ACT.—The Federal Trade

Commission Act (15 U.S.C. 41 et seq.) is amended—

(A) in section 6 by inserting after subsection (h) the

following: ‘‘(i) With respect to the International Antitrust Enforcement

Assistance Act of 1994, to conduct investigations of possible violations of foreign antitrust laws (as defined in section 12 of such

Act).’’;

(B) in section 20(a) by amending paragraph (8) to read

as follows:

‘‘(8) The term ‘antitrust violation’ means—

‘‘(A) any unfair method of competition (within the

meaning of section 5(a)(1));

‘‘(B) any violation of the Clayton Act or of any other

Federal statute that prohibits, or makes available to the

Commission a civil remedy with respect to, any restraint

upon or monopolization of interstate or foreign trade or

commerce;

‘‘(C) with respect to the International Antitrust

Enforcement Assistance Act of 1994, any violation of any

of the foreign antitrust laws (as defined in section 12

of such Act) with respect to which a request is made

under section 3 of such Act; or
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‘‘(D) any activity in preparation for a merger, acquisi- tion, joint venture, or similar transaction, which if consummated, may result in any such unfair method of

competition or in any such violation.’’.

SEC. 4. JURISDICTION OF THE DISTRICT COURTS OF THE UNITED

STATES.

(a) AUTHORITY OF THE DISTRICT COURTS.—On the application

of the Attorney General made in accordance with an antitrust

mutual assistance agreement in effect under this Act, the United

States district court for the district in which a person resides,

is found, or transacts business may order such person to give

testimony or a statement, or to produce a document or other thing,

to the Attorney General to assist a foreign antitrust authority

with respect to which such agreement is in effect under this Act— (1) in determining whether a person has violated or is about to violate any of the foreign antitrust laws administered

or enforced by the foreign antitrust authority, or (2) in enforcing any of such foreign antitrust laws. (b) CONTENTS OF ORDER.— (1) USE OF APPOINTEE TO RECEIVE EVIDENCE.—(A) An order

issued under subsection (a) may direct that testimony or a

statement be given, or a document or other thing be produced,

to a person who shall be recommended by the Attorney General

and appointed by the court. (B) A person appointed under subparagraph (A) shall have power to administer any necessary oath and to take such testimony or such statement. (2) PRACTICE AND PROCEDURE.—(A) An order issued under

subsection (a) may prescribe the practice and procedure for

taking testimony and statements and for producing documents

and other things. (B) Such practice and procedure may be in whole or in part the practice and procedure of the foreign state, or the

regional economic integration organization, represented by the

foreign antitrust authority with respect to which the Attorney

General requests such order. (C) To the extent such order does not prescribe otherwise,

any testimony and statements required to be taken shall be

taken, and any documents and other things required to be

produced shall be produced, in accordance with the Federal

Rules of Civil Procedure.

(c) RIGHTS AND PRIVILEGES PRESERVED.—A person may not be compelled under an order issued under subsection (a) to give

testimony or a statement, or to produce a document or other thing,

in violation of any legally applicable right or privilege. (d) VOLUNTARY CONDUCT.—This section does not preclude a

person in the United States from voluntarily giving testimony or

a statement, or producing a document or other thing, in any manner

acceptable to such person for use in an investigation by a foreign

antitrust authority.

SEC. 5. LIMITATIONS ON AUTHORITY.

Sections 2, 3, and 4 shall not apply with respect to the following

antitrust evidence:

(1) Antitrust evidence that is received by the Attorney

General or the Commission under section 7A of the Clayton

Act (15 U.S.C. 18a), as added by title II of the Hart-Scott-
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Rodino Antitrust Improvements Act of 1976. Nothing in this

paragraph shall affect the ability of the Attorney General or

the Commission to disclose to a foreign antitrust authority

antitrust evidence that is obtained otherwise than under such

section 7A.

(2) Antitrust evidence that is matter occurring before a

grand jury and with respect to which disclosure is prevented

by Federal law, except that for the purpose of applying Rule

6(e)(3)(C)(iv) of the Federal Rules of Criminal Procedure with

respect to this section—

(A) a foreign antitrust authority with respect to which

a particularized need for such antitrust evidence is shown

shall be considered to be an appropriate official of any

of the several States, and

(B) a foreign antitrust law administered or enforced

by the foreign antitrust authority shall be considered to

be a State criminal law.

(3) Antitrust evidence that is specifically authorized under

criteria established by Executive Order 12356, or any successor

to such order, to be kept secret in the interest of national

defense or foreign policy, and—

(A) that is classified pursuant to such order or such

successor, or

(B) with respect to which a determination of classification is pending under such order or such successor.

(4) Antitrust evidence that is classified under section 142

of the Atomic Energy Act of 1954 (42 U.S.C. 2162).

SEC. 6. EXCEPTION TO CERTAIN DISCLOSURE RESTRICTIONS.

Section 4 of the Antitrust Civil Process Act (15 U.S.C. 1313),

and sections 6(f) and 21 of the Federal Trade Commission Act

(15 U.S.C. 46, 57b–2), shall not apply to prevent the Attorney

General or the Commission from providing to a foreign antitrust

authority antitrust evidence in accordance with an antitrust mutual

assistance agreement in effect under this Act and in accordance

with the other requirements of this Act.

SEC. 7. PUBLICATION REQUIREMENTS APPLICABLE TO ANTITRUST

MUTUAL ASSISTANCE AGREEMENTS.

(a) PUBLICATION OF PROPOSED ANTITRUST MUTUAL ASSISTANCE

AGREEMENTS.—Not less than 45 days before an antitrust mutual

assistance agreement is entered into, the Attorney General, with

the concurrence of the Commission, shall publish in the Federal

Register—(1) the proposed text of such agreement and any modification to such proposed text, and

(2) a request for public comment with respect to such

text or such modification, as the case may be.

(b) PUBLICATION OF PROPOSED AMENDMENTS TO ANTITRUST

MUTUAL ASSISTANCE AGREEMENTS IN EFFECT.—Not less than 45

days before an agreement is entered into that makes an amendment

to an antitrust mutual assistance agreement, the Attorney General,

with the concurrence of the Commission, shall publish in the Federal Register—

(1) the proposed text of such amendment, and

(2) a request for public comment with respect to such

amendment.
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(c) PUBLICATION OF ANTITRUST MUTUAL ASSISTANCE AGREEMENTS, AMENDMENTS, AND TERMINATIONS.—Not later than 45 days

after an antitrust mutual assistance agreement is entered into

or terminated, or an agreement that makes an amendment to

an antitrust mutual assistance agreement is entered into, the Attorney General, with the concurrence of the Commission, shall publish

in the Federal Register—

(1) the text of the antitrust mutual assistance agreement

or amendment, or the terms of the termination, as the case

may be, and

(2) in the case of an agreement that makes an amendment

to an antitrust mutual assistance agreement, a notice containing—

(A) citations to the locations in the Federal Register

at which the text of the antitrust mutual assistance agreement that is so amended, and of any previous amendments

to such agreement, are published, and

(B) a description of the manner in which a copy of

the antitrust mutual assistance agreement, as so amended,

may be obtained from the Attorney General and the

Commission.

(d) CONDITION FOR VALIDITY.—An antitrust mutual assistance

agreement, or an agreement that makes an amendment to an

antitrust mutual assistance agreement, with respect to which

publication does not occur in accordance with subsections (a), (b),

and (c) shall not be considered to be in effect under this Act.

SEC. 8. CONDITIONS ON USE OF ANTITRUST MUTUAL ASSISTANCE

AGREEMENTS.

(a) DETERMINATIONS.—Neither the Attorney General nor the

Commission may conduct an investigation under section 3, apply

for an order under section 4, or provide antitrust evidence to a

foreign antitrust authority under an antitrust mutual assistance

agreement, unless the Attorney General or the Commission, as

the case may be, determines in the particular instance in which

the investigation, application, or antitrust evidence is requested

that—

(1) the foreign antitrust authority— (A) will satisfy the assurances, terms, and conditions described in subparagraphs (A), (B), and (E) of section

12(2), and

(B) is capable of complying with and will comply with

the confidentiality requirements applicable under such

agreement to the requested antitrust evidence,

(2) providing the requested antitrust evidence will not violate section 5, and

(3) conducting such investigation, applying for such order,

or providing the requested antitrust evidence, as the case may

be, is consistent with the public interest of the United States,

taking into consideration, among other factors, whether the

foreign state or regional economic integration organization represented by the foreign antitrust authority holds any proprietary interest that could benefit or otherwise be affected by

such investigation, by the granting of such order, or by the

provision of such antitrust evidence.

(b) LIMITATION ON DISCLOSURE OF CERTAIN ANTITRUST EVIDENCE.—Neither the Attorney General nor the Commission may
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disclose in violation of an antitrust mutual assistance agreement

any antitrust evidence received under such agreement, except that

such agreement may not prevent the disclosure of such antitrust

evidence to a defendant in an action or proceeding brought by

the Attorney General or the Commission for a violation of any

of the Federal laws if such disclosure would otherwise be required

by Federal law.

(c) REQUIRED DISCLOSURE OF NOTICE RECEIVED.—If the Attorney General or the Commission receives a notice described in section

12(2)(H), the Attorney General or the Commission, as the case

may be, shall transmit such notice to the person that provided

the evidence with respect to which such notice is received.

SEC. 9. LIMITATIONS ON JUDICIAL REVIEW.

(a) DETERMINATIONS.—Determinations made under paragraphs

(1) and (3) of section 8(a) shall not be subject to judicial review.

(b) CITATIONS TO AND DESCRIPTIONS OF CONFIDENTIALITY

LAWS.—Whether an antitrust mutual assistance agreement satisfies

section 12(2)(C) shall not be subject to judicial review.

(c) RULES OF CONSTRUCTION.—

(1) ADMINISTRATIVE PROCEDURE ACT.—The requirements in

section 7 with respect to publication and request for public

comment shall not be construed to create any availability of

judicial review under chapter 7 of title 5 of the United States

Code.

(2) LAWS REFERENCED IN SECTION 5.—Nothing in this section shall be construed to affect the availability of judicial

review under laws referred to in section 5.

SEC. 10. PRESERVATION OF EXISTING AUTHORITY.

(a) IN GENERAL.—The authority provided by this Act is in

addition to, and not in lieu of, any other authority vested in the

Attorney General, the Commission, or any other officer of the United

States.

(b) ATTORNEY GENERAL AND COMMISSION.—This Act shall not

be construed to modify or affect the allocation of responsibility

between the Attorney General and the Commission for the enforcement of the Federal antitrust laws.

SEC. 11. REPORT TO THE CONGRESS.

In the 30-day period beginning 3 years after the date of the

enactment of this Act and with the concurrence of the Commission,

the Attorney General shall submit, to the Speaker of the House

of Representatives and the President pro tempore of the Senate,

a report—

(1) describing how the operation of this Act has affected

the enforcement of the Federal antitrust laws,

(2) describing the extent to which foreign antitrust authorities have complied with the confidentiality requirements

applicable under antitrust mutual assistance agreements in

effect under this Act,

(3) specifying separately the identities of the foreign states,

regional economic integration organizations, and foreign antitrust authorities that have entered into such agreements and

the identities of the foreign antitrust authorities with respect

to which such foreign states and such organizations have

entered into such agreements,
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(4) specifying the identity of each foreign state, and each

regional economic integration organization, that has in effect

a law similar to this Act,

(5) giving the approximate number of requests made by

the Attorney General and the Commission under such agreements to foreign antitrust authorities for antitrust investigations and for antitrust evidence,

(6) giving the approximate number of requests made by

foreign antitrust authorities under such agreements to the

Attorney General and the Commission for investigations under

section 3, for orders under section 4, and for antitrust evidence,

and

(7) describing any significant problems or concerns of which

the Attorney General is aware with respect to the operation

of this Act.

SEC. 12. DEFINITIONS.

For purposes of this Act:

(1) The term ‘‘antitrust evidence’’ means information, testimony, statements, documents, or other things that are obtained

in anticipation of, or during the course of, an investigation

or proceeding under any of the Federal antitrust laws or any

of the foreign antitrust laws.

(2) The term ‘‘antitrust mutual assistance agreement’’

means a written agreement, or written memorandum of understanding, that is entered into by the United States and a

foreign state or regional economic integration organization (with

respect to the foreign antitrust authorities of such foreign state

or such organization, and such other governmental entities

of such foreign state or such organization as the Attorney

General and the Commission jointly determine may be

necessary in order to provide the assistance described in

subparagraph (A)), or jointly by the Attorney General and the

Commission and a foreign antitrust authority, for the purpose

of conducting investigations under section 3, applying for orders

under section 4, or providing antitrust evidence, on a reciprocal

basis and that includes the following: (A) An assurance that the foreign antitrust authority

will provide to the Attorney General and the Commission

assistance that is comparable in scope to the assistance

the Attorney General and the Commission provide under

such agreement or such memorandum. (B) An assurance that the foreign antitrust authority

is subject to laws and procedures that are adequate to

maintain securely the confidentiality of antitrust evidence

that may be received under section 2, 3, or 4 and will

give protection to antitrust evidence received under such

section that is not less than the protection provided under

the laws of the United States to such antitrust evidence.

(C) Citations to and brief descriptions of the laws of

the United States, and the laws of the foreign state or

regional economic integration organization represented by

the foreign antitrust authority, that protect the confidentiality of antitrust evidence that may be provided under

such agreement or such memorandum. Such citations and

such descriptions shall include the enforcement mechanisms and penalties applicable under such laws and, with
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respect to a regional economic integration organization,

the applicability of such laws, enforcement mechanisms,

and penalties to the foreign states composing such

organization.

(D) Citations to the Federal antitrust laws, and the

foreign antitrust laws, with respect to which such agreement or such memorandum applies.

(E) Terms and conditions that specifically require

using, disclosing, or permitting the use or disclosure of,

antitrust evidence received under such agreement or such

memorandum only—

(i) for the purpose of administering or enforcing

the foreign antitrust laws involved, or

(ii) with respect to a specified disclosure or use

requested by a foreign antitrust authority and essential

to a significant law enforcement objective, in accordance with the prior written consent that the Attorney

General or the Commission, as the case may be, gives

after—

(I) determining that such antitrust evidence

is not otherwise readily available with respect to

such objective,

(II) making the determinations described in

paragraphs (2) and (3) of section 8(a), with respect

to such disclosure or use, and

(III) making the determinations applicable to

a foreign antitrust authority under section 8(a)(1)

(other than the determination regarding the assurance described in subparagraph (A) of this paragraph), with respect to each additional governmental entity, if any, to be provided such antitrust

evidence in the course of such disclosure or use,

after having received adequate written assurances

applicable to each such governmental entity.

(F) An assurance that antitrust evidence received

under section 2, 3, or 4 from the Attorney General or

the Commission, and all copies of such evidence, in the

possession or control of the foreign antitrust authority will

be returned to the Attorney General or the Commission,

respectively, at the conclusion of the foreign investigation

or proceeding with respect to which such evidence was

so received.

(G) Terms and conditions that specifically provide that

such agreement or such memorandum will be terminated

if—

(i) the confidentiality required under such agreement or such memorandum is violated with respect

to antitrust evidence, and

(ii) adequate action is not taken both to minimize

any harm resulting from the violation and to ensure

that the confidentiality required under such agreement

or such memorandum is not violated again.

(H) Terms and conditions that specifically provide that

if the confidentiality required under such agreement or

such memorandum is violated with respect to antitrust

evidence, notice of the violation will be given—
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(i) by the foreign antitrust authority promptly to

the Attorney General or the Commission with respect

to antitrust evidence provided by the Attorney General

or the Commission, respectively, and

(ii) by the Attorney General or the Commission

to the person (if any) that provided such evidence

to the Attorney General or the Commission.

(3) The term ‘‘Attorney General’’ means the Attorney General of the United States.

(4) The term ‘‘Commission’’ means the Federal Trade

Commission.

(5) The term ‘‘Federal antitrust laws’’ has the meaning

given the term ‘‘antitrust laws’’ in subsection (a) of the first

section of the Clayton Act (15 U.S.C. 12(a)) but also includes

section 5 of the Federal Trade Commission Act (15 U.S.C.

45) to the extent that such section 5 applies to unfair methods

of competition.

(6) The term ‘‘foreign antitrust authority’’ means a governmental entity of a foreign state or of a regional economic

integration organization that is vested by such state or such

organization with authority to enforce the foreign antitrust

laws of such state or such organization.

(7) The term ‘‘foreign antitrust laws’’ means the laws of

a foreign state, or of a regional economic integration organization, that are substantially similar to any of the Federal

antitrust laws and that prohibit conduct similar to conduct

prohibited under the Federal antitrust laws.

(8) The term ‘‘person’’ has the meaning given such term in subsection (a) of the first section of the Clayton Act (15

U.S.C. 12(a)).

(9) The term ‘‘regional economic integration organization’’

means an organization that is constituted by, and composed

of, foreign states, and on which such foreign states have conferred sovereign authority to make decisions that are binding

on such foreign states, and that are directly applicable to and

binding on persons within such foreign states, including the

decisions with respect to—

(A) administering or enforcing the foreign antitrust

laws of such organization, and (B) prohibiting and regulating disclosure of information

that is obtained by such organization in the course of

administering or enforcing such laws.

SEC. 13. AUTHORITY TO RECEIVE REIMBURSEMENT.

The Attorney General and the Commission are authorized to

receive from a foreign antitrust authority, or from the foreign state

or regional economic integration organization represented by such

foreign antitrust authority, reimbursement for the costs incurred

by the Attorney General or the Commission, respectively, in

conducting an investigation under section 3 requested by such for-
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eign antitrust authority, applying for an order under section 4

to assist such foreign antitrust authority, or providing antitrust

evidence to such foreign antitrust authority under an antitrust

mutual assistance agreement in effect under this Act with respect

to such foreign antitrust authority.

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.