I

103D CONGRESS

1ST SESSION H. R. 489

To require public notice of and a period of public comment on any guideline

proposed by the Department of Justice or the Federal Trade Commission

with respect to the interpretation or implementation of the antitrust

laws or to any policy relating to the enforcement of the antitrust laws.

IN THE HOUSE OF REPRESENTATIVES

JANUARY 20, 1993

Mr. FISH introduced the following bill; which was referred to the Committee

on the Judiciary

A BILL

To require public notice of and a period of public comment

on any guideline proposed by the Department of Justice

or the Federal Trade Commission with respect to the

interpretation or implementation of the antitrust laws

or to any policy relating to the enforcement of the antitrust laws.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Antitrust Procedural

5 Fairness Act of 1993’’.
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1 SEC. 2. NOTICE OF AND PERIOD FOR COMMENT ON ANTI2 TRUST GUIDELINES.

3 (a) NOTICE OF PROPOSED ANTITRUST GUIDE4 LINES.—General notice of the proposed issuance of any

5 antitrust guideline shall be published in the Federal Reg6 ister, unless the persons subject thereto are named and

7 either personally served or otherwise have actual notice

8 thereof in accordance with law. Such notice shall include—

9 (1) a statement of the time, place, and nature

10 of public proceedings applicable to the issuance of an

11 antitrust guideline,

12 (2) reference to the legal authority under which

13 such guideline is proposed, and

14 (3) either the terms or substance of the pro15 posed antitrust guideline or a description of the sub16 jects and issues involved.

17 (b) EXCEPTIONS.—Subsection (a) shall not apply—

18 (1) to any antitrust guideline relating only to

19 agency organization or personnel,

20 (2) to any antitrust guideline when the agency

21 for good cause—

22 (A) finds that notice and public procedure

23 with respect to such guidelines are impractica24 ble, unnecessary, or contrary to the public in25 terest, and
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1 (B) publishes, at the time of publication of

2 the adopted antitrust guideline, such finding

3 and a brief statement of the reasons therefor,

4 or

5 (3) to any antitrust guideline issued after a

6 hearing required by statute.

7 (c) PERIOD FOR PUBLIC COMMENT.—An agency

8 shall provide a public comment period of not less than

9 sixty days after notice of the proposed issuance of an anti10 trust guideline with respect to which subsection (a) ap11 plies.

12 (d) PROCEDURE FOR PUBLIC COMMENT.—During

13 the public comment period required by subsection (c), any

14 interested person may submit written data, views, or argu15 ments. The agency may provide an opportunity for oral

16 presentations concerning the proposed antitrust guideline.

17 SEC. 3. ISSUANCE OF ANTITRUST GUIDELINE.

18 (a) BASIS FOR ADOPTION OF ANTITRUST GUIDE19 LINE.—After consideration of the relevant matter submit20 ted or presented with respect to a proposed antitrust

21 guideline, the agency shall incorporate in the antitrust

22 guideline adopted a concise general statement of basis and

23 purpose of such guideline.

24 (b) EFFECTIVE DATE OF ANTITRUST GUIDELINE.—

25 The required publication or service of an antitrust guide-
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1 line shall be made not less than sixty days before its effec2 tive date, except as otherwise provided by the agency for

3 good cause (as described in subsection (b)(2)(A)) found

4 and published with the guideline.

5 SEC. 4. MAINTENANCE OF FILES REGARDING ISSUANCE OF

6 ANTITRUST GUIDELINES.

7 (a) FILE OF PROCEEDING REGARDING ISSUANCE OF

8 ANTITRUST GUIDELINE.—Beginning not later than the

9 date on which the agency provides notice of the proposed

10 issuance of an antitrust guideline, the agency shall main11 tain a file of each proceeding relating to the issuance of

12 such guideline, conducted in accordance with this Act. Ex13 cept as provided in subsection (b), such file shall include—

14 (1) the notice of the proposed issuance of such

15 guideline and any supplemental notice concerning

16 such issuance,

17 (2) copies of, or identification of, all studies and

18 documentary material upon which the agency sub19 stantially relied in formulating the proposed or final

20 guideline,

21 (3) copies of all written comments on the pro22 posed guideline, or area of inquiry, which were sub23 mitted pursuant to any agency notice of the pro24 posed issuance of such guideline published in the

25 Federal Register,
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1 (4) all material which the agency by statute is

2 required to make public in connection with the issu3 ance of such guideline or which the agency wishes to

4 make part of the record, and

5 (5) the statements required of the agency in

6 formulating the guideline.

7 (b) EXCLUSION OF CERTAIN MATTERS.—Subsection

8 (a) shall not apply with respect to any matter which is

9 exempt under section 552(b) of title 5, United States

10 Code, from disclosure under section 552(a) of such title.

11 SEC. 5. AMENDMENTS TO ANTITRUST GUIDELINES.

12 For purposes of this Act, any amendment made, or

13 proposed to be made, by the agency to an existing anti14 trust guideline shall be deemed to be an antitrust guide15 line, or a proposed antitrust guideline, respectively.

16 SEC. 6. DEFINITIONS.

17 For purposes of this Act—

18 (1) the term ‘‘agency’’ means the Department

19 of Justice or the Federal Trade Commission,

20 (2) the term ‘‘antitrust guideline’’ means an

21 agency statement of general applicability designed—

22 (A) to implement or interpret any of the

23 antitrust laws, or
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1 (B) to implement, interpret, or prescribe

2 any policy relating to the enforcement of any of

3 the antitrust laws,

4 (3) the term ‘‘antitrust laws’’ has the meaning

5 given it in subsection (a) of the first section of the

6 Clayton Act (15 U.S.C. 12(a)), except that such

7 term includes section 5 of the Federal Trade Com8 mission Act (15 U.S.C. 45) to the extent that such

9 section 5 relates to unfair methods of competition,

10 and

11 (4) the term ‘‘person’’ has the meaning given it

12 in section 551(a) of title 5, United States Code.

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