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[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 2297 Engrossed in Senate (ES)]

103d CONGRESS

  2d Session

                                S. 2297

_______________________________________________________________________

                                 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.
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
103d CONGRESS
  2d Session
                                S. 2297

_______________________________________________________________________

                                 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--
            (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
                    ``(D) any activity in preparation for a merger, 
                acquisition, 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-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.
    (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 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,
            (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 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--
                            (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 foreign 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.

            Passed the Senate October 7 (legislative day, September 
      12), 1994.

            Attest:

                                                             Secretary.

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