Calendar No. 699

103D CONGRESS

2D SESSION S. 2297

[Report No. 103–388]

A BILL

To facilitate obtaining foreign-located antitrust eviand for other purposes. foreign antitrust authorities on a reciprocal basis; tual assistance agreements, antitrust evidence to sion to provide, in accordance with antitrust mu- United States and the Federal Trade Commis- dence by authorizing the Attorney General of the

SEPTEMBER 30 (legislative day, SEPTEMBER 12), 1994

Reported with an amendment
II

Calendar No. 699

103D CONGRESS

2D SESSION S. 2297

[Report No. 103–388]

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.

IN THE SENATE OF THE UNITED STATES

JULY 19 (legislative day, JULY 11), 1994

Mr. METZENBAUM (for himself, Mr. THURMOND, Mr. KENNEDY, Mr. BIDEN,

Mr. LEAHY, Mr. SIMON, Mr. SIMPSON, Mr. GRASSLEY, Mr. SPECTER,

and Mr. HATCH) introduced the following bill; which was read twice and

referred to the Committee on the Judiciary

SEPTEMBER 30 (legislative day, SEPTEMBER 12), 1994

Reported by Mr. BIDEN, with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]

A BILL

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.
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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 ‘‘International Antitrust

5 Enforcement Assistance Act of 1994’’.

6 SEC. 2. DISCLOSURE TO A FOREIGN ANTITRUST AUTHOR7 ITY OF ANTITRUST EVIDENCE.

8 Subject to section 8 and except as provided in section

9 5, the Attorney General of the United States and the Fed10 eral Trade Commission may provide, in accordance with

11 an antitrust mutual assistance agreement in effect with

12 a foreign antitrust authority, antitrust evidence to the for13 eign antitrust authority to assist the foreign antitrust au14 thority—

15 (1) to determine whether a person has violated

16 or is about to violate any of the foreign antitrust

17 laws administered or enforced by the foreign anti18 trust authority, or

19 (2) to enforce any of such foreign antitrust

20 laws.

21 SEC. 3. INVESTIGATIONS TO ASSIST A FOREIGN ANTITRUST

22 AUTHORITY IN OBTAINING ANTITRUST EVI23 DENCE.

24 (a) GENERAL AUTHORITY.—In accordance with an

25 antitrust mutual assistance agreement in effect with a for-
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1 eign antitrust authority, subject to section 8, and except

2 as provided in section 5, the Attorney General may, using

3 the authority of the Attorney General to investigate pos4 sible violations of the Federal antitrust laws, conduct in5 vestigations to obtain antitrust evidence relating to a vio6 lation of the foreign antitrust laws administered or en7 forced by the foreign antitrust authority, and may provide

8 such antitrust evidence to the foreign antitrust authority,

9 to assist the foreign antitrust authority—

10 (1) to determine whether a person has violated

11 or is about to violate any of such foreign antitrust

12 laws, or

13 (2) to enforce any of such foreign antitrust

14 laws.

15 Such investigations may be conducted, and such antitrust

16 evidence may be provided, without regard to whether the

17 conduct investigated violates any of the Federal antitrust

18 laws.

19 (b) CONFORMING AMENDMENTS.—The Antitrust

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

21 (1) in section 2—

22 (A) in subsection (d)—

23 (i) by striking ‘‘or any’’ and inserting

24 ‘‘, any’’, and
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1 (ii) by inserting before the period ‘‘,

2 or any of the foreign antitrust laws’’, and

3 (B) by adding at the end the following new

4 subsection:

5 ‘‘(k) The term ‘foreign antitrust laws’ has the mean6 ing given such term in section 12 of the International

7 Antitrust Enforcement Assistance Act of 1994.’’, and

8 (2) in the first sentence of section 3(a)—

9 (A) by inserting ‘‘or to an investigation au10 thorized by section 3(a) of the International

11 Antitrust Enforcement Assistance Act of 1994’’

12 after ‘‘investigation’’, and

13 (B) by inserting ‘‘by the United States’’

14 after ‘‘proceeding’’.

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

16 UNITED STATES.

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

18 application of the Attorney General made in accordance

19 with an antitrust mutual assistance agreement in effect

20 with a foreign antitrust authority, the United States dis21 trict court for the district in which a person resides, is

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

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

24 other thing, to the Attorney General to assist the foreign

25 antitrust authority that is a party to such agreement—
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1 (1) to determine whether a person has violated

2 or is about to violate any of the foreign antitrust

3 laws administered or enforced by the foreign anti4 trust authority, or

5 (2) to enforce any of such foreign antitrust

6 laws.

7 (b) CONTENTS OF ORDER.—(1) An order issued

8 under subsection (a) may direct that testimony or a state9 ment be given, or a document or other thing be produced,

10 to a person who shall be recommended by the Attorney

11 General and appointed by the court. A person so appointed

12 shall have power to administer any necessary oath and to

13 take such testimony or such statement.

14 (2) An order issued under subsection (a) may pre15 scribe the practice and procedure for taking testimony and

16 statements. Such practice and procedure may be in whole

17 or in part the practice and procedure of the foreign state,

18 or the regional economic integration organization, rep19 resented by the foreign antitrust authority with respect

20 to which the Attorney General requests such order. To the

21 extent such order does not prescribe otherwise, any testi22 mony and statements required to be taken shall be taken,

23 and any documents and other things required to be pro24 duced shall be produced, in accordance with the Federal

25 Rules of Civil Procedure.
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1 (c) RIGHTS AND PRIVILEGES PRESERVED.—A person

2 may not be compelled under an order issued under sub3 section (a) to give testimony or a statement, or to produce

4 a document or other thing, in violation of any legally appli5 cable right or privilege.

6 (d) VOLUNTARY CONDUCT.—This section does not

7 preclude a person in the United States from voluntarily

8 giving testimony or a statement, or producing a document

9 or other thing, in any manner acceptable to such person

10 for use in an investigation by a foreign antitrust authority.

11 SEC. 5. LIMITATIONS ON AUTHORITY.

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

13 the following antitrust evidence:

14 (1) Antitrust evidence that is received by the

15 Attorney General or the Commission under section

16 7A of the Clayton Act (15 U.S.C. 18a), as added by

17 title II of the Hart-Scott-Rodino Antitrust Improve18 ments Act of 1976. Nothing in this paragraph shall

19 affect the ability of the Attorney General or the

20 Commission to disclose to a foreign antitrust author21 ity antitrust evidence that is obtained otherwise than

22 under such section 7A.

23 (2) Antitrust evidence that is matter occurring

24 before a grand jury and with respect to which disclo25 sure is prevented by Federal law, except that for
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1 purposes of this section and Rule 6(e)(3)(c)(i) of the

2 Federal Rules of Criminal Procedure, a judicial pro3 ceeding includes a judicial or administrative proceed4 ing of a foreign state or a regional economic integra5 tion organization under any of the foreign antitrust

6 laws of such foreign state or such organization.

7 (3) Antitrust evidence that is specifically au8 thorized under criteria established by Executive

9 Order 12356, or any successor to such order, to be

10 kept secret in the interest of national defense or for11 eign policy, and—

12 (A) that is classified pursuant to such

13 order or such successor, or

14 (B) with respect to which a determination

15 of classification is pending under such order or

16 such successor.

17 (4) Antitrust evidence that is classified under

18 section 142 of the Atomic Energy Act of 1954 (42

19 U.S.C. 2162).

20 SEC. 6. DISCLOSURE OF ANTITRUST EVIDENCE.

21 Section 4 of the Antitrust Civil Process Act (15

22 U.S.C. 1313) shall not apply to prevent the Attorney Gen23 eral from providing to a foreign antitrust authority anti24 trust evidence in accordance with an antitrust mutual as-
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1 sistance agreement in effect under this Act and in accord2 ance with the other requirements of this Act.

3 SEC. 7. PUBLICATION REQUIREMENTS APPLICABLE TO

4 ANTITRUST MUTUAL ASSISTANCE AGREE5 MENTS.

6 (a) PUBLICATION OF PROPOSED ANTITRUST MU7 TUAL ASSISTANCE AGREEMENTS.—Not less than 45 days

8 before entering into an antitrust mutual assistance agree9 ment and after consultation with the Commission, the At10 torney General shall publish in the Federal Register—

11 (1) the proposed text of such agreement and

12 any modification to such proposed text, and

13 (2) a request for public comment with respect

14 to such text or such modification, as the case may

15 be.

16 (b) PUBLICATION OF PROPOSED AMENDMENTS TO

17 ANTITRUST MUTUAL ASSISTANCE AGREEMENTS IN EF18 FECT.—Not less than 45 days before entering into an

19 agreement that makes an amendment to an antitrust mu20 tual assistance agreement in effect under this Act and

21 after consultation with the Commission, the Attorney Gen22 eral shall publish in the Federal Register—

23 (1) the proposed text of such amendment, and

24 (2) a request for public comment with respect

25 to such amendment.
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1 (c) PUBLICATION OF ANTITRUST MUTUAL ASSIST2 ANCE AGREEMENTS ENTERED INTO AND OF AMEND3 MENTS TO SUCH AGREEMENTS.—Not later than 30 days

4 after entering into an antitrust mutual assistance agree5 ment, or an agreement that makes an amendment to an

6 antitrust mutual assistance agreement in effect under this

7 Act, the Attorney General shall publish in the Federal

8 Register—

9 (1) the text of the antitrust mutual assistance

10 agreement or of such amendment, as the case may

11 be, and

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

13 such amendment, a notice containing—

14 (A) a statement of the fact that such

15 agreement was entered into,

16 (B) citations to the provisions of the Fed17 eral Register that contain the text of the

18 amendment and of the antitrust mutual assist19 ance agreement that is so amended, and

20 (C) a description of the manner in which

21 a copy of the antitrust mutual assistance agree22 ment, as so amended, may be obtained from the

23 Attorney General.

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

25 assistance agreement, or an agreement that makes an
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1 amendment to an antitrust mutual assistance agreement,

2 entered into in violation of subsection (a) or (b) shall not

3 be considered to be entered into under the authority of

4 this Act.

5 SEC. 8. IMPLEMENTATION OF ANTITRUST MUTUAL ASSIST6 ANCE AGREEMENTS.

7 (a) DETERMINATIONS.—The Attorney General may

8 conduct an investigation under section 3, and the Attorney

9 General or the Commission may provide antitrust evidence

10 to a foreign antitrust authority, under an antitrust mutual

11 assistance agreement in effect under this Act only if the

12 Attorney General or the Commission, as the case may be,

13 determines in the particular instance in which such inves14 tigation or evidence is requested that—

15 (1) the foreign antitrust authority—

16 (A) will satisfy the assurances, terms, and

17 conditions required by subparagraphs (A), (B),

18 and (D) of section 12(2), and

19 (B) is capable of complying with and will

20 comply with the confidentiality requirements

21 applicable under such agreement to the re22 quested antitrust evidence,

23 (2) providing the requested antitrust evidence

24 will not violate section 5, and
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1 (3) conducting such investigation, or providing

2 the requested antitrust evidence, as the case may be,

3 is consistent with the public interest of the United

4 States, taking into consideration, among other fac5 tors, whether the foreign state, or the regional eco6 nomic integration organization, represented by the

7 foreign antitrust authority holds any proprietary in8 terest that could benefit or otherwise be affected by

9 such investigation or by the provision of such anti10 trust evidence.

11 (b) LIMITATION ON DISCLOSURE OF CERTAIN ANTI12 TRUST EVIDENCE.—Neither the Attorney General nor the

13 Commission may disclose in violation of an antitrust mu14 tual assistance agreement any antitrust evidence received

15 under such agreement, except that such agreement may

16 not prevent the disclosure of such antitrust evidence to

17 a defendant in an action or proceeding brought by the At18 torney General or the Commission for a violation of any

19 of the Federal antitrust laws if such disclosure would oth20 erwise be required by Federal law.

21 (c) REQUIRED DISCLOSURE OF NOTICE RE22 CEIVED.—If the Attorney General or the Commission re23 ceives a notice described in section 12(2)(G), the Attorney

24 General or the Commission, as the case may be, shall
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1 transmit such notice to the person that provided the evi2 dence with respect to which such notice is received.

3 SEC. 9. LIMITATIONS ON JUDICIAL REVIEW

4 (a) DETERMINATIONS.—Determinations made under

5 section 8(a) shall not be subject to judicial review.

6 (b) CITATIONS TO AND DESCRIPTIONS OF ANTI7 TRUST LAWS.—Whether an antitrust mutual assistance

8 agreement satisfies the requirements specified in section

9 12(2)(C) shall not be subject to judicial review.

10 SEC. 10. SUPPLEMENTATION AND PRESERVATION OF AU11 THORITY.

12 (a) SUPPLEMENTAL AUTHORITY.—The authority

13 provided by this Act is in addition to, and not in lieu of,

14 any other authority vested in the Attorney General, the

15 Commission, or any other officer of the United States.

16 (b) AUTHORITY PRESERVED.—This Act does not

17 modify or affect the allocation of responsibility between

18 the Attorney General and the Commission for the enforce19 ment of the Federal antitrust laws.

20 SEC. 11. REPORT TO THE CONGRESS.

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

22 of the enactment of this Act and after consultation with

23 the Commission, the Attorney General shall submit, to the

24 Speaker of the House of Representatives and the Presi25 dent pro tempore of the Senate, a report—
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1 (1) describing how the operation of this Act has

2 affected the enforcement of the Federal antitrust

3 laws,

4 (2) the extent to which foreign antitrust au5 thorities have complied with the confidentiality re6 quirements applicable under antitrust mutual assist7 ance agreements in effect under this Act,

8 (3) the number and identities of the foreign

9 antitrust authorities that have entered into such

10 agreements,

11 (4) the identity of each foreign state, and each

12 regional economic integration organization, that has

13 in effect a law similar to this Act,

14 (5) the approximate number of requests made

15 by the Attorney General and the Commission under

16 such agreements to foreign antitrust authorities for

17 antitrust investigations and for antitrust evidence,

18 (6) the approximate number of requests made

19 by foreign antitrust authorities under such agree20 ments to the Attorney General and the Commission

21 for investigations under section 3 and for antitrust

22 evidence, and

23 (7) a description of any significant problems or

24 concerns of which the Attorney General is aware

25 with respect to the operation of this Act.
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1 SEC. 12. DEFINITIONS.

2 For purposes of this Act:

3 (1) The term ‘‘antitrust evidence’’ means infor4 mation, testimony, statements, documents, or other

5 things obtained in anticipation of, or during the

6 course of, an investigation or proceeding under any

7 of the Federal antitrust laws or any of the foreign

8 antitrust laws.

9 (2) The term ‘‘antitrust mutual assistance

10 agreement’’ means a written agreement, or written

11 memorandum of understanding, that is entered be12 tween the Attorney General and a foreign antitrust

13 authority for the purpose of conducting investiga14 tions under section 3, or for providing antitrust evi15 dence, on a reciprocal basis and that includes the

16 following:

17 (A) An assurance that the foreign anti18 trust authority will provide to the Attorney

19 General or the Commission assistance that is

20 comparable in scope to the assistance the Attor21 ney General or the Commission, as the case

22 may be, provides under such agreement or such

23 memorandum.

24 (B) An assurance that the foreign anti25 trust authority is subject to laws and proce26 dures that are adequate to maintain the con-
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1 fidentiality of antitrust evidence that may be re2 ceived under section 2, 3, or 4 and will give

3 protection to antitrust evidence received under

4 such section that is not less than the protection

5 provided under the laws of the United States to

6 such antitrust evidence.

7 (C) Citations to, and brief descriptions of,

8 the laws (including treaties, statutes, executive

9 orders, and regulations) of the United States,

10 and the laws (including treaties, statutes, exec11 utive orders, and regulations) of the foreign

12 state, or the regional economic integration orga13 nization, represented by the foreign antitrust

14 authority, that protect the confidentiality of

15 antitrust evidence that may be provided under

16 such agreement or such memorandum. Such ci17 tations and such descriptions shall include the

18 enforcement mechanisms and penalties applica19 ble under such laws.

20 (D) Terms and conditions that specifically

21 prohibit using antitrust evidence received under

22 such agreement or such memorandum, for any

23 purpose other than the administration or en24 forcement of the foreign antitrust laws involved.
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1 (E) An assurance that antitrust evidence

2 received under section 2, 3, or 4 from the At3 torney General or the Commission, and all cop4 ies of such evidence, in the possession or control

5 of the foreign antitrust authority will be re6 turned to the Attorney General or the Commis7 sion, respectively, at the conclusion of the for8 eign investigation or proceeding with respect to

9 which such evidence was so received.

10 (F) Terms and conditions that specifically

11 provide that such agreement or such memoran12 dum will be terminated if—

13 (i) the confidentiality required under

14 such agreement or such memorandum is

15 violated with respect to antitrust evidence,

16 and

17 (ii) adequate action is not taken both

18 to minimize any harm resulting from the

19 violation and to ensure that such confiden20 tiality is not violated again.

21 (G) Terms and conditions that specifically

22 provide that if the confidentiality required

23 under such agreement or such memorandum is

24 violated by the foreign antitrust authority with
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1 respect to antitrust evidence, notice of the viola2 tion will be given—

3 (i) by the foreign antitrust authority

4 promptly to the Attorney General or the

5 Commission with respect to antitrust evi6 dence provided by the Attorney General or

7 the Commission, respectively, and

8 (ii) by the Attorney General or the

9 Commission to the person (if any) that

10 provided such evidence to the Attorney

11 General or the Commission.

12 (3) The term ‘‘Attorney General’’ means the

13 Attorney General of the United States.

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

15 Trade Commission.

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

17 meaning given the term ‘‘antitrust laws’’ in sub18 section (a) of the first section of the Clayton Act (15

19 U.S.C. 12(a)) but also includes section 5 of the Fed20 eral Trade Commission Act (15 U.S.C. 45) to the

21 extent that such section 5 applies to unfair methods

22 of competition.

23 (6) The term ‘‘foreign antitrust authority’’

24 means a governmental entity of a foreign state or of

25 a regional economic integration organization that is
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1 vested by such state or such organization with au2 thority to enforce the foreign antitrust laws of such

3 state or such organization.

4 (7) The term ‘‘foreign antitrust laws’’ means

5 the laws of a foreign state, or of a regional economic

6 integration organization, that are substantially simi7 lar to any of the Federal antitrust laws and that

8 prohibit conduct similar to conduct prohibited under

9 the Federal antitrust laws.

10 (8) The term ‘‘person’’ has the meaning given

11 such term in subsection (a) of the first section of the

12 Clayton Act (15 U.S.C. 12(a)).

13 (9) The term ‘‘regional economic integration or14 ganization’’ means an organization that is con15 stituted by, and composed of, foreign states and in

16 which such foreign states have vested authority to

17 make decisions binding on such foreign states.

18 SEC. 13. AUTHORITY TO RECEIVE REIMBURSEMENTS.

19 The Attorney General and the Commission are au20 thorized to receive from a foreign state or a regional eco21 nomic integration organization reimbursement in cash or

22 in kind for the costs incurred by the Attorney General or

23 the Commission, respectively, to conduct investigations

24 under section 3 or provide antitrust evidence under a mu25 tual assistance agreement entered into with the foreign
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1 antitrust authority that represents such foreign state or

2 such organization.

3 SECTION 1. SHORT TITLE.

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

5 Enforcement Assistance Act of 1994’’.

6 SEC. 2. DISCLOSURE TO A FOREIGN ANTITRUST AUTHOR7 ITY OF ANTITRUST EVIDENCE.

8 Subject to section 8, except as provided in section 5,

9 and in accordance with an antitrust mutual assistance

10 agreement, the Attorney General and the Federal Trade

11 Commission may provide antitrust evidence to a foreign

12 antitrust authority to assist the foreign antitrust author13 ity—

14 (1) in determining whether a person has violated

15 or is about to violate any of the foreign antitrust laws

16 administered or enforced by the foreign antitrust au17 thority; or

18 (2) in enforcing any of such foreign antitrust

19 laws.

20 SEC. 3. INVESTIGATIONS TO ASSIST A FOREIGN ANTITRUST

21 AUTHORITY IN OBTAINING ANTITRUST EVI22 DENCE.

23 (a) AUTHORITY OF THE ATTORNEY GENERAL.—
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1 (1) REQUEST.—Requests for assistance from a

2 foreign antitrust authority pursuant to this section

3 shall be made to the Attorney General.

4 (2) INVESTIGATION.—Subject to section 8, except

5 as provided in section 5, and in accordance with an

6 antitrust mutual assistance agreement, the Attorney

7 General may, after consultation with the Commission,

8 use antitrust investigative authority to conduct anti9 trust investigations to obtain antitrust evidence relat10 ing to a violation of the foreign antitrust laws admin11 istered or enforced by a foreign antitrust authority,

12 and may provide such antitrust evidence to the for13 eign antitrust authority, to assist the foreign anti14 trust authority—

15 (A) in determining whether a person has

16 violated or is about to violate any of such foreign

17 antitrust laws; or

18 (B) in enforcing any of such foreign anti19 trust laws.

20 (3) FEDERAL ANTITRUST LAWS.—An investiga21 tion under this section may be conducted, and such

22 antitrust evidence may be provided, without regard to

23 whether the conduct investigated violates any of the

24 Federal antitrust laws.

25 (b) AUTHORITY OF THE COMMISSION.—
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1 (1) IN GENERAL.—After consultation with the

2 Commission, and consistent with section 10(b), the

3 Attorney General may refer to the Commission a re4 quest for assistance under this section from a foreign

5 antitrust authority.

6 (2) INVESTIGATION.—Upon referral under para7 graph (1), the Commission may, subject to section 8

8 and except as provided in section 5, use its investiga9 tive authority under the Federal Trade Commission

10 Act (15 U.S.C. 41 et seq.) to conduct antitrust inves11 tigations in the same manner and of the same scope

12 as those described under subsection (a).

13 (c) CONFORMING AMENDMENTS.—

14 (1) ANTITRUST CIVIL PROCESS ACT.—The Anti15 trust Civil Process Act (15 U.S.C. 1311 et seq) is

16 amended—

17 (A) in section 2—

18 (i) in subsection (d)—

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

20 ‘‘, any’’; and

21 (II) by inserting before the semicolon

22 ‘‘, or any of the foreign antitrust laws’’; and

23 (ii) by adding at the end the following new

24 subsection:
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1 ‘‘(k) The term ‘foreign antitrust laws’ has the meaning

2 given such term in section 12 of the International Antitrust

3 Enforcement Assistance Act of 1994.’’; and

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

5 (i) by inserting ‘‘or to an investigation au6 thorized by section 3(a) of the International

7 Antitrust Enforcement Assistance Act of 1994’’

8 after ‘‘investigation’’; and

9 (ii) by inserting ‘‘by the United States’’

10 after ‘‘proceeding’’.

11 (2) FEDERAL TRADE COMMISSION ACT.—Section

12 6(h) of the Federal Trade Commission Act (15 U.S.C.

13 46(h)) is amended by striking the period after ‘‘advis14 able’’ and inserting ‘‘and to conduct investigations in

15 accordance with the International Antitrust Enforce16 ment Assistance Act.’’.

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

18 UNITED STATES.

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

20 application of the Attorney General made in accordance

21 with an antitrust mutual assistance agreement, the United

22 States district court for the district in which a person re23 sides, is found, or transacts business may order such person

24 to give testimony or a statement, or to produce a document
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1 or other thing, to the Attorney General to assist the foreign

2 antitrust authority that is covered by the agreement—

3 (1) in determining whether a person has violated

4 or is about to violate any of the foreign antitrust laws

5 administered or enforced by the foreign antitrust au6 thority; or

7 (2) in enforcing any of such foreign antitrust

8 laws.

9 (b) CONTENTS OF ORDER.—

10 (1) IN GENERAL.—An order issued under sub11 section (a) may direct that testimony or a statement

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

13 to a person who shall be recommended by the Attor14 ney General and appointed by the court.

15 (2) POWER OF APPOINTEE.—A person appointed

16 in an order under paragraph (1) shall have power to

17 administer any necessary oath and to take such testi18 mony or such statement.

19 (3) PRACTICE AND PROCEDURE.—(A) An order

20 issued under subsection (a) may prescribe the practice

21 and procedure for taking testimony and statements.

22 (B) Such practice and procedure may be in

23 whole or in part the practice and procedure of the for24 eign state, or the regional economic integration orga25 nization, represented by the foreign antitrust author-
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1 ity with respect to which the Attorney General re2 quests such order.

3 (C) To the extent such order does not prescribe

4 otherwise, any testimony and statements required to

5 be taken shall be taken, and any documents and other

6 things required to be produced shall be produced, in

7 accordance with the Federal Rules of Civil Procedure.

8 (c) RIGHTS AND PRIVILEGES PRESERVED.—A person

9 may not be compelled under an order issued under sub10 section (a) or in connection with an investigation author11 ized by section 3 to give testimony or a statement, or to

12 produce a document or other thing, in violation of any le13 gally applicable right or privilege.

14 (d) VOLUNTARY CONDUCT.—This section does not pre15 clude a person in the United States from voluntarily giving

16 testimony or a statement, or producing a document or other

17 thing, in any manner acceptable to such person for use in

18 an investigation by a foreign antitrust authority.

19 SEC. 5. LIMITATIONS ON AUTHORITY.

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

21 the following antitrust evidence:

22 (1) Antitrust evidence that is received by the At23 torney General or the Commission under section 7A

24 of the Clayton Act (15 U.S.C. 18a), as added by title

25 II of the Hart-Scott-Rodino Antitrust Improvements
25

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1 Act of 1976. Nothing in this paragraph shall affect

2 the ability of the Attorney General or the Commission

3 to disclose to a foreign antitrust authority antitrust

4 evidence that is obtained otherwise than under such

5 section 7A.

6 (2) Antitrust evidence that is matter occurring

7 before a grand jury and with respect to which disclo8 sure is prevented by Federal law, except as may be

9 directed by a court pursuant to Rule 6(e)(3)(C)(i) of

10 the Federal Rules of Criminal Procedure. For pur11 poses of this section, disclosure preliminary to or in

12 connection with a judicial proceeding shall include

13 disclosure to a foreign antitrust authority for the pur14 poses provided in section 2.

15 (3) Antitrust evidence that is specifically author16 ized under criteria established by Executive Order

17 12356, or any successor to such order, to be kept se18 cret in the interest of national defense or foreign pol19 icy, and—

20 (A) that is classified pursuant to such order

21 or such successor; or

22 (B) with respect to which a determination

23 of classification is pending under such order or

24 such successor.
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1 (4) Antitrust evidence that is classified under

2 section 142 of the Atomic Energy Act of 1954 (42

3 U.S.C. 2162).

4 SEC. 6. DISCLOSURE OF ANTITRUST EVIDENCE.

5 Neither section 4 of the Antitrust Civil Process Act (15

6 U.S.C. 1313) nor section 6(f) or 21 of the Federal Trade

7 Commission Act (15 U.S.C. 46, 57b–2) shall apply to pre8 vent the Attorney General or the Commission from provid9 ing to a foreign antitrust authority antitrust evidence in

10 accordance with an antitrust mutual assistance agreement

11 in effect under this Act and in accordance with the other

12 requirements of this Act.

13 SEC. 7. PUBLICATION REQUIREMENTS APPLICABLE TO

14 ANTITRUST MUTUAL ASSISTANCE AGREE15 MENTS.

16 (a) PUBLICATION OF PROPOSED ANTITRUST MUTUAL

17 ASSISTANCE AGREEMENTS.—Not less than 45 days before

18 entering into an antitrust mutual assistance agreement, the

19 Attorney General, with the concurrence of the Commission,

20 shall publish in the Federal Register—

21 (1) the proposed text of such agreement and any

22 modification to such proposed text; and

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

24 such text or such modification, as the case may be.
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1 (b) PUBLICATION OF PROPOSED AMENDMENTS TO

2 ANTITRUST MUTUAL ASSISTANCE AGREEMENTS IN EF3 FECT.—Not less than 45 days before entering into an agree4 ment that makes an amendment to an antitrust mutual as5 sistance agreement in effect under this Act, the Attorney

6 General, with the concurrence of the Commission, shall pub7 lish in the Federal Register—

8 (1) the proposed text of such amendment, and

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

10 such amendment.

11 (c) PUBLICATION OF ANTITRUST MUTUAL ASSISTANCE

12 AGREEMENTS ENTERED INTO, AND AMENDMENTS TO AND

13 TERMINATIONS OF, SUCH AGREEMENTS.—

14 (1) IN GENERAL.—Not later than 30 days

15 after—

16 (A) entering into an antitrust mutual as17 sistance agreement;

18 (B) entering into an agreement that makes

19 an amendment to an antitrust mutual assistance

20 agreement; or

21 (C) terminating an antitrust mutual assist22 ance agreement,

23 the Attorney General, with the concurrence of the

24 Commission, shall publish in the Federal Register a
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1 notice containing the information described in para2 graph (2).

3 (2) CONTENTS OF NOTICE.—A notice under this

4 subsection shall contain—

5 (A) the text of the antitrust mutual assist6 ance agreement or of such amendment, or the

7 fact and any terms of termination as the case

8 may be; and

9 (B) in the case of an agreement that makes such

10 amendment, a notice containing—

11 (i) a statement of the fact that such agree12 ment was entered into;

13 (ii) citations to the provisions of the Fed14 eral Register that contain the text of the amend15 ment, of any previous amendments and of the

16 antitrust mutual assistance agreement that is so

17 amended; and

18 (iii) a description of the manner in which

19 a copy of the antitrust mutual assistance agree20 ment, as so amended, may be obtained from the

21 Attorney General or the Commission.

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

23 assistance agreement, or an agreement that makes an

24 amendment to an antitrust mutual assistance agreement,

25 entered into in violation of subsection (a) or (b) shall not
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1 be considered to be entered into under the authority of this

2 Act.

3 SEC. 8. IMPLEMENTATION OF ANTITRUST MUTUAL ASSIST4 ANCE AGREEMENTS.

5 (a) DETERMINATIONS.—The Attorney General or the

6 Commission may conduct an investigation under section 3

7 and may provide antitrust evidence to a foreign antitrust

8 authority, under an antitrust mutual assistance agreement,

9 only if the Attorney General or the Commission, as the case

10 may be, determines in the particular instance in which such

11 investigation or evidence is requested that—

12 (1) the foreign antitrust authority—

13 (A) will satisfy the assurances, terms, and

14 conditions required by subparagraphs (A), (B),

15 and (D) of section 12(2); and

16 (B) is capable of complying with and will

17 comply with the confidentiality requirements ap18 plicable under such agreement to the requested

19 antitrust evidence;

20 (2) providing the requested antitrust evidence

21 will not violate section 5; and

22 (3) conducting such investigation, or providing

23 the requested antitrust evidence, as the case may be,

24 is consistent with the public interest of the United

25 States, taking into consideration, among other factors,
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1 whether the foreign state, or the regional economic in2 tegration organization, represented by the foreign

3 antitrust authority holds any proprietary interest

4 that could benefit or otherwise be affected by such in5 vestigation or by the provision of such antitrust evi6 dence.

7 (b) LIMITATION ON DISCLOSURE OF CERTAIN ANTI8 TRUST EVIDENCE.—Neither the Attorney General nor the

9 Commission may disclose in violation of an antitrust mu10 tual assistance agreement any antitrust evidence received

11 under such agreement, except that such agreement may not

12 prevent the disclosure of such antitrust evidence to a defend13 ant in an action or proceeding brought by the Attorney

14 General or the Commission for a violation of any of the

15 Federal antitrust laws if such disclosure would otherwise

16 be required by Federal law.

17 (c) REQUIRED DISCLOSURE OF NOTICE RECEIVED.—

18 If the Attorney General or the Commission receives a notice

19 described in section 12(2)(G), the Attorney General or the

20 Commission, as the case may be, shall transmit such notice

21 to the person that provided the evidence with respect to

22 which such notice is received.
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1 SEC. 9. LIMITATIONS ON JUDICIAL REVIEW

2 (a) DETERMINATIONS.—Determinations made under

3 section 8(a) (1) and (3) shall not be subject to judicial re4 view.

5 (b) ANTITRUST MUTUAL ASSISTANCE AGREEMENTS.—

6 Whether an antitrust mutual assistance agreement satisfies

7 the requirements specified in section 12(2) shall not be sub8 ject to judicial review under chapter 7 of title 5, United

9 States Code.

10 (c) RULE OF CONSTRUCTION.—Nothing in this section

11 affects the availability of judicial review under laws ref12 erenced in section 5.

13 SEC. 10. SUPPLEMENTATION AND PRESERVATION OF AU14 THORITY.

15 (a) SUPPLEMENTAL AUTHORITY.—The authority pro16 vided by this Act is in addition to, and not in lieu of, any

17 other authority vested in the Attorney General, the Commis18 sion, or any other officer of the United States.

19 (b) AUTHORITY PRESERVED.—This Act shall not mod20 ify or affect the allocation of responsibility between the At21 torney General and the Commission for the enforcement of

22 the Federal antitrust laws.

23 SEC. 11. REPORT TO THE CONGRESS.

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

25 of the enactment of this Act, the Attorney General, with the

26 concurrence of the Commission, shall submit, to the Speaker
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1 of the House of Representatives and the President pro tem2 pore of the Senate, a report—

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

4 affected the enforcement of the Federal antitrust laws;

5 (2) the extent to which foreign antitrust authori6 ties have complied with the confidentiality require7 ments applicable under antitrust mutual assistance

8 agreements in effect under this Act;

9 (3) the number and identities of the foreign anti10 trust authorities, foreign states, and regional eco11 nomic integration organizations that have entered

12 into such agreements;

13 (4) the identity of each foreign state, and each

14 regional economic integration organization, that has

15 in effect a law similar to this Act;

16 (5) the approximate number of requests made by

17 the Attorney General and the Commission under such

18 agreements to foreign antitrust authorities for anti19 trust investigations and for antitrust evidence;

20 (6) the approximate number of requests made by

21 foreign antitrust authorities under such agreements to

22 the Attorney General and the Commission for inves23 tigations under section 3 and for antitrust evidence;

24 and
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1 (7) a description of any significant problems or

2 concerns of which the Attorney General or the Com3 mission is aware with respect to the operation of this

4 Act.

5 SEC. 12. DEFINITIONS.

6 For purposes of this Act:

7 (1) The term ‘‘antitrust evidence’’ means infor8 mation, testimony, statements, documents, or other

9 things obtained in anticipation of, or during the

10 course of, an investigation or proceeding under any

11 of the Federal antitrust laws or any of the foreign

12 antitrust laws.

13 (2) The term ‘‘antitrust mutual assistance agree14 ment’’ means a written agreement, or written memo15 randum of understanding, that is entered into (i) be16 tween the Attorney General and the Commission, and

17 the foreign antitrust authority and such other agen18 cies of a foreign state or regional economic integra19 tion organization as may be necessary to carry out

20 the agreement, or (ii) between the Government of the

21 United States and a foreign state or regional eco22 nomic integration organization, for the purpose of

23 conducting investigations under section 3, or for pro24 viding antitrust evidence, on a reciprocal basis and

25 that includes the following:
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1 (A) An assurance that the foreign antitrust

2 authority will provide to the Attorney General or

3 the Commission assistance that is comparable in

4 scope to the assistance the Attorney General or

5 the Commission provides under such agreement

6 or such memorandum.

7 (B) An assurance that the foreign antitrust

8 authority is subject to laws and procedures that

9 are adequate to maintain the confidentiality of

10 antitrust evidence that may be received under

11 section 2, 3, or 4 and will give protection to

12 antitrust evidence received under such section

13 that is not less than the protection provided

14 under the laws of the United States to such anti15 trust evidence.

16 (C) Citations to, and brief descriptions of,

17 the laws (including treaties, statutes, executive

18 orders, and regulations) of the United States,

19 and the laws (including treaties, statutes, execu20 tive orders, and regulations) of the foreign state,

21 or the regional economic integration organiza22 tion, represented by the foreign antitrust author23 ity, that protect the confidentiality of antitrust

24 evidence that may be provided under such agree25 ment or such memorandum. Such citations and
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1 such descriptions shall include the enforcement

2 mechanisms and penalties applicable under such

3 laws.

4 (D) Terms and conditions that specifically

5 prohibit disclosing or using antitrust evidence

6 received under such agreement or such memoran7 dum, for any purpose other than the administra8 tion or enforcement of the foreign antitrust laws

9 involved unless, under special circumstances

10 when such disclosure or use is essential to law

11 enforcement and the evidence is not otherwise

12 readily obtainable, the Attorney General or the

13 Commission gives prior written consent to the

14 disclosure or use of the antitrust evidence pro15 vided under this Act for such other law enforce16 ment purpose as may be specified by the foreign

17 antitrust authority, subject to the other confiden18 tiality requirements of this Act.

19 (E) An assurance that antitrust evidence re20 ceived under section 2, 3, or 4 from the Attorney

21 General or the Commission, and all copies of

22 such evidence, in the possession or control of the

23 foreign antitrust authority will be returned to

24 the Attorney General or the Commission, respec25 tively, at the conclusion of the foreign investiga-
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1 tion or proceeding with respect to which such

2 evidence was so received.

3 (F) Terms and conditions that specifically

4 provide that such agreement or such memoran5 dum will be terminated if—

6 (i) the confidentiality required under

7 such agreement or such memorandum is

8 violated with respect to antitrust evidence;

9 and

10 (ii) adequate action is not taken both

11 to minimize any harm resulting from the

12 violation and to ensure that such confiden13 tiality requirement is not violated again.

14 (G) Terms and conditions that specifically

15 provide that if the confidentiality required under

16 such agreement or such memorandum is violated

17 with respect to antitrust evidence, notice of the

18 violation will be given—

19 (i) by the foreign antitrust authority

20 promptly to the Attorney General or the

21 Commission with respect to antitrust evi22 dence provided by the Attorney General or

23 the Commission, respectively; and

24 (ii) by the Attorney General or the

25 Commission to the person (if any) that pro-
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1 vided such evidence to the Attorney General

2 or the Commission.

3 (3) The term ‘‘Attorney General’’ means the At4 torney General of the United States.

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

6 Trade Commission.

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

8 meaning given the term ‘‘antitrust laws’’ in sub9 section (a) of the first section of the Clayton Act (15

10 U.S.C. 12(a)) but also includes section 5 of the Fed11 eral Trade Commission Act (15 U.S.C. 45) to the ex12 tent that such section 5 applies to unfair methods of

13 competition.

14 (6) The term ‘‘foreign antitrust authority’’

15 means a governmental entity of a foreign state or of

16 a regional economic integration organization that is

17 vested by such state or such organization with author18 ity to enforce the foreign antitrust laws of such state

19 or such organization.

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

21 laws of a foreign state, or of a regional economic inte22 gration organization, that are substantially similar to

23 any of the Federal antitrust laws and that prohibit

24 conduct similar to conduct prohibited under the Fed25 eral antitrust laws.
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1 (8) The term ‘‘person’’ has the meaning given

2 such term in subsection (a) of the first section of the

3 Clayton Act (15 U.S.C. 12(a)).

4 (9) The term ‘‘regional economic integration or5 ganization’’ means an organization that is con6 stituted by, and composed of, foreign states and in

7 which such foreign states have vested authority to

8 make decisions binding on such foreign states.

9 SEC. 13. AUTHORITY TO RECEIVE REIMBURSEMENTS.

10 The Attorney General and the Commission are author11 ized to receive from a foreign antitrust authority, a foreign

12 state, or a regional economic integration organization reim13 bursement in cash or in kind for the costs incurred by the

14 Attorney General or the Commission, respectively, to con15 duct investigations under section 3 or provide antitrust evi16 dence under a mutual assistance agreement.

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