II

103D CONGRESS

2D SESSION S. 2297

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, and Mr. GRASSLEY) introduced

the following bill; which was read twice and referred to the Committee

on the Judiciary

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.

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’’.
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1 SEC. 2. DISCLOSURE TO A FOREIGN ANTITRUST AUTHOR2 ITY OF ANTITRUST EVIDENCE.

3 Subject to section 8 and except as provided in section

4 5, the Attorney General of the United States and the Fed5 eral Trade Commission may provide, in accordance with

6 an antitrust mutual assistance agreement in effect with

7 a foreign antitrust authority, antitrust evidence to the for8 eign antitrust authority to assist the foreign antitrust au9 thority—

10 (1) to determine whether a person has violated

11 or is about to violate any of the foreign antitrust

12 laws administered or enforced by the foreign anti13 trust authority, or

14 (2) to enforce any of such foreign antitrust

15 laws.

16 SEC. 3. INVESTIGATIONS TO ASSIST A FOREIGN ANTITRUST

17 AUTHORITY IN OBTAINING ANTITRUST EVI18 DENCE.

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

20 antitrust mutual assistance agreement in effect with a for21 eign antitrust authority, subject to section 8, and except

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

23 the authority of the Attorney General to investigate pos24 sible violations of the Federal antitrust laws, conduct in25 vestigations to obtain antitrust evidence relating to a vio26 lation of the foreign antitrust laws administered or en-
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1 forced by the foreign antitrust authority, and may provide

2 such antitrust evidence to the foreign antitrust authority,

3 to assist the foreign antitrust authority—

4 (1) to determine whether a person has violated

5 or is about to violate any of such foreign antitrust

6 laws, or

7 (2) to enforce any of such foreign antitrust

8 laws.

9 Such investigations may be conducted, and such antitrust

10 evidence may be provided, without regard to whether the

11 conduct investigated violates any of the Federal antitrust

12 laws.

13 (b) CONFORMING AMENDMENTS.—The Antitrust

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

15 (1) in section 2—

16 (A) in subsection (d)—

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

18 ‘‘, any’’, and

19 (ii) by inserting before the period ‘‘,

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

21 (B) by adding at the end the following:

22 ‘‘(k) The term ‘foreign antitrust laws’ has the mean23 ing given such term in section 12 of the International

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

25 (2) in the first sentence of section 3(a)—
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1 (A) by inserting ‘‘or to an investigation au2 thorized by section 3(a) of the International

3 Antitrust Enforcement Assistance Act of 1994’’

4 after ‘‘investigation’’, and

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

6 after ‘‘proceeding’’.

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

8 UNITED STATES.

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

10 application of the Attorney General made in accordance

11 with an antitrust mutual assistance agreement in effect

12 with a foreign antitrust authority, the United States dis13 trict court for the district in which a person resides, is

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

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

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

17 antitrust authority that is a party to such agreement—

18 (1) to determine whether a person has violated

19 or is about to violate any of the foreign antitrust

20 laws administered or enforced by the foreign anti21 trust authority, or

22 (2) to enforce any of such foreign antitrust

23 laws.

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

25 under subsection (a) may direct that testimony or a state-
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1 ment be given, or a document or other thing be produced,

2 to a person who shall be recommended by the Attorney

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

4 shall have power to administer any necessary oath and to

5 take such testimony or such statement.

6 (2) An order issued under subsection (a) may pre7 scribe the practice and procedure for taking testimony and

8 statements. Such practice and procedure may be in whole

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

10 or the regional economic integration organization, rep11 resented by the foreign antitrust authority with respect

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

13 extent such order does not prescribe otherwise, any testi14 mony and statements required to be taken shall be taken,

15 and any documents and other things required to be pro16 duced shall be produced, in accordance with the Federal

17 Rules of Civil Procedure.

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

19 may not be compelled under an order issued under sub20 section (a) to give testimony or a statement, or to produce

21 a document or other thing, in violation of any legally appli22 cable right or privilege.

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

24 preclude a person in the United States from voluntarily

25 giving testimony or a statement, or producing a document
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1 or other thing, in any manner acceptable to such person

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

3 SEC. 5. LIMITATIONS ON AUTHORITY.

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

5 the following antitrust evidence:

6 (1) Antitrust evidence that is received by the

7 Attorney General or the Commission under section

8 7A of the Clayton Act (15 U.S.C. 18a), as added by

9 title II of the Hart-Scott-Rodino Antitrust Improve10 ments Act of 1976. Nothing in this paragraph shall

11 affect the ability of the Attorney General or the

12 Commission to disclose to a foreign antitrust author13 ity antitrust evidence that is obtained otherwise than

14 under such section 7A.

15 (2) Antitrust evidence that is matter occurring

16 before a grand jury and with respect to which disclo17 sure is prevented by Federal law, except that for

18 purposes of this section and Rule 6(e)(3)(c)(i) of the

19 Federal Rules of Criminal Procedure, a judicial pro20 ceeding includes a judicial or administrative proceed21 ing of a foreign state or a regional economic integra22 tion organization under any of the foreign antitrust

23 laws of such foreign state or such organization.

24 (3) Antitrust evidence that is specifically au25 thorized under criteria established by Executive
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1 Order 12356, or any successor to such order, to be

2 kept secret in the interest of national defense or for3 eign policy, and—

4 (A) that is classified pursuant to such

5 order or such successor, or

6 (B) with respect to which a determination

7 of classification is pending under such order or

8 such successor.

9 (4) Antitrust evidence that is classified under

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

11 U.S.C. 2162).

12 SEC. 6. DISCLOSURE OF ANTITRUST EVIDENCE OBTAINED

13 UNDER THE ANTITRUST CIVIL PROCESS ACT.

14 Section 4 of the Antitrust Civil Process Act (15

15 U.S.C. 1313) shall not apply to prevent the Attorney Gen16 eral from providing to a foreign antitrust authority anti17 trust evidence in accordance with an antitrust mutual as18 sistance agreement in effect under this Act and in accord19 ance with the other requirements of this Act.

20 SEC. 7. PUBLICATION REQUIREMENTS APPLICABLE TO

21 ANTITRUST MUTUAL ASSISTANCE AGREE22 MENTS.

23 (a) PUBLICATION OF PROPOSED ANTITRUST MU24 TUAL ASSISTANCE AGREEMENTS.—Not less than 45 days

25 before entering into an antitrust mutual assistance agree-
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1 ment and after consultation with the Commission, the At2 torney General shall publish in the Federal Register—

3 (1) the proposed text of such agreement and

4 any modification to such proposed text, and

5 (2) a request for public comment with respect

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

7 be.

8 (b) PUBLICATION OF PROPOSED AMENDMENTS TO

9 ANTITRUST MUTUAL ASSISTANCE AGREEMENTS IN EF10 FECT.—Not less than 45 days before entering into an

11 agreement that makes an amendment to an antitrust mu12 tual assistance agreement in effect under this Act and

13 after consultation with the Commission, the Attorney Gen14 eral shall publish in the Federal Register—

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

16 (2) a request for public comment with respect

17 to such amendment.

18 (c) PUBLICATION OF ANTITRUST MUTUAL ASSIST19 ANCE AGREEMENTS ENTERED INTO AND OF AMEND20 MENTS TO SUCH AGREEMENTS.—Not later than 30 days

21 after entering into an antitrust mutual assistance agree22 ment, or an agreement that makes an amendment to an

23 antitrust mutual assistance agreement in effect under this

24 Act, the Attorney General shall publish in the Federal

25 Register—
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1 (1) the text of the antitrust mutual assistance

2 agreement or of such amendment, as the case may

3 be, and

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

5 such amendment, a notice containing—

6 (A) a statement of the fact that such

7 agreement was entered into,

8 (B) citations to the provisions of the Fed9 eral Register that contain the text of the

10 amendment and of the antitrust mutual assist11 ance agreement that is so amended, and

12 (C) a description of the manner in which

13 a copy of the antitrust mutual assistance agree14 ment, as so amended, may be obtained from the

15 Attorney General.

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

17 assistance agreement, or an agreement that makes an

18 amendment to an antitrust mutual assistance agreement,

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

20 be considered to be entered into under the authority of

21 this Act.

22 SEC. 8. IMPLEMENTATION OF ANTITRUST MUTUAL ASSIST23 ANCE AGREEMENTS.

24 (a) DETERMINATIONS.—The Attorney General may

25 conduct an investigation under section 3, and the Attorney
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1 General or the Commission may provide antitrust evidence

2 to a foreign antitrust authority, under an antitrust mutual

3 assistance agreement in effect under this Act only if the

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

5 determines in the particular instance in which such inves6 tigation or evidence is requested that—

7 (1) the foreign antitrust authority—

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

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

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

11 (B) is capable of complying with and will

12 comply with the confidentiality requirements

13 applicable under such agreement to the re14 quested antitrust evidence,

15 (2) providing the requested antitrust evidence

16 will not violate section 5, and

17 (3) conducting such investigation, or providing

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

19 is consistent with the public interest of the United

20 States, taking into consideration, among other fac21 tors, whether the foreign state, or the regional eco22 nomic integration organization, represented by the

23 foreign antitrust authority holds any proprietary in24 terest that could benefit or otherwise be affected by
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1 such investigation or by the provision of such anti2 trust evidence.

3 (b) LIMITATION ON DISCLOSURE OF CERTAIN ANTI4 TRUST EVIDENCE.—Neither the Attorney General nor the

5 Commission may disclose in violation of an antitrust mu6 tual assistance agreement any antitrust evidence received

7 under such agreement, except that such agreement may

8 not prevent the disclosure of such antitrust evidence to

9 a defendant in an action or proceeding brought by the At10 torney General or the Commission for a violation of any

11 of the Federal antitrust laws if such disclosure would oth12 erwise be required by Federal law.

13 (c) REQUIRED DISCLOSURE OF NOTICE RE14 CEIVED.—If the Attorney General or the Commission re15 ceives a notice described in section 12(2)(G), the Attorney

16 General or the Commission, as the case may be, shall

17 transmit such notice to the person that provided the evi18 dence with respect to which such notice is received.

19 SEC. 9. LIMITATIONS ON JUDICIAL REVIEW

20 (a) DETERMINATIONS.—Determinations made under

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

22 (b) CITATIONS TO AND DESCRIPTIONS OF ANTI23 TRUST LAWS.—Whether an antitrust mutual assistance

24 agreement satisfies the requirements specified in section

25 12(2)(C) shall not be subject to judicial review.
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1 SEC. 10. SUPPLEMENTATION AND PRESERVATION OF AU2 THORITY.

3 (a) SUPPLEMENTAL AUTHORITY.—The authority

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

5 any other authority vested in the Attorney General, the

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

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

8 modify or affect the allocation of responsibility between

9 the Attorney General and the Commission for the enforce10 ment of the Federal antitrust laws.

11 SEC. 11. REPORT TO THE CONGRESS.

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

13 of the enactment of this Act and after consultation with

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

15 Speaker of the House of Representatives and the Presi16 dent pro tempore of the Senate, a report—

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

18 affected the enforcement of the Federal antitrust

19 laws,

20 (2) the extent to which foreign antitrust au21 thorities have complied with the confidentiality re22 quirements applicable under antitrust mutual assist23 ance agreements in effect under this Act,

24 (3) the number and identities of the foreign

25 antitrust authorities that have entered into such

26 agreements,
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1 (4) the identity of each foreign state, and each

2 regional economic integration organization, that has

3 in effect a law similar to this Act,

4 (5) the approximate number of requests made

5 by the Attorney General and the Commission under

6 such agreements to foreign antitrust authorities for

7 antitrust investigations and for antitrust evidence,

8 (6) the approximate number of requests made

9 by foreign antitrust authorities under such agree10 ments to the Attorney General and the Commission

11 for investigations under section 3 and for antitrust

12 evidence, and

13 (7) a description of any significant problems or

14 concerns of which the Attorney General is aware

15 with respect to the operation of this Act.

16 SEC. 12. DEFINITIONS.

17 For purposes of this Act:

18 (1) The term ‘‘antitrust evidence’’ means infor19 mation, testimony, statements, documents, or other

20 things obtained in anticipation of, or during the

21 course of, an investigation or proceeding under any

22 of the Federal antitrust laws or any of the foreign

23 antitrust laws.

24 (2) The term ‘‘antitrust mutual assistance

25 agreement’’ means a written agreement, or written
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1 memorandum of understanding, that is entered be2 tween the Attorney General and a foreign antitrust

3 authority for the purpose of conducting investiga4 tions under section 3, or for providing antitrust evi5 dence, on a reciprocal basis and that includes the

6 following:

7 (A) An assurance that the foreign anti8 trust authority will provide to the Attorney

9 General or the Commission assistance that is

10 comparable in scope to the assistance the Attor11 ney General or the Commission, as the case

12 may be, provides under such agreement or such

13 memorandum.

14 (B) An assurance that the foreign anti15 trust authority is subject to laws and proce16 dures that are adequate to maintain the con17 fidentiality of antitrust evidence that may be re18 ceived under section 2, 3, or 4 and will give

19 protection to antitrust evidence received under

20 such section that is not less than the protection

21 provided under the laws of the United States to

22 such antitrust evidence.

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

24 the laws (including treaties, statutes, executive

25 orders, and regulations) of the United States,
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1 and the laws (including treaties, statutes, exec2 utive orders, and regulations) of the foreign

3 state, or the regional economic integration orga4 nization, represented by the foreign antitrust

5 authority, that protect the confidentiality of

6 antitrust evidence that may be provided under

7 such agreement or such memorandum. Such ci8 tations and such descriptions shall include the

9 enforcement mechanisms and penalties applica10 ble under such laws.

11 (D) Terms and conditions that specifically

12 prohibit using antitrust evidence received under

13 such agreement or such memorandum, for any

14 purpose other than the administration or en15 forcement of the foreign antitrust laws involved.

16 (E) An assurance that antitrust evidence

17 received under section 2, 3, or 4 from the At18 torney General or the Commission, and all cop19 ies of such evidence, in the possession or control

20 of the foreign antitrust authority will be re21 turned to the Attorney General or the Commis22 sion, respectively, at the conclusion of the for23 eign investigation or proceeding with respect to

24 which such evidence was so received.
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1 (F) Terms and conditions that specifically

2 provide that such agreement or such memoran3 dum will be terminated if—

4 (i) the confidentiality required under

5 such agreement or such memorandum is

6 violated with respect to antitrust evidence,

7 and

8 (ii) adequate action is not taken both

9 to minimize any harm resulting from the

10 violation and to ensure that such confiden11 tiality is not violated again.

12 (G) Terms and conditions that specifically

13 provide that if the confidentiality required

14 under such agreement or such memorandum is

15 violated by the foreign antitrust authority with

16 respect to antitrust evidence, notice of the viola17 tion will be given—

18 (i) by the foreign antitrust authority

19 promptly to the Attorney General or the

20 Commission with respect to antitrust evi21 dence provided by the Attorney General or

22 the Commission, respectively, and

23 (ii) by the Attorney General or the

24 Commission to the person (if any) that
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1 provided such evidence to the Attorney

2 General or the Commission.

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

4 Attorney 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

12 extent that such section 5 applies to unfair methods

13 of 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 au18 thority to enforce the foreign antitrust laws of such

19 state or such organization.

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

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

22 integration organization, that are substantially simi23 lar to any of the Federal antitrust laws and that

24 prohibit conduct similar to conduct prohibited under

25 the Federal 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 au11 thorized to receive from a foreign state or a regional eco12 nomic integration organization reimbursement in cash or

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

14 the Commission, respectively, to conduct investigations

15 under section 3 or provide antitrust evidence under a mu16 tual assistance agreement entered into with the foreign

17 antitrust authority that represents such foreign state or

18 such organization.

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