I
107TH CONGRESS
2D SESSION
H. R. 4849
To encourage the development and promulgation of voluntary consensus
standards by providing relief under the antitrust laws to standards devel-
opment organizations with respect to conduct engaged in for the purpose
of developing voluntary consensus standards, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
MAY 23, 2002
Mr. SENSENBRENNER (for himself, Mr. CONYERS, Mr. BOEHLERT, Mr. HALL
of Texas, Mr. SMITH of Texas, Mr. FRANK, Mrs. MORELLA, Mr. MEE-
HAN, Mr. BARR of Georgia, Mr. DELAHUNT, Mr. GUTKNECHT, Mr.
GREEN of Wisconsin, Mr. ISSA, and Mr. BERMAN) introduced the fol-
lowing bill; which was referred to the Committee on the Judiciary
A BILL
To encourage the development and promulgation of voluntary
consensus standards by providing relief under the anti-
trust laws to standards development organizations with
respect to conduct engaged in for the purpose of devel-
oping voluntary consensus standards, and for other pur-
poses.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Standards Develop-
ment Organization Advancement Act of 2002’’.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) In 1993, the Congress amended and re-
named the National Cooperative Research Act of
1984 (now known as the National Cooperative Re-
search and Production Act of 1993 (15 U.S.C. 4301
et seq.)) by enacting the National Cooperative Pro-
duction Amendments of 1993 (Public Law 103–42)
to encourage the use of collaborative, procompetitive
activity in the form of research and production joint
ventures that provide adequate disclosure to the
antitrust enforcement agencies about the nature and
scope of the activity involved.
(2) Subsequently, in 1995, the Congress in en-
acting the National Technology Transfer and Ad-
vancement Act of 1995 (15 U.S.C. 272 note) recog-
nized the importance of technical standards devel-
oped by voluntary consensus standards bodies to our
national economy by requiring the use of such stand-
ards to the extent practicable by Federal agencies
and by encouraging Federal agency representatives
to participate in ongoing standards development ac-
tivities. The Office of Management and Budget on
February 18, 1998, revised Circular A–119 to re-
flect these changes made in law.
(3) Following enactment of the National Tech-
nology Transfer and Advancement Act of 1995,
technical standards developed or adopted by vol-
untary consensus standards bodies have replaced
thousands of unique Government standards and
specifications allowing the national economy to oper-
ate in a more unified fashion.
(4) Having the same technical standards used
by Federal agencies and by the private sector per-
mits the Government to avoid the cost of developing
duplicative Government standards and to more read-
ily use products and components designed for the
commercial marketplace, thereby enhancing quality
and safety and reducing costs.
(5) Technical standards are written by hun-
dreds of nonprofit voluntary consensus standards
bodies in a nonexclusionary fashion, using thousands
of volunteers from the private and public sectors,
and are developed under the standards development
principles set out in Circular Number A–119, as re-
vised February 18, 1998, of the Office of Manage-
ment and Budget, including principles that require
openness, balance, transparency, consensus, and due
process. Such principles provide for—
(A) notice to all parties known to be af-
fected by the particular standards development
activity,
(B) the opportunity to participate in
standards development or modification,
(C) balancing interests so that standards
development activities are not dominated by any
single group of interested persons,
(D) readily available access to essential in-
formation regarding proposed and final stand-
ards,
(E) the requirement that substantial
agreement be reached on all material points
after the consideration of all views and objec-
tions, and
(F) the right to express a position, to have
it considered, and to appeal an adverse decision.
(6) There are tens of thousands of voluntary
consensus standards available for government use.
Most of these standards are kept current through in-
terim amendments and interpretations, issuance of
addenda, and periodic reaffirmation, revision, or
reissuance every 3 to 5 years.
(7) Standards developed by government entities
generally are not subject to challenge under the anti-
trust laws.
(8) Private developers of the technical stand-
ards that are used as Government standards are
often not similarly protected, leaving such developers
vulnerable to being named as codefendants in law-
suits even though the likelihood of their being held
liable is remote in most cases, and they generally
have limited resources to defend themselves in such
lawsuits.
(9) Standards development organizations do not
stand to benefit from any antitrust violations that
might occur in the voluntary consensus standards
development process.
(10) As was the case with respect to research
and production joint ventures before the passage of
the National Cooperative Research and Production
Act of 1993, if relief from the threat of liability
under the antitrust laws is not granted to voluntary
consensus standards bodies, both regarding the de-
velopment of new standards and efforts to keep ex-
isting standards current, such bodies could be forced
to cut back on standards development activities at
great financial cost both to the Government and to
the national economy.
SEC. 3. DEFINITIONS.
Section 2 of the National Cooperative Research and
Production Act of 1993 (15 U.S.C. 4301) is amended—
(1) in subsection (a) by adding at the end the
following:
‘‘(7) The term ‘standards development activity’
means any action taken by a standards development
organization for the purpose of developing, promul-
gating, revising, amending, reissuing, interpreting,
or otherwise maintaining a voluntary consensus
standard, or using such standard in conformity as-
sessment activities.
‘‘(8) The term ‘standards development organi-
zation’ has the same meaning as the terms ‘vol-
untary consensus standards body’ and ‘voluntary,
private sector consensus standards body’ as such
term are used in section 12(d) of the National Tech-
nology Transfer and Advancement Act of 1995 and
in Circular Number A–119, as revised February 10,
1998, of the Office of Management and Budget.
‘‘(9) The term ‘technical standard’ has the
meaning given such term in section 12(d)(4) of the
National Technology Transfer and Advancement Act
of 1995.
‘‘(10) The term ‘voluntary consensus standard’
has the meaning given such term in Circular Num-
ber A–119, as revised February 10, 1998, of the Of-
fice of Management and Budget.’’; and
(2) by adding at the end the following:
‘‘(c) The term ‘standards development activity’ ex-
cludes the following activities:
‘‘(1) Exchanging information among competi-
tors relating to cost, sales, profitability, prices, mar-
keting, or distribution of any product, process, or
service that is not reasonably required for the pur-
pose of developing or promulgating a voluntary con-
sensus standard, or using such standard in con-
formity assessment activities.
‘‘(2) Entering into any agreement or engaging
in any other conduct that would allocate a market
with a competitor.
‘‘(3) Entering into any agreement or conspiracy
that would set or restrain prices of any good or serv-
ice.’’.
SEC. 4. RULE OF REASON STANDARD.
Section 3 of the National Cooperative Research and
Production Act of 1993 (15 U.S.C. 4302) is amended by
striking ‘‘of any person in making or performing a con-
tract to carry out a joint venture shall’’ and inserting the
following: ‘‘of—
‘‘(1) any person in making or performing a con-
tract to carry out a joint venture, or
‘‘(2) a standards development organization
while engaged in a standards development activity,
shall’’.
SEC. 5. LIMITATION ON RECOVERY.
Section 4 of the National Cooperative Research and
Production Act of 1993 (15 U.S.C. 4303) is amended—
(1) in subsections (a)(1), (b)(1), and (c)(1) by
inserting ‘‘, for a standards development activity en-
gaged in by standards development organization
against which such claim is made’’ after ‘‘joint ven-
ture’’, and
(2) in subsection (e)—
(A) by inserting ‘‘, or of a standards devel-
opment activity engaged in by a standards de-
velopment organization’’ before the period at
the end, and
(B) by redesignating such subsection as
subsection (f), and
(3) by inserting after subsection (d) the fol-
lowing:
‘‘(e) Subsections (a), (b), and (c) shall not be con-
strued to modify the liability under the antitrust laws of
any person (other than a standards development organiza-
tion) who—
‘‘(1) directly (or through an employee or agent)
participates in a standards development activity with
respect to which a violation of any of the antitrust
laws is found,
‘‘(2) is not a fulltime employee of the standards
development organization that engaged in such ac-
tivity, and
‘‘(3) is, or is an employee or agent of a person
who is, engaged in a line of commerce that is likely
to benefit directly from the operation of the stand-
ards development activity with respect to which such
violation is found.’’.
SEC. 6. ATTORNEY FEES.
Section 5 of the National Cooperative Research and
Production Act of 1993 (15 U.S.C. 4304) is amended—
(1) in subsection (a) by inserting ‘‘, or of a
standards development activity engaged in by a
standards development organization’’ after ‘‘joint
venture’’, and
(2) by adding at the end the following:
(B) in the last sentence by inserting ‘‘or
available to such organization, as the case may
be’’ before the period,
(3) in subsection (d)(2) by inserting ‘‘, or the
standards development activity,’’ after ‘‘venture’’,
(4) in subsection (e)—
(A) by striking ‘‘person who’’ and inserting
‘‘person or standards development organization
that’’, and
(B) by inserting ‘‘or any standards devel-
opment organization’’ after ‘‘person’’ the last
place it appears, and
(5) in subsection (g)(1) by inserting ‘‘or stand-
ards development organization’’ after ‘‘person’’.
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