I
103D CONGRESS
2D SESSION
H. R. 4781
To facilitate obtaining foreign-located antitrust evidence by authorizing the
Attorney General of the United States and the Federal Trade Commis-
sion to provide, in accordance with antitrust mutual assistance agree-
ments, antitrust evidence to foreign antitrust authorities on a reciprocal
basis; and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
JULY 19, 1994
Mr. BROOKS (for himself and Mr. FISH) introduced the following bill; which
was 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 accord-
ance with antitrust mutual assistance agreements, anti-
trust evidence to foreign antitrust authorities on a recip-
rocal basis; and for other purposes.
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 ‘‘International Antitrust
Enforcement Assistance Act of 1994’’.
SEC. 2. DISCLOSURE TO A FOREIGN ANTITRUST AUTHOR-
ITY OF ANTITRUST EVIDENCE.
Subject to section 8 and except as provided in section
5, the Attorney General of the United States and the Fed-
eral Trade Commission may provide, in accordance with
an antitrust mutual assistance agreement in effect with
a foreign antitrust authority, antitrust evidence to the for-
eign antitrust authority to assist the foreign antitrust au-
thority—
(1) to determine whether a person has violated
or is about to violate any of the foreign antitrust
laws administered or enforced by the foreign anti-
trust authority, or
(2) to enforce any of such foreign antitrust
laws.
SEC. 3. INVESTIGATIONS TO ASSIST A FOREIGN ANTITRUST
AUTHORITY IN OBTAINING ANTITRUST EVI-
DENCE.
(a) GENERAL AUTHORITY.—In accordance with an
antitrust mutual assistance agreement in effect with a for-
eign antitrust authority, subject to section 8, and except
as provided in section 5, the Attorney General may, using
the authority of the Attorney General to investigate pos-
sible violations of the Federal antitrust laws, conduct in-
vestigations to obtain antitrust evidence relating to a vio-
lation of the foreign antitrust laws administered or en-
forced by the foreign antitrust authority, and may provide
such antitrust evidence to the foreign antitrust authority,
to assist the foreign antitrust authority—
(1) to determine whether a person has violated
or is about to violate any of such foreign antitrust
laws, or
(2) to enforce any of such foreign antitrust
laws.
Such investigations may be conducted, and such antitrust
evidence may be provided, without regard to whether the
conduct investigated violates any of the Federal antitrust
laws.
(b) CONFORMING
AMENDMENTS.—The Antitrust
Civil Process Act (15 U.S.C. 1311 et seq.) is amended—
(1) in section 2—
(A) in subsection (d)—
(i) by striking ‘‘or any’’ and inserting
‘‘, any’’, and
(ii) by inserting before the period ‘‘,
or any of the foreign antitrust laws’’, and
(B) by adding at the end the following:
‘‘(k) The term ‘foreign antitrust laws’ has the mean-
ing given such term in section 12 of the International
Antitrust Enforcement Assistance Act of 1994.’’, and
(2) in the first sentence of section 3(a)—
(A) by inserting ‘‘or to an investigation au-
thorized by section 3(a) of the International
Antitrust Enforcement Assistance Act of 1994’’
after ‘‘investigation’’, and
(B) by inserting ‘‘by the United States’’
after ‘‘proceeding’’.
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
with a foreign antitrust authority, the United States dis-
trict 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 the foreign
antitrust authority that is a party to such agreement—
(1) to determine whether a person has violated
or is about to violate any of the foreign antitrust
laws administered or enforced by the foreign anti-
trust authority, or
(2) to enforce any of such foreign antitrust
laws.
(b) CONTENTS
OF ORDER.—(1) An order issued
under subsection (a) may direct that testimony or a state-
ment 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. A person so appointed
shall have power to administer any necessary oath and to
take such testimony or such statement.
(2) An order issued under subsection (a) may pre-
scribe the practice and procedure for taking testimony and
statements. 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, rep-
resented by the foreign antitrust authority with respect
to which the Attorney General requests such order. To the
extent such order does not prescribe otherwise, any testi-
mony and statements required to be taken shall be taken,
and any documents and other things required to be pro-
duced 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 sub-
section (a) to give testimony or a statement, or to produce
a document or other thing, in violation of any legally appli-
cable 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
Order 12356, or any successor to such order, to be
kept secret in the interest of national defense or for-
eign 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. DISCLOSURE OF ANTITRUST EVIDENCE OBTAINED
UNDER THE ANTITRUST CIVIL PROCESS ACT.
Section 4 of the Antitrust Civil Process Act (15
U.S.C. 1313) shall not apply to prevent the Attorney Gen-
eral from providing to a foreign antitrust authority anti-
trust evidence in accordance with an antitrust mutual as-
sistance agreement in effect under this Act and in accord-
ance with the other requirements of this Act.
SEC. 7. PUBLICATION REQUIREMENTS APPLICABLE TO
ANTITRUST 
MUTUAL 
ASSISTANCE 
AGREE-
MENTS.
(a) PUBLICATION
OF PROPOSED ANTITRUST MU-
TUAL ASSISTANCE AGREEMENTS.—Not less than 45 days
before entering into an antitrust mutual assistance agree-
ment and after consultation with the Commission, the At-
torney General 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 EF-
FECT.—Not less than 45 days before entering into an
agreement that makes an amendment to an antitrust mu-
tual assistance agreement in effect under this Act and
after consultation with the Commission, the Attorney Gen-
eral 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 ASSIST-
ANCE AGREEMENTS ENTERED INTO
AND
OF AMEND-
MENTS TO SUCH AGREEMENTS.—Not later than 30 days
after entering into an antitrust mutual assistance agree-
ment, or an agreement that makes an amendment to an
antitrust mutual assistance agreement in effect under this
Act, the Attorney General shall publish in the Federal
Register—
(1) the text of the antitrust mutual assistance
agreement or of such amendment, as the case may
be, and
(2) in the case of an agreement that makes
such amendment, a notice containing—
(A) a statement of the fact that such
agreement was entered into,
(B) citations to the provisions of the Fed-
eral Register that contain the text of the
amendment and of the antitrust mutual assist-
ance agreement that is so amended, and
(C) a description of the manner in which
a copy of the antitrust mutual assistance agree-
ment, as so amended, may be obtained from the
Attorney General.
(d) CONDITION FOR VALIDITY.—An antitrust mutual
assistance agreement, or an agreement that makes an
amendment to an antitrust mutual assistance agreement,
entered into in violation of subsection (a) or (b) shall not
be considered to be entered into under the authority of
this Act.
SEC. 8. IMPLEMENTATION OF ANTITRUST MUTUAL ASSIST-
ANCE AGREEMENTS.
(a) DETERMINATIONS.—The Attorney General may
conduct an investigation under section 3, and the Attorney
General or the Commission may provide antitrust evidence
to a foreign antitrust authority, under an antitrust mutual
assistance agreement in effect under this Act only if the
Attorney General or the Commission, as the case may be,
determines in the particular instance in which such inves-
tigation or evidence is requested that—
(1) the foreign antitrust authority—
(A) will satisfy the assurances, terms, and
conditions required by subparagraphs (A), (B),
and (D) of section 12(2), and
(B) is capable of complying with and will
comply with the confidentiality requirements
applicable under such agreement to the re-
quested antitrust evidence,
(2) providing the requested antitrust evidence
will not violate section 5, and
(3) conducting such investigation, 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 fac-
tors, whether the foreign state, or the regional eco-
nomic integration organization, represented by the
foreign antitrust authority holds any proprietary in-
terest that could benefit or otherwise be affected by
such investigation or by the provision of such anti-
trust evidence.
(b) LIMITATION ON DISCLOSURE OF CERTAIN ANTI-
TRUST EVIDENCE.—Neither the Attorney General nor the
Commission may disclose in violation of an antitrust mu-
tual 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 At-
torney General or the Commission for a violation of any
of the Federal antitrust laws if such disclosure would oth-
erwise be required by Federal law.
(c) 
REQUIRED
DISCLOSURE
OF
NOTICE
RE-
CEIVED.—If the Attorney General or the Commission re-
ceives a notice described in section 12(2)(G), the Attorney
General or the Commission, as the case may be, shall
transmit such notice to the person that provided the evi-
dence with respect to which such notice is received.
SEC. 9. LIMITATIONS ON JUDICIAL REVIEW.
(a) PUBLICATION.—Determinations made under sec-
tion 8(a) shall not be subject to judicial review.
(b) CITATIONS
TO
AND DESCRIPTIONS
OF ANTI-
TRUST LAWS.—Whether an antitrust mutual assistance
agreement satisfies the requirements specified in section
12(2)(C) shall not be subject to judicial review.
SEC. 10. SUPPLEMENTATION AND PRESERVATION OF AU-
THORITY.
(a) SUPPLEMENTAL
AUTHORITY.—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) AUTHORITY PRESERVED.—This Act does not
modify or affect the allocation of responsibility between
the Attorney General and the Commission for the enforce-
ment 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 after consultation with
the Commission, the Attorney General shall submit, to the
Speaker of the House of Representatives and the Presi-
dent 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) the extent to which foreign antitrust au-
thorities have complied with the confidentiality re-
quirements applicable under antitrust mutual assist-
ance agreements in effect under this Act,
(3) the number and identities of the foreign
antitrust authorities that have entered into such
agreements,
(4) the identity of each foreign state, and each
regional economic integration organization, that has
in effect a law similar to this Act,
(5) 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) the approximate number of requests made
by foreign antitrust authorities under such agree-
ments to the Attorney General and the Commission
for investigations under section 3 and for antitrust
evidence, and
(7) a description of 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 infor-
mation, testimony, statements, documents, or other
things 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
(F) Terms and conditions that specifically
provide that such agreement or such memoran-
dum 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 such confiden-
tiality is not violated again.
(G) Terms and conditions that specifically
provide that if the confidentiality required
under such agreement or such memorandum is
violated by the foreign antitrust authority with
respect to antitrust evidence, notice of the viola-
tion will be given—
(i) by the foreign antitrust authority
promptly to the Attorney General or the
Commission with respect to antitrust evi-
dence 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 sub-
section (a) of the first section of the Clayton Act (15
U.S.C. 12(a)) but also includes section 5 of the Fed-
eral 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 au-
thority 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 simi-
lar 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 or-
ganization’’ means an organization that is con-
stituted by, and composed of, foreign states and in
which such foreign states have vested authority to
make decisions binding on such foreign states.
Æ
HR 4781 IH——2