II
103D CONGRESS
2D SESSION H. R. 4781
IN THE SENATE OF THE UNITED STATES
OCTOBER 3 (legislative day, SEPTEMBER 12), 1994
Received
AN ACT
To facilitate obtaining foreign-located antitrust evidence by
authorizing the Attorney General of the United States
and the Federal Trade Commission to provide, in 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’’.
or to produce a document or other thing, in violation of
any legally applicable right or privilege.
(e) CONFORMING AMENDMENTS.—
(1) ANTITRUST CIVIL PROCESS ACT.—The Anti-
trust Civil Process Act (15 U.S.C. 1311 et seq.) is
amended—
(A) in section 2—
(i) in subsection (d)—
(I) by striking ‘‘or any’’ and in-
serting ‘‘, any’’, and
(II) by inserting before the semi-
colon ‘‘or, with respect to the Inter-
national Antitrust Enforcement As-
sistance Act of 1994, any of the for-
eign antitrust laws’’, and
(ii) by adding at the end the follow-
ing:
‘‘(k) The term ‘foreign antitrust laws’ has the
meaning given such term in section 12 of the Inter-
national Antitrust Enforcement Assistance Act of
1994.’’, and
(B) in the first sentence of section 3(a)—
(i) by inserting ‘‘or, with respect to
the International Antitrust Enforcement
Assistance Act of 1994, an investigation
authorized by section 3 of such Act’’ after
‘‘investigation’’, and
(ii) by inserting ‘‘by the United
States’’ after ‘‘proceeding’’.
(2) FEDERAL
TRADE
COMMISSION
ACT.—The
Federal Trade Commission Act (15 U.S.C. 41 et
seq.) is amended—
(A) in section 6 by inserting after sub-
section (h) the following:
‘‘(i) With respect to the International Antitrust En-
forcement Assistance Act of 1994, to conduct investiga-
tions of possible violations of foreign antitrust laws (as
defined in section 12 of such Act).’’;
(B) in section 20(a) by amending para-
graph (8) to read as follows:
‘‘(8) The term ‘antitrust violation’ means—
‘‘(A) any unfair method of competition
(within the meaning of section 5(a)(1));
‘‘(B) any violation of the Clayton Act or of
any other Federal statute that prohibits, or
makes available to the Commission a civil rem-
edy with respect to, any restraint upon or mo-
nopolization of interstate or foreign trade or
commerce;
‘‘(C) with respect to the International
Antitrust Enforcement Assistance Act of 1994,
any violation of any of the foreign antitrust
laws (as defined in section 12 of such Act) with
respect to which a request is made under sec-
tion 3 of such Act; or
‘‘(D) any activity in preparation for a
merger, acquisition, joint venture, or similar
transaction, which if consummated, may result
in any such unfair method of competition or in
any such violation.’’.
SEC. 4. JURISDICTION OF THE DISTRICT COURTS OF THE
UNITED STATES.
(a) AUTHORITY OF THE DISTRICT COURTS.—On the
application of the Attorney General made in accordance
with an antitrust mutual assistance agreement in effect
under this Act, the United States district court for the
district in which a person resides, is found, or transacts
business may order such person to give testimony or a
statement, or to produce a document or other thing, to
the Attorney General to assist a foreign antitrust author-
ity with respect to which such agreement is in effect under
this Act—
(1) in determining whether a person has vio-
lated or is about to violate any of the foreign anti-
trust laws administered or enforced by the foreign
antitrust authority, or
(2) in enforcing any of such foreign antitrust
laws.
(b) CONTENTS OF ORDER.—
(1) USE
OF
APPOINTEE
TO
RECEIVE
EVI-
DENCE.—(A) An order issued under subsection (a)
may direct that testimony or a statement be given,
or a document or other thing be produced, to a per-
son who shall be recommended by the Attorney Gen-
eral and appointed by the court.
(B) A person appointed under subparagraph
(A) shall have power to administer any necessary
oath and to take such testimony or such statement.
(2) PRACTICE AND PROCEDURE.—(A) An order
issued under subsection (a) may prescribe the prac-
tice and procedure for taking testimony and state-
ments and for producing documents and other
things.
(B) Such practice and procedure may be in
whole or in part the practice and procedure of the
foreign state, or the regional economic integration
organization, represented by the foreign antitrust
authority with respect to which the Attorney General
requests such order.
(C) To the extent such order does not prescribe
otherwise, any testimony and statements required to
be taken shall be taken, and any documents and
other things required to be produced shall be pro-
duced, 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
or other thing, in any manner acceptable to such person
for use in an investigation by a foreign antitrust authority.
SEC. 5. LIMITATIONS ON AUTHORITY.
Sections 2, 3, and 4 shall not apply with respect to
the following antitrust evidence:
(1) Antitrust evidence that is received by the
Attorney General or the Commission under section
7A of the Clayton Act (15 U.S.C. 18a), as added by
title II of the Hart-Scott-Rodino Antitrust Improve-
ments Act of 1976. Nothing in this paragraph shall
affect the ability of the Attorney General or the
Commission to disclose to a foreign antitrust author-
ity antitrust evidence that is obtained otherwise than
under such section 7A.
(2) Antitrust evidence that is matter occurring
before a grand jury and with respect to which disclo-
sure is prevented by Federal law, except that for the
purpose of applying Rule 6(e)(3)(C)(iv) of the Fed-
eral Rules of Criminal Procedure with respect to this
section—
(A) a foreign antitrust authority with re-
spect to which a particularized need for such
antitrust evidence is shown shall be considered
to be an appropriate official of any of the sev-
eral States, and
(B) a foreign antitrust law administered or
enforced by the foreign antitrust authority shall
be considered to be a State criminal law.
(3) Antitrust evidence that is specifically au-
thorized under criteria established by Executive
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. EXCEPTION TO CERTAIN DISCLOSURE RESTRIC-
TIONS.
Section 4 of the Antitrust Civil Process Act (15
U.S.C. 1313), and sections 6(f) and 21 of the Federal
Trade Commission Act (15 U.S.C. 46, 57b–2), shall not
apply to prevent the Attorney General or the Commission
from providing to a foreign antitrust authority antitrust
evidence in accordance with an antitrust mutual assistance
agreement in effect under this Act and in accordance with
the other requirements of this Act.
SEC. 7. PUBLICATION REQUIREMENTS APPLICABLE TO
ANTITRUST 
MUTUAL 
ASSISTANCE 
AGREE-
MENTS.
(a) PUBLICATION
OF PROPOSED ANTITRUST MU-
TUAL ASSISTANCE AGREEMENTS.—Not less than 45 days
before an antitrust mutual assistance agreement is en-
tered into, the Attorney General, with the concurrence of
the Commission, shall publish in the Federal Register—
(1) the proposed text of such agreement and
any modification to such proposed text, and
(2) a request for public comment with respect
to such text or such modification, as the case may
be.
(b) PUBLICATION OF PROPOSED AMENDMENTS TO
ANTITRUST MUTUAL ASSISTANCE AGREEMENTS IN EF-
FECT.—Not less than 45 days before an agreement is en-
tered into that makes an amendment to an antitrust mu-
tual assistance agreement, the Attorney General, with the
concurrence of the Commission, shall publish in the Fed-
eral 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, 
AMENDMENTS, 
AND
TERMI-
NATIONS.—Not later than 45 days after an antitrust mu-
tual assistance agreement is entered into or terminated,
or an agreement that makes an amendment to an anti-
trust mutual assistance agreement is entered into, the At-
torney General, with the concurrence of the Commission,
shall publish in the Federal Register—
(1) the text of the antitrust mutual assistance
agreement or amendment, or the terms of the termi-
nation, as the case may be, and
(2) in the case of an agreement that makes an
amendment to an antitrust mutual assistance agree-
ment, a notice containing—
(A) citations to the locations in the Fed-
eral Register at which the text of the antitrust
mutual assistance agreement that is so amend-
ed, and of any previous amendments to such
agreement, are published, and
(B) a description of the manner in which
a copy of the antitrust mutual assistance agree-
ment, as so amended, may be obtained from the
Attorney General and the Commission.
(d) CONDITION FOR VALIDITY.—An antitrust mutual
assistance agreement, or an agreement that makes an
amendment to an antitrust mutual assistance agreement,
with respect to which publication does not occur in accord-
ance with subsections (a), (b), and (c) shall not be consid-
ered to be in effect under this Act.
SEC. 8. CONDITIONS ON USE OF ANTITRUST MUTUAL AS-
SISTANCE AGREEMENTS.
(a) DETERMINATIONS.—Neither the Attorney Gen-
eral nor the Commission may conduct an investigation
under section 3, apply for an order under section 4, or
provide antitrust evidence to a foreign antitrust authority
under an antitrust mutual assistance agreement, unless
the Attorney General or the Commission, as the case may
be, determines in the particular instance in which the in-
vestigation, application, or antitrust evidence is requested
that—
(1) the foreign antitrust authority—
(A) will satisfy the assurances, terms, and
conditions described in subparagraphs (A), (B),
and (E) of section 12(2), and
(B) is capable of complying with and will
comply with the confidentiality requirements
applicable under such agreement to the re-
quested antitrust evidence,
(2) providing the requested antitrust evidence
will not violate section 5, and
(3) conducting such investigation, applying for
such order, or providing the requested antitrust evi-
dence, as the case may be, is consistent with the
public interest of the United States, taking into con-
sideration, among other factors, whether the foreign
state or regional economic integration organization
represented by the foreign antitrust authority holds
any proprietary interest that could benefit or other-
wise be affected by such investigation, by the grant-
ing of such order, 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 laws if such disclosure would otherwise 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)(H), 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) DETERMINATIONS.—Determinations made under
paragraphs (1) and (3) of section 8(a) shall not be subject
to judicial review.
(b) CITATIONS
TO
AND DESCRIPTIONS
OF CON-
FIDENTIALITY LAWS.—Whether an antitrust mutual as-
sistance agreement satisfies section 12(2)(C) shall not be
subject to judicial review.
(c) RULES OF CONSTRUCTION.—
(1) ADMINISTRATIVE
PROCEDURE
ACT.—The
requirements in section 7 with respect to publication
and request for public comment shall not be con-
strued to create any availability of judicial review
under chapter 7 of title 5 of the United States Code.
(2) LAWS REFERENCED IN SECTION 5.—Noth-
ing in this section shall be construed to affect the
availability of judicial review under laws referred to
in section 5.
SEC. 10. PRESERVATION OF EXISTING AUTHORITY.
(a) IN GENERAL.—The authority provided by this
Act is in addition to, and not in lieu of, any other author-
ity vested in the Attorney General, the Commission, or any
other officer of the United States.
(b) ATTORNEY GENERAL AND COMMISSION.—This
Act shall not be construed to modify or affect the alloca-
tion of responsibility between the Attorney General and
the Commission for the enforcement of the Federal anti-
trust laws.
SEC. 11. REPORT TO THE CONGRESS.
In the 30-day period beginning 3 years after the date
of the enactment of this Act and with the concurrence of
the Commission, the Attorney General shall submit, to the
Speaker of the House of Representatives and the 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) describing the extent to which foreign anti-
trust authorities have complied with the confidential-
ity requirements applicable under antitrust mutual
assistance agreements in effect under this Act,
(3) specifying separately the identities of the
foreign states, regional economic integration organi-
zations, and foreign antitrust authorities that have
entered into such agreements and the identities of
the foreign antitrust authorities with respect to
which such foreign states and such organizations
have entered into such agreements,
(4) specifying the identity of each foreign state,
and each regional economic integration organization,
that has in effect a law similar to this Act,
(5) giving the approximate number of requests
made by the Attorney General and the Commission
under such agreements to foreign antitrust authori-
ties for antitrust investigations and for antitrust evi-
dence,
(6) giving the approximate number of requests
made by foreign antitrust authorities under such
agreements to the Attorney General and the Com-
mission for investigations under section 3, for orders
under section 4, and for antitrust evidence, and
(7) describing any significant problems or con-
cerns 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 that are obtained in anticipation of, or during
the course of, an investigation or proceeding under
any of the Federal antitrust laws or any of the for-
eign antitrust laws.
(2) The term ‘‘antitrust mutual assistance
agreement’’ means a written agreement, or written
memorandum of understanding, that is entered into
by the United States and a foreign state or regional
economic integration organization (with respect to
the foreign antitrust authorities of such foreign state
or such organization, and such other governmental
entities of such foreign state or such organization as
the Attorney General and the Commission jointly de-
termine may be necessary in order to provide the as-
sistance described in subparagraph (A)), or jointly
by the Attorney General and the Commission and a
foreign antitrust authority, for the purpose of con-
ducting investigations under section 3, applying for
orders under section 4, or providing antitrust evi-
dence, on a reciprocal basis and that includes the
following:
(A) An assurance that the foreign anti-
trust authority will provide to the Attorney
General and the Commission assistance that is
comparable in scope to the assistance the Attor-
ney General and the Commission provide under
such agreement or such memorandum.
(B) An assurance that the foreign anti-
trust authority is subject to laws and proce-
dures that are adequate to maintain securely
the confidentiality of antitrust evidence that
may be received under section 2, 3, or 4 and
will give protection to antitrust evidence re-
ceived under such section that is not less than
the protection provided under the laws of the
United States to such antitrust evidence.
(C) Citations to and brief descriptions of
the laws of the United States, and the laws of
the foreign state or regional economic integra-
tion organization represented by the foreign
antitrust authority, that protect the confiden-
tiality of antitrust evidence that may be pro-
vided under such agreement or such memoran-
dum. Such citations and such descriptions shall
include the enforcement mechanisms and pen-
alties applicable under such laws and, with re-
spect to a regional economic integration organi-
zation, the applicability of such laws, enforce-
ment mechanisms, and penalties to the foreign
states composing such organization.
(D) Citations to the Federal antitrust
laws, and the foreign antitrust laws, with re-
spect to which such agreement or such memo-
randum applies.
(E) Terms and conditions that specifically
require using, disclosing, or permitting the use
or disclosure of, antitrust evidence received
under such agreement or such memorandum
only—
(i) for the purpose of administering or
enforcing the foreign antitrust laws in-
volved, or
(ii) with respect to a specified disclo-
sure or use requested by a foreign anti-
trust authority and essential to a signifi-
cant law enforcement objective, in accord-
ance with the prior written consent that
the Attorney General or the Commission,
as the case may be, gives after—
(I) determining that such anti-
trust evidence is not otherwise readily
available with respect to such objec-
tive,
(II) making the determinations
described in paragraphs (2) and (3) of
section 8(a), with respect to such dis-
closure or use, and
(III) making the determinations
applicable to a foreign antitrust au-
thority under section 8(a)(1) (other
than the determination regarding the
assurance described in subparagraph
(A) of this paragraph), with respect to
each additional governmental entity, if
any, to be provided such antitrust evi-
dence in the course of such disclosure
or use, after having received adequate
written assurances applicable to each
such governmental entity.
(F) An assurance that antitrust evidence
received under section 2, 3, or 4 from the At-
torney General or the Commission, and all cop-
ies of such evidence, in the possession or control
of the foreign antitrust authority will be re-
turned to the Attorney General or the Commis-
sion, respectively, at the conclusion of the for-
eign investigation or proceeding with respect to
which such evidence was so received.
(G) 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 the confiden-
tiality required under such agreement or
such memorandum is not violated again.
(H) Terms and conditions that specifically
provide that if the confidentiality required