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103D CONGRESS
1ST SESSION
H. R. 489
To require public notice of and a period of public comment on any guideline
proposed by the Department of Justice or the Federal Trade Commission
with respect to the interpretation or implementation of the antitrust
laws or to any policy relating to the enforcement of the antitrust laws.
IN THE HOUSE OF REPRESENTATIVES
JANUARY 20, 1993
Mr. FISH introduced the following bill; which was referred to the Committee
on the Judiciary
A BILL
To require public notice of and a period of public comment
on any guideline proposed by the Department of Justice
or the Federal Trade Commission with respect to the
interpretation or implementation of the antitrust laws
or to any policy relating to the enforcement of the anti-
trust laws.
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 ‘‘Antitrust Procedural
Fairness Act of 1993’’.
SEC. 2. NOTICE OF AND PERIOD FOR COMMENT ON ANTI-
TRUST GUIDELINES.
(a) NOTICE
OF
PROPOSED
ANTITRUST
GUIDE-
LINES.—General notice of the proposed issuance of any
antitrust guideline shall be published in the Federal Reg-
ister, unless the persons subject thereto are named and
either personally served or otherwise have actual notice
thereof in accordance with law. Such notice shall include—
(1) a statement of the time, place, and nature
of public proceedings applicable to the issuance of an
antitrust guideline,
(2) reference to the legal authority under which
such guideline is proposed, and
(3) either the terms or substance of the pro-
posed antitrust guideline or a description of the sub-
jects and issues involved.
(b) EXCEPTIONS.—Subsection (a) shall not apply—
(1) to any antitrust guideline relating only to
agency organization or personnel,
(2) to any antitrust guideline when the agency
for good cause—
(A) finds that notice and public procedure
with respect to such guidelines are impractica-
ble, unnecessary, or contrary to the public in-
terest, and
(B) publishes, at the time of publication of
the adopted antitrust guideline, such finding
and a brief statement of the reasons therefor,
or
(3) to any antitrust guideline issued after a
hearing required by statute.
(c) PERIOD
FOR PUBLIC COMMENT.—An agency
shall provide a public comment period of not less than
sixty days after notice of the proposed issuance of an anti-
trust guideline with respect to which subsection (a) ap-
plies.
(d) PROCEDURE FOR PUBLIC COMMENT.—During
the public comment period required by subsection (c), any
interested person may submit written data, views, or argu-
ments. The agency may provide an opportunity for oral
presentations concerning the proposed antitrust guideline.
SEC. 3. ISSUANCE OF ANTITRUST GUIDELINE.
(a) BASIS FOR ADOPTION OF ANTITRUST GUIDE-
LINE.—After consideration of the relevant matter submit-
ted or presented with respect to a proposed antitrust
guideline, the agency shall incorporate in the antitrust
guideline adopted a concise general statement of basis and
purpose of such guideline.
(b) EFFECTIVE DATE OF ANTITRUST GUIDELINE.—
The required publication or service of an antitrust guide-
line shall be made not less than sixty days before its effec-
tive date, except as otherwise provided by the agency for
good cause (as described in subsection (b)(2)(A)) found
and published with the guideline.
SEC. 4. MAINTENANCE OF FILES REGARDING ISSUANCE OF
ANTITRUST GUIDELINES.
(a) FILE OF PROCEEDING REGARDING ISSUANCE OF
ANTITRUST GUIDELINE.—Beginning not later than the
date on which the agency provides notice of the proposed
issuance of an antitrust guideline, the agency shall main-
tain a file of each proceeding relating to the issuance of
such guideline, conducted in accordance with this Act. Ex-
cept as provided in subsection (b), such file shall include—
(1) the notice of the proposed issuance of such
guideline and any supplemental notice concerning
such issuance,
(2) copies of, or identification of, all studies and
documentary material upon which the agency sub-
stantially relied in formulating the proposed or final
guideline,
(3) copies of all written comments on the pro-
posed guideline, or area of inquiry, which were sub-
mitted pursuant to any agency notice of the pro-
posed issuance of such guideline published in the
Federal Register,
(4) all material which the agency by statute is
required to make public in connection with the issu-
ance of such guideline or which the agency wishes to
make part of the record, and
(5) the statements required of the agency in
formulating the guideline.
(b) EXCLUSION OF CERTAIN MATTERS.—Subsection
(a) shall not apply with respect to any matter which is
exempt under section 552(b) of title 5, United States
Code, from disclosure under section 552(a) of such title.
SEC. 5. AMENDMENTS TO ANTITRUST GUIDELINES.
For purposes of this Act, any amendment made, or
proposed to be made, by the agency to an existing anti-
trust guideline shall be deemed to be an antitrust guide-
line, or a proposed antitrust guideline, respectively.
SEC. 6. DEFINITIONS.
For purposes of this Act—
(1) the term ‘‘agency’’ means the Department
of Justice or the Federal Trade Commission,
(2) the term ‘‘antitrust guideline’’ means an
agency statement of general applicability designed—
(A) to implement or interpret any of the
antitrust laws, or
(B) to implement, interpret, or prescribe
any policy relating to the enforcement of any of
the antitrust laws,
(3) the term ‘‘antitrust laws’’ has the meaning
given it in subsection (a) of the first section of the
Clayton Act (15 U.S.C. 12(a)), except that such
term includes section 5 of the Federal Trade Com-
mission Act (15 U.S.C. 45) to the extent that such
section 5 relates to unfair methods of competition,
and
(4) the term ‘‘person’’ has the meaning given it
in section 551(a) of title 5, United States Code.
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