H. R. 4781—2
(1) in determining whether a person has violated or is
about to violate any of such foreign antitrust laws, or
(2) in enforcing any of such foreign antitrust laws.
(c) SPECIAL SCOPE OF AUTHORITY.—An investigation may be
conducted under subsection (b), and antitrust evidence obtained
through such investigation may be provided, without regard to
whether the conduct investigated violates any of the Federal anti-
trust laws.
(d) RIGHTS AND PRIVILEGES PRESERVED.—A person may not
be compelled in connection with an investigation under this section
to give testimony or a statement, 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 Antitrust 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 inserting ‘‘, any’’,
and
(II) by inserting before the semicolon ‘‘or, with
respect to the International Antitrust Enforcement
Assistance Act of 1994, any of the foreign antitrust
laws’’, and
(ii) by adding at the end the following:
‘‘(k) The term ‘foreign antitrust laws’ has the meaning
given such term in section 12 of the International Antitrust
Enforcement Assistance Act of 1994.’’, and
(B) in the first sentence of section 3(a)—
(i) by inserting ‘‘or, with respect to the Inter-
national 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 subsection (h) the
following:
‘‘(i) With respect to the International Antitrust Enforcement
Assistance Act of 1994, to conduct investigations of possible viola-
tions of foreign antitrust laws (as defined in section 12 of such
Act).’’;
(B) in section 20(a) by amending paragraph (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 remedy with respect to, any restraint
upon or monopolization 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 section 3 of such Act; or
H. R. 4781—3
‘‘(D) any activity in preparation for a merger, acquisi-
tion, joint venture, or similar transaction, which if con-
summated, 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 authority
with respect to which such agreement is in effect under this Act—
(1) in determining whether a person has violated or is
about to violate any of the foreign antitrust 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 EVIDENCE.—(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 person who shall be recommended by the Attorney General
and appointed by the court.
(B) A person appointed under subparagraph (A) shall have
power to administer any necessary oath and to take such testi-
mony or such statement.
(2) PRACTICE AND PROCEDURE.—(A) An order issued under
subsection (a) may prescribe the practice and procedure for
taking testimony and statements 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 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 subsection (a) to give
testimony or a statement, or to produce a document or other thing,
in violation of any legally applicable 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-
H. R. 4781—4
Rodino Antitrust Improvements Act of 1976. Nothing in this
paragraph shall affect the ability of the Attorney General or
the Commission to disclose to a foreign antitrust authority
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 disclosure is prevented
by Federal law, except that for the purpose of applying Rule
6(e)(3)(C)(iv) of the Federal Rules of Criminal Procedure with
respect to this section—
(A) a foreign antitrust authority with respect to which
a particularized need for such antitrust evidence is shown
shall be considered to be an appropriate official of any
of the several 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 authorized under
criteria established by Executive Order 12356, or any successor
to such order, to be kept secret in the interest of national
defense or foreign policy, and—
(A) that is classified pursuant to such order or such
successor, or
(B) with respect to which a determination of classifica-
tion 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 RESTRICTIONS.
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 AGREEMENTS.
(a) PUBLICATION OF PROPOSED ANTITRUST MUTUAL ASSISTANCE
AGREEMENTS.—Not less than 45 days before an antitrust mutual
assistance agreement is entered 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 modifica-
tion 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 EFFECT.—Not less than 45
days before an agreement is entered into that makes an amendment
to an antitrust mutual 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.
H. R. 4781—5
(c) PUBLICATION OF ANTITRUST MUTUAL ASSISTANCE AGREE-
MENTS, AMENDMENTS, AND TERMINATIONS.—Not later than 45 days
after an antitrust mutual assistance agreement is entered into
or terminated, or an agreement that makes an amendment to
an antitrust mutual assistance agreement is entered into, the Attor-
ney 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 termination, as the case
may be, and
(2) in the case of an agreement that makes an amendment
to an antitrust mutual assistance agreement, a notice contain-
ing—
(A) citations to the locations in the Federal Register
at which the text of the antitrust mutual assistance agree-
ment that is so amended, 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 agreement, 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 accordance with subsections (a), (b),
and (c) shall not be considered to be in effect under this Act.
SEC. 8. CONDITIONS ON USE OF ANTITRUST MUTUAL ASSISTANCE
AGREEMENTS.
(a) DETERMINATIONS.—Neither the Attorney General 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 investigation, 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 requested antitrust evidence,
(2) providing the requested antitrust evidence will not vio-
late section 5, and
(3) conducting such investigation, applying for such order,
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 factors, whether the
foreign state or regional economic integration organization rep-
resented by the foreign antitrust authority holds any propri-
etary interest that could benefit or otherwise be affected by
such investigation, by the granting of such order, or by the
provision of such antitrust evidence.
(b) LIMITATION ON DISCLOSURE OF CERTAIN ANTITRUST EVI-
DENCE.—Neither the Attorney General nor the Commission may
H. R. 4781—6
disclose in violation of an antitrust mutual 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 Attorney 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 RECEIVED.—If the Attor-
ney General or the Commission receives 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 evidence 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
CONFIDENTIALITY
LAWS.—Whether an antitrust mutual assistance 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 construed to create any availability of
judicial review under chapter 7 of title 5 of the United States
Code.
(2) LAWS REFERENCED IN SECTION 5.—Nothing in this sec-
tion 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 authority 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 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 with the concurrence of the Commission,
the Attorney General shall submit, to the Speaker of the House
of Representatives and the President 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 antitrust authori-
ties have complied with the confidentiality requirements
applicable under antitrust mutual assistance agreements in
effect under this Act,
(3) specifying separately the identities of the foreign states,
regional economic integration organizations, and foreign anti-
trust 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,
H. R. 4781—7
(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 agree-
ments to foreign antitrust authorities for antitrust investiga-
tions and for antitrust evidence,
(6) giving the approximate number of requests made by
foreign antitrust authorities under such agreements to the
Attorney General and the Commission for investigations under
section 3, for orders under section 4, and for antitrust evidence,
and
(7) describing 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 information, testi-
mony, 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 foreign antitrust laws.
(2) The term ‘‘antitrust mutual assistance agreement’’
means a written agreement, or written memorandum of under-
standing, 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 determine may be
necessary in order to provide the assistance described in
subparagraph (A)), or jointly by the Attorney General and the
Commission and a foreign antitrust authority, for the purpose
of conducting investigations under section 3, applying for orders
under section 4, or providing antitrust evidence, on a reciprocal
basis and that includes the following:
(A) An assurance that the foreign antitrust authority
will provide to the Attorney General and the Commission
assistance that is comparable in scope to the assistance
the Attorney General and the Commission provide under
such agreement or such memorandum.
(B) An assurance that the foreign antitrust authority
is subject to laws and procedures 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 received 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 integration organization represented by
the foreign antitrust authority, that protect the confiden-
tiality of antitrust evidence that may be provided under
such agreement or such memorandum. Such citations and
such descriptions shall include the enforcement mecha-
nisms and penalties applicable under such laws and, with
H. R. 4781—8
respect to a regional economic integration organization,
the applicability of such laws, enforcement mechanisms,
and penalties to the foreign states composing such
organization.
(D) Citations to the Federal antitrust laws, and the
foreign antitrust laws, with respect to which such agree-
ment or such memorandum 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 involved, or
(ii) with respect to a specified disclosure or use
requested by a foreign antitrust authority and essential
to a significant 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 antitrust evidence
is not otherwise readily available with respect to
such objective,
(II) making the determinations described in
paragraphs (2) and (3) of section 8(a), with respect
to such disclosure or use, and
(III) making the determinations applicable to
a foreign antitrust authority under section 8(a)(1)
(other than the determination regarding the assur-
ance described in subparagraph (A) of this para-
graph), with respect to each additional govern-
mental entity, if any, to be provided such antitrust
evidence 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 Attorney General or
the Commission, and all copies of such evidence, in the
possession or control of the foreign antitrust authority will
be returned to the Attorney General or the Commission,
respectively, at the conclusion of the foreign investigation
or proceeding with respect to which such evidence was
so received.
(G) Terms and conditions that specifically provide that
such agreement or such memorandum will be terminated
if—
(i) the confidentiality required under such agree-
ment 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 confidentiality required under such agreement
or such memorandum is not violated again.
(H) Terms and conditions that specifically provide that
if the confidentiality required under such agreement or
such memorandum is violated with respect to antitrust
evidence, notice of the violation will be given—
H. R. 4781—9
(i) by the foreign antitrust authority promptly to
the Attorney General or the Commission with respect
to antitrust evidence 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 Gen-
eral 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 subsection (a) of the first
section of the Clayton Act (15 U.S.C. 12(a)) but also includes
section 5 of the Federal 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 govern-
mental entity of a foreign state or of a regional economic
integration organization that is vested by such state or such
organization with authority 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 organiza-
tion, that are substantially similar 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 organization’’
means an organization that is constituted by, and composed
of, foreign states, and on which such foreign states have con-
ferred sovereign authority to make decisions that are binding
on such foreign states, and that are directly applicable to and
binding on persons within such foreign states, including the
decisions with respect to—
(A) administering or enforcing the foreign antitrust
laws of such organization, and
(B) prohibiting and regulating disclosure of information
that is obtained by such organization in the course of
administering or enforcing such laws.
SEC. 13. AUTHORITY TO RECEIVE REIMBURSEMENT.
The Attorney General and the Commission are authorized to
receive from a foreign antitrust authority, or from the foreign state
or regional economic integration organization represented by such
foreign antitrust authority, reimbursement for the costs incurred
by the Attorney General or the Commission, respectively, in
conducting an investigation under section 3 requested by such for-
H. R. 4781—10
eign antitrust authority, applying for an order under section 4
to assist such foreign antitrust authority, or providing antitrust
evidence to such foreign antitrust authority under an antitrust
mutual assistance agreement in effect under this Act with respect
to such foreign antitrust authority.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.