H. R. 2243
One Hundred Third Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Tuesday,
the twenty-fifth day of January, one thousand nine hundred and ninety-four
An Act
To amend the Federal Trade Commission Act to extend the authorization of appro-
priations in such Act, and for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; REFERENCE.
(a) SHORT TITLE.—This Act may be cited as the ‘‘Federal Trade
Commission Act Amendments of 1994’’.
(b) REFERENCE.—Whenever in this Act an amendment or repeal
is expressed in terms of an amendment to, or repeal of, a section
or other provision, the reference shall be considered to be made
to a section or other provision of the Federal Trade Commission
Act.
SEC. 2. AGRICULTURAL COOPERATIVES.
The Federal Trade Commission Act (15 U.S.C. 41 et seq.)
is amended by redesignating sections 24 and 25 as sections 25
and 26, respectively, and by inserting immediately after section
23 the following new section:
‘‘SEC. 24. (a) The Commission shall not have any authority
to conduct any study, investigation, or prosecution of any agricul-
tural cooperative for any conduct which, because of the provisions
of the Act entitled ‘An Act to authorize association of producers
of agricultural products’, approved February 18, 1922 (7 U.S.C.
291 et seq., commonly known as the Capper-Volstead Act), is not
a violation of any of the antitrust Acts or this Act.
‘‘(b) The Commission shall not have any authority to conduct
any study or investigation of any agricultural marketing orders.’’.
SEC. 3. COMPENSATION IN PROCEEDINGS.
(a) REPEAL.—Subsection (h) of section 18 (15 U.S.C. 57a) is
repealed and subsections (i), (j), and (k) of section 18 are redesig-
nated as subsections (h), (i), and (j), respectively.
(b) CONFORMING AMENDMENT.—Section 18(a)(1) (15 U.S.C.
57a(a)(1)) is amended by striking ‘‘subsection (i)’’ and inserting
‘‘subsection (h)’’.
SEC. 4. PROCEEDINGS SUBSEQUENT TO VIOLATIONS OF ORDERS.
(a) 
CONSENT
ORDERS.—Section 
5(m)(1)(B) 
(15 
U.S.C.
45(m)(1)(B)) is amended by inserting ‘‘, other than a consent order,’’
immediately after ‘‘order’’ the first time it appears.
(b) DETERMINATIONS
OF
LAW.—Section 5(m)(2) (15 U.S.C.
45(m)(2)) is amended by adding at the end the following: ‘‘Upon
request of any party to such an action against such defendant,
the court shall also review the determination of law made by
H. R. 2243—2
the Commission in the proceeding under subsection (b) that the
act or practice which was the subject of such proceeding constituted
an unfair or deceptive act or practice in violation of subsection
(a).’’.
SEC. 5. PREVALENCE OF UNLAWFUL ACTS OR PRACTICES.
Section 18(b) (15 U.S.C. 57a(b)) is amended by adding at the
end the following new paragraph:
‘‘(3) The Commission shall issue a notice of proposed rulemaking
pursuant to paragraph (1)(A) only where it has reason to believe
that the unfair or deceptive acts or practices which are the subject
of the proposed rulemaking are prevalent. The Commission shall
make a determination that unfair or deceptive acts or practices
are prevalent under this paragraph only if—
‘‘(A) it has issued cease and desist orders regarding such
acts or practices, or
‘‘(B) any other information available to the Commission
indicates a widespread pattern of unfair or deceptive acts or
practices.’’.
SEC. 6. EFFECTIVE DATE OF ORDERS.
(a) ORDERS SUBJECT TO PETITION FOR REVIEW.—Section 5(g)(2)
(15 U.S.C. 45(g)(2)) is amended to read as follows:
‘‘(2) Except as to any order provision subject to paragraph
(4), upon the sixtieth day after such order is served, if a
petition for review has been duly filed; except that any such
order may be stayed, in whole or in part and subject to such
conditions as may be appropriate, by—
‘‘(A) the Commission;
‘‘(B) an appropriate court of appeals of the United
States, if (i) a petition for review of such order is pending
in such court, and (ii) an application for such a stay was
previously submitted to the Commission and the Commis-
sion, within the 30-day period beginning on the date the
application was received by the Commission, either denied
the application or did not grant or deny the application;
or
‘‘(C) the Supreme Court, if an applicable petition for
certiorari is pending.’’.
(b) ORDERS SUBJECT TO SECTIONS 5(m)(1)(B) AND 19(a)(2).—
Section 5(g)(3) (15 U.S.C. 45(g)(3)) is amended to read as follows:
‘‘(3) For purposes of subsection (m)(1)(B) and of section
19(a)(2), if a petition for review of the order of the Commission
has been filed—
‘‘(A) upon the expiration of the time allowed for filing
a petition for certiorari, if the order of the Commission
has been affirmed or the petition for review has been
dismissed by the court of appeals and no petition for certio-
rari has been duly filed;
‘‘(B) upon the denial of a petition for certiorari, if
the order of the Commission has been affirmed or the
petition for review has been dismissed by the court of
appeals; or
‘‘(C) upon the expiration of 30 days from the date
of issuance of a mandate of the Supreme Court directing
that the order of the Commission be affirmed or the petition
for review be dismissed.’’.
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(c) DIVESTITURE ORDERS.—Section 5(g)(4) (15 U.S.C. 45(g)(4))
is amended to read as follows:
‘‘(4) In the case of an order provision requiring a person,
partnership, or corporation to divest itself of stock, other share
capital, or assets, if a petition for review of such order of
the Commission has been filed—
‘‘(A) upon the expiration of the time allowed for filing
a petition for certiorari, if the order of the Commission
has been affirmed or the petition for review has been
dismissed by the court of appeals and no petition for certio-
rari has been duly filed;
‘‘(B) upon the denial of a petition for certiorari, if
the order of the Commission has been affirmed or the
petition for review has been dismissed by the court of
appeals; or
‘‘(C) upon the expiration of 30 days from the date
of issuance of a mandate of the Supreme Court directing
that the order of the Commission be affirmed or the petition
for review be dismissed.’’.
(d) TECHNICAL.—Paragraph (1) of section 5(g) (15 U.S.C.
45(g)(1)) is amended by striking ‘‘; or’’ and inserting a period.
SEC. 7. CIVIL INVESTIGATIVE DEMANDS.
(a) DEFINITIONS.—Section 20(a) (15 U.S.C. 57b–1(a)) is
amended—
(1) in paragraph (2), by inserting ‘‘or in any antitrust
violations’’ immediately after ‘‘section 5(a)(1))’’;
(2) in paragraph (3), by inserting ‘‘or any provisions relating
to antitrust violations’’ immediately after ‘‘section 5(a)(1))’’;
(3) in paragraph (7), by inserting ‘‘or any antitrust viola-
tion’’ immediately after ‘‘section 5(a)(1))’’; and
(4) by adding at the end the following new paragraph:
‘‘(8) The term ‘antitrust violation’ means any unfair method
of competition (within the meaning of section 5(a)(1)), any viola-
tion of the Clayton Act, any violation of any other Federal
statute that prohibits, or makes available to the Commission
a civil remedy with respect to, any restraint upon or monopo-
lization of interstate or foreign trade or commerce, or any
activity in preparation for a merger, acquisition, joint venture,
or similar transaction, which if consummated, may result in
such an unfair method of competition or violation.’’.
(b) ISSUANCE OF DEMAND.—(1) Section 20(c)(1) (15 U.S.C. 57b–
1(c)(1)) is amended—
(A) by inserting ‘‘or tangible things’’ immediately after
‘‘documentary material’’ the first place it appears;
(B) by inserting ‘‘or to antitrust violations,’’ immediately
after ‘‘section 5(a)(1)) ,’’; and
(C) by inserting ‘‘to submit such tangible things,’’ imme-
diately after ‘‘copying or reproduction,’’.
(2) Section 20(c) (15 U.S.C. 57b–1(c)) is amended—
(A) by redesignating paragraphs (4), (5), (6), (7), (8), (9),
(10), (11), and (12) as paragraphs (5), (6), (7), (8), (9), (10),
(11), (13), and (14), respectively;
(B) by inserting immediately after paragraph (3) the follow-
ing new paragraph:
‘‘(4) Each civil investigative demand for the submission of tan-
gible things shall—
H. R. 2243—4
‘‘(A) describe each class of tangible things to be submitted
under the demand with such definiteness and certainty as
to permit such things to be fairly identified;
‘‘(B) prescribe a return date or dates which will provide
a reasonable period of time within which the things so
demanded may be assembled and submitted; and
‘‘(C) identify the custodian to whom such things shall be
submitted.’’; and
(C) by inserting immediately after paragraph (11), as so
redesignated, the following new paragraph:
‘‘(12) The submission of tangible things in response to a civil
investigative demand shall be made under a sworn certificate, in
such form as the demand designates, by the person to whom the
demand is directed or, if not a natural person, by any person
having knowledge of the facts and circumstances relating to such
production, to the effect that all of the tangible things required
by the demand and in the possession, custody, or control of the
person to whom the demand is directed have been submitted to
the custodian.’’.
(c) SECTION
20(g).—Section 20(g) (15 U.S.C. 57b–1(g)) is
amended by inserting ‘‘, tangible things’’ immediately after ‘‘docu-
mentary material’’.
(d) APPLICABILITY OF SECTION 20.—Section 20(j)(1) (15 U.S.C.
57b–1(j)(1)) is amended by inserting immediately before the semi-
colon the following: ‘‘, any proceeding under section 11(b) of the
Clayton Act (15 U.S.C. 21(b)), or any adjudicative proceeding under
any other provision of law’’.
SEC. 8. COMMISSION CUSTODY OF TANGIBLE THINGS.
Section 21 (15 U.S.C. 57b–2) is amended—
(1) in subsection (a)(1), by inserting ‘‘tangible things,’’
immediately after ‘‘documentary material,’’;
(2) in subsection (b)(1), by inserting ‘‘, tangible thing,’’
immediately after ‘‘document’’;
(3) in subsection (b)(2)(A), by inserting ‘‘tangible things,’’
immediately after ‘‘documentary material,’’;
(4) in subsection (b)(3)—
(A) in subparagraph (A), by inserting ‘‘tangible things,’’
immediately after ‘‘documentary material,’’;
(B) in subparagraph (B), by inserting ‘‘, and may make
tangible things available,’’ immediately after ‘‘oral testi-
mony’’; and by inserting ‘‘, things,’’ immediately after ‘‘such
material’’;
(C) in subparagraph (C), by inserting ‘‘tangible things,’’
immediately after ‘‘documentary material,’’ and by inserting
‘‘, things,’’ immediately after ‘‘material’’; and
(D) in subparagraph (D), by inserting ‘‘, tangible
things,’’ immediately after ‘‘documentary material’’;
(5) in subsection (b)(4), by inserting ‘‘tangible things,’’
immediately after ‘‘documentary material,’’;
(6) in subsection (b)(5), by inserting ‘‘tangible things,’’
immediately after ‘‘documentary material,’’;
(7) in subsection (b)(6)—
(A) by inserting immediately after the first sentence
the following new sentence: ‘‘The custodian of any tangible
things may make such things available for inspection to
such persons on the same basis.’’; and
H. R. 2243—5
(B) by inserting ‘‘results of inspections of tangible
things,’’ immediately after ‘‘Such documentary material,’’;
and
(8) in subsection (b)(7), by inserting ‘‘tangible things,’’
immediately after ‘‘documentary material,’’.
SEC. 9. DEFINITION OF UNFAIR ACTS OR PRACTICES.
Section 5 (15 U.S.C. 45) is amended by adding at the end
the following:
‘‘(n) The Commission shall have no authority under this section
or section 18 to declare unlawful an act or practice on the grounds
that such act or practice is unfair unless the act or practice causes
or is likely to cause substantial injury to consumers which is not
reasonably avoidable by consumers themselves and not outweighed
by countervailing benefits to consumers or to competition. In deter-
mining whether an act or practice is unfair, the Commission may
consider established public policies as evidence to be considered
with all other evidence. Such public policy considerations may not
serve as a primary basis for such determination.’’.
SEC. 10. PROCESS.
(a) AUTHORITY.—
(1) ADVERTISEMENTS IN VIOLATION OF SECTION 12.—Section
13(a) (15 U.S.C. 53(a)) is amended by striking the last sentence
and inserting the following: ‘‘Any suit may be brought where
such person, partnership, or corporation resides or transacts
business, or wherever venue is proper under section 1391 of
title 28, United States Code. In addition, the court may, if
the court determines that the interests of justice require that
any other person, partnership, or corporation should be a party
in such suit, cause such other person, partnership, or corpora-
tion to be added as a party without regard to whether venue
is otherwise proper in the district in which the suit is brought.
In any suit under this section, process may be served on any
person, partnership, or corporation wherever it may be found.’’.
(2) PROVISIONS ENFORCED BY COMMISSION.—Section 13(b)
(15 U.S.C. 53(b)) is amended by striking the last sentence
and inserting the following: ‘‘Any suit may be brought where
such person, partnership, or corporation resides or transacts
business, or wherever venue is proper under section 1391 of
title 28, United States Code. In addition, the court may, if
the court determines that the interests of justice require that
any other person, partnership, or corporation should be a party
in such suit, cause such other person, partnership, or corpora-
tion to be added as a party without regard to whether venue
is otherwise proper in the district in which the suit is brought.
In any suit under this section, process may be served on any
person, partnership, or corporation wherever it may be found.’’.
(b) PROCEDURES.—Section 13 (15 U.S.C. 53) is amended—
(1) by redesignating subsection (c) as subsection (d); and
(2) by inserting immediately after subsection (b) the follow-
ing new subsection:
‘‘(c) Any process of the Commission under this section may
be served by any person duly authorized by the Commission—
‘‘(1) by delivering a copy of such process to the person
to be served, to a member of the partnership to be served,
or to the president, secretary, or other executive officer or
a director of the corporation to be served;
H. R. 2243—6
‘‘(2) by leaving a copy of such process at the residence
or the principal office or place of business of such person,
partnership, or corporation; or
‘‘(3) by mailing a copy of such process by registered mail
or certified mail addressed to such person, partnership, or
corporation at his, or her, or its residence, principal office,
or principal place or business.
The verified return by the person serving such process setting
forth the manner of such service shall be proof of the same.’’.
SEC. 11. INTERVENTION BY COMMISSION IN CERTAIN PROCEEDINGS.
(a) LIMITATION ON USE OF AUTHORIZED FUNDS.—The Federal
Trade Commission shall not have any authority to use any funds
which are authorized to be appropriated to carry out the Federal
Trade Commission Act (15 U.S.C. 41 et seq.) for fiscal years 1994,
1995, and 1996 for the purpose of submitting statements to, appear-
ing before, or intervening in the proceedings of, any Federal or
State agency or State legislative body concerning proposed rules
or legislation that the agency or legislative body is considering
unless the Commission advises the Committee on Commerce,
Science, and Transportation of the Senate and the Committee on
Energy and Commerce of the House of Representatives regarding
such action as soon as possible.
(b) CONTENTS OF NOTICE TO CONGRESS.—The notice required
in subsection (a) shall include the name of the agency or legislator
involved, the date of such action, and a concise statement regarding
the nature and purpose of such action.
SEC. 12. RESOURCE ALLOCATION STUDY.
The Federal Trade Commission shall conduct an evaluation
of the level of its personnel resources and the manner in which
such resources are allocated. The Commission shall study—
(1) whether overall resources at the Commission are ade-
quate to fulfill the Commission’s responsibilities in the areas
of competition and consumer protection;
(2) the distribution of personnel to individual offices of
commissioners, departments, bureaus, and other units within
the Commission, and whether the current allocation of person-
nel most efficiently enables the Commission to fulfill its statu-
tory mandate;
(3) the number of personnel in supervisory positions, con-
trasted with those personnel in nonsupervisory positions; and
(4) whether the amount of workyears devoted to research
activities should be increased and what results (if any) such
an increase would produce.
The Commission shall transmit the results of such study, together
with any recommendations that the Commission determines appro-
priate, to the Committee on Commerce, Science, and Transportation
of the Senate and the Committee on Energy and Commerce of
the House of Representatives not later than 6 months after the
date of enactment of this Act.
SEC. 13. FEDERAL-STATE COOPERATION.
The Federal Trade Commission shall review its statutory
responsibilities to identify those matters within its jurisdiction
where Federal enforcement is particularly necessary or desirable
and those areas that might more effectively be enforced at the
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State or local level. In identifying such areas, the Commission
shall—
(1) consider the resources available to the Commission
and the States, as well as particular rules that have been
promulgated by the Commission;
(2) consult with the attorneys general of the States, rep-
resentatives of consumers and industry, and other interested
parties; and
(3) consider such other issues as will result in more efficient
implementation of the statutory responsibilities of the Commis-
sion.
Not later than 6 months after the date of enactment of this Act,
the Commission shall transmit to the Committee on Commerce,
Science, and Transportation of the Senate and the Committee on
Energy and Commerce of the House of Representatives the informa-
tion identified in paragraphs (1) through (3), together with specific
recommendations for methods of achieving greater cooperation
between the Commission and the States.
SEC. 14. AUTHORIZATION OF APPROPRIATIONS.
Section 25 (15 U.S.C. 57c), as so redesignated by section 2
of this Act, is amended to read as follows:
‘‘SEC. 25. There are authorized to be appropriated to carry
out the functions, powers, and duties of the Commission not to
exceed $92,700,000 for fiscal year 1994; not to exceed $99,000,000
for fiscal year 1995; and not to exceed $102,000,000 for fiscal
year 1996.’’.
SEC. 15. EFFECTIVE DATE; APPLICABILITY.
(a) IN GENERAL.—Except as provided in subsections (b), (c),
(d), and (e), the provisions of this Act shall take effect on the
date of enactment of this Act.
(b) APPLICABILITY OF SECTION 5.—The amendment made by
section 5 of this Act shall apply only to rulemaking proceedings
initiated after the date of enactment of this Act. Such amendment
shall not be construed to affect in any manner a rulemaking
proceeding which was initiated before the date of enactment of
this Act.
(c) APPLICABILITY OF SECTION 6.—The amendments made by
section 6 of this Act shall apply only with respect to cease and
desist orders issued under section 5 of the Federal Trade Commis-
sion Act (15 U.S.C. 45) after the date of enactment of this Act.
These amendments shall not be construed to affect in any manner
a cease and desist order which was issued before the date of
enactment of this Act.
(d) APPLICABILITY OF SECTIONS 7 AND 8.—The amendments
made by sections 7 and 8 of this Act shall apply only with respect
to compulsory process issued after the date of enactment of this
Act.
(e) APPLICABILITY OF SECTION 9.—The amendments made by
section 9 of this Act shall apply only with respect to cease and
desist orders issued under section 5 of the Federal Trade Commis-
sion Act (15 U.S.C. 45), or to rules promulgated under section
18 of the Federal Trade Commission Act (15 U.S.C. 57a) after
the date of enactment of this Act. These amendments shall not
be construed to affect in any manner a cease and desist order
which was issued, or a rule which was promulgated, before the
date of enactment of this Act. These amendments shall not be