S. 2297 (103rd): International Antitrust Enforcement Assistance Act of 1994

103rd Congress, 1993–1994. Text as of Oct 07, 1994 (Passed the Senate (Engrossed)).

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S 2297 ES

103d CONGRESS

2d Session

S. 2297


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 accordance with antitrust mutual assistance agreements, antitrust evidence to foreign antitrust authorities on a reciprocal basis; 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.

    This Act may be cited as the ‘International Antitrust Enforcement Assistance Act of 1994’.

SEC. 2. DISCLOSURE TO A FOREIGN ANTITRUST AUTHORITY OF ANTITRUST EVIDENCE.

    In accordance with an antitrust mutual assistance agreement in effect under this Act, subject to section 8, and except as provided in section 5, the Attorney General of the United States and the Federal Trade Commission may provide to a foreign antitrust authority with respect to which such agreement is in effect under this Act, antitrust evidence to assist the foreign antitrust authority--

      (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.

SEC. 3. INVESTIGATIONS TO ASSIST A FOREIGN ANTITRUST AUTHORITY IN OBTAINING ANTITRUST EVIDENCE.

    (a) REQUEST FOR INVESTIGATIVE ASSISTANCE- A request by a foreign antitrust authority for investigative assistance under this section shall be made to the Attorney General, who may deny the request in whole or in part. No further action shall be taken under this section with respect to any part of a request that has been denied by the Attorney General.

    (b) AUTHORITY TO INVESTIGATE- In accordance with an antitrust mutual assistance agreement in effect under this Act, subject to section 8, and except as provided in section 5, the Attorney General and the Commission may, using their respective authority to investigate possible violations of the Federal antitrust laws, conduct investigations to obtain antitrust evidence relating to a possible violation of the foreign antitrust laws administered or enforced by the foreign antitrust authority with respect to which such agreement is in effect under this Act, and may provide such antitrust evidence to the foreign antitrust authority, to assist the foreign antitrust authority--

      (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 antitrust 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 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 subsection (h) the following:

    ‘(i) With respect to the International Antitrust Enforcement Assistance Act of 1994, to conduct investigations of possible violations 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

        ‘(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 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 testimony 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-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 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 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 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 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 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 ASSISTANCE AGREEMENTS, 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 Attorney 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 containing--

        (A) citations to the locations in the Federal Register at which the text of the antitrust mutual assistance agreement 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 violate 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 represented by the foreign antitrust authority holds any proprietary 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 EVIDENCE- Neither the Attorney General nor the Commission may 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 Attorney 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 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 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 enforcement 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 authorities 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 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 authorities for antitrust investigations 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, 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 foreign 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 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 confidentiality of antitrust evidence that may be provided under such agreement or such memorandum. Such citations and such descriptions shall include the enforcement mechanisms and penalties applicable under such laws and, with 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 agreement 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 accordance 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 assurance described in subparagraph (A) of this paragraph), with respect to each additional governmental 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 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 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--

          (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 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 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 governmental 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 organization, 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 conferred 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 foreign 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.

Passed the Senate October 7 (legislative day, September 12), 1994.

Attest:

Secretary.

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