[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4781 Enrolled Bill (ENR)]

        H.R.4781

                       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 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 for-P
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.