[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 2297 Introduced in Senate (IS)]

103d CONGRESS
  2d Session
                                S. 2297

     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.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                July 19 (legislative day, July 11), 1994

Mr. Metzenbaum (for himself, Mr. Thurmond, Mr. Kennedy, Mr. Biden, Mr. 
    Leahy, Mr. Simon, Mr. Simpson, and Mr. Grassley) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             the Judiciary

_______________________________________________________________________

                                 A BILL


 
     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.

    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, in accordance with an antitrust mutual assistance 
agreement in effect with a foreign antitrust authority, antitrust 
evidence to the foreign antitrust authority to assist the foreign 
antitrust authority--
            (1) to determine 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) to enforce any of such foreign antitrust laws.

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

    (a) General Authority.--In accordance with an antitrust mutual 
assistance agreement in effect with a foreign antitrust authority, 
subject to section 8, and except as provided in section 5, the Attorney 
General may, using the authority of the Attorney General to investigate 
possible violations of the Federal antitrust laws, conduct 
investigations to obtain antitrust evidence relating to a violation of 
the foreign antitrust laws administered or enforced by the foreign 
antitrust authority, and may provide such antitrust evidence to the 
foreign antitrust authority, to assist the foreign antitrust 
authority--
            (1) to determine whether a person has violated or is about 
        to violate any of such foreign antitrust laws, or
            (2) to enforce any of such foreign antitrust laws.
Such investigations may be conducted, and such antitrust evidence may 
be provided, without regard to whether the conduct investigated 
violates any of the Federal antitrust laws.
    (b) Conforming Amendments.--The Antitrust Civil Process Act (15 
U.S.C. 1311 et seq) is amended--
            (1) in section 2--
                    (A) in subsection (d)--
                            (i) by striking ``or any'' and inserting 
                        ``, any'', and
                            (ii) by inserting before the period ``, or 
                        any of the foreign antitrust laws'', and
                    (B) 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
            (2) in the first sentence of section 3(a)--
                    (A) by inserting ``or to an investigation 
                authorized by section 3(a) of the International 
                Antitrust Enforcement Assistance Act of 1994'' after 
                ``investigation'', and
                    (B) by inserting ``by the United States'' after 
                ``proceeding''.

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 with a foreign antitrust authority, 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 the foreign antitrust authority that is a party to 
such agreement--
            (1) to determine 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) to enforce any of such foreign antitrust laws.
    (b) Contents of Order.--(1) 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. A person so appointed 
shall have power to administer any necessary oath and to take such 
testimony or such statement.
    (2) An order issued under subsection (a) may prescribe the practice 
and procedure for taking testimony and statements. 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. 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 purposes of this section and Rule 
        6(e)(3)(c)(i) of the Federal Rules of Criminal Procedure, a 
        judicial proceeding includes a judicial or administrative 
        proceeding of a foreign state or a regional economic 
        integration organization under any of the foreign antitrust 
        laws of such foreign state or such organization.
            (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. DISCLOSURE OF ANTITRUST EVIDENCE OBTAINED UNDER THE ANTITRUST 
              CIVIL PROCESS ACT.

    Section 4 of the Antitrust Civil Process Act (15 U.S.C. 1313) shall 
not apply to prevent the Attorney General 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 entering into an antitrust 
mutual assistance agreement and after consultation with the Commission, 
the Attorney General 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 entering 
into an agreement that makes an amendment to an antitrust mutual 
assistance agreement in effect under this Act and after consultation 
with the Commission, the Attorney General 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 Entered 
Into and of Amendments to Such Agreements.--Not later than 30 days 
after entering into an antitrust mutual assistance agreement, or an 
agreement that makes an amendment to an antitrust mutual assistance 
agreement in effect under this Act, the Attorney General shall publish 
in the Federal Register--
            (1) the text of the antitrust mutual assistance agreement 
        or of such amendment, as the case may be, and
            (2) in the case of an agreement that makes such amendment, 
        a notice containing--
                    (A) a statement of the fact that such agreement was 
                entered into,
                    (B) citations to the provisions of the Federal 
                Register that contain the text of the amendment and of 
                the antitrust mutual assistance agreement that is so 
                amended, and
                    (C) 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.
    (d) Condition for Validity.--An antitrust mutual assistance 
agreement, or an agreement that makes an amendment to an antitrust 
mutual assistance agreement, entered into in violation of subsection 
(a) or (b) shall not be considered to be entered into under the 
authority of this Act.

SEC. 8. IMPLEMENTATION OF ANTITRUST MUTUAL ASSISTANCE AGREEMENTS.

    (a) Determinations.--The Attorney General may conduct an 
investigation under section 3, and the Attorney General or the 
Commission may provide antitrust evidence to a foreign antitrust 
authority, under an antitrust mutual assistance agreement in effect 
under this Act only if the Attorney General or the Commission, as the 
case may be, determines in the particular instance in which such 
investigation or evidence is requested that--
            (1) the foreign antitrust authority--
                    (A) will satisfy the assurances, terms, and 
                conditions required by subparagraphs (A), (B), and (D) 
                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, 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 the regional economic integration organization, represented 
        by the foreign antitrust authority holds any proprietary 
        interest that could benefit or otherwise be affected by such 
        investigation 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 antitrust 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)(G), 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 section 8(a) shall 
not be subject to judicial review.
    (b) Citations to and Descriptions of Antitrust Laws.--Whether an 
antitrust mutual assistance agreement satisfies the requirements 
specified in section 12(2)(C) shall not be subject to judicial review.

SEC. 10. SUPPLEMENTATION AND PRESERVATION OF AUTHORITY.

    (a) Supplemental Authority.--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) Authority Preserved.--This Act does not 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 after consultation with 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) 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) the number and identities of the foreign antitrust 
        authorities that have entered into such agreements,
            (4) the identity of each foreign state, and each regional 
        economic integration organization, that has in effect a law 
        similar to this Act,
            (5) 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) 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 
        and for antitrust evidence, and
            (7) a description of 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 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 between the Attorney General and 
        a foreign antitrust authority for the purpose of conducting 
        investigations under section 3, or for 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 or the 
                Commission assistance that is comparable in scope to 
                the assistance the Attorney General or the Commission, 
                as the case may be, provides 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 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 (including treaties, statutes, executive orders, 
                and regulations) of the United States, and the laws 
                (including treaties, statutes, executive orders, and 
                regulations) of the foreign state, or the 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.
                    (D) Terms and conditions that specifically prohibit 
                using antitrust evidence received under such agreement 
                or such memorandum, for any purpose other than the 
                administration or enforcement of the foreign antitrust 
                laws involved.
                    (E) 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.
                    (F) 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 such confidentiality is not 
                        violated again.
                    (G) Terms and conditions that specifically provide 
                that if the confidentiality required under such 
                agreement or such memorandum is violated by the foreign 
                antitrust authority 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 in which such foreign states have vested 
        authority to make decisions binding on such foreign states.

SEC. 13. AUTHORITY TO RECEIVE REIMBURSEMENTS.

    The Attorney General and the Commission are authorized to receive 
from a foreign state or a regional economic integration organization 
reimbursement in cash or in kind for the costs incurred by the Attorney 
General or the Commission, respectively, to conduct investigations 
under section 3 or provide antitrust evidence under a mutual assistance 
agreement entered into with the foreign antitrust authority that 
represents such foreign state or such organization.
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