[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1086 Engrossed Amendment Senate (EAS)]

  
  
  
  
  
  
  
  
  
  
  
  
  
  
  

                  In the Senate of the United States,

                                                         April 2, 2004.
    Resolved, That the bill from the House of Representatives (H.R. 
1086) entitled ``An Act to encourage the development and promulgation 
of voluntary consensus standards by providing relief under the 
antitrust laws to standards development organizations with respect to 
conduct engaged in for the purpose of developing voluntary consensus 
standards, and for other purposes.'', do pass with the following

                               AMENDMENT:

            Strike out all after the enacting clause and insert:

  TITLE I--STANDARDS DEVELOPMENT ORGANIZATION ADVANCEMENT ACT OF 2003

SEC. 101. SHORT TITLE.

    This title may be cited as the ``Standards Development Organization 
Advancement Act of 2003''.

SEC. 102. FINDINGS.

    The Congress finds the following:
            (1) In 1993, the Congress amended and renamed the National 
        Cooperative Research Act of 1984 (now known as the National 
        Cooperative Research and Production Act of 1993 (15 U.S.C. 4301 
        et seq.)) by enacting the National Cooperative Production 
        Amendments of 1993 (Public Law 103-42) to encourage the use of 
        collaborative, procompetitive activity in the form of research 
        and production joint ventures that provide adequate disclosure 
        to the antitrust enforcement agencies about the nature and 
        scope of the activity involved.
            (2) Subsequently, in 1995, the Congress in enacting the 
        National Technology Transfer and Advancement Act of 1995 (15 
        U.S.C. 272 note) recognized the importance of technical 
        standards developed by voluntary consensus standards bodies to 
        our national economy by requiring the use of such standards to 
        the extent practicable by Federal agencies and by encouraging 
        Federal agency representatives to participate in ongoing 
        standards development activities. The Office of Management and 
        Budget on February 18, 1998, revised Circular A-119 to reflect 
        these changes made in law.
            (3) Following enactment of the National Technology Transfer 
        and Advancement Act of 1995, technical standards developed or 
        adopted by voluntary consensus standards bodies have replaced 
        thousands of unique Government standards and specifications 
        allowing the national economy to operate in a more unified 
        fashion.
            (4) Having the same technical standards used by Federal 
        agencies and by the private sector permits the Government to 
        avoid the cost of developing duplicative Government standards 
        and to more readily use products and components designed for 
        the commercial marketplace, thereby enhancing quality and 
        safety and reducing costs.
            (5) Technical standards are written by hundreds of 
        nonprofit voluntary consensus standards bodies in a 
        nonexclusionary fashion, using thousands of volunteers from the 
        private and public sectors, and are developed under the 
        standards development principles set out in Circular Number A-
        119, as revised February 18, 1998, of the Office of Management 
        and Budget, including principles that require openness, 
        balance, transparency, consensus, and due process. Such 
        principles provide for--
                    (A) notice to all parties known to be affected by 
                the particular standards development activity,
                    (B) the opportunity to participate in standards 
                development or modification,
                    (C) balancing interests so that standards 
                development activities are not dominated by any single 
                group of interested persons,
                    (D) readily available access to essential 
                information regarding proposed and final standards,
                    (E) the requirement that substantial agreement be 
                reached on all material points after the consideration 
                of all views and objections, and
                    (F) the right to express a position, to have it 
                considered, and to appeal an adverse decision.
            (6) There are tens of thousands of voluntary consensus 
        standards available for government use. Most of these standards 
        are kept current through interim amendments and 
        interpretations, issuance of addenda, and periodic 
        reaffirmation, revision, or reissuance every 3 to 5 years.
            (7) Standards developed by government entities generally 
        are not subject to challenge under the antitrust laws.
            (8) Private developers of the technical standards that are 
        used as Government standards are often not similarly protected, 
        leaving such developers vulnerable to being named as 
        codefendants in lawsuits even though the likelihood of their 
        being held liable is remote in most cases, and they generally 
        have limited resources to defend themselves in such lawsuits.
            (9) Standards development organizations do not stand to 
        benefit from any antitrust violations that might occur in the 
        voluntary consensus standards development process.
            (10) As was the case with respect to research and 
        production joint ventures before the passage of the National 
        Cooperative Research and Production Act of 1993, if relief from 
        the threat of liability under the antitrust laws is not granted 
        to voluntary consensus standards bodies, both regarding the 
        development of new standards and efforts to keep existing 
        standards current, such bodies could be forced to cut back on 
        standards development activities at great financial cost both 
        to the Government and to the national economy.

SEC. 103. DEFINITIONS.

    Section 2 of the National Cooperative Research and Production Act 
of 1993 (15 U.S.C. 4301) is amended--
            (1) in subsection (a) by adding at the end the following:
            ``(7) The term `standards development activity' means any 
        action taken by a standards development organization for the 
        purpose of developing, promulgating, revising, amending, 
        reissuing, interpreting, or otherwise maintaining a voluntary 
        consensus standard, or using such standard in conformity 
        assessment activities, including actions relating to the 
        intellectual property policies of the standards development 
        organization.
            ``(8) The term `standards development organization' means a 
        domestic or international organization that plans, develops, 
        establishes, or coordinates voluntary consensus standards using 
        procedures that incorporate the attributes of openness, balance 
        of interests, due process, an appeals process, and consensus in 
        a manner consistent with the Office of Management and Budget 
        Circular Number A-119, as revised February 10, 1998. The term 
        `standards development organization' shall not, for purposes of 
        this Act, include the parties participating in the standards 
        development organization.
            ``(9) The term `technical standard' has the meaning given 
        such term in section 12(d)(4) of the National Technology 
        Transfer and Advancement Act of 1995.
            ``(10) The term `voluntary consensus standard' has the 
        meaning given such term in Office of Management and Budget 
        Circular Number A-119, as revised February 10, 1998.''; and
            (2) by adding at the end the following:
    ``(c) The term `standards development activity' excludes the 
following activities:
            ``(1) Exchanging information among competitors relating to 
        cost, sales, profitability, prices, marketing, or distribution 
        of any product, process, or service that is not reasonably 
        required for the purpose of developing or promulgating a 
        voluntary consensus standard, or using such standard in 
        conformity assessment activities.
            ``(2) Entering into any agreement or engaging in any other 
        conduct that would allocate a market with a competitor.
            ``(3) Entering into any agreement or conspiracy that would 
        set or restrain prices of any good or service.''.

SEC. 104. RULE OF REASON STANDARD.

    Section 3 of the National Cooperative Research and Production Act 
of 1993 (15 U.S.C. 4302) is amended by striking ``of any person in 
making or performing a contract to carry out a joint venture shall'' 
and inserting the following: ``of--
            ``(1) any person in making or performing a contract to 
        carry out a joint venture, or
            ``(2) a standards development organization while engaged in 
        a standards development activity,
shall''.

SEC. 105. LIMITATION ON RECOVERY.

    Section 4 of the National Cooperative Research and Production Act 
of 1993 (15 U.S.C. 4303) is amended--
            (1) in subsections (a)(1), (b)(1), and (c)(1) by inserting 
        ``, or for a standards development activity engaged in by a 
        standards development organization against which such claim is 
        made'' after ``joint venture'',
            (2) in subsection (e)--
                    (A) by inserting ``, or of a standards development 
                activity engaged in by a standards development 
                organization'' before the period at the end, and
                    (B) by redesignating such subsection as subsection 
                (f), and
            (3) by inserting after subsection (d) the following:
    ``(e) Subsections (a), (b), and (c) shall not be construed to 
modify the liability under the antitrust laws of any person (other than 
a standards development organization) who--
            ``(1) directly (or through an employee or agent) 
        participates in a standards development activity with respect 
        to which a violation of any of the antitrust laws is found,
            ``(2) is not a fulltime employee of the standards 
        development organization that engaged in such activity, and
            ``(3) is, or is an employee or agent of a person who is, 
        engaged in a line of commerce that is likely to benefit 
        directly from the operation of the standards development 
        activity with respect to which such violation is found.''.

SEC. 106. ATTORNEY FEES.

    Section 5 of the National Cooperative Research and Production Act 
of 1993 (15 U.S.C. 4304) is amended--
            (1) in subsection (a) by inserting ``, or of a standards 
        development activity engaged in by a standards development 
        organization'' after ``joint venture'', and
            (2) by adding at the end the following:
    ``(c) Subsections (a) and (b) shall not apply with respect to any 
person who--
            ``(1) directly participates in a standards development 
        activity with respect to which a violation of any of the 
        antitrust laws is found,
            ``(2) is not a fulltime employee of a standards development 
        organization that engaged in such activity, and
            ``(3) is, or is an employee or agent of a person who is, 
        engaged in a line of commerce that is likely to benefit 
        directly from the operation of the standards development 
        activity with respect to which such violation is found.''.

SEC. 107. DISCLOSURE OF STANDARDS DEVELOPMENT ACTIVITY.

    Section 6 of the National Cooperative Research and Production Act 
of 1993 (15 U.S.C. 4305) is amended--
            (1) in subsection (a)--
                    (A) by redesignating paragraphs (1), (2), and (3) 
                as subparagraphs (A), (B), and (C), respectively,
                    (B) by inserting ``(1)'' after ``(a)'', and
                    (C) by adding at the end the following:
    ``(2) A standards development organization may, not later than 90 
days after commencing a standards development activity engaged in for 
the purpose of developing or promulgating a voluntary consensus 
standards or not later than 90 days after the date of the enactment of 
the Standards Development Organization Advancement Act of 2003, 
whichever is later, file simultaneously with the Attorney General and 
the Commission, a written notification disclosing--
            ``(A) the name and principal place of business of the 
        standards development organization, and
            ``(B) documents showing the nature and scope of such 
        activity.
Any standards development organization may file additional disclosure 
notifications pursuant to this section as are appropriate to extend the 
protections of section 4 to standards development activities that are 
not covered by the initial filing or that have changed significantly 
since the initial filing.'',
            (2) in subsection (b)--
                    (A) in the 1st sentence by inserting ``, or a 
                notice with respect to such standards development 
                activity that identifies the standards development 
                organization engaged in such activity and that 
                describes such activity in general terms'' before the 
                period at the end, and
                    (B) in the last sentence by inserting ``or 
                available to such organization, as the case may be'' 
                before the period,
            (3) in subsection (d)(2) by inserting ``, or the standards 
        development activity,'' after ``venture'',
            (4) in subsection (e)--
                    (A) by striking ``person who'' and inserting 
                ``person or standards development organization that'', 
                and
                    (B) by inserting ``or any standards development 
                organization'' after ``person'' the last place it 
                appears, and
            (5) in subsection (g)(1) by inserting ``or standards 
        development organization'' after ``person''.

SEC. 108. RULE OF CONSTRUCTION.

    Nothing in this title shall be construed to alter or modify the 
antitrust treatment under existing law of--
            (1) parties participating in standards development activity 
        of standards development organizations within the scope of this 
        title, including the existing standard under which the conduct 
        of the parties is reviewed, regardless of the standard under 
        which the conduct of the standards development organizations in 
        which they participate are reviewed, or
            (2) other organizations and parties engaged in standard-
        setting processes not within the scope of this amendment to the 
        title.

TITLE II--ANTITRUST CRIMINAL PENALTY ENHANCEMENT AND REFORM ACT OF 2003

SEC. 201. SHORT TITLE.

    This title may be cited as the ``Antitrust Criminal Penalty 
Enhancement and Reform Act of 2003''.

    Subtitle A--Antitrust Enforcement Enhancements and Cooperation 
                               Incentives

SEC. 211. SUNSET.

    (a) In General.--Except as provided in subsection (b), the 
provisions of sections 211 through 214 shall cease to have effect 5 
years after the date of enactment of this Act.
    (b) Exception.--With respect to an applicant who has entered into 
an antitrust leniency agreement on or before the date on which the 
provisions of sections 211 through 214 of this subtitle shall cease to 
have effect, the provisions of sections 211 through 214 of this 
subtitle shall continue in effect.

SEC. 212. DEFINITIONS.

    In this subtitle:
            (1) Antitrust division.--The term ``Antitrust Division'' 
        means the United States Department of Justice Antitrust 
        Division.
            (2) Antitrust leniency agreement.--The term ``antitrust 
        leniency agreement,'' or ``agreement,'' means a leniency letter 
        agreement, whether conditional or final, between a person and 
        the Antitrust Division pursuant to the Corporate Leniency 
        Policy of the Antitrust Division in effect on the date of 
        execution of the agreement.
            (3) Antitrust leniency applicant.--The term ``antitrust 
        leniency applicant,'' or ``applicant,'' means, with respect to 
        an antitrust leniency agreement, the person that has entered 
        into the agreement.
            (4) Claimant.--The term ``claimant'' means a person or 
        class, that has brought, or on whose behalf has been brought, a 
        civil action alleging a violation of section 1 or 3 of the 
        Sherman Act or any similar State law, except that the term does 
        not include a State or a subdivision of a State with respect to 
        a civil action brought to recover damages sustained by the 
        State or subdivision.
            (5) Cooperating individual.--The term ``cooperating 
        individual'' means, with respect to an antitrust leniency 
        agreement, a current or former director, officer, or employee 
        of the antitrust leniency applicant who is covered by the 
        agreement.
            (6) Person.--The term ``person'' has the meaning given it 
        in subsection (a) of the first section of the Clayton Act.

SEC. 213. LIMITATION ON RECOVERY.

    (a) In General.--Subject to subsection (d), in any civil action 
alleging a violation of section 1 or 3 of the Sherman Act, or alleging 
a violation of any similar State law, based on conduct covered by a 
currently effective antitrust leniency agreement, the amount of damages 
recovered by or on behalf of a claimant from an antitrust leniency 
applicant who satisfies the requirements of subsection (b), together 
with the amounts so recovered from cooperating individuals who satisfy 
such requirements, shall not exceed that portion of the actual damages 
sustained by such claimant which is attributable to the commerce done 
by the applicant in the goods or services affected by the violation.
    (b) Requirements.--Subject to subsection (c), an antitrust leniency 
applicant or cooperating individual satisfies the requirements of this 
subsection with respect to a civil action described in subsection (a) 
if the court in which the civil action is brought determines, after 
considering any appropriate pleadings from the claimant, that the 
applicant or cooperating individual, as the case may be, has provided 
satisfactory cooperation to the claimant with respect to the civil 
action, which cooperation shall include--
            (1) providing a full account to the claimant of all facts 
        known to the applicant or cooperating individual, as the case 
        may be, that are potentially relevant to the civil action;
            (2) furnishing all documents or other items potentially 
        relevant to the civil action that are in the possession, 
        custody, or control of the applicant or cooperating individual, 
        as the case may be, wherever they are located; and
            (3)(A) in the case of a cooperating individual--
                    (i) making himself or herself available for such 
                interviews, depositions, or testimony in connection 
                with the civil action as the claimant may reasonably 
                require; and
                    (ii) responding completely and truthfully, without 
                making any attempt either falsely to protect or falsely 
                to implicate any person or entity, and without 
                intentionally withholding any potentially relevant 
                information, to all questions asked by the claimant in 
                interviews, depositions, trials, or any other court 
                proceedings in connection with the civil action; or
            (B) in the case of an antitrust leniency applicant, using 
        its best efforts to secure and facilitate from cooperating 
        individuals covered by the agreement the cooperation described 
        in clauses (i) and (ii) and subparagraph (A).
    (c) Timeliness.--If the initial contact by the antitrust leniency 
applicant with the Antitrust Division regarding conduct covered by the 
antitrust leniency agreement occurs after a State, or subdivision of a 
State, has issued compulsory process in connection with an 
investigation of allegations of a violation of section 1 or 3 of the 
Sherman Act or any similar State law based on conduct covered by the 
antitrust leniency agreement or after a civil action described in 
subsection (a) has been filed, then the court shall consider, in making 
the determination concerning satisfactory cooperation described in 
subsection (b), the timeliness of the applicant's initial cooperation 
with the claimant.
    (d) Continuation.--Nothing in this section shall be construed to 
modify, impair, or supersede the provisions of sections 4, 4A, and 4C 
of the Clayton Act relating to the recovery of costs of suit, including 
a reasonable attorney's fee, and interest on damages, to the extent 
that such recovery is authorized by such sections.

SEC. 214. RIGHTS, AUTHORITIES, AND LIABILITIES NOT AFFECTED.

    Nothing in this subtitle shall be construed to--
            (1) affect the rights of the Antitrust Division to seek a 
        stay or protective order in a civil action based on conduct 
        covered by an antitrust leniency agreement to prevent the 
        cooperation described in section 213(b) from impairing or 
        impeding the investigation or prosecution by the Antitrust 
        Division of conduct covered by the agreement;
            (2) create any right to challenge any decision by the 
        Antitrust Division with respect to an antitrust leniency 
        agreement; or
            (3) affect, in any way, the joint and several liability of 
        any party to a civil action described in section 213(a), other 
        than that of the antitrust leniency applicant and cooperating 
        individuals as provided in section 213(a) of this title.

SEC. 215. INCREASED PENALTIES FOR ANTITRUST VIOLATIONS.

    (a) Restraint of Trade Among the States.--Section 1 of the Sherman 
Act (15 U.S.C. 1) is amended by--
            (1) striking ``$10,000,000'' and inserting 
        ``$100,000,000'';
            (2) striking ``$350,000'' and inserting ``$1,000,000''; and
            (3) striking ``three'' and inserting ``10''.
    (b) Monopolizing Trade.--Section 2 of the Sherman Act (15 U.S.C. 2) 
is amended by--
            (1) striking ``$10,000,000'' and inserting 
        ``$100,000,000'';
            (2) striking ``$350,000'' and inserting ``$1,000,000''; and
            (3) striking ``three'' and inserting ``10''.
    (c) Other Restraints of Trade.--Section 3 of the Sherman Act (15 
U.S.C. 3) is amended by--
            (1) striking ``$10,000,000'' and inserting 
        ``$100,000,000'';
            (2) striking ``$350,000'' and inserting ``$1,000,000''; and
            (3) striking ``three'' and inserting ``10''.

                     Subtitle B--Tunney Act Reform

SEC. 221. PUBLIC INTEREST DETERMINATION.

    (a) Congressional Findings and Declaration of Purposes.--
            (1) Findings.--Congress finds that--
                    (A) the purpose of the Tunney Act was to ensure 
                that the entry of antitrust consent judgments is in the 
                public interest; and
                    (B) it would misconstrue the meaning and 
                Congressional intent in enacting the Tunney Act to 
                limit the discretion of district courts to review 
                antitrust consent judgments solely to determining 
                whether entry of those consent judgments would make a 
                ``mockery of the judicial function''.
            (2) Purposes.--The purpose of this section is to effectuate 
        the original Congressional intent in enacting the Tunney Act 
        and to ensure that United States settlements of civil antitrust 
        suits are in the public interest.
    (b) Public Interest Determination.--Section 5 of the Clayton Act 
(15 U.S.C. 16) is amended--
            (1) in subsection (d), by inserting at the end the 
        following: ``Upon application by the United States, the 
        district court may, for good cause (based on a finding that the 
        expense of publication in the Federal Register exceeds the 
        public interest benefits to be gained from such publication), 
        authorize an alternative method of public dissemination of the 
        public comments received and the response to those comments.'';
            (2) in subsection (e)--
                    (A) in the matter before paragraph (1), by--
                            (i) striking ``court may'' and inserting 
                        ``court shall''; and
                            (ii) inserting ``(1)'' before ``Before''; 
                        and
                    (B) striking paragraphs (1) and (2) and inserting 
                the following:
            ``(A) the competitive impact of such judgment, including 
        termination of alleged violations, provisions for enforcement 
        and modification, duration of relief sought, anticipated 
        effects of alternative remedies actually considered, whether 
        its terms are ambiguous, and any other competitive 
        considerations bearing upon the adequacy of such judgment that 
        the court deems necessary to a determination of whether the 
        consent judgment is in the public interest; and
            ``(B) the impact of entry of such judgment upon competition 
        in the relevant market or markets, upon the public generally 
        and individuals alleging specific injury from the violations 
        set forth in the complaint including consideration of the 
        public benefit, if any, to be derived from a determination of 
        the issues at trial.
    ``(2) Nothing in this section shall be construed to require the 
court to conduct an evidentiary hearing or to require the court to 
permit anyone to intervene.''; and
            (3) in subsection (g), by inserting ``by any officer, 
        director, employee, or agent of such defendant'' before ``, or 
        other person''.

            Attest:

                                                             Secretary.
108th CONGRESS

  2d Session

                               H. R. 1086

_______________________________________________________________________

                               AMENDMENT