[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1086 Enrolled Bill (ENR)]

        H.R.1086

                       One Hundred Eighth Congress

                                 of the

                        United States of America


                          AT THE SECOND SESSION

          Begun and held at the City of Washington on Tuesday,
           the twentieth day of January, two thousand and four


                                 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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

  TITLE I--STANDARDS DEVELOPMENT ORGANIZATION ADVANCEMENT ACT OF 2004

SEC. 101. SHORT TITLE.

    This title may be cited as the ``Standards Development Organization 
Advancement Act of 2004''.

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 2004, 
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 2004

SEC. 201. SHORT TITLE.

    This title may be cited as the ``Antitrust Criminal Penalty 
Enhancement and Reform Act of 2004''.

    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''.

                               Speaker of the House of Representatives.

                            Vice President of the United States and    
                                               President of the Senate.