[Congressional Record Volume 140, Number 145 (Friday, October 7, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: October 7, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
       INTERNATIONAL ANTITRUST ENFORCEMENT ASSISTANCE ACT OF 1994

                                 ______


                     METZENBAUM AMENDMENT NO. 2643

  Mr. BREAUX (for Mr. Metzenbaum, for himself and Mr. Thurmond) 
proposed an amendment to the bill (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; as follows:

     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 laws.

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

       (a) Request for Investigative Assistance.--A request by a 
     foreign antitrust authority for investigative assistance 
     under this section shall be made to the Attorney General, who 
     may deny the request in whole or in part. No further action 
     shall be taken under this section with respect to any part of 
     a request that has been denied by the Attorney General.
       (b) Authority To Investigate.--In accordance with an 
     antitrust mutual assistance agreement in effect under this 
     Act, subject to section 8, and except as provided in section 
     5, the Attorney General and the Commission may, using their 
     respective authority to investigate possible violations of 
     the Federal antitrust laws, conduct investigations to obtain 
     antitrust evidence relating to a possible violation of the 
     foreign antitrust laws administered or enforced by the 
     foreign antitrust authority with respect to which such 
     agreement is in effect under this Act, and may provide such 
     antitrust evidence to the foreign antitrust authority, to 
     assist the foreign antitrust authority--
       (1) in determining whether a person has violated or is 
     about to violate any of such foreign antitrust laws, or
       (2) in enforcing any of such foreign antitrust laws.
       (c) Special Scope of Authority.--An investigation may be 
     conducted under subsection (b), and antitrust evidence 
     obtained through such investigation may be provided, without 
     regard to whether the conduct investigated violates any of 
     the Federal antitrust laws.
       (d) Rights and Privileges Preserved.--A person may not be 
     compelled in connection with an investigation under this 
     section to give testimony or a statement, or to produce a 
     document or other thing, in violation of any legally 
     applicable right or privilege.
       (e) Conforming Amendments.--
       (1) Antitrust civil process act.--The Antitrust Civil 
     Process Act (15 U.S.C. 1311 et seq.) is amended--
       (A) in section 2--
       (i) in subsection (d)--

       (I) by striking ``or any'' and inserting ``, any'', and
       (II) by inserting before the semicolon ``or, with respect 
     to the International Antitrust Enforcement Assistance Act of 
     1994, any of the foreign antitrust laws'', and

       (ii) by adding at the end the following:
       ``(k) The term `foreign antitrust laws' has the meaning 
     given such term in section 12 of the International Antitrust 
     Enforcement Assistance Act of 1994.'', and
       (B) in the first sentence of section 3(a)--
       (i) by inserting ``or, with respect to the International 
     Antitrust Enforcement Assistance Act of 1994, an 
     investigation authorized by section 3 of such Act'' after 
     ``investigation'', and
       (ii) by inserting ``by the United States'' after 
     ``proceeding''.
       (2) Federal trade commission act.--The Federal Trade 
     Commission Act (15 U.S.C. 41 et seq.) is amended--
       (A) in section 6 by inserting after subsection (h) the 
     following:
       ``(i) With respect to the International Antitrust 
     Enforcement Assistance Act of 1994, to conduct investigations 
     of possible violations of foreign antitrust laws (as defined 
     in section 12 of such Act).'';
       (B) in section 20(a) by amending paragraph (8) to read as 
     follows:
       ``(8) The term `antitrust violation' means--
       ``(A) any unfair method of competition (within the meaning 
     of section 5(a)(1));
       ``(B) any violation of the Clayton Act or of any other 
     Federal statute that prohibits, or makes available to the 
     Commission a civil remedy with respect to, any restraint upon 
     or monopolization of interstate or foreign trade or commerce;
       ``(C) with respect to the International Antitrust 
     Enforcement Assistance Act of 1994, any violation of any of 
     the foreign antitrust laws (as defined in section 12 of such 
     Act) with respect to which a request is made under section 3 
     of such Act; or
       ``(D) any activity in preparation for a merger, 
     acquisition, joint venture, or similar transaction, which if 
     consummated, may result in any such unfair method of 
     competition or in any such violation.''.

     SEC. 4. JURISDICTION OF THE DISTRICT COURTS OF THE UNITED 
                   STATES.

       (a) Authority of the District Courts.--On the application 
     of the Attorney General made in accordance with an antitrust 
     mutual assistance agreement in effect under this Act, the 
     United States district court for the district in which a 
     person resides, is found, or transacts business may order 
     such person to give testimony or a statement, or to produce a 
     document or other thing, to the Attorney General to assist a 
     foreign antitrust authority with respect to which such 
     agreement is in effect under this Act--
       (1) in determining whether a person has violated or is 
     about to violate any of the foreign antitrust laws 
     administered or enforced by the foreign antitrust authority, 
     or
       (2) in enforcing any of such foreign antitrust laws.
       (b) Contents of Order.--
       (1) Use of appointee to receive evidence.--(A) An order 
     issued under subsection (a) may direct that testimony or a 
     statement be given, or a document or other thing be produced, 
     to a person who shall be recommended by the Attorney General 
     and appointed by the court.
       (B) A person appointed under subparagraph (A) shall have 
     power to administer any necessary oath and to take such 
     testimony or such statement.
       (2) Practice and procedure.--(A) An order issued under 
     subsection (a) may prescribe the practice and procedure for 
     taking testimony and statements and for producing documents 
     and other things.
       (B) Such practice and procedure may be in whole or in part 
     the practice and procedure of the foreign state, or the 
     regional economic integration organization, represented by 
     the foreign antitrust authority with respect to which the 
     Attorney General requests such order.
       (C) To the extent such order does not prescribe otherwise, 
     any testimony and statements required to be taken shall be 
     taken, and any documents and other things required to be 
     produced shall be produced, in accordance with the Federal 
     Rules of Civil Procedure.
       (c) Rights and Privileges Preserved.--A person may not be 
     compelled under an order issued under subsection (a) to give 
     testimony or a statement, or to produce a document or other 
     thing, in violation of any legally applicable right or 
     privilege.
       (d) Voluntary Conduct.--This section does not preclude a 
     person in the United States from voluntarily giving testimony 
     or a statement, or producing a document or other thing, in 
     any manner acceptable to such person for use in an 
     investigation by a foreign antitrust authority.

     SEC. 5. LIMITATIONS ON AUTHORITY.

       Sections 2, 3, and 4 shall not apply with respect to the 
     following antitrust evidence:
       (1) Antitrust evidence that is received by the Attorney 
     General or the Commission under section 7A of the Clayton Act 
     (15 U.S.C. 18a), as added by title II of the Hart-Scott-
     Rodino Antitrust Improvements Act of 1976. Nothing in this 
     paragraph shall affect the ability of the Attorney General or 
     the Commission to disclose to a foreign antitrust authority 
     antitrust evidence that is obtained otherwise than under such 
     section 7A.
       (2) Antitrust evidence that is matter occurring before a 
     grand jury and with respect to which disclosure is prevented 
     by Federal law, except that for the purpose of applying Rule 
     6(e)(3)(C)(iv) of the Federal Rules of Criminal Procedure 
     with respect to this section--
       (A) a foreign antitrust authority with respect to which a 
     particularized need for such antitrust evidence is shown 
     shall be considered to be an appropriate official of any of 
     the several States, and
       (B) a foreign antitrust law administered or enforced by the 
     foreign antitrust authority shall be considered to be a State 
     criminal law.
       (3) Antitrust evidence that is specifically authorized 
     under criteria established by Executive Order 12356, or any 
     successor to such order, to be kept secret in the interest of 
     national defense or foreign policy, and--
       (A) that is classified pursuant to such order or such 
     successor, or
       (B) with respect to which a determination of classification 
     is pending under such order or such successor.
       (4) Antitrust evidence that is classified under section 142 
     of the Atomic Energy Act of 1954 (42 U.S.C. 2162).

     SEC. 6. EXCEPTION TO CERTAIN DISCLOSURE RESTRICTIONS.

       Section 4 of the Antitrust Civil Process Act (15 U.S.C. 
     1313), and sections 6(f) and 21 of the Federal Trade 
     Commission Act (15 U.S.C. 46, 57b-2), shall not apply to 
     prevent the Attorney General or the Commission from providing 
     to a foreign antitrust authority antitrust evidence in 
     accordance with an antitrust mutual assistance agreement in 
     effect under this Act and in accordance with the other 
     requirements of this Act.

     SEC. 7. PUBLICATION REQUIREMENTS APPLICABLE TO ANTITRUST 
                   MUTUAL ASSISTANCE AGREEMENTS.

       (a) Publication of Proposed Antitrust Mutual Assistance 
     Agreements.--Not less than 45 days before an antitrust mutual 
     assistance agreement is entered into, the Attorney General, 
     with the concurrence of the Commission, shall publish in the 
     Federal Register--
       (1) the proposed text of such agreement and any 
     modification to such proposed text, and
       (2) a request for public comment with respect to such text 
     or such modification, as the case may be.
       (b) Publication of Proposed Amendments to Antitrust Mutual 
     Assistance Agreements in Effect.--Not less than 45 days 
     before an agreement is entered into that makes an amendment 
     to an antitrust mutual assistance agreement, the Attorney 
     General, with the concurrence of the Commission, shall 
     publish in the Federal Register--
       (1) the proposed text of such amendment, and
       (2) a request for public comment with respect to such 
     amendment.
       (c) Publication of Antitrust Mutual Assistance Agreements, 
     Amendments, and Terminations.--Not later than 45 days after 
     an antitrust mutual assistance agreement is entered into or 
     terminated, or an agreement that makes an amendment to an 
     antitrust mutual assistance agreement is entered into, the 
     Attorney General, with the concurrence of the Commission, 
     shall publish in the Federal Register--
       (1) the text of the antitrust mutual assistance agreement 
     or amendment, or the terms of the termination, as the case 
     may be, and
       (2) in the case of an agreement that makes an amendment to 
     an antitrust mutual assistance agreement, a notice 
     containing--
       (A) citations to the locations in the Federal Register at 
     which the text of the antitrust mutual assistance agreement 
     that is so amended, and of any previous amendments to such 
     agreement, are published, and
       (B) a description of the manner in which a copy of the 
     antitrust mutual assistance agreement, as so amended, may be 
     obtained from the Attorney General and the Commission.
       (d) Condition for Validity.--An antitrust mutual assistance 
     agreement, or an agreement that makes an amendment to an 
     antitrust mutual assistance agreement, with respect to which 
     publication does not occur in accordance with subsections 
     (a), (b), and (c) shall not be considered to be in effect 
     under this Act.

     SEC. 8. CONDITIONS ON USE OF ANTITRUST MUTUAL ASSISTANCE 
                   AGREEMENTS.

       (a) Determinations.--Neither the Attorney General nor the 
     Commission may conduct an investigation under section 3, 
     apply for an order under section 4, or provide antitrust 
     evidence to a foreign antitrust authority under an antitrust 
     mutual assistance agreement, unless the Attorney General or 
     the Commission, as the case may be, determines in the 
     particular instance in which the investigation, application, 
     or antitrust evidence is requested that--
       (1) the foreign antitrust authority--
       (A) will satisfy the assurances, terms, and conditions 
     described in subparagraphs (A), (B), and (E) of section 
     12(2), and
       (B) is capable of complying with and will comply with the 
     confidentiality requirements applicable under such agreement 
     to the requested antitrust evidence,
       (2) providing the requested antitrust evidence will not 
     violate section 5, and
       (3) conducting such investigation, applying for such order, 
     or providing the requested antitrust evidence, as the case 
     may be, is consistent with the public interest of the United 
     States, taking into consideration, among other factors, 
     whether the foreign state or regional economic integration 
     organization represented by the foreign antitrust authority 
     holds any proprietary interest that could benefit or 
     otherwise be affected by such investigation, by the granting 
     of such order, or by the provision of such antitrust 
     evidence.
       (b) Limitation on Disclosure of Certain Antitrust 
     Evidence.--Neither the Attorney General nor the Commission 
     may disclose in violation of an antitrust mutual assistance 
     agreement any antitrust evidence received under such 
     agreement, except that such agreement may not prevent the 
     disclosure of such antitrust evidence to a defendant in an 
     action or proceeding brought by the Attorney General or the 
     Commission for a violation of any of the Federal laws if such 
     disclosure would otherwise be required by Federal law.
       (c) Required Disclosure of Notice Received.--If the 
     Attorney General or the Commission receives a notice 
     described in section 12(2)(H), the Attorney General or the 
     Commission, as the case may be, shall transmit such notice to 
     the person that provided the evidence with respect to which 
     such notice is received.

     SEC. 9. LIMITATIONS ON JUDICIAL REVIEW.

       (a) Determinations.--Determinations made under paragraphs 
     (1) and (3) of section 8(a) shall not be subject to judicial 
     review.
       (b) Citations to and Descriptions of Confidentiality 
     Laws.--Whether an antitrust mutual assistance agreement 
     satisfies section 12(2)(C) shall not be subject to judicial 
     review.
       (c) Rules of Construction.--
       (1) Administrative procedure act.--The requirements in 
     section 7 with respect to publication and request for public 
     comment shall not be construed to create any availability of 
     judicial review under chapter 7 of title 5 of the United 
     States Code.
       (2) Laws Referenced in Section 5.--Nothing in this section 
     shall be construed to affect the availability of judicial 
     review under laws referred to in section 5.

     SEC. 10. PRESERVATION OF EXISTING AUTHORITY.

       (a) In General.--The authority provided by this Act is in 
     addition to, and not in lieu of, any other authority vested 
     in the Attorney General, the Commission, or any other officer 
     of the United States.
       (b) Attorney General and Commission.--This Act shall not be 
     construed to modify or affect the allocation of 
     responsibility between the Attorney General and the 
     Commission for the enforcement of the Federal antitrust laws.

     SEC. 11. REPORT TO THE CONGRESS.

       In the 30-day period beginning 3 years after the date of 
     the enactment of this Act and with the concurrence of the 
     Commission, the Attorney General shall submit, to the Speaker 
     of the House of Representatives and the President pro tempore 
     of the Senate, a report--
       (1) describing how the operation of this Act has affected 
     the enforcement of the Federal antitrust laws,
       (2) describing the extent to which foreign antitrust 
     authorities have complied with the confidentiality 
     requirements applicable under antitrust mutual assistance 
     agreements in effect under this Act,
       (3) specifying separately the identities of the foreign 
     states, regional economic integration organizations, and 
     foreign antitrust authorities that have entered into such 
     agreements and the identities of the foreign antitrust 
     authorities with respect to which such foreign states and 
     such organizations have entered into such agreements,
       (4) specifying the identity of each foreign state, and each 
     regional economic integration organization, that has in 
     effect a law similar to this Act,
       (5) giving the approximate number of requests made by the 
     Attorney General and the Commission under such agreements to 
     foreign antitrust authorities for antitrust investigations 
     and for antitrust evidence,
       (6) giving the approximate number of requests made by 
     foreign antitrust authorities under such agreements to the 
     Attorney General and the Commission for investigations under 
     section 3, for orders under section 4, and for antitrust 
     evidence, and
       (7) describing any significant problems or concerns of 
     which the Attorney General is aware with respect to the 
     operation of this Act.

     SEC. 12. DEFINITIONS.

       For purposes of this Act:
       (1) The term ``antitrust evidence'' means information, 
     testimony, statements, documents, or other things that are 
     obtained in anticipation of, or during the course of, an 
     investigation or proceeding under any of the Federal 
     antitrust laws or any of the foreign antitrust laws.
       (2) The term ``antitrust mutual assistance agreement'' 
     means a written agreement, or written memorandum of 
     understanding, that is entered into by the United States and 
     a foreign state or regional economic integration organization 
     (with respect to the foreign antitrust authorities of such 
     foreign state or such organization, and such other 
     governmental entities of such foreign state or such 
     organization as the Attorney General and the Commission 
     jointly determine may be necessary in order to provide the 
     assistance described in subparagraph (A)), or jointly by the 
     Attorney General and the Commission and a foreign antitrust 
     authority, for the purpose of conducting investigations under 
     section 3, applying for orders under section 4, or providing 
     antitrust evidence, on a reciprocal basis and that includes 
     the following:
       (A) An assurance that the foreign antitrust authority will 
     provide to the Attorney General and the Commission assistance 
     that is comparable in scope to the assistance the Attorney 
     General and the Commission provide under such agreement or 
     such memorandum.
       (B) An assurance that the foreign antitrust authority is 
     subject to laws and procedures that are adequate to maintain 
     securely the confidentiality of antitrust evidence that may 
     be received under section 2, 3, or 4 and will give protection 
     to antitrust evidence received under such section that is not 
     less than the protection provided under the laws of the 
     United States to such antitrust evidence.
       (C) Citations to and brief descriptions of the laws of the 
     United States, and the laws of the foreign state or regional 
     economic integration organization represented by the foreign 
     antitrust authority, that protect the confidentiality of 
     antitrust evidence that may be provided under such agreement 
     or such memorandum. Such citations and such descriptions 
     shall include the enforcement mechanisms and penalties 
     applicable under such laws and, with respect to a regional 
     economic integration organization, the applicability of such 
     laws, enforcement mechanisms, and penalties to the foreign 
     states composing such organization.
       (D) Citations to the Federal antitrust laws, and the 
     foreign antitrust laws, with respect to which such agreement 
     or such memorandum applies.
       (E) Terms and conditions that specifically require using, 
     disclosing, or permitting the use or disclosure of, antitrust 
     evidence received under such agreement or such memorandum 
     only--
       (i) for the purpose of administering or enforcing the 
     foreign antitrust laws involved, or
       (ii) with respect to a specified disclosure or use 
     requested by a foreign antitrust authority and essential to a 
     significant law enforcement objective, in accordance with the 
     prior written consent that the Attorney General or the 
     Commission, as the case may be, gives after--

       (I) determining that such antitrust evidence is not 
     otherwise readily available with respect to such objective,
       (II) making the determinations described in paragraphs (2) 
     and (3) of section 8(a), with respect to such disclosure or 
     use, and
       (III) making the determinations applicable to a foreign 
     antitrust authority under section 8(a)(1) (other than the 
     determination regarding the assurance described in 
     subparagraph (A) of this paragraph), with respect to each 
     additional governmental entity, if any, to be provided such 
     antitrust evidence in the course of such disclosure or use, 
     after having received adequate written assurances applicable 
     to each such governmental entity.

       (F) An assurance that antitrust evidence received under 
     section 2, 3, or 4 from the Attorney General or the 
     Commission, and all copies of such evidence, in the 
     possession or control of the foreign antitrust authority will 
     be returned to the Attorney General or the Commission, 
     respectively, at the conclusion of the foreign investigation 
     or proceeding with respect to which such evidence was so 
     received.
       (G) Terms and conditions that specifically provide that 
     such agreement or such memorandum will be terminated if--
       (i) the confidentiality required under such agreement or 
     such memorandum is violated with respect to antitrust 
     evidence, and
       (ii) adequate action is not taken both to minimize any harm 
     resulting from the violation and to ensure that the 
     confidentiality required under such agreement or such 
     memorandum is not violated again.
       (H) Terms and conditions that specifically provide that if 
     the confidentiality required under such agreement or such 
     memorandum is violated with respect to antitrust evidence, 
     notice of the violation will be given--
       (i) by the foreign antitrust authority promptly to the 
     Attorney General or the Commission with respect to antitrust 
     evidence provided by the Attorney General or the Commission, 
     respectively, and
       (ii) by the Attorney General or the Commission to the 
     person (if any) that provided such evidence to the Attorney 
     General or the Commission.
       (3) The term ``Attorney General'' means the Attorney 
     General of the United States.
       (4) The term ``Commission'' means the Federal Trade 
     Commission.
       (5) The term ``Federal antitrust laws'' has the meaning 
     given the term ``antitrust laws'' in subsection (a) of the 
     first section of the Clayton Act (15 U.S.C. 12(a)) but also 
     includes section 5 of the Federal Trade Commission Act (15 
     U.S.C. 45) to the extent that such section 5 applies to 
     unfair methods of competition.
       (6) The term ``foreign antitrust authority'' means a 
     governmental entity of a foreign state or of a regional 
     economic integration organization that is vested by such 
     state or such organization with authority to enforce the 
     foreign antitrust laws of such state or such organization.
       (7) The term ``foreign antitrust laws'' means the laws of a 
     foreign state, or of a regional economic integration 
     organization, that are substantially similar to any of the 
     Federal antitrust laws and that prohibit conduct similar to 
     conduct prohibited under the Federal antitrust laws.
       (8) The term ``person'' has the meaning given such term in 
     subsection (a) of the first section of the Clayton Act (15 
     U.S.C. 12(a)).
       (9) The term ``regional economic integration organization'' 
     means an organization that is constituted by, and composed 
     of, foreign states, and on which such foreign states have 
     conferred sovereign authority to make decisions that are 
     binding on such foreign states, and that are directly 
     applicable to and binding on persons within such foreign 
     states, including the decisions with respect to--
       (A) administering or enforcing the foreign antitrust laws 
     of such organization, and
       (B) prohibiting and regulating disclosure of information 
     that is obtained by such organization in the course of 
     administering or enforcing such laws.

     SEC. 13. AUTHORITY TO RECEIVE REIMBURSEMENT.

       The Attorney General and the Commission are authorized to 
     receive from a foreign antitrust authority, or from the 
     foreign state or regional economic integration organization 
     represented by such foreign antitrust authority, 
     reimbursement for the costs incurred by the Attorney General 
     or the Commission, respectively, in conducting an 
     investigation under section 3 requested by such foreign 
     antitrust authority, applying for an order under section 4 to 
     assist such foreign antitrust authority, or providing 
     antitrust evidence to such foreign antitrust authority under 
     an antitrust mutual assistance agreement in effect under this 
     Act with respect to such foreign antitrust authority.

                          ____________________