[Congressional Record Volume 140, Number 146 (Saturday, October 8, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: October 8, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                        INTERNATIONAL ANTITRUST

  Mr. BUMPERS. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of H.R. 4781, relating to 
international antitrust, just received from the House; that the bill be 
deemed read the third time, passed, the motion to reconsider be laid 
upon the table, and that any statements appear at the appropriate place 
in the Record as if read.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  So the bill (H.R. 4781) was deemed read the third time, and passed.-
  Mr. METZENBAUM. Mr. President, the International Antitrust 
Enforcement Assistance Act of 1994 will give the Department of Justice 
and the Federal Trade Commission important new tools for effectively 
enforcing the antitrust laws in today's global economy. It will allow 
the U.S. antitrust agencies to get antitrust evidence from their 
foreign counterparts by enabling them to provide reciprocal assistance 
for the enforcement of foreign antitrust laws. This important new 
authority will be exercised pursuant to antitrust mutual assistance 
agreements that meet the specific conditions set out in the Act, 
including assurances of reciprocity and protection for confidential 
business information.
  On July 19 of this year, I introduced a predecessor bill, S. 2297, 
jointly with Senator Thurmond and with the cosponsorship of Senators 
Kennedy, Biden, Leahy, Simon, Simpson, and Grassley, subsequently 
joined by Senator Hatch and Specter. A nearly identical bill, H.R. 
4781, was introduced on the same day in the House of Representatives. 
On August 11, the Judiciary Committee voted to report favorably on S. 
2297, with one amendment in the nature of a substitute. The substitute 
clarified the role of the Federal Trade Commission, improved the 
safeguards against improper disclosure of antitrust evidence abroad, 
and made technical corrections.
  H.R. 4781 was considered by the Subcommittee on Economic and 
Commercial Law of the House Judiciary Committee, which adopted most of 
the changes approved by the Senate Judiciary Committee, made certain 
further clarifications and corrections, and voted favorably on the bill 
on September 27, 1994, with one amendment in the nature of a 
substitute. On September 28, 1994, the House Judiciary Committee made 
further technical corrections and voted to report favorably on the 
bill. The bill was voted upon and passed on the floor of the House of 
Representatives on October 3, 1994, and it is the version of the bill 
as passed by the House that is now before the Senate.
  The Senate Judiciary Committee's discussion of the committee bill, S. 
2297, as set out in its report on the bill, are described in detail in 
the committee's report, remains applicable to H.R. 4781. Most of the 
changes that appear in H.R. 4781 are intended as clarifications and do 
not affect the implementation or interpretation of the Act. I would 
like to explain some of these changes.
  Section 3 of the act has been modified to clarify the role of the 
Federal Trade Commission in carrying out investigations on behalf of a 
foreign antitrust authority. Section 3(a) provides that all foreign 
requests for such assistance are to be made to the Attorney General, 
who may deny a request in whole or in part for foreign relations 
reasons or for such other reasons as he may deem appropriate. If the 
foreign request for assistance passes an initial screening by the 
Attorney General, pursuant to section 10(b) the Attorney General and 
the Commission are to determine which agency will conduct the 
investigation using the same clearance procedure they would use if it 
were a domestic matter. After this analysis, the responsible agency 
will conduct a more detailed analysis to ensure compliance with the 
requirements set forth in section 8 prior to providing assistance 
pursuant to a foreign request.
  Section 5 of the act allows the Justice Department to seek a court 
order under rule 6(e)(3)(C)(iv) of the Federal Rules of Criminal 
Procedure, as interpreted in accordance with the Act, to disclose grand 
jury matters to a foreign antitrust agency for use in a foreign 
antitrust investigation or proceeding. Under section 5, a court may 
allow disclosure to a foreign antitrust authority, pursuant to an 
antitrust mutual assistance agreement and subject to a showing of 
particularized need, of grand jury matters that may disclose a 
violation of foreign antitrust law (whether criminal, civil or 
administrative). The committee bill included a comparable provision, 
except that applications for disclosure would have been made pursuant 
to Rule 6(e)(3)(C)(i), which authorizes disclosure preliminarily to or 
in connection with a judicial proceeding. Unlike the committee bill, 
the act does not require disclosure to be preliminary to or in 
connection with judicial proceeding.
  Section 7 of the act requires publication for public comment of 
proposed antitrust mutual assistance agreements negotiated pursuant to 
the act, modifications of proposed agreements, and proposed amendments 
to existing agreements. In addition, the final agreement or amendment, 
as well as notice of the termination of an agreement, must also be 
published. Publication is required before an antitrust mutual 
assistance agreement or an amendment to an agreement can be effective 
under the act. This is a change from the committee bill, which 
contained comparable publication requirements but did not make 
publication of the final agreement a precondition for using the 
agreement pursuant to the authorization of the act.
  Section 9 of the bill limits and clarifies the scope of judicial 
review of the process of entering into antitrust mutual assistance 
agreements, their terms, and their use. Section 9(a) which has not 
changed from the committee bill, completely exempts from judicial 
review the necessarily subjective and forward-looking determinations 
that the Attorney General and the Commission must make, under sections 
8(a) (1) and (3), before assisting a foreign antitrust agency under the 
act. Section 9(b) exempts from judicial review the question of whether 
an antitrust mutual assistance agreement satisfies the technical legal 
citation and description requirements of section 12(2)(C); this 
provision is an addition to the committee bill. In addition, section 
9(c) provides two rules of construction which use somewhat different 
language but achieve the same result as the committee bill. First, the 
section makes clear that, despite the inclusion of a publication and 
comment procedure required for antitrust mutual assistance agreements, 
it is not intended to make that procedure, or the use of the 
agreements, subject to judicial review under the Administrative 
Procedure Act [APA]. Such agreements, and the decisions made and 
actions taken by the Attorney General and the Commission pursuant to 
them, will be infused with foreign affairs concerns not ordinarily 
subject to APA review. And second, the section makes clear that nothing 
in the section shall be construed to limit any judicial review 
available under the laws referenced in section 5, which protect the 
confidentiality of Hart-Scott-Rodino pre-merger filings, grand jury 
materials, and classified information, respectively. Although the 
language of section 9 of the the act differs in certain respects from 
the committee bill, the act is not intended to create or imply any 
greater right of judicial review than was contemplated by the committee 
bill. More generally, consistently with the intent of the committee 
bill, nothing in the act creates or implies a right of judicial review 
not otherwise provided for by law.

  Section 12 incorporates certain changes in the requirements for an 
antitrust mutual assistance agreement. Under section 12(2), an 
antitrust mutual assistance agreement can be either a government-to-
government agreement or memorandum of understanding, or an agency-to-
agency agreement or memorandum of understanding between the Attorney 
General and the Federal Trade Commission, on the one side, and a 
foreign antitrust authority on the other. The committee bill would have 
included agreements of this nature, and would in addition have allowed 
agency-to-agency agreements that included other foreign agencies (in 
addition to a foreign antitrust agency) to the extent necessary to 
provide the assistance provided in the agreement.
  Section 12(2)(E) places conditions on the circumstances in which 
antitrust evidence disclosed to a foreign antitrust authority pursuant 
to the act may be used for the purpose of enforcing laws other than a 
foreign antitrust law. Certain of these conditions were not included in 
the committee bill.
  In addition, section 12(9) clarifies the definition of a regional 
economic integration organization that is eligible to be a party to an 
antitrust mutual assistance agreement. This definition is intended to 
include the European Union, and would include other entities composed 
of foreign states that have comparable authority with respect to 
antitrust enforcement.
  The International Antitrust Enforcement Assistance Act of 1994 will 
give our antitrust enforcement agencies the tools they need to carry 
antitrust enforcement into the 21st century. The bill has broad 
bipartisan and business community support, and I am pleased to be 
joined with Senator Thurmond and other colleagues on the Judiciary 
Committee in recommending its passage.
  Mr. THURMOND. I rise today in support of H.R. 4781, the International 
Antitrust Enforcement Assistance Act, which is the House version of the 
legislation I introduced with Senator Metzenbaum in July of this year. 
It authorizes closer cooperation and sharing of information between 
United States and foreign antitrust authorities in order to more 
effectively enforce antitrust laws for the benefit of American 
consumers and businesses.
  As I have stated previously, the goals of this legislation deserve 
broad bipartisan support. It is appropriate and necessary for our 
antitrust authorities to be given better tools for obtaining evidence 
abroad, because antitrust violations increasingly involve transactions 
and evidence which are located abroad or in more than one country. This 
bill achieves that goal by authorizing investigations to be conducted 
and information shared with foreign authorities in appropriate 
circumstances. However, this legislation does not change the 
jurisdictional reach or substance of either the United States antitrust 
laws or any foreign law.
  Mr. President, I believe that this legislation now contains all 
necessary protections to safeguard American interests. Prior to any 
exchange of information, the bill requires a comprehensive agreement 
between the United States and foreign antitrust authorities, which is 
effective only after notice and an opportunity for public comment. That 
agreement is required to contain many terms to protect the 
confidentiality of any information disclosed, while the bill expressly 
precludes disclosure of certain categories of information.
  Among other things, the confidentiality provisions require that the 
U.S. agencies must make a determination confidentiality and will be 
applied. Further, the bill ensures that there will be true reciprocity 
between the United States and foreign antitrust authorities in 
providing assistance and exchanging information so that the benefits 
and responsibilities are evenly shared.
  For all of these reasons, this is a bill which is good for American 
consumers and which many American businesses wholeheartedly support. I 
urge my colleagues to vote for this legislation.

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