[Congressional Record Volume 140, Number 149 (Thursday, December 1, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: December 1, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                     PROPOSED ANTITRUST AGREEMENTS

 Mr. METZENBAUM. Mr. President, I ask that a letter which I 
received from the Department of Justice on November 30, 1994 be placed 
in the Record. The letter clarifies the legislative intent behind the 
publication and comment provisions for proposed antitrust mutual 
assistance agreements contained in the International Antitrust 
Enforcement Assistant Act of 1994.
  The letter follows:
                                        U.S. Department of Justice


                                            Antitrust Division

                                Washington, DC, November 30, 1994.
     Hon. Howard M. Metzenbaum,
     U.S. Senate,
     Washington, DC.
       Dear Senator Metzenbaum: I wanted once again to express 
     appreciation for the critical leadership that you provided, 
     along with Senator Thurmond, Chairman Brooks, and 
     Representative Fish, leading to the passage of the 
     International Antitrust Enforcement Assistant Act of 1994 
     only ten weeks after its introduction.
       I also wanted to thank you and your colleagues for the 
     careful handling of the provisions in the Act that require 
     publication and an opportunity for public comment on proposed 
     antitrust mutual assistance agreements under the Act. As you 
     explained in your floor statement of October 8, 1994, Section 
     7 of the Act, among other things, ``requires publication for 
     public comment'' of proposed antitrust mutual assistance 
     agreements and amendments thereto, and final agreements, 
     negotiated pursuant to the Act, between the United States 
     government and foreign governments. The final agreement must 
     be published (albeit not for further comment) before it ``can 
     be effective under the [A]ct.'' 140 Cong. Rec. S15022 (daily 
     ed., Oct. 8, 1994).
       As you know, a publication-and-comment provision is 
     extremely unusual in matters involving the President's 
     prerogative to conclude international agreements. Indeed, it 
     is precisely because such a procedure is ``rare if not 
     unprecedented in foreign affairs'' matters, H.R. Rep. No. 
     103-772, 103d Cong., 2d Sess. 22 (Oct. 3, 1994) (``House 
     Report''), that Section 9(c)(1) of the Act, your floor 
     statement, and the House Report on the Act all make clear 
     that the publication-and-comment requirement is ``not 
     intended to make that procedure, or the use of the 
     agreements, subject to judicial review under the 
     Administrative Procedure Act.'' 140 Cong. Rec. S15022; see 
     House Report at 22.
       In the particular and unique circumstances of this statute, 
     you have found a way for these provisions to coexist with the 
     basic principle that the negotiation of international 
     agreements is the responsibility of the President. Section 7 
     ensures that the Attorney General and the Federal Trade 
     Commission will have the benefit of public views about the 
     protection afforded potentially sensitive U.S. business 
     information under a contemplated agreement, without requiring 
     that the Attorney General or the Commission change a proposed 
     agreement, modification, or amendment on the basis of any 
     public comment. The opportunity to receive such views would 
     not necessarily arise otherwise under the Act since the 
     Attorney General and Federal Trade Commission are not 
     required to provide public or other notice before sharing 
     certain information in their files pursuant to an antitrust 
     mutual assistance agreement. The Attorney General and the 
     Commission will retain, however, the option of not letting an 
     agreement go into effect as originally crafted if, after 
     considering the public comments, the Attorney General and 
     Commission agree that the Act's requirements have not been 
     met.
       In closing, let me say once again how grateful I am for 
     your outstanding work in accomplishing the passage of this 
     important legislation. We intend to make good use of this new 
     tool that Congress has given to U.S. antitrust enforcers for 
     the benefit of American consumers.
           Sincerely yours,
                                                 Anne K. Bingaman,
     Assistant Attorney General.

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