[Congressional Record (Bound Edition), Volume 150 (2004), Part 5]
[Senate]
[Pages 6320-6323]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           TEXT OF AMENDMENTS

  SA 3010. Mr. McCONNELL (for Mr. Hatch (for himself, Mr. Leahy, Mr. 
DeWine, and Mr. Kohl)) proposed an amendment to the bill H.R. 1086, 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; as follows:

       In lieu of the matter proposed to be inserted, insert the 
     following:

  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

[[Page 6321]]

     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

[[Page 6322]]

     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

[[Page 6323]]

     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''.

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