[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

  Mr. BREAUX. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of Calendar Order No. 699, S. 
2297, a bill relating to international antitrust.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       A 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.

  There being no objection, the Senate proceeded to consider the bill 
which had been reported from the Committee on the Judiciary, with an 
amendment to strike all after the enacting clause and inserting in lieu 
thereof the following:

     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.

       Subject to section 8, except as provided in section 5, and 
     in accordance with an antitrust mutual assistance agreement, 
     the Attorney General and the Federal Trade Commission may 
     provide antitrust evidence to a foreign antitrust authority 
     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 antitrust laws.

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

       (a)  Authority of the Attorney General.--
       (1) Request.--Requests for assistance from a foreign 
     antitrust authority pursuant to this section shall be made to 
     the Attorney General.
       (2) Investigation.--Subject to section 8, except as 
     provided in section 5, and in accordance with an antitrust 
     mutual assistance agreement, the Attorney General may, after 
     consultation with the Commission, use antitrust investigative 
     authority to conduct antitrust investigations to obtain 
     antitrust evidence relating to a violation of the foreign 
     antitrust laws administered or enforced by a foreign 
     antitrust authority, and may provide such antitrust evidence 
     to the foreign antitrust authority, to assist the foreign 
     antitrust authority--
       (A) in determining whether a person has violated or is 
     about to violate any of such foreign antitrust laws; or
       (B) in enforcing any of such foreign antitrust laws.
       (3) Federal antitrust laws.--An investigation under this 
     section may be conducted, and such antitrust evidence may be 
     provided, without regard to whether the conduct investigated 
     violates any of the Federal antitrust laws.
       (b) Authority of the Commission.--
       (1) In general.--After consultation with the Commission, 
     and consistent with section 10(b), the Attorney General may 
     refer to the Commission a request for assistance under this 
     section from a foreign antitrust authority.
       (2) Investigation.--Upon referral under paragraph (1), the 
     Commission may, subject to section 8 and except as provided 
     in section 5, use its investigative authority under the 
     Federal Trade Commission Act (15 U.S.C. 41 et seq.) to 
     conduct antitrust investigations in the same manner and of 
     the same scope as those described under subsection (a).
       (c) 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 any of the 
     foreign antitrust laws''; and
       (ii) by adding at the end the following new subsection:
       ``(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 to an investigation authorized by 
     section 3(a) of the International Antitrust Enforcement 
     Assistance Act of 1994'' after ``investigation''; and
       (ii) by inserting ``by the United States'' after 
     ``proceeding''.
       (2) Federal trade commission act.--Section 6(h) of the 
     Federal Trade Commission Act (15 U.S.C. 46(h)) is amended by 
     striking the period after ``advisable'' and inserting ``and 
     to conduct investigations in accordance with the 
     International Antitrust Enforcement Assistance Act.''.

     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, 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 the foreign antitrust authority 
     that is covered by the agreement--
       (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) In general.--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.
       (2) Power of appointee.--A person appointed in an order 
     under paragraph (1) shall have power to administer any 
     necessary oath and to take such testimony or such statement.
       (3)  Practice and procedure.--(A) An order issued under 
     subsection (a) may prescribe the practice and procedure for 
     taking testimony and statements.
       (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) or in 
     connection with an investigation authorized by section 3 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 as may be directed by a court pursuant 
     to Rule 6(e)(3)(C)(i) of the Federal Rules of Criminal 
     Procedure. For purposes of this section, disclosure 
     preliminary to or in connection with a judicial proceeding 
     shall include disclosure to a foreign antitrust authority for 
     the purposes provided in section 2.
       (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. DISCLOSURE OF ANTITRUST EVIDENCE.

       Neither section 4 of the Antitrust Civil Process Act (15 
     U.S.C. 1313) nor section 6(f) or 21 of the Federal Trade 
     Commission Act (15 U.S.C. 46, 57b-2) shall 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 entering into 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 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 entering into an agreement that makes an amendment to 
     an antitrust mutual assistance agreement in effect under this 
     Act, 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 
     Entered Into, and Amendments to and Terminations of, Such 
     Agreements.--
       (1) In general.--Not later than 30 days after--
       (A) entering into an antitrust mutual assistance agreement;
       (B) entering into an agreement that makes an amendment to 
     an antitrust mutual assistance agreement; or
       (C) terminating an antitrust mutual assistance agreement,

     the Attorney General, with the concurrence of the Commission, 
     shall publish in the Federal Register a notice containing the 
     information described in paragraph (2).
       (2) Contents of notice.--A notice under this subsection 
     shall contain--
       (A) the text of the antitrust mutual assistance agreement 
     or of such amendment, or the fact and any terms of 
     termination as the case may be; and
       (B) in the case of an agreement that makes such amendment, 
     a notice containing--
       (i) a statement of the fact that such agreement was entered 
     into;
       (ii) citations to the provisions of the Federal Register 
     that contain the text of the amendment, of any previous 
     amendments and of the antitrust mutual assistance agreement 
     that is so amended; and
       (iii) 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 or the Commission.
       (d) Condition for Validity.--An antitrust mutual assistance 
     agreement, or an agreement that makes an amendment to an 
     antitrust mutual assistance agreement, entered into in 
     violation of subsection (a) or (b) shall not be considered to 
     be entered into under the authority of this Act.

     SEC. 8. IMPLEMENTATION OF ANTITRUST MUTUAL ASSISTANCE 
                   AGREEMENTS.

       (a) Determinations.--The Attorney General or the Commission 
     may conduct an investigation under section 3 and may provide 
     antitrust evidence to a foreign antitrust authority, under an 
     antitrust mutual assistance agreement, only if the Attorney 
     General or the Commission, as the case may be, determines in 
     the particular instance in which such investigation or 
     evidence is requested that--
       (1) the foreign antitrust authority--
       (A) will satisfy the assurances, terms, and conditions 
     required by subparagraphs (A), (B), and (D) 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, 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 the regional economic integration 
     organization, represented by the foreign antitrust authority 
     holds any proprietary interest that could benefit or 
     otherwise be affected by such investigation 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 antitrust 
     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)(G), 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 section 8(a) 
     (1) and (3) shall not be subject to judicial review.
       (b)  Antitrust Mutual Assistance Agreements.--Whether an 
     antitrust mutual assistance agreement satisfies the 
     requirements specified in section 12(2) shall not be subject 
     to judicial review under chapter 7 of title 5, United States 
     Code.
       (c) Rule of Construction.--Nothing in this section affects 
     the availability of judicial review under laws referenced in 
     section 5.

     SEC. 10. SUPPLEMENTATION AND PRESERVATION OF AUTHORITY.

       (a) Supplemental Authority.--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) Authority Preserved.--This Act shall not 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, the Attorney General, with the 
     concurrence of the Commission, 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) 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) the number and identities of the foreign antitrust 
     authorities, foreign states, and regional economic 
     integration organizations that have entered into such 
     agreements;
       (4) the identity of each foreign state, and each regional 
     economic integration organization, that has in effect a law 
     similar to this Act;
       (5) 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) 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 
     and for antitrust evidence; and
       (7) a description of any significant problems or concerns 
     of which the Attorney General or the Commission 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 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 (i) between the Attorney 
     General and the Commission, and the foreign antitrust 
     authority and such other agencies of a foreign state or 
     regional economic integration organization as may be 
     necessary to carry out the agreement, or (ii) between the 
     Government of the United States and a foreign state or 
     regional economic integration organization, for the purpose 
     of conducting investigations under section 3, or for 
     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 or the Commission assistance 
     that is comparable in scope to the assistance the Attorney 
     General or the Commission provides 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 
     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 
     (including treaties, statutes, executive orders, and 
     regulations) of the United States, and the laws (including 
     treaties, statutes, executive orders, and regulations) of the 
     foreign state, or the 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.
       (D) Terms and conditions that specifically prohibit 
     disclosing or using antitrust evidence received under such 
     agreement or such memorandum, for any purpose other than the 
     administration or enforcement of the foreign antitrust laws 
     involved unless, under special circumstances when such 
     disclosure or use is essential to law enforcement and the 
     evidence is not otherwise readily obtainable, the Attorney 
     General or the Commission gives prior written consent to the 
     disclosure or use of the antitrust evidence provided under 
     this Act for such other law enforcement purpose as may be 
     specified by the foreign antitrust authority, subject to the 
     other confidentiality requirements of this Act.
       (E) 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.
       (F) 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 such 
     confidentiality requirement  is not violated again.
       (G) 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 in which such foreign states have 
     vested authority to make decisions binding on such foreign 
     states.

     SEC. 13. AUTHORITY TO RECEIVE REIMBURSEMENTS.

       The Attorney General and the Commission are authorized to 
     receive from a foreign antitrust authority, a foreign state, 
     or a regional economic integration organization reimbursement 
     in cash or in kind for the costs incurred by the Attorney 
     General or the Commission, respectively, to conduct 
     investigations under section 3 or provide antitrust evidence 
     under a mutual assistance agreement.


                           amendment no. 2643

 (Purpose: To facilitate obtaining foreign-located antitrust evidence)

  Mr. BREAUX. Mr. President, on behalf of Senator Metzenbaum and 
Senator Thurmond, I send a substitute amendment to the desk and I ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Louisiana [Mr. Breaux], for Mr. Metzenbaum 
     for himself and Mr. Thurmond, proposes an amendment numbered 
     2643.

  Mr. BREAUX. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection it is so ordered.
  (The text of the amendment is printed in today's Record under 
``Amendments Submitted.'')
  Mr. THURMOND. Mr. President, 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 U.S. 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 in each case that the foreign 
laws are sufficient to protect 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.
  Mr. BREAUX. Mr. President, I ask unanimous consent the amendment be 
agreed to; that the committee substitute amendment, as amended, be 
agreed to; that the bill be read a third time, passed, the motion to 
reconsider be laid upon the table; and that any statements appear in 
the appropriate place in the Record as if read.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  So the amendment (No. 2643) was agreed to.
  So the bill (S. 2297) was passed.
  (The text of the bill will be printed in a future edition of the 
Record.)

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