[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.) ____________________