[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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