Home > 108th Congressional Bills > H.R. 1086 (ih) To encourage the development and promulgation of voluntary consensus [Introduced in House] ...H.R. 1086 (ih) To encourage the development and promulgation of voluntary consensus [Introduced in House] ...
H.R.1086
One Hundred Eighth Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Tuesday,
the twentieth day of January, two thousand and four
An Act
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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
TITLE I--STANDARDS DEVELOPMENT ORGANIZATION ADVANCEMENT ACT OF 2004
SEC. 101. SHORT TITLE.
This title may be cited as the ``Standards Development Organization
Advancement Act of 2004''.
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 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 2004,
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 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 2004
SEC. 201. SHORT TITLE.
This title may be cited as the ``Antitrust Criminal Penalty
Enhancement and Reform Act of 2004''.
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
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