Pub.L. 108-238 To authorize assistance for the National Great Blacks in Wax Museum and Justice Learning Center. <> ...

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Public Law 108-237
108th Congress

                                 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. <<NOTE: June 22, 2004 -  [H.R. 1086]>> 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

     TITLE I--STANDARDS <<NOTE: Standards Development Organization 
 Advancement Act of 2004.>> DEVELOPMENT ORGANIZATION ADVANCEMENT ACT OF 
2004

SEC. 101. <<NOTE: 15 USC 4301 note.>> SHORT TITLE.

    This title may be cited as the ``Standards Development Organization 
Advancement Act of 2004''.

SEC. 102. <<NOTE: 15 USC 4301 note.>> 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.

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            (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.

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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--

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            (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 <<NOTE: Deadline.>> 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

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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. <<NOTE: 15 USC 4301 note.>> 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 <<NOTE: Antitrust Criminal Penalty Enhancement and 
Reform Act of 2004>> CRIMINAL PENALTY ENHANCEMENT AND REFORM ACT OF 2004

SEC. 201. <<NOTE: 15 USC 1 note.>> SHORT TITLE.

    This title may be cited as the ``Antitrust Criminal Penalty 

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