[Pages H11318-H11321]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

ANTITRUST TECHNICAL CORRECTIONS ACT OF 1999

Mr. HYDE. Mr. Speaker, I move to suspend the rules and pass the bill
(H.R. 1801) to make technical corrections to various antitrust laws and
to references to such laws, as amended.
The Clerk read as follows:

H.R. 1801

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Antitrust Technical
Corrections Act of 1999''.

SEC. 2. AMENDMENTS.

(a) Act of March 3, 1913.--The Act of March 3, 1913
(chapter 114, 37 Stat. 731; 15 U.S.C. 30) is repealed.
(b) Panama Canal Act.-- Section 11 of the Panama Canal Act
(37 Stat. 566; 15 U.S.C. 31) is amended by striking the
undesignated paragraph that begins ``No vessel permitted''.
(c) Sherman Act.--Section 3 of the Sherman Act (15 U.S.C.
3) is amended--
(1) by inserting ``(a)'' after ``Sec. 3.'', and
(2) by adding at the end the following:
``(b) Every person who shall monopolize, or attempt to
monopolize, or combine or conspire with any other person or
persons, to monopolize any part of the trade or commerce in
any Territory of the United States or of the District of
Columbia, or between any such Territory and another, or
between any such Territory or Territories and any State or
States or the District of Columbia, or with foreign nations,
or between the District of Columbia, and any State or States
or foreign nations, shall be deemed guilty of a felony, and,
on conviction thereof, shall be punished by fine not
exceeding $10,000,000 if a corporation, or, if any other
person, $350,000, or by imprisonment not exceeding three
years, or by both said punishments, in the discretion of the
court.''.
(d) Wilson Tariff Act.--
(1) Technical amendment.--The Wilson Tariff Act (28 Stat.
570; 15 U.S.C. 8 et seq.) is amended--
(A) by striking section 77, and
(B) in section 78--
(i) by striking ``76, and 77'' and inserting ``and 76'',
and
(ii) by redesignating such section as section 77.
(2) Conforming amendments to other laws.--
(A) Clayton act.--Subsection (a) of the 1st section of the
Clayton Act (15 U.S.C. 12(a)) is amended by striking
``seventy-seven'' and inserting ``seventy-six''.
(B) Federal trade commission act.--Section 4 of the Federal
Trade Commission Act (15 U.S.C. 44) is amended by striking
``77'' and inserting ``76''.
(C) Packers and stockyards act, 1921.--Section 405(a) of
the Packers and Stockyards Act, 1921 (7 U.S.C. 225(a)) is
amended by striking ``77'' and inserting ``76''.
(D) Atomic energy act of 1954.--Section 105 of the Atomic
Energy Act of 1954 (42 U.S.C. 2135) is amended by striking
``seventy-seven'' and inserting ``seventy-six''.
(E) Deep seabed hard mineral resources act.--Section
103(d)(7) of the Deep Seabed Hard Mineral Resources Act (30
U.S.C. 1413(d)(7)) is amended by striking ``77'' and
inserting ``76''.

SEC. 3. EFFECTIVE DATE; APPLICATION OF AMENDMENTS.

(a) Effective Date.--Except as provided in subsection (b),
this Act and the amendments made by this Act shall take
effect on the date of the enactment of this Act.
(b) Application to cases.--(1) Section 2(a) shall apply to
cases pending on or after the date of the enactment of this
Act.
(2) The amendments made by subsections (b), (c), and (d) of
section 2 shall apply only with respect to cases commenced on
or after the date of the enactment of this Act.

The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Illinois (Mr. Hyde) and the gentlewoman from Texas (Ms. Jackson-Lee)
each will control 20 minutes.
The Chair recognizes the gentleman from Illinois (Mr. Hyde).

General Leave

Mr. HYDE. Mr. Speaker, I ask unanimous consent that all Members may
have 5 legislative days within which to revise and extend their remarks
and to include extraneous material on H.R. 1801.
The SPEAKER pro tempore (Mr. Shimkus). Is there objection to the
request of the gentleman from Illinois?
There was no objection.
Mr. HYDE. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I rise in support of H.R. 1801, the ``Antitrust
Technical Corrections Act of 1999,'' which I have introduced with the
gentleman from Michigan (Mr. Conyers), the ranking member.
H.R. 1801 makes four separate technical corrections to our antitrust
laws. Three of these corrections repeal outdated provisions of the law,
the requirement that depositions in antitrust cases brought by the
Government be taken in public; the prohibition on violators of the
antitrust laws passing through the Panama Canal; and a redundant and
rarely used jurisdiction and venue provision.
The last one clarifies a long existing ambiguity regarding the
application of Section 2 of the Sherman Act to the District of Columbia
and the territories.
The committee has informally consulted the antitrust enforcement
agencies, the Antitrust Division of the Department of Justice and the
Bureau of Competition of the Federal Trade Commission, and the agencies
have indicated they do not object to any of these changes.
In response to written questions following the committee's November
5, 1997, oversight hearing on the antitrust enforcement agencies, the
Department of Justice recommended two of the repeals and the
clarification contained in this bill. The other repeal was recommended
to the committee by House Legislative Counsel. In addition, the
Antitrust Section of the American Bar Association supports the bill.
Mr. Speaker, I include their comments for the Record at this point.

Comments on the ``Antitrust Technical Corrections Act of 1999'' (H.R.
1801) by the Section of Antitrust Law of the American Bar Association

The Antitrust Technical Corrections Act of 1999 (HR 1801)
would bring minor but useful revisions to several provisions
of the antitrust laws. The Section of Antitrust Law
(``Antitrust Section'') of the American Bar

[[Page H11319]]

Association (``ABA'') believes that the amendments
contemplated in this bill would improve the administration
and enforcement of the laws. These views are presented on
behalf of the Antitrust Section and have not been approved by
the ABA House of Delegates or the ABA Board of Governors and,
thus, should not be construed as representing the position of
the ABA.

1. contents of h.r. 1801

1. Repeal of the Publicity in Taking Evidence Act of 1913
regarding public depositions for use in suits in equity (15
U.S.C. Sec. 30).
2. Repeal of the provision of the Panama Canal Act which
bars the use of Panama Canal to violators of antitrust laws
(15 U.S.C. Sec. 31).
3. Addition to 15 U.S.C. Sec. 3 to include prohibitions for
restraints of trade in and among the Territories of the
United States and the District of Columbia.
4. Technical amendments to the Wilson Tariff Act (28 Stat.
570).

2. the antitrust section of the aba supports h.r. 1801

1. Repeal of the Publicity in Taking Evidence Act of 1913
(15 U.S.C. 30).
The publicity in Taking Evidence Act of 1913, 15 U.S.C.
Sec. 30, requires public depositions in any suit in equity by
the United States under the Sherman Act. In most actions
under the antitrust laws, judges have discretion to control
public access, and option that can be essential in high
profile proceedings. Uncontrolled access increases the
potential for discovery proceedings devolving into a circus
atmosphere. Unexpected or unmanageable crowds seeking to
attend a deposition can cause it to be moved, delayed, or
altered in a manner that disrupts the discovery phase of a
proceeding. The scheduling of such depositions is already
difficult, and the cases in which they occur may be on tight
deadlines. Section 30 is an anachronism that removes the
ability of a judge to control public access to depositions in
cases where such cases could be detrimental to the orderly
conduct of a case.\1\
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\1\ See U.S. v. Microsoft, 165 F.3d 952, 953 (D.C. Cir.
1999).
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There is no reason why one type of action brought by the
U.S. should have a special rule for the taking of
depositions, especially when that rule is likely to be
invoked in situations that would cause disruption and delay.
There does not appear to be any compelling interest in
forcing depositions in equity cases to be open to any and all
audiences, since the Federal Rules of Civil Procedures (see
Rules 43(a) and 77(b)) already insure that the public has
access to civil antitrust trials. The Antitrust Section
believes the issue of public access to depositions ought to
remain a matter for the presiding judge to determine.
Therefore, it supports the repeal of this antiquated law.
2. Repeal of antitrust provisions of the Panama Canal Act
(15 U.S.C. Sec. 31)
Pursuant to 15 U.S.C. Sec. 31, the Panama Canal is closed
to violators of the antitrust laws. Specifically, no vessel
owned by any individual or company that is violating the
antitrust laws may pass through the canal. Setting aside the
ambiguity of the language of this law, any penalty it imposes
is in addition to the sanctions available under the Sherman
and Clayton Acts. Specifically, criminal violations of the
Sherman Act are felonies that are punishable by fines up to
$10,000,000 for corporations, or $350,000 for individuals,
and/or imprisonment for up to 3 years. Fines of much larger
amounts are authorized where profit or injury exceeds
$10,000,000.\2\ Moreover, pursuant to 15 U.S.C. Sec. 6,
violators of section one of the Sherman Act are also subject
to asset forfeiture. Additionally, section four of the
Clayton Act provides treble damages for successful private
antitrust claims. Further, section 16 of the Clayton Act
allows for injunctive relief.
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\2\ See U.S. v. F. Hoffman-LaRoche LTV, Crim. No. 99-CR-184-R
(N.D. Tex May 20, 1999). Hoffman-La Roche agreed to pay
$500,000,000 in fines for involvement in a vitamin price-
fixing conspiracy.
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The Antitrust Section believes it is through the sanctions
of the Sherman and Clayton Acts that the antitrust policy of
deterrence will be most effectively advanced. There has been
a great deal of debate in Congress, in the courts and in the
agencies over the proper combination of injunctions, fines,
forfeitures, and sentences to ensure competition and deter
potential violators. The Panama Canal Act's provision dealing
with antitrust penalties is at best unnecessary. At worst it
could encourage ill-considered interference with
international completion of the foreign relations of the
United States.\3\ Therefore, the Antitrust Section supports
the repeal of this provision.
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\3\ Especially, in view of the fact that control over the
Canal reverts to Panama on January 1, 2000, the United States
code should not contain provisions such as these.
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3. Addition to 15 U.S.C. Sec. 3
HR 1801 clarifies that the antitrust laws encompass the
District of Columbia and the territories of the United States
by adding to 15 U.S.C. Sec. 3 \4\ the following language as
section 3(B):
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\4\ Currently, U.S.C Sec. 3 prohibits restraints for trade in
and among the District Columbia, United States Territories,
and other states. The penalties are the same as those set out
in section one of the Sherman Act (15 U.S.C. 1).
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Every person who shall monopolize, or attempt to monopolize,
or combine or conspire with any other person or persons, to
monopolize any part of the trade or commerce among the
Territories of the United States and the District of
Columbia, or between any of the several States and any
Territory of the United States or the District of Columbia,
shall be deemed guilty of a felony, and, on conviction
thereof, shall be punished by fine not exceeding $10,000,000
if a corporation, or, if any other person, $350,000, or by
imprisonment not exceeding three years, or by both said
punishment, in the discretion of the court.\5\
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\5\ Compare with section 2 of the Sherman Act (15 U.S.C.
Sec. 2): Every person who shall monopolize, or attempt to
monopolize, or combine or conspire with any other person or
persons, to monopolize any part of the trade or commerce
among the several States, or with foreign nations, shall be
deemed guilty of a felony, and, on conviction thereof, shall
be punished by fine not exceeding $10,000,000 if a
corporation, or, if any other person, $350,000, or by
imprisonment not exceeding three years, or by both said
punishment, in the discretion of the court.

Current section 3 (to become 3(a) under the amendment)
already covers trade between the District or any Territory
and the states or foreign countries. The failure of section 3
to address trade among the Territories and the District
simply invites arguments that such circumstances remain
outside the reach of the antitrust laws. No good reason has
been offered for the failure, and the Section is aware of
none. Further, current section 3 uses the terms of section 1
(generally applicable to conspiracies), but not section 2
(applicable to monopolization).\6\ Consequently, the new
language clarifies that conduct prohibited by section 2 is
covered in Washington, D.C. and United States territories.
The Antitrust Section supports this correction.
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\6\ Section 3 currently reads: Every contract, combination in
form of trust or otherwise, or conspiracy, in restraint of
trade or commerce in any Territory of the United States or of
the District of Columbia, or in restraint of trade or
commerce between any such Territory and another, or between
any such Territory or Territories and any State or States or
the District of Columbia, or with foreign nations, or between
the District of Columbia and any State or States or foreign
nations, is declared illegal. Every person who shall make any
such contract or engage in any such combination or
conspiracy, shall be deemed guilty of a felony, and, on
conviction thereof, shall be punished by fine not exceeding
$10,000,000 if a corporation, or, if any other person,
$350,000, or by imprisonment not exceeding three years, or
both said punishments in the discretion of the court. 15
U.S.C.A. Sec. 3 (1890).
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However, it should be noted that as it stands section 2(c)
of the bill refers to the wrong section of the United States
Code. The correct section to be amended appears to be 15
U.S.C. Sec. 3 (not 15 U.S.C. Sec. 2 as noted in the bill).
The Antitrust Section suggests correcting this minor
discrepancy in the bill.
4. Technical amendments to the Wilson Tariff Act (28 Stat.
570).
Section 77 of the Wilson Tariff Act of 1894 gives antitrust
jurisdiction to any ``circuit court of the United States in
the district in which the defendant resides or is found.''
\7\ This section was never codified in the United States
Code.
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\7\ Wilson Tariff Act. ch. 349, 28 Stat. 509 (Aug. 27, 1894).
In its entirety, section 77 reads: That any person who shall
be injured in his business or property by any other person or
corporation by reason of anything forbidden or declared to be
unlawful by this Act may sue therefor in any circuit court of
the United States in the district in which the defendant
resides or is found, without respect to the amount in
controversy, and shall recover threefold the damages by him
sustained, and the costs of suit, including a reasonable
attorney's fee. Id.
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Section 77 is an antiquated piece of legislation that may
confuse those that come across it. It is an anomaly to the
traditional jurisdiction of federal district courts in
construing claims sounding in antitrust law. The
jurisdictional provisions of the United States Code vest
jurisdiction over cases arising under the antitrust laws in
the United States District Courts. A provision allocating
jurisdiction of similar cases in different courts can only
complicate proceedings and impede the effective
administration of antitrust law. By deleting this section,
Congress would preserve the general jurisdictional provisions
pertaining to the antitrust laws, and would prevent confusion
that this section of the Tariff Act may create. Therefore,
the Antitrust Section supports this technical amendment.

3. conclusion

HR 1801 is a helpful piece of legislation that helps
clarify and update the antitrust laws. The Antitrust Section
of the ABA supports the changes contemplated in HR 1801.

Mr. Speaker, I believe all these provisions are noncontroversial and
they will help clean up some underbrush in the antitrust laws. I
recommend that the House suspend the rules and pass the bill, as
amended by the managers' amendment.
Mr. Speaker, I reserve the balance of my time.
Ms. JACKSON-LEE of Texas. Mr. Speaker, I yield myself such time as I
may consume.
Mr. Speaker, H.R. 1801, the ``Antitrust Technical Corrections Act,''
makes four noncontroversial changes in our antitrust laws to repeal
some outdated provisions of the law and to clarify that our antitrust
laws apply to the District of Columbia and to the territories.
The gentleman from Illinois (Chairman Hyde) and the gentleman from
Michigan (Mr. Conyers) have worked together on this bill and they have
consulted with the Department of Justice

[[Page H11320]]

Antitrust Division and the Federal Trade Commission Bureau of
Competition to ensure these technical changes improve the efficiency of
our antitrust laws.
The first change will permit depositions taken in Sherman Act equity
cases brought by the Government, to be conducted in private, just as
they are in all other types of cases.
In the early days of the Sherman Act, the courts conducted such cases
by deposition without any formal trial proceeding. Now that the trials
are conducted in public, it is no longer necessary to hold the
depositions in public.
The problem with having public depositions became clear during the
deposition of Bill Gates during the Microsoft antitrust case. The
public deposition created a circus atmosphere, and the D.C. Circuit
Court invited Congress to repeal this law. With this change, antitrust
depositions will be treated like those in all other cases.
The second change repeals a little-known and little-used provision
that prohibits vessels from passing into the Panama Canal if the
vessel's owner is violating the antitrust laws. With the return of the
Canal to Panama at the end of 1999, it is appropriate to repeal this
outdated provision.
The third change clarifies that Sherman Act's prohibitions on
restraint of trade and monopolization apply to conduct occurring in the
District of Columbia and the various territories of the United States.
We believe that it was always Congress' intent for the Sherman Act to
apply in the District and the territories, and this amendment merely
clarifies the scope of our antitrust laws. However, because this
clarification could affect the standards of rights of litigants under
pending cases, and to avoid changing the rules in the middle of
litigation, this provision will only apply to cases filed on or after
the enactment date of this act.
Finally, this bill repeals a redundant jurisdiction and venue
provision in Section 77 of the Wilson Tariff Act. Repealing Section 77
will not diminish any jurisdiction of venue rights of litigants because
Section 4 of the Clayton Act provides any potential plaintiff with
broader rights of jurisdiction and venue than does Section 77.
There is also a manager's amendment that clarifies some technical
aspects of H.R. 1801. I recommend that the manager's amendment be
adopted and that H.R. 1801 be approved, as amended. With these changes,
our antitrust laws will be more clear, consistent, and efficient.
Mr. Speaker, I reserve the balance of my time.
Mr. HYDE. Mr. Speaker, I have no further requests for time, and I
yield back the balance of my time.
Ms. JACKSON-LEE of Texas. Mr. Speaker, I have the honor of yielding 5
minutes to the distinguished gentleman from Minnesota (Mr. Minge).
Mr. MINGE. Mr. Speaker, I would like to thank the gentlewoman for
yielding me the time.
Mr. Speaker, I would like to begin by stating that I fully support
the legislation. I also appreciate the attention to the antitrust
activities that has been given by the Committee on the Judiciary in the
last month.
The gentleman from Illinois (Chairman Hyde) scheduled hearings on
concentration in the agricultural sector and problems of slotting fees
in retailing. I had an opportunity to testify at that hearing. What I
would like to do is to urge my colleagues to join me and several other
Members of this body in focusing attention on what is happening in our
economy.
Here in the late 1990s, we have seen an increasing pace in
consolidations and mergers in our economy. The level of concentration
is growing dramatically. It is continuing a trend that has existed
perhaps for several decades, and it is a trend that has some alarming
implications. Namely, what type of a competitive marketplace do we as
Americans need in order for our economy to continue to be innovative,
to continue to be successful, and to continue to thrive and provide
leadership in a global economy?
Secondly, what type of concentration can we have in this economy and
still have those that deal with the bottlenecks that are created by
this concentration treated fairly?
I would like to turn my attention to agriculture in particular. When
we look at the ag sector of our economy and recognize that a handful of
firms control meat packing, control movement of grain, control seed
stock and other supplies that farmers use that are now entering into
contracts with farmers to purchase seed, to grow crops based on that
seed, and to deliver the crops for more specific uses based upon the
genetic character of those seed, we recognize that farmers are
increasingly becoming contractors in our economy and they are
increasingly dependent upon those contracts for their survival.
Each stage of the process is one that is carefully monitored by
larger firms. And as they see the opportunity to capture profit in this
process, the farmer's opportunity to survive in our economy is
diminished.
It is for this reason that I have joined with my colleague the
gentleman from North Dakota (Mr. Pomeroy) and my colleague the
gentlewoman from Wisconsin (Ms. Baldwin) to introduce legislation that
would impose a moratorium on mergers and consolidations in the ag-tech
sector and order an 18-month study of this with recommendations to
Congress as to appropriate legislative response.
I will also be dropping legislation within the next few days that
will provide farmers in the hog sector with some degree of protection
from the vertical integration that has such a devastating impact on
their opportunity to continue to raise hogs independently.
What we saw in the poultry sector of agriculture 20 years ago is now
happening with hogs. It is estimated that 75 percent of the hogs in
this country are marketed pursuant to contracts, not into an open
market setting. As we lose the smaller farming operations and the
opportunity for farmers to raise hogs, we are losing one of the profit
centers that has existed in agriculture.
The word has always been that hogs are the mortgage lifters on the
farm. They are the dependable source of income and profit that enable
farmers to pay off the mortgages. And without that opportunity, the
diversification that is so important in agriculture is lost.
So I would like to urge that my colleagues recognize the seriousness
of the problem that we face in the ag sector and that we join together
as an institution on a bipartisan basis on behalf of America's farmers
to ensure that they continue to have the opportunity to earn a living
and be an important part of the rural economy.
Ms. JACKSON-LEE of Texas. Mr. Speaker, I thank the gentleman from
Minnesota for bringing this instructive insight to this discussion.
Mr. UNDERWOOD. Mr. Speaker, I rise in support of H.R. 1801 which
makes technical corrections in various antitrust laws and to the
references of such laws. I thank Chairman Hyde and the Ranking
Democrat, Mr. Conyers, for the work they did on this legislation to
ensure the protection of American consumers. I would like to recognize
that this legislation, which among other things, clarifies the
application of the Sherman Act to the U.S. Territories, is supported by
my fellow colleagues from the U.S. Virgin Islands, American Samoa, the
District of Columbia, and Puerto Rico.
The challenges faced by U.S. Territories are multi-faceted. In many
respects, our relationship with the United States stems from the
benefits we provide based on our geography. This benefit which helped
us become a part of the American family can also be a disadvantage for
the development of our economies. Save for Puerto Rico and the District
of Columbia, Guam is the next most populated territory with 150,000
citizens. We are also coincidentally the furthest territory from the
U.S. mainland.
Our population and remoteness has proved challenging in the
development of our economy. We have worked to develop a top-notch
tourism industry and encourage entrepreneurship amongst our residents.
Our focus to ensure a healthy tourism industry has resulted in the
construction of world class hotels, such as the Hilton, the Nikko
Hotel, and the Hyatt. Our success in fostering at least 1.3 million
tourists a year has caught the attention of many well-known U.S. based
companies, who have established themselves on Guam. Major retailers
like K-mart and Costco, trendy restaurants like Hard Rock Cafe and
Planet Hollywood, and numerous fast food restaurants have found a
profitable and competitive home in Guam.
Like many other communities in the U.S. with a similar population to
Guam, there is a potential for sectors in an industry to monopolize the
needs of a community. It's an extremely complex endeavor to prove, that
a company is illegally monopolizing an industry,

[[Page H11321]]

but it's a topic that is inevitably posed to small communities. H.R.
1801 clarifies that small communities, like the U.S. Territories, will
not be the subject of monopolization and imposes hefty penalties for
companies or individuals found engaged in such business activities.
This is good legislation and good protection for consumers, small
businesses and entrepreneurs.
Again, I thank Chairman Hyde for introducing this legislation and
encourage my colleagues to support this measure.
Mr. JACKSON-LEE of Texas. Mr. Speaker, I have no further speakers,
and I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Illinois (Mr. Hyde) that the House suspend the rules and
pass the bill, H.R. 1801, as amended.
The question was taken; and (two-thirds having voted in favor
thereof) the rules were suspended and the bill, as amended, was passed.
A motion to reconsider was laid on the table.

____________________