Sec. 5. Joint enforcement guidelines
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Not later than 1 year after the date of enactment of this Act, the Attorney General and the Federal Trade Commission shall issue joint guidelines outlining policies, practices, and analytical techniques relating to agency enforcement under section 26A of the Clayton Act, as added by section 4 of this Act, including agency policies for determining the appropriate amount of a civil penalty to be sought under section 26A of the Clayton Act and subsection
(o)of section 5 of the Federal Trade Commission Act ( 15 U.S.C. 45 ), as added by section 4 of this Act, with the goal of promoting transparency and deterring violations of section 26A of the Clayton Act. In establishing the guidelines described in subsection
(a)regarding civil penalties, the Attorney General and the Federal Trade Commission shall consider the relevant factors to be used for calculating an appropriate civil penalty for a particular violation, including — the volume of commerce affected; the duration and severity of the unlawful conduct; the intent of the person undertaking the unlawful conduct; the extent to which the unlawful conduct was egregious or a clear violation of the law; whether the civil penalty is to be applied in combination with other remedies for violations of section 26A of the Clayton Act, including— structural remedies, behavioral conditions, or equitable disgorgement; or other remedies available under section 4, 4A, 15, or 16 of the Clayton Act ( 15 U.S.C. 15 , 15a, 25, 26) or section 13(b) of the Federal Trade Commission Act ( 15 U.S.C. 53(b) ); whether the person has previously engaged in the same or similar anticompetitive conduct; and whether the person undertook the conduct in violation of a preexisting consent decree or court order. The Attorney General and the Federal Trade Commission shall update the joint guidelines issued under subsection (a), as needed to reflect current agency policies and practices, but not less frequently than once every 5 years beginning on the date of enactment of this Act. Before issuing guidelines under subsection
(a)or subsection (c), the Attorney General and the Federal Trade Commission shall publish proposed guidelines in draft form and provide public notice and opportunity for comment for not less than 60 days after the date on which the guidelines are published. The provisions of section 553 of title 5, United States Code, shall not apply to the guidelines issued under paragraph (1).
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