98-30372. Policy Concerning Disclosures of Nonmerger Competition and Consumer Protection Investigations  

  • [Federal Register Volume 63, Number 219 (Friday, November 13, 1998)]
    [Notices]
    [Pages 63477-63478]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 98-30372]
    
    
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    FEDERAL TRADE COMMISSION
    
    
    Policy Concerning Disclosures of Nonmerger Competition and 
    Consumer Protection Investigations
    
    AGENCY: Federal Trade Commission.
    
    ACTION: Notice of revised policy.
    
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    SUMMARY: The Federal Trade Commission is revising its policy concerning 
    disclosure of investigations. The Commission's policy, subject to 
    specified exceptions, is to conduct its investigations on a nonpublic 
    basis. The revised policy permits limited disclosures about nonmerger 
    investigations where: A target has publicly disclosed the relevant 
    information in either a press release or a filing with a government 
    agency; or the investigation or the practice has received substantial 
    publicity and the disclosure does not identify a target that has not 
    already disclosed its own identity. Inquiries seeking disclosure under 
    this authority should be addressed to the Commission's Office of Public 
    Affairs.
    
    EFFECTIVE DATE: The policy is effective on November 13, 1998. The 
    Commission will, however, accept comments on the policy that are 
    received on or before December 14, 1998 and may re-evaluate the policy 
    in light of those comments.
    
    FOR FURTHER INFORMATION CONTACT: Victoria A. Streitfeld, Office of 
    Public Affairs, 202-326-2718, or Debra A. Valentine, General Counsel, 
    202-326-2481.
    
    SUPPLEMENTARY INFORMATION: Commission policy is to hold confidential 
    the existence and targets of law enforcement investigations until the 
    Commission issues an administrative complaint, authorizes or files a 
    judicial complaint, announces a proposed settlement, or closes a 
    matter. See 42 FR 64135 (1977). The Commission believes generally that 
    public disclosure of pending investigations and identification of 
    targets before the Commission has had an opportunity to weigh the 
    evidence may unjustifiably harm the companies investigated and 
    interfere with the conduct and successful resolution of such matters. 
    However, the Commission's policy has long included exceptions for 
    disclosure of industrywide investigations and of investigations that 
    involve significant risk of economic harm or risk to public health or 
    safety. Id. More recently, the Commission announced a further exception 
    that permits its Office of Public Affairs (``OPA'') to disclose that 
    the agency is investigating a merger or similar transaction where a 
    party to the underlying transaction had announced it in a press release 
    or a public filing with a governmental body. 62 FR 18630 (1977).\1\
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        \1\ An investigation may also be disclosed because of a petition 
    to limit or quash compulsory process. See 16 CFR 4.9(b)(4).
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        The first aspect of the modified policy applies if a target has 
    publicly disclosed, in either a press release or a filing with a 
    government agency, that it is the subject of a nonmerger investigation. 
    In such cases, OPA could: (1) Confirm information that the target has 
    already disclosed, to the extent that such information bears on the 
    investigation of that target, and (2) with the approval of a Director 
    or Deputy Director of the Bureau of Competition or Consumer Protection, 
    disclose limited additional information about the general nature and 
    scope of the investigation. These limited additional disclosures, which 
    might be needed to correct misimpressions, could not identify 
    additional targets that have not already identified themselves. This 
    aspect of the policy contemplates, for example, disclosures that the 
    Commission is investigating competitive practices in a particular 
    industrial sector or that it is investigating a type of claim for a 
    particular category of product. It also permits disclosure, in 
    appropriate cases, of whether an investigation is wide-ranging or 
    narrow in scope.
        The second aspect of the modified policy permits OPA to make 
    limited disclosures about the general nature and scope of a nonmerger 
    investigation in unusual cases where there has been substantial 
    publicity about the investigation or the underlying practice. See Also 
    United States Attorneys' Manual (1997) Ch. 1-7.530 (allowing comments 
    about an investigation in ``unusual circumstances'' where a matter has 
    received substantial publicity). These limited disclosures of the 
    general nature and scope of an investigation, like the disclosures 
    contemplated above, are permitted only if approved by the relevant 
    Bureau Director or Deputy Director. As a general rule, ``substantial 
    publicity'' consists of, among other things, significant factual 
    material concerning the investigation or the underlying practice that 
    has appeared in the print or electronic media. By contrast, 
    ``substantial publicity'' does not include mere rumors or statements, 
    for which journalists seek confirmation by the Commission, that have 
    not already been independently corroborated by significant coverage in 
    the print or electronic media.
        In addition, where an investigation can be disclosed under the 
    conditions
    
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    set forth above and the recipient of compulsory process announces that 
    the Commission has issued such process, the policy permits confirmation 
    of such process.
        Nothing in this notice shall be construed as modifying the 
    authority of the Commission (as opposed to the Commission's staff) to 
    make appropriate disclosures concerning nonpublic investigations 
    whenever it determines that doing so would be in the public interest. 
    The Commission will continue to keep confidential, as appropriate under 
    its existing laws and policies, nonpublic information submitted to the 
    agency.
    
        By direction of the Commission.
    Donald S. Clark,
    Secretary.
    [FR Doc. 98-30372 Filed 11-12-98; 8:45 am]
    BILLING CODE 6750-01-M
    
    
    

Document Information

Effective Date:
11/13/1998
Published:
11/13/1998
Department:
Federal Trade Commission
Entry Type:
Notice
Action:
Notice of revised policy.
Document Number:
98-30372
Dates:
The policy is effective on November 13, 1998. The Commission will, however, accept comments on the policy that are received on or before December 14, 1998 and may re-evaluate the policy in light of those comments.
Pages:
63477-63478 (2 pages)
PDF File:
98-30372.pdf