[Federal Register Volume 61, Number 17 (Thursday, January 25, 1996)]
[Rules and Regulations]
[Pages 2116-2117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1091]
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DEPARTMENT OF JUSTICE
28 CFR Part 49
[AG Order No. 2005-96]
RIN 1105-AA37
Use and Examination of Materials Submitted Pursuant to the
Antitrust Civil Process Act
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: This rule finalizes changes made by an interim rule published
on August 25, 1995 at 60 FR 44276 to a Department of Justice regulation
concerning the use and examination of materials submitted pursuant to
the Antitrust Civil Process Act (``ACPA'' or ``Act''). The interim rule
added references to ``answers to interrogatories'' and ``transcripts of
oral testimony'' as types of material subject to the provisions of the
ACPA and also added references to ``agents'' of the Department of
Justice having the authority to use and copy such materials. These
changes were necessary to conform the language of the regulation to the
current provisions of the Act. The interim rule also made minor changes
to the spelling and capitalization of certain words used in the
regulation for purposes of conformity with the Act and internal
consistency.
DATES: This Final Rule is effective January 25, 1996.
FOR FURTHER INFORMATION CONTACT: Howard Blumenthal, Assistant Chief,
Legal Policy Section, Antitrust Division, Room 3121, Main Justice
Building, 10th & Pennsylvania Avenue NW., Washington, DC 20530;
telephone (202) 514-2513.
SUPPLEMENTARY INFORMATION: Congress enacted the ACPA, Pub. L. No. 87-
664 (codified at 15 U.S.C. 1311-14, as amended), in 1962 to provide the
Antitrust Division (``Division'') of the Department of Justice with the
authority to issue civil investigative demands (``CIDs''), a type of
pre-complaint compulsory process. CIDs enable the Division to gather
information concerning possible civil violations of the antitrust laws
before filing lawsuits, which often permits the Department of Justice
to determine that no antitrust violation has occurred without resort to
litigation. Thus, the use of CIDs will frequently save the Department
of Justice, the parties being investigated, and the federal court
system time and money through the avoidance of unnecessary litigation
or the streamlining of any litigation that does result from an
investigation.
The CID authority provided to the Division in 1962 was relatively
narrow. The only type of information that the Division could acquire by
CID was documentary material. Without the consent of the person who
produced such material, access to CID information in the possession of
the Division was generally limited to officers, members, or employees
of the Department of Justice.
The Division's CID authority was expanded by the Hart-Scott-Rodino
Antitrust Improvements Act of 1976 (``HSR Act''), Pub. L. No. 94-435.
In addition to producing documentary material, CID recipients could now
be required to answer in writing written interrogatories and to give
oral testimony. In the Antitrust Procedural Improvements Act of 1980
(``APIA''), Pub. L. No. 96-349, Congress clarified that CID information
in the possession of the Division could be disclosed to and used by
agents of the Department of Justice (for example, expert witnesses or
independent contractors) as well as by officers and employees.
The ACPA requires the Attorney General to promulgate regulations
setting forth the manner in which CID materials in the possession of
the Division will be made available for official use by the Department
of Justice, and to prescribe the terms and conditions under which such
materials may be examined by the persons who produced them to the
Division. The Attorney General promulgated 28 CFR part 49 in 1963 to
comply with this requirement. However, this regulation was not amended
to reflect the changes to the Act made by the HSR Act in 1976 or the
APIA in 1980. The purpose of this order is to make final an interim
rule published on August 25, 1995 at 60 FR 44276, which amended the
pre-existing regulation to conform with the current provisions of the
ACPA.
The rule now being finalized differs from the pre-existing
regulation in two main respects. First, references in the pre-existing
regulation to the use and examination of documentary material in the
possession of the Division were expanded, where and as appropriate, to
also refer to answers to interrogatories and transcripts of oral
testimony to take into account the additional types of information that
can be acquired under the ACPA as amended by the HSR Act. Second,
references to the use and copying of CID information by officers and
employees of the Department of Justice were expanded to also include
agents of the Department of Justice to reflect the change to the Act
made by the APIA. The rule now being finalized also differs from the
pre-existing regulation in several technical respects.
[[Page 2117]]
Essentially, the capitalization of certain words (Act, custodian, civil
investigative demand) was made consistent throughout the regulation,
and the term ``civil investigation demand'' was changed to ``civil
investigative demand,'' which is the term used in the statute.
The above-mentioned interim rule included a 60-day public comment
period. The Department received no comments before the comment period
expired on October 24, 1995. The Department has determined to issue the
rule in final form without revision to the interim rule.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it
certifies that this regulation will not have a significant economic
impact on a substantial number of small entities.
Executive Order 12612
This regulation will not have substantial direct effects on the
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Executive Order 12866
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, Sec. 1(b), Principles of Regulation. The
Department of Justice has determined that this rule is not a
``significant regulatory action'' under Executive Order 12866,
Sec. 3(f), and accordingly this rule has not been reviewed by the
Office of Management and Budget.
Accordingly, the interim rule amending 28 CFR part 49 that was
published at 60 FR 44276 on August 25, 1995, as corrected at 60 FR
61290 on November 29, 1995, is adopted as a final rule without change.
Dated: January 16, 1996.
Janet Reno,
Attorney General.
FR Doc. 96-1091 Filed 1-24-96; 8:45 am]
BILLING CODE 4410-01-M
