[Federal Register Volume 60, Number 165 (Friday, August 25, 1995)]
[Rules and Regulations]
[Pages 44275-44277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20984]



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[[Page 44276]]


DEPARTMENT OF JUSTICE

28 CFR Part 49

[AG Order No. 1985-95]
RIN 1105-AA37


Use and Examination of Materials Submitted Pursuant to the 
Antitrust Civil Process Act

AGENCY: Department of Justice.

ACTION: Interim rule.

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SUMMARY: This rule revises the existing Department of Justice 
regulation concerning the use and examination of materials submitted 
pursuant to the Antitrust Civil Process Act (``ACPA'' or ``Act'') to 
add references to ``answers to interrogatories'' and ``transcripts of 
oral testimony'' as types of material subject to the provisions of the 
ACPA, and to add references to ``agents'' of the Department of Justice 
having the authority to use and copy such materials. These changes are 
necessary to conform the language of the regulation to the current 
provisions of the Act. The rule also makes 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 Interim Rule is effective August 25, 1995. Written comments 
must be submitted on or before October 24, 1995.

ADDRESSES: Please submit written comments to the Director, Office of 
Operations, Antitrust Division, Room 3214 Main Building, U.S. 
Department of Justice, 10th & Pennsylvania Avenue NW, Washington, DC 
20530.

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. 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. 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. 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 amend the existing 
regulation to conform with the current provisions of the ACPA.
    The Interim Rule differs from the existing regulation in two main 
respects. First, references in the existing regulation to the use and 
examination of documentary material in the possession of the Division 
are 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 
are expanded to also include agents of the Department of Justice to 
reflect the change to the Act made by the APIA. The Interim Rule also 
differs from the existing regulation in several technical respects. 
Essentially, the capitalization of certain words (Act, custodian, civil 
investigative demand) is made consistent throughout the regulation, and 
the term ``civil investigation demand'' is changed to ``civil 
investigative demand,'' which is the term used in the statute.

Administrative Procedure Act, 5 U.S.C. 553

    Because these regulations are conforming and editorial in nature 
and impose no new requirements or restrictions, the Department of 
Justice finds good cause for exempting them from the provisions of the 
Administrative Procedure Act (5 U.S.C. 553) requiring notice of 
proposed rulemaking, the opportunity for public comment, and delay in 
effective date.

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, section 1(b), Principles of Regulation. The 
Department of Justice has determined that this rule is not a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), and accordingly this rule has not been reviewed by the Office of 
Management and Budget.

List of Subjects in 28 CFR Part 49

    Antitrust, Confidential business information, Government employees.

    Accordingly, part 49 of chapter I of Title 28 of the Code of 
Federal Regulations is revised to read as follows:

[[Page 44277]]


PART 49--ANTITRUST CIVIL PROCESS ACT

Sec.
49.1  Purpose.
49.2  Duties of custodian.
49.3  Examination of material.
49.4  Deputy custodians.

    Authority: 15 U.S.C. 1313.


Sec. 49.1  Purpose.

    The regulations in this part are issued in compliance with the 
requirements imposed by the provisions of section 4(c) of the Antitrust 
Civil Process Act, as amended (15 U.S.C. 1313(c)). The terms used in 
this part shall be deemed to have the same meaning as similar terms 
used in that Act.
Sec. 49.2  Duties of custodian.

    (a) Upon taking physical possession of documentary material, 
answers to interrogatories, or transcripts of oral testimony delivered 
pursuant to a civil investigative demand issued under section 3(a) of 
the Act, the antitrust document custodian designated pursuant to 
section 4(a) of the Act (subject to the general supervision of the 
Assistant Attorney General in charge of the Antitrust division), shall 
unless otherwise directed by a court of competent jurisdiction, select, 
from time to time, from among such documentary material, answers to 
interrogatories or transcripts of oral testimony, the documentary 
material, answers to interrogatories or transcripts of oral testimony 
the copying of which the custodian deems necessary or appropriate for 
the official use of the Department of Justice, and shall determine, 
from time to time, the number of copies of any such documentary 
material, answers to interrogatories or transcripts of oral testimony 
that are to be reproduced pursuant to the Act.
    (b) Copies of documentary material, answers to interrogatories, or 
transcripts of oral testimony in the physical possession of the 
custodian pursuant to a civil investigative demand may be reproduced by 
or under the authority of any officer, employee, or agent of the 
Department of Justice designated by the custodian. Documentary material 
for which a civil investigative demand has been issued but which is 
still in the physical possession of the person upon whom the demand has 
been served may, by agreement between such person and the custodian, be 
reproduced by such person, in which case the custodian may require that 
the copies so produced be duly certified as true copies of the original 
of the material involved.


Sec. 49.3  Examination of the material.

    Documentary material, answers to interrogatories, or transcripts of 
oral testimony produced pursuant to the Act, while in the custody of 
the custodian, shall be for the official use of officers, employees, 
and agent of the Department of Justice in accordance with the Act. Upon 
reasonable notice to the custodian--
    (a) Such documentary material or answers to interrogatories shall 
be made available for examination by the person who produced such 
documentary material or answers to interrogatories, or by any duly 
authorized representative of such person; and
    (b) Such transcripts of oral testimony shall be made available for 
examination by the person who produced such testimony, or by such 
person's counsel, during regular office hours established for the 
Department of Justice. Examination of such documentary material, 
answers to interrogatories, or transcripts of oral testimony at other 
times may be authorized by the Assistant Attorney General or the 
custodian.


Sec. 49.4  Deputy custodians.

    Deputy custodians may perform such of the duties assigned to the 
custodian as may be authorized or required by the Assistant Attorney 
General.

    Dated: August 18, 1995.
Janet Reno,
Attorney General.
[FR Doc. 95-20984 Filed 8-24-95; 8:45 am]
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