[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]
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