[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

[[Page 63478]]

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