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and Idaho Panhandle Zone is adjusting new regulations published in the (2) suitability of areas for various the forest plan revision process from Federal Register of January 5, 2005 (70 purposes; and (3) objectives to help compliance with the 1982 land and FR 1062). move toward the desired conditions. resource management planning Public Involvement: Scheduled This phase of collaboration is expected regulations to compliance with new meetings and details of other public to be completed by fall of 2005. regulations published in the Federal involvement opportunities will be Time Schedule: The remaining forest Register of January 5, 2005 (70 FR posted on the Western Montana plan revision schedule will be 1062). Planning zone Web site, at http:// approximately as follows: This adjustment will result in the www.fs.fed.us/rl/wmpz/. To get on the • Fall 2005: Release proposed forest following: mailing list contact Claudia Narcisco at plans and start 90-day public comment 1. The Responsible Official will now (406) 329–3795, or e-mail, period. be the Forest Supervisors. [email protected]. People currently on • Summer 2006: Release final forest 2. Each National Forest will establish the mailing list will remain. plans and start 30-day public objection an Environmental Management System FOR FURTHER INFORMATION CONTACT: Lee period. prior to a decision on the revised forest Kramer, Interdisciplinary Team Leader, • Fall 2006: Issue final decision and plans. Lolo National Forest, Fort Missoula, start plan implementation. 3. The emphasis on public Bldg., 24, Missoula, MT 59084, (406) The web site provides additional involvement will shift from comment on 392–3848 or e-mail, [email protected]; information regarding the decision to a range of alternative plans, to iterative or see the Web site at http:// transition to the new planning public-Forest Service collaboration, www.fs.fed.us/rl/wmpz/. regulations, discussion of plan revision intended to meld a single option into a Responsible Officials: David Bull, elements already completed before broadly supported plan. Supervisor, Bitterroot National Forest, making this transition, and other details. For additional information on public 1801 North 1st St., Hamilton, MT 59840. Dated: May 12, 2005. meeting, other public involvement and Catherine Barbouletos, Supervisor, collaborative opportunities, procedural David T. Bull, Flathead National Forest, 1935 Third Supervisor, Bitterroot National Forest. differences between the 1982 and 2004 Ave., Kalispell, Mt 59901. Deborah planning rules, timelines, reasoning Austin, Supervisor, Lolo National Dated: May 12, 2005. behind our decision to transition to the Forest, Building 24, Fort Missoula, Catherine Barbouletos, new planning regulations, information Missoula, MT 59804. Supervisor, Flathead National Forest. on plan revision elements we have already completed before making this SUPPLEMENTARY INFORMATION: A Notice Dated: May 12, 2005. transition, and other details, consult the of Intent to prepare an environmental Deborah L. R. Austin. Kootenai, Idaho Panhandle Web site: impact statement to revise Land and Supervisor, Lolo National Forest. www.fs.fed.us./kipz. Resource Management Plans was [FR Doc. 05–9980 Filed 5–18–05; 8:45 am] published in the Federal Register of BILLING CODE 3410–11–M Dated: May 12, 2005. January 20, 2004 (69 FR 2699). The Bob Castaneda, Western Montana Planning zone is Forest Supervisor, Kootenai National Forest. adjusting the forest plan revision ANTITRUST MODERNIZATION [FR Doc. 05–9979 Filed 5–18–05; 8:45 am] process from compliance with the 1982 COMMISSION BILLING CODE 3410–11–M planning regulations, to compliance with new regulations published in the Request for Public Comment Federal Register of January 5, 2005 (70 DEPARTMENT OF AGRICULTURE FR 1062). AGENCY: Antitrust Modernization This adjustment will result in the Commission. Forest Service following: ACTION: Request for public comment. 1. The Responsible Official(s) will be Bitterroot, Flathead and Lolo National each Forest Supervisor. SUMMARY: The Antitrust Modernization Forests Land and Resource 2. Each National Forest will establish Commission requests comments from Management Plan Revision an Environmental Management System the public regarding specific questions AGENCY: Forest Service, USDA. prior to completion of the revised forest relating to the issues selected for ACTION: Notice of Adjustment. plans. Commission study. 3. The emphasis on public DATES: Comments are due by June 17, SUMMARY: Bitterroot, Flathead and Lolo involvement will shift from public July 1, or July 15, 2005, as specified National Forests here referred to as the comment on a broad range of alternative below. Western Montana Planning Zone in plans, to iterative public-Forest Service ADDRESSES: Ravalli, Missoula, Mineral, Sanders, collaboration on a single option to arrive By electronic mail: Lake, Flathead, Lincoln, Lewis and at a broadly supported plan for each [email protected]. By mail: Antitrust Clark, Granite, and Powell Counties, Forest. Modernization Commission, Attn: Montana, and Idaho County, Idaho. A Public collaboration will begin in late Public Comments, 1120 G Street, NW., Notice of Intent to prepare an spring of 2005, with each Forest using Suite 810, Washington, DC 20005. environmental impact statement to some combination of the following FOR FURTHER INFORMATION CONTACT: revise Land and Resource Management methods: (1) Posting draft desired Andrew J. Heimert, Executive Director & Plans was published in the Federal conditions and supporting maps on the General Counsel, Antitrust Register of January 20, 2004 (69 FR Web site; (2) open houses; (3) invited Modernization Commission. Telephone: 2699). The Western Montana Planning presentations; (4) newsletters; and (5) (202) 233–0701; e-mail: [email protected]. Zone is adjusting the forest plan on-going collaborative dialogue in Internet: http://www.amc.gov. revision process from compliance with community-based working groups. The SUPPLEMENTARY INFORMATION: The the 1982 land and resource management initial focal points of the collaborative Antitrust Modernization Commission planning regulations to compliance with process will be: (1) Desired conditions; was established to ‘‘examine whether

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the need exists to modernize the Topics for Comment for substantive antitrust violations? If antitrust laws and to identify and study The Commission requests comment so, in what circumstances and what related issues.’’ Antitrust Modernization on the following nine topics. Comments types of cases should such fines be Commission Act of 2002, Public Law are requested to be submitted by the available? If DOJ and/or the FTC are 107–273, § 11053, 116 Stat. 1856. In date specified. given such authority, how, if at all, conducting its review of the antitrust should it affect the availability of laws, the Commission is required to Comments Requested by June 17, 2005 damages awarded to private plaintiffs? ‘‘solicit the views of all parties I. Remedies 2. Should Congress clarify, expand, or concerned with the operation of the limit the FTC’s authority to seek antitrust laws.’’ Id. By this request for A. Treble Damages monetary relief under 15 U.S.C. 53(b)? comments, the Commission seeks to 1. Are treble damage awards F. Private Injunctive Relief provide a full opportunity for interested appropriate in civil antitrust cases? members of the public to provide input Please support your response, 1. Has the ability of states and private regarding certain issues selected for addressing issues such as inducements plaintiffs to seek injunctive relief under Commission study. From time to time, to private enforcement, evidence 15 U.S.C. 26 benefited consumers or the Commission may issue additional indicating that treble damage awards caused harm to businesses or others? requests for comment on issues selected have led to either over-deterrence or Please provide any specific examples, for study. under-deterrence, the probability of evidence, or analyses supporting this Comments should be submitted in antitrust violations being detected, and assessment. What would be the written form. Comments may be how ‘‘optimal’’ deterrence levels can consequences if the availability of submitted on more than one topic area, best be determined. injunctive relief to states and private but comments on each topic should be 2. Should other procedural changes be plaintiffs under 15 U.S.C. 26 were submitted in a separate document. Each considered to address issues relating to changed? Should standing to pursue comment should identify the topic to treble damage awards, such as providing injunctive relief under federal antitrust which it relates. Comments need not courts with discretion in awarding law be different for states than it is for address every question within each treble (or higher) damages, limiting the private parties? 2. Are there currently sufficient topic. Comments exceeding 1500 words availability of treble damages to certain safeguards (e.g., judicial discretion and on a particular topic should include a types of offenses (e.g., per se unlawful the Cargill requirement that private brief (less than 250 word) summary. versus conduct subject to plaintiffs establish antitrust injury) to Commenters may submit additional rule of reason analysis), or imposing a background materials (such as articles, limit injunctions to appropriate heightened burden of proof? data, or other information) relating to circumstances? the topic by separate attachment. B. Prejudgment Interest G. Indirect Purchaser Litigation Comments should identify the person 1. Should successful antitrust 1. What are the costs and benefits of or organization submitting the plaintiffs be awarded pre-complaint antitrust actions by indirect purchasers, comments. If comments are submitted interest, cost of capital, or opportunity including their role and significance in by an organization, the submission cost damages? should identify a contact person within 2. Are the factors used to determine the U.S. antitrust enforcement system? the organization. Comments should when prejudgment interest is available Please be as specific as possible. 2. What burdens, if any, are imposed include the following contact set forth in 15 U.S.C. 15(a)(1)–(3) on courts and litigants by the difficulty information for the submitter: An appropriate? If not, how should they be of consolidating state court antitrust address, telephone number, and email changed? address (if available). Comments actions brought on behalf of indirect submitted to the Commission will be C. Attorneys’ Fees purchasers with actions brought on made available to the public in 1. Should courts award attorneys’ fees behalf of direct purchasers, and how accordance with Federal laws. to successful antitrust plaintiffs? have courts and litigants responded to Comments may be submitted either in 2. Are there circumstances in which them? What impact, if any, will the hard copy or electronic form. Electronic a prevailing defendant should be Class Action Fairness Act of 2005 have submissions may be sent by electronic awarded attorneys’ fees? in this regard? mail to [email protected]. Comments 3. In areas of law other than antitrust, 3. Does Illinois Brick’s refusal to submitted in hard copy should be how effective is fee shifting as a tool to provide indirect purchasers with a right delivered to the address specified above, promote private enforcement? of recovery under federal antitrust law and should enclose, if possible, a CD– serve or disserve federal antitrust ROM or a 3-1⁄2 inch computer diskette D. Joint and Several Liability, policies, such as promoting optimal containing an electronic copy of the Contribution, and Claim Reduction enforcement, providing redress to comment. The Commission prefers to 1. Should Congress and/or the courts victims of antitrust violations, receive electronic documents (whether change the current antitrust rules preventing multiple awards against a by email or on CD–ROM/diskette) in regarding joint and several liability, defendant, and avoiding undue portable document format (.pdf), but contribution, and claim reduction? complexity in damage calculations? also will accept comments in Microsoft 2. Is the evolution of rules regarding 4. What actions, if any, should Word format. joint and several liability, contribution, Congress take to address the The AMC has issued this request for and claim reduction in other areas of the inconsistencies between state and comments pursuant to its authorizing law instructive in the context of federal rules on antitrust actions by statute and the Federal Advisory antitrust law? indirect purchasers? For example, Committee Act. Antitrust Modernization should Congress establish Illinois Brick Commission Act of 2002, Public Law E. Remedies Available to the Federal as the uniform national rule by 107–273, § 11053, 116 Stat. 1758, 1856; Government preempting Illinois Brick repealer Federal Advisory Committee Act, 5 1. Should DOJ and/or the FTC have statutes, or should it overrule Illinois U.S.C. app., 10(a)(3). statutory authority to impose civil fines Brick? If Congress were to overrule

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Illinois Brick, should it also overrule from having two different federal challenge by multiple private and Hanover Shoe, so that recoveries by antitrust enforcement agencies government enforcers? To what extent direct purchasers can be reduced to reviewing mergers? For example, does it has the protocol for coordination of reflect recoveries by indirect purchasers result in bureaucratic duplication, simultaneous merger investigations (or vice versa)? Assuming both direct inconsistency in treatment, more established by the federal enforcement and indirect purchaser suits continue to thorough enforcement, beneficial antitrust agencies and state attorneys exist, what procedural mechanisms diversity in enforcement perspectives, general succeeded in addressing issues should Congress and the courts adopt to or between antitrust of burden, delay, and/or uncertainty facilitate consolidation of antitrust enforcement agencies? associated with multiple state and actions by indirect and direct 2. Should merger enforcement federal merger review? purchasers? authority be reallocated between the 3. What role should private parties FTC and DOJ? If so, how should it be play in merger enforcement, and what Comments Requested by July 1, 2005 reallocated? Please provide specific authority should they have to seek to II. Robinson-Patman Act reasons for proposed reallocations. enjoin a merger? Please support your 3. Commenters have advised that response with specific examples, 1. What are the benefits and costs of disagreements between the FTC and evidence, and analysis regarding the Robinson-Patman Act as currently DOJ concerning the clearance of mergers burden, benefits, delay, and/or enforced? Does the Robinson-Patman for review by one or the other agency uncertainty involved. Act promote or reduce competition and have unreasonably delayed regulatory 4. What lessons, if any, can be learned consumer welfare? If so, how? What review in some cases. Should the FTC– from Europe’s referral (or ‘‘one-stop other benefits does it afford or costs DOJ merger review clearance process be shop’’) system of allocating merger does it impose, if any? revised to make it more efficient? If so, enforcement between the EC and 2. What purposes should the how? Member States? How does the more Robinson-Patman Act serve? regulation-oriented European tradition 3. Should the Robinson-Patman Act B. Differential Merger Enforcement (as opposed to a more enforcement- be repealed or modified, or its Standards oriented U.S. tradition) affect any interpretation by the courts altered? 1. Does the standard the DOJ must comparison of the two systems? Please identify specific changes and meet to obtain a preliminary injunction explain why they should be adopted. to block a merger differ, as a practical D. Role of States in Enforcing Federal For example: matter, from that the FTC must meet? Antitrust Laws Outside the Merger Area a. Should private plaintiffs asserting Has any such difference affected the 1. What role should state attorneys Robinson-Patman claims be required to outcome of a decision, or might it general play in non-merger civil prove ‘‘antitrust injury,’’ i.e., proof of reasonably be expected to affect the enforcement? To what extent is state injury reflecting the anticompetitive outcome? parens patriae standing useful or effect of the challenged conduct? 2. To the extent there is a difference needed? Please support your response b. Should the inference of harm to in legal standards, should the different with specific examples, evidence, and competition under recognized in FTC v. standards be harmonized? If so, how? analysis? Morton Salt Co., 334 U.S. 37 (1948), be 3. Should there continue to be a 2. Should state and federal enforcers modified, e.g., by requiring plaintiffs to difference in the procedural aspects of divide responsibility for non-merger make a showing of harm to competition Federal agency challenges to mergers, civil antitrust enforcement based on similar to that required to establish a specifically that the FTC can commence whether the primary locus of alleged Sherman Act violation? an administrative proceeding in harm (or primary markets affected) is c. Does limiting the substantive addition to seeking a court order to intrastate, interstate, or global? If so, provisions of the Robinson-Patman Act block a transaction? If the procedural how should such an allocation be to the sale of commodities, not services, aspects of agency challenges to mergers implemented? make sense in today’s economy? should be harmonized, how should that d. What role should buyer market be done? IV. Exclusionary Conduct power play in applying the Robinson- 4. What practical burdens are 1. What are the circumstances in Patman Act? imposed on private parties by the FTC’s which a firm’s with (or 4. To what extent do state antitrust policy of pursuing permanent relief discrimination against) rivals in laws prohibit price discrimination that through an administrative proceeding adjacent markets violates Section 2 of is also prohibited by the Robinson- (in some instances) after failing to the Sherman Act? Does the Supreme Patman Act? Would repeal or reform of obtain a preliminary injunction? Court’s decision in Verizon the Robinson-Patman Act affect the Communications, Inc. v. Law Offices of C. Allocation of Merger Enforcement likelihood that states would adopt their Curtis V. Trinko, LLP, 540 U.S. 398 Among States, Private Plaintiffs, and own prohibitions on price (2004), state an appropriate legal Federal Agencies discrimination? How, if at all, would standard in this respect? repeal or reform of the Robinson-Patman 1. What role should state attorneys 2. Should the essential facilities Act affect the amount of litigation under general play in merger enforcement? doctrine constitute an independent such state laws? Please support your response with basis of liability for single-firm conduct specific examples, evidence, and under Section 2 of the Sherman Act? Comments Requested by July 15, 2005 analysis regarding burden, benefits, 3. What should be the standards for III. Enforcement Institutions delay, and/or uncertainty involved in determining when a firm’s product multiple State and Federal merger bundling or bundled pricing violates A. Dual Federal Merger Enforcement reviews. Section 2 of the Sherman Act? 1. Should merger enforcement 2. Should merger enforcement be 4. How should the standards for continue to be administered by two limited to the federal level, or should exclusionary or anticompetitive conduct different Federal agencies? What are the other steps be taken to ensure that a be determined (e.g., through legislation, advantages and disadvantages resulting single merger will not be subject to judicial development, amicus efforts by

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DOJ and FTC), particularly if you k. Air transportation exemption. 49 Task Force (state authorization of believe the current standards are not U.S.C. 41308–09. conduct at issue and deliberate adoption appropriate or clear? l. Baseball exemption. See, e.g., Fed. of a policy to displace competition in Baseball Club of Baltimore, Inc. v. Nat’l the manner at issue) to determine V. Immunities & Exemptions League of Prof’l Baseball Clubs, 259 U.S. whether the ‘‘clear articulation’’ prong A. General Immunities & Exemptions 200 (1922); Toolson v. New York is satisfied? See Federal Trade 1. In what circumstances, and with Yankees, Inc., 346 U.S. 356 (1953); Commission Staff, Report Of The State what limitations, should Congress Flood v. Kuhn, 407 U.S. 258 (1972); Curt Action Task Force 51 (Sept. 2003) (‘‘FTC provide antitrust immunities and Flood Act, Pub. L. 105–297, 2, 112 Stat. Report’’). exemptions? In your response, please 2824 (1998). c. Should there be other changes to m. Charitable Donation Antitrust address the following questions: interpretation and application of the a. What generally applicable Immunity Act. 15 U.S.C. 37–37a. ‘‘clear articulation’’ prong? n. Defense Production Act. 50 U.S.C. methodology, if any, should Congress 2. Should courts change or clarify app. 2158. use to assess the costs and benefits of application of the active supervision o. Filed rate/Keogh doctrine. See, e.g., prong? immunities and exemptions? Keogh v. Chicago & N. W. Ry. Co., 260 b. Should Congress analyze different a. Do courts currently interpret the U.S. 156 (1922). ‘‘active supervision’’ prong of the state types of immunities and exemptions p. Health Care Quality Improvement action doctrine so as to subject differently? Are those that do not Act. 42 U.S.C. 11101–52. immunized activity to meaningful state protect core anticompetitive conduct q. Labor exemptions (statutory and oversight? (e.g., price fixing) preferable to those non-statutory). See, e.g., 15 U.S.C. 17; 29 that exempt all joint activities? Are U.S.C. 52, 101–10, 113–15, 151–169; b. Should courts rely on the elements those that eliminate, for example, treble Connell Constr. Co. v. Plumbers & proposed by the FTC Staff’s State Action damages, but retain single damage Steamfitters Local Union No. 100, 421 Task Force (development of adequate liability acceptable? For example, does U.S. 616 (1975). factual record, written decision, and the National Cooperative Research and r. Local Government Antitrust Act. 15 specific assessment) to determine Production Act, 15 U.S.C. 4301–06, U.S.C. 34–36. whether the ‘‘active supervision’’ prong provide a helpful alternative approach s. Medical resident matching program is satisfied? Are these elements to blanket exemptions? exemption. 15 U.S.C. 37b. workable in practice? See FTC Report at c. Should Congress subject t. Motor transportation exemption. 49 55. immunities and exemptions to a U.S.C. 13703. c. Should courts make any other ‘‘sunset’’ provision, thereby requiring u. National Cooperative Research and changes when interpreting and applying congressional review and action at Production Act. 15 U.S.C. 4301–06. the ‘‘active supervision’’ prong? regular intervals as a condition of v. Natural Gas Policy Act. 15 U.S.C. 3. Should courts require different renewal? 3364(e). degrees of ‘‘clear articulation’’ by d. Should the proponents of an w. Need-Based Educational Aid Act. legislators and different levels of ‘‘active immunity or exemption bear the burden 15 U.S.C. 1 note. supervision’’ by executive or regulatory of proving that the benefits exceed the x. Newspaper Preservation Act. 15 entities depending upon the costs? U.S.C. 1801–04. circumstances (a ‘‘tiered approach’’)? 2. The Commission intends to y. Railroad transportation exemption. 4. Do courts in applying the state conduct a general evaluation of antitrust 49 U.S.C. 10706. action doctrine currently account for immunities and exemptions, and z. Small Business Act. 15 U.S.C. spillover effects (anticompetitive currently contemplates focusing, for 638(d), 640. conduct immunized by one state that illustrative purposes, on the first eight aa. Soft Drink Interbrand Competition has a deleterious effect on consumers in immunities and exemptions listed Act. 15 U.S.C. 3501–03. other states)? If not, should courts below (a.–h.). Please provide any bb. Sports Broadcasting Act. 15 U.S.C. address spillover effects under the state relevant information about any of the 1291–95. action doctrine? What standards should cc. Standard Setting Development immunities and exemptions below, govern that analysis? Organization Advancement Act. 15 including their costs, benefits, and 5. How should courts apply the state U.S.C. 4301–05, 4301 note. impact upon commerce. action doctrine to various governmental a. Capper-Volstead Act. 7 U.S.C. 291– dd. Television Program Improvement Act. 47 U.S.C. 303c. entities? 92 a. Should state agencies and b. Non-profit agricultural cooperatives ee. United States Postal Service exemption. See, e.g., United States departments be subject to the ‘‘active exemption. 15 U.S.C. 17. supervision’’ prong of the state action c. Agricultural Marketing Agreement Postal Serv. v. Flamingo Indus. Ltd., 540 doctrine? If so, who should actively Act. 7 U.S.C. 608b, 608c. U.S. 736 (2004). supervise these state entities? d. Fishermen’s Collective Marketing B. State Action Doctrine Act. 15 U.S.C. 521–22. b. When should courts treat ‘‘quasi- e. Webb-Pomerene Export Act. 15 1. Should courts change or clarify the governmental’’ entities as a private actor U.S.C. 61–66. application of the state action doctrine? (subject to the ‘‘active supervision’’ f. Export Trading Company Act. 15 a. Do courts currently interpret the prong) or as a municipality (potentially U.S.C. 4001–21. ‘‘clear articulation’’ prong of the state not subject to the ‘‘active supervision’’ g. McCarran-Ferguson Act. 15 U.S.C. action doctrine so as to immunize prong)? 1011–15. conduct only in circumstances in which c. Should courts apply the ‘‘active h. Shipping Act. 46 U.S.C. app. 1701 the state intended to displace supervision’’ prong to a municipality or et seq. competition? Do courts unduly rely on state entity when it acts as a ‘‘market i. Anti-Hog-Cholera Serum and Hog- ‘‘foreseeability’’ analysis in applying the participant’’? If so, how should that Cholera Virus Act. 7 U.S.C. 852. ‘‘clear articulation’’ prong? entity’s activities as a regulator be j. Airline flight schedule exemption. b. Should courts rely on the elements distinguished from its activities as a 49 U.S.C. 40129. proposed by the FTC Staff’s State Action ‘‘market participant’’?

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d. Should Congress repeal the Local merger analysis? Please identify specific VIII. New Economy Government Antitrust Act of 1984? examples, evidence, or analyses A. Antitrust Analysis of Industries in supporting your assessment. VI. International Which Innovation, Intellectual Property, 1. Should the FTAIA be amended to 2. What types of efficiencies should and Technological Change are Central clarify the circumstances in which the be recognized in antitrust merger Features Sherman Act and FTC Act apply to analysis and in what circumstances 1. Does antitrust doctrine focus on extraterritorial anticompetitive conduct? should they be considered or not static analysis, and does this affect its 2. Are there technical or procedural considered in determining the legality application to dynamic industries? steps the United States could take to of a merger? How should courts and 2. What features, if any, of dynamic, facilitate further coordination with agencies evaluate claims of efficiencies? innovation-driven industries pose foreign antitrust enforcement What should be the burdens of distinctive problems for antitrust authorities? production and proof for establishing analysis, and what impact, if any, a. Are there technical amendments to efficiencies? should those features have on the the International Antitrust Enforcement 3. What is the appropriate welfare application of antitrust analysis to these Assistance Act of 1994 (‘‘IAEAA’’) that standard to use in assessing industries? could enhance coordination between efficiencies—a consumer welfare 3. Are different standards or the United States and foreign antitrust standard, a total welfare standard, or benchmarks for market definition or enforcement authorities? some alternative standard? appropriate when b. Are there technical changes to the addressing dynamic, innovation-driven budget authority granted U.S. antitrust D. The Hart-Scott-Rodino Pre-Merger industries, for example, to reflect the agencies that could further facilitate the Review Process fact that firms in such industries may provision of international antitrust depend on the opportunity to set prices 1. Several commenters in the first technical assistance to foreign antitrust above marginal costs to earn returns? phase of the Commission’s work authorities? Or, are existing antitrust principles advised that the Commission should sufficiently flexible to accommodate the VII. Merger Enforcement study the burden involved in facts relevant to dynamic industries? A. Federal Antitrust Merger responding to HSR ‘‘Second Request’’ Enforcement Policy Generally merger investigations. The Commission B. Specific Issues at the Interface of invites companies and/or their counsel Intellectual Property, Innovation, and 1. Has current U.S. merger who have experienced Second Request Antitrust enforcement policy been effective in investigations to comment on the ensuring competitively operating 1. Should there be a presumption of burden involved, providing specific markets without unduly hampering the market power in cases when there ability of companies to operate information on costs by type (e.g., is a patent or copyright? What efficiently and compete in global attorneys’ fees, economist and other significance should be attached to the markets? Please identify specific expert fees, document and electronic existence of a patent or copyright in examples, evidence, or analyses information production costs, employee assessing market power in tying cases supporting your assessment. time, and costs associated with delay of and in other contexts? closing) and length of the investigation. 2. In what circumstances, if any, B. Transparency in Federal Agency 2. Should changes be made to the should the two-year time horizon used Merger Review HSR pre-merger notification system, in the Horizontal to 1. Several commenters in the first e.g., with respect to HSR reporting assess the timeliness of entry be phase of the Commission’s work thresholds or the information required adjusted? For example, should the time advised that the Commission should to be included in the initial filing? period be lengthened to include newly address whether there is sufficient developed products when the 3. Should any changes be made to the transparency in federal antitrust introduction of those products is likely HSR ‘‘Second Request’’ process enforcement policy. Do the Horizontal to erode market power? Should it matter currently used by the FTC and DOJ? Merger Guidelines provide informative if the newly developed products will Please address both the possibility of guidance to merging parties regarding not erode market power within two broad systemic change and of more the likely antitrust treatment of their years? Is there a length of time for which limited changes within the existing transactions, and do they appear the possession of market power should system, being as specific as possible and accurately to reflect actual current FTC not be viewed as raising antitrust and DOJ enforcement practices (for considering, for example (and without concerns? example, with respect to market limitation): (i) Whether the U.S. should 3. Should antitrust law be concerned definition and concentration threshold adopt processes similar to those used by with ‘‘innovation markets’’? If so, how presumptions of antitrust concern)? other jurisdictions, such as those should antitrust enforcers analyze Please support your response with employed by the European Union (e.g., innovation markets? How often are specific examples. the Form CO) or Canada (e.g., long and ‘‘innovation markets’’ analyzed in 2. Should the federal antitrust short-form reporting); (ii) the extent to antitrust enforcement? enforcement agencies provide more which various types of information C. Examination of the Reports on the guidance regarding their enforcement sought in a typical Second Request Patent System by the National policies, including, for example, when contribute to merger assessment; (iii) Academies Board on Science, they decide not to challenge a whether and how the burden associated Technology, and Economic Policy and transaction? with documents and data requests could be reduced without materially impeding the C. Efficiencies in Merger Analysis the federal agencies’ ability to execute The National Academies Board on 1. Do the U.S. courts and federal their enforcement responsibilities; (iv) Science, Technology, and Economic antitrust enforcement agencies how merging companies can expedite Policy and the Federal Trade adequately consider efficiencies in the HSR process. Commission have both recently

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conducted extensive studies of patent- 6. When a merger or acquisition DEPARTMENT OF COMMERCE related activity and the operation of the involves one or more firms in a patent system, and issued reports regulated industry, how should National Institute of Standards and including recommendations for reform. authority for merger review be allocated Technology See Stephen A. Merrill, Richard C. between the antitrust agencies (DOJ and [Docket No. 040602169–5002–02] Levin & Mark B. Myers, A Patent System FTC) and the relevant regulatory for the 21st Century (2004); Federal agency? Announcing Approval of the Trade Commission, To Promote a. Are there additional costs and delay Withdrawal of Federal Information Innovation: The Proper Balance of when two agencies (one antitrust, one Processing Standard (FIPS) 46–3, Data Competition and Patent Law and Policy regulatory) both analyze the antitrust Encryption Standard (DES); FIPS 74, (Oct. 2003). effects of the same merger? Are there Guidelines for Implementing and Using 1. Do the reports fully capture the role benefits to such dual review? the NBS Data Encryption Standard; of patents and developments in patent- b. Should regulatory agencies defer to and FIPS 81, DES Modes of Operation related activity (e.g., applications, antitrust analysis by the antitrust grants, licensing, and litigation) over the agencies, or should both the antitrust AGENCY: National Institute of Standards past 25 years? and regulatory agencies conduct and Technology (NIST), Commerce. 2. Are the concerns or problems separate antitrust analyses in ACTION: Notice. regarding the operation of the patent performing merger reviews? Should the SUMMARY: system identified in the two reports antitrust agencies have primary The Secretary of Commerce well-founded? responsibility or simply an advisory role has approved the withdrawal of FIPS 46–3, Data Encryption Standard (DES); 3. Which, if any, of the with respect to antitrust analysis in FIPS 74, Guidelines for Implementing recommendations for changes to the merger review? and Using the NBS Data Encryption patent system made in those two reports In your response, please refer Standard; and FIPS 81, DES Modes of should be adopted? specifically to the following contexts: Operation. These FIPS are withdrawn 4. Are there other issues regarding the i. Mergers or acquisitions involving because FIPS 46–3, DES, no longer operation of the patent system not financial institutions. See 12 U.S.C. provides the security that is needed to addressed in either report that should be 1467a, 1828, 1842. protect Federal government information. considered by the Antitrust ii. Mergers or acquisitions involving FIPS 74 and 81 are associated standards Modernization Commission? Please be certain media companies (e.g., radio or that provide for the implementation and specific in identifying any issue and the television broadcasters, satellite, and operation of the DES. Federal reasons for its importance. cable companies) and common carriers. See 47 U.S.C. 214, 310. government organizations are now IX. Regulated Industries iii. Mergers or acquisitions of rail encouraged to use FIPS 197, Advanced 1. What role, if any, should antitrust carriers subject to approval by the Encryption Standard (AES), which was enforcement play in regulated Surface Transportation Board. See 49 approved for Federal government use in industries, particularly industries in U.S.C. 11321, 11323–24. November 2001. FIPS 197 specifies a transition to deregulation? How should iv. Mergers or acquisitions involving faster and stronger algorithm than the authority be allocated between antitrust motor carriers of passengers. See 49 DES for encryption. For some enforcers and regulatory agencies to best U.S.C. 14303. applications, Federal government promote consumer welfare in regulated v. Pooling agreements among certain departments and agencies may use the industries? motor carriers. See 49 U.S.C. 14302. Triple Data Encryption Algorithm to provide cryptographic protection for 2. How, if at all, should antitrust vi. Certain agreements involving their information. This algorithm and its enforcement take into account domestic and foreign airlines. See 49 uses have been specified in NIST regulatory systems affecting important U.S.C. 41308–09. vii. Acquisitions of Special Publication 800–67, competitive aspects of an industry? assets of natural gas companies. See 15 Recommendations for the Triple Data How, if at all, should regulatory U.S.C. 717f. Encryption Algorithm (TDEA) Block agencies take into account the viii. Mergers or acquisitions of electric Cipher, issued in May 2004. FIPS 197 availability of antitrust remedies? power companies. See 16 U.S.C. 824b. ix. License applications subject to the and SP 800–67 are available on NIST’s 3. What is the appropriate standard approval of the U.S. Nuclear Regulatory Web pages. The content of these for determining the extent to which the Commission. See 42 U.S.C. 2135. withdrawn standards will remain antitrust laws apply to regulated x. Issuance of federal coal leases. See available at http://csrc.nist.gov/ industries where the regulatory 30 U.S.C. 184(l). publications/fips/index.html as structure contains no specific antitrust xi. Issuance or transfer of licenses for reference documents and these three exemption? For example, in what exploration of hard minerals in deep FIPS will be listed as withdrawn, rather circumstances should antitrust seabed sites. See 30 U.S.C. 1413(d). than current FIPS. immunity be implied as a result of a xii. Issuance of oil and gas leases on regulatory structure? DATES: These standards are withdrawn submerged lands of the Outer as of May 19, 2005. 4. How should courts treat antitrust Continental Shelf. See 43 U.S.C. FOR FURTHER INFORMATION CONTACT: Mr. claims where the relevant conduct is 1337(c). subject to regulation, but the regulatory William Barker (301) 975–8443, legislation contains a ‘‘savings clause’’ Dated: May 16, 2005. [email protected], National Institute of providing that the antitrust laws By direction of the Antitrust Standards and Technology, 100 Bureau continue to apply to the conduct? Modernization Commission. Drive, STOP 8930, Gaithersburg, MD 5. Should Congress and regulatory Andrew J. Heimert, 20899–8930. agencies set industry-specific standards Executive Director & General Counsel, SUPPLEMENTARY INFORMATION: In July for particular antitrust violations that Antitrust Modernization Commission. 2004, a notice was published in the may conflict with general standards for [FR Doc. 05–10025 Filed 5–18–05; 8:45 am] Federal Register proposing the the same violations? BILLING CODE 6820–YM–P withdrawal of FIPS 46–3, DES; FIPS 74,

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