In accordance with the provisions of § 803.30 of the Commission's premerger notification rules, 16 C.F.R. § 803.30, the Commission, with the concurrence of the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice, issues this formal interpretation.
Section 7A(h) of the Clayton Act, 15 U.S.C. § 18a(h), exempts documents or information submitted pursuant to the premerger notification program from Freedom of Information Act disclosure and forbids public disclosure "except as may be relevant to any administrative or judicial action or proceeding." Neither the statute nor the premerger notification rules, 16 C.F.R. § 801.1 et seq., require advance notice to the submitting person before premerger submissions are made public in a proceeding, but the Statement of Basis and Purpose to the Premerger Notification Rules states that submitting persons will be given "reasonable notice, when possible," before premerger submissions are placed on the public record in any proceeding to which the submitting person is not a party. 43 Fed. Reg. 33450, 33519 (July 31, 1978).
The Commission and the Assistant Attorney General have determined that a flexible 10 day notice requirement would not hinder the administration of the premerger notification program.
Accordingly, it is hereafter the policy of each agency to instruct its staff to give a submitting person 10 days' notice, whenever possible, before placing on the public record in any administrative or judicial action or proceeding any documents or information submitted pursuant to the Premerger Notification Program, regardless of whether the submitting person is a party to the action or proceeding. In cases where 10 days' notice is not feasible -- for example, where a temporary restraining order is being sought -- staff is instructed to give the submitting person as much advance notice as reasonably can be given, advise the court or administrative agency that the material was obtained under the premerger notification program, and request that the tribunal receive the material in camera for sufficient time to afford the submitting person an opportunity to seek a protective order, if appropriate.
By direction of the Commission.
Carol M. Thomas
March 28, 1980