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Request for Public Comment

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Antitrust Modernization Commission.


Request for public comment.


The Antitrust Modernization Commission requests comments from the public regarding specific questions relating to the issues selected for Commission study.


Comments are due by September 30, 2005.


By electronic mail: By mail: Antitrust Modernization Commission, Attn: Public Comments, 1120 G Street, NW., Suite 810, Washington, DC 20005.

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Andrew J. Heimert, Executive Director & General Counsel, Antitrust Modernization Commission. Telephone: (202) 233-0701; e-mail: Internet:

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The Antitrust Modernization Commission was established to “examine whether the need exists to modernize the antitrust laws and to identify and study related issues.” Antitrust Modernization Commission Act of 2002, Pub. L. 107-273, § 11053, 116 Stat. 1856. In conducting its review of the antitrust laws, the Commission is required to “solicit the views of all parties concerned with the operation of the antitrust laws.” Id. By this request for comments, the Commission seeks to provide a full opportunity for interested members of the public to provide input regarding certain issues selected for Commission study. From time to time, the Commission may issue additional requests for comment on issues selected for study.

Comments should be submitted in written form. Comments should identify the topic to which it relates. Comments need not address every question within the topic. Comments exceeding 1500 words should include a brief (less than 250 word) summary. Commenters may submit additional background materials (such as articles, data, or other information) relating to the topic by separate attachment.

Comments should identify the person or organization submitting the comments. If comments are submitted by an organization, the submission should identify a contact person within the organization. Comments should include the following contact information for the submitter: an address, telephone number, and e-mail address (if available). Comments submitted to the Commission will be made available to the public in accordance with federal laws.

Comments may be submitted either in hard copy or electronic form. Electronic submissions may be sent by electronic mail to Comments submitted in hard copy should be delivered to the address specified above, and should enclose, if possible, a CD-ROM or a 31/2-inch computer diskette containing an electronic copy of the comment. The Commission prefers to receive electronic documents (whether by e-mail or on CD-ROM/diskette) in portable document format (.pdf), but also will accept comments in Microsoft Word format.

The AMC has issued this request for comments pursuant to its authorizing statute and the Federal Advisory Committee Act. Antitrust Modernization Commission Act of 2002, Pub. L. 107-273, § 11053, 116 Stat. 1758, 1856; Federal Advisory Committee Act, 5 U.S.C. App., § 10(a)(3).

Topic for Comment

The Commission requests comment on the following topic.

Criminal Remedies

1. In setting corporate fines for criminal Sherman Act violations, should there be a means for differentiation based on differences in the severity or culpability of the behavior?

A. Do the Sentencing Guidelines provide an adequate method of distinguishing between violations with differing degrees of culpability? For example, should the Sentencing Guidelines provide distinctions between different types of antitrust crimes (e.g., price fixing versus monopolization)?

B. The Sentencing Guidelines use 20% of the volume of commerce affected as the starting point for computation of corporate antitrust fines. See United States Sentencing Commission, Guidelines Manual § 2R1.1 (2004). Does the volume of commerce provide an adequate measure for setting fines? If not, what other measure(s) or methods would provide a more appropriate way for the Guidelines to establish fine levels?

2. The Sherman Act provides for a maximum fine of $100 million (or, previously, $10 million). The government may seek criminal fines in excess of that maximum pursuant to 18 U.S.C. 3571(d).

A. Should “twice the gross gain or twice the gross loss” as provided in Section 3571(d) be calculated based on the gain or loss from all coconspirator sales or on only the defendant's sales?

B. Should fines above the statutory maximum, and thus limited by Section 3571(d), be based on 20% of gross sales as provided for in the Sentencing Guidelines, as they are for fines below the statutory maximum, or should they be calculated differently? If differently, how should they be calculated?

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Dated: August 4, 2005.

By direction of the Antitrust Modernization Commission.

Andrew J. Heimert,

Executive Director & General Counsel, Antitrust Modernization Commission.

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[FR Doc. 05-15806 Filed 8-9-05; 8:45 am]