these matters the following suggestions are offered for the approval of the Commission. The staffs of each agency should be instructed that notice to the other agency of a proposed investigation is not merely a formal requirement, but is intended to permit a full exchange of information with respect to the subject matter of the notice. If the recipient has further questions as to any proposed investigation, the initiating agency shall give as much information as is available to it upon request. When an investigation is proposed, the initiating agency shall make a fair attempt to specify its purpose and scope, and shall fully advise the other agency of the proposed purpose and scope, including the probable charges involved. If it subsequently appears that the scope of the investigation is significantly broadened or changed, the investigating agency shall notify the other agency promptly. The undertaking of a broad scale study of an economic field by either agency shall not preclude the other either from utilizing information thus gathered or from initiating a specific investigation or prosecution within the same general economic field. As to the general character of the effort of each agency, it is recognized that by virtue of their respective statutory mandates there is an inescapable area of overlapping. Violation of the Sherman Act may constitute violation of Section 5 of the FTC Act, and unfair competitive activity may constitute restraint of trade or monopolization. Nevertheless, it must be recognized that Congress has given the FTC exclusive responsibility for enforcing the FTC Act and has given the Department of Justice exclusive responsibility for enforcement of the Sherman Act. Accordingly, matters involving per se violations of the Sherman Act, or primarily concerned with Sherman Act violations, shall be referred by FTC to Antitrust. Antitrust shall, upon such reference, assume responsibility for such matters. Matters involving primarily violations of Section 5 of the FTC Act, matters with a primary thrust of unfair competitive practices, or unfair or deceptive practices affecting consumers, and matters involving discriminatory pricing or other practices within the scope of the RobinsonPatman Act (except Section 3 thereof) shall be recognized as being the primary responsibility of FTC and shall be referred by Antitrust to the FTC. Upon such reference FTC shall assume responsibility for handling such matters. Matters involving violation of Section 3 of RobinsonPatman, because of the criminal nature thereof, shall be recognized as the responsibility of Antitrust and shall be referred to it. References to the other agency shall be made as soon as the nature of the matter is ascertained. It is recognized by both agencies that investigations cannot always be clearly categorized. Nevertheless, the staffs of the respective agencies shall be instructed to observe these lines of responsibility and to cooperate with each other in seeking to avoid duplicitous effort in order to permit each agency to function within the area of its greatest effectiveness. The staffs of the respective agencies shall be instructed to exchange information and evidence between the agencies freely and promptly and each shall fully inform the other of the scope, substance and disposition of proposed or pending investigations and cases whenever any question between the agencies arises. It shall be understood that each agency retains full responsibility and authority for the discharge of its statutory duties, and that the understanding between the agencies is for the purpose of cooperation and efficiency in the enforcement of the laws. Any issue with respect to the matters referred to herein which cannot be otherwise determined shall be referred to the Chairman of the Commission and the Assistant Attorney General in charge of the Antitrust Division, who shall confer and seek a resolution of the issue. I will appreciate it if you will consider the foregoing and let me know whether it meets with the approval of the Commission. If there are any questions about this, or if you have any suggestions as to a further improvement or refinement in either the principles or the statement suggested, I would be very happy to have these from you. Sincerely yours, Hon. LEE LOEVINGER, LEE LOEVINGER, Assistant Attorney General, Antitrust Division. FEDERAL TRADE COMMISSION, Washington, D.C., April 11, 1963. Assistant Attorney General, Antitrust Division, DEAR JUDGE LOEVINGER: In your letter of March 8, 1963, you have accurately reflected the liaison arrangements which have existed between the Antitrust Division of the Department of Justice and the Federal Trade Commission since 1948. We at the Commission wish to join with you in working toward a refinement of our relationship in order that there may be a more efficient utilization of the resources of both agencies. We believe that in the main our arrangement has served the public well in view of our respective statutory mandates. It is agreed that the staffs of each agency should be instructed that notice to the other agency of a proposed investigation is not merely a formal requirement but is intended to permit a full exchange of information with respect to the subject matter of the notice. If the recipient has further questions regarding the scope or nature of any proposed investigation, it is agreed that the initiating agency upon request shall submit all available information in answer to such questions. It is further agreed that when notice of a proposed investigation is given, the initiating agency shall fully advise the other agency of the purpose and scope of the proposed investigation, including the probable charges involved. If it subsequently appears that the scope of the investigation is significantly broadened or changed, the investigating agency shall notify the other agency promptly. Subject to applicable law and public policy, it is further agreed that the undertaking of a broad-scale study of an economic field by either agency shall not preclude the other either from utilizing information gathered by the investigating agency or from initiating a specific investigation or prosecution within the same general economic field. We recognize here that by virtue of the respective statutory mandates to both agencies there is an inescapable area of concurrent jur isdiction. Violation of the Sherman Act may constitute violation of Section 5 of the Federal Trade Commission Act, but the converse is not necessarily true. There are many unfair methods of competition and unfair practices that do not assume the proportions of a Sherman Act violation. In this connection. Congress gave to the Federal Trade Commission exclusive responsibility for enforcing the Federal Trade Commission Act and to the Department of Justice exclusive responsibility for enforcement of the Sherman Act. In those rare instances where we would not have jurisdiction under Section 5 of a Sherman Act violation because of the necessity of establishing that the activities were carried on "in commerce," the matters would be referred to the Department of Justice. In your letter of March 8, 1963, you suggest that the Federal Trade Commission refer to the Antitrust Division all matters involving per se violations of the Sherman Act, matters primarily concerned with Sherman Act violations, and matters within the scope of Section 3 of the Robinson-Patman Act. In line with this suggestion, but by way of a modification thereof, we propose the following: When a matter is before the Commission and the Commission determines prior to the issuance of a complaint that the facts appear to warrant consideration of possible criminal action against the parties involved, the Commission by written notice will inform the Antitrust Division of the investigation and will make available to the Division the files of the investigation for determination by the Division as to whether it desires to present the matter to a grand jury. Such determination shall be made by the Antitrust Division within a period of thirty days, within which time the Division will inform the Commission of its position. If the Division desires to present the matter to a grand jury, it will request the Federal Trade Commission to transfer the matter to it for such purpose. If, on the other hand, the Antitrust Division within this period of time informs the Commission that it does not intend to present the matter for grand jury consideration, then the Commission will proceed under its regular procedures. We believe that we can and will conduct our investigations in such a way as to avoid the danger of deterring the effectiveness of the Department of Justice, by improvidently granting immunization to witnesses where the Department desires to proceed against them for criminal sanctions. With respect to all of the laws under which the Commission and the Department have concurrent jurisdiction, it is our feeling that except where criminal prosecution is preferable, no changes should be made in the liaison procedures now in effect as described in the first paragraph of your letter. Except in rare instances, neither the Antitrust Division nor the Commission can predict with certainty the totality of facts which may develop during the course of an investigation. Because of this difficulty, I think the greatest public service that we can perform for our respective agencies is to respect each other and act together to use the best procedure available in individual instances in order to guarantee that the public interest is fully served. We at the Commission laud you for your resolve to use more effectively the criminal sections of the law. In this respect, we want to cooperate fully with the Department. We believe that we can best do this through use of the suggested procedures we have outlined. We accept your suggestion that any matters referred to herein which cannot be otherwise determined shall be resolved by the Assistant Attorney General in charge of the Antitrust Division and the Chairman of the Commission, who shall obtain the approval of the Commission. With kind personal regards, I am PAUL RAND DIXON, Chairman. APRIL 18, 1963. Hon. PAUL RAND DIXON, Chairman, Federal Trade Commissioon, DEAR MR. DIXON: Thank you for your letter of April 11, 1963, stating the response of the Commission to my letter of March 8, 1963. I appreciate the consideration the Commission has given to the problems discussed and the agreement stated in your letter of April 11 with statements and suggestions contained in my March 8 letter. I shall distribute copies of these letters to the Antitrust Division staff and advise the staff that these letters represent the present arrangement and understanding between the agencies. Recognizing the inescapable area of concurrent jurisdiction referred to in your letter, I would still hope that it might be possible to delineate more specific areas of primary responsibility for these agencies. In any event, the Department of Justice will work with the Federal Trade Commission toward effective enforcement of the laws constituting the respective responsibilities of these agencies and will expect to have further discussions of these matters in the future. With best personal regards, I am Sincerely yours, LEE LOEVINGER, Assistant Attorney General, Antitrust Division. Hon. LEE LOEVINGER, Assistant Attorney General, Antitrust Division, Department of Justice, Washington, D.C. DEAR LEE: In response to your letter of April 18, this is to advise you that I shall distribute a copy of your letter of March 8, 1963 to the Commission, as well as the Commission's letter of April 11, 1963 in response hereto, to the staff of the Bureau of Restraint of Trade with the instruction to the staff that these letters represent the present arrangement and understanding between the agencies. We here at the Commission assure you that we shall continue to work with the Department of Justice toward more effective enforcement of the laws constituting the respective responsibilities of both agencies. With kindest personal regards, I am Sincerely, PAUL RAND DIXON, Chairman. CHAPTER EIGHT ENERGY REGULATION Until 1977, in no other area of our Federal Government had responsibility for development and implementation of policy been so hampered by organizational structure than in the area of energy regulation. More than 40 Federal agencies, bureaus and commissions have had some role in energy regulation, and there are 20 additional organizations involved in energy policy. The result has been that duplication, overlapping jurisdiction, fragmentation of responsibilities, and conflicting mandates have severely affected the government's ability to formulate, implement and enforce a coherent and consistent national energy policy. Energy regulation is the heart of this nation's energy policy and the fragmentation has contributed substantially to-but is not the sole cause of-the nation's inability to cope with its increasing energy problems. On August 4, 1977, President Carter signed into law an Act to create a Department of Energy. The new department brings together the major Federal energy regulatory and nonregulatory functions. The impetus for this new department was the fragmentation of responsibility in energy programs and the lack of centralization for the management of these programs. This had inhibited the development of a coherent national energy program. The newly created Department of Energy will centralize responsibilities to meet the energy needs of this country. The chapter will focus on what led to the development of the Department of Energy (DOE). While it is still too early to determine the ultimate success of the new Department in meeting the problems caused by a fragmented organizational structure, we believe that a discussion of what led the Congress to its creation and will be useful in the overall framework of regulatory organization. A. DEVELOPMENT OF FEDERAL ENERGY POLICY Federal involvement in the nation's energy system has been an evolutionary development. Federal policy which affects the energy industries has influenced and has, in turn, been influenced by their growth. Most Federal policy with energy significance was not formulated primarily as "energy policy." It was the result of Federal responsibilities and activities which were primarily concerned with other objectives of government. 1 The following_individuals have assisted in the preparation of this chapter: Francis Gulick, and Paul Rothberg. The Department of Energy Organization Act, P.L. 95-91. |