during World War II and specific activities of the National Petroleum Council? Mr. BARNES. If you will define report. Report to whom, where? Mr. HARKINS. I would think they would be reports probably to the head of the Antitrust Division. Mr. BARNES. Yes; I have had reports made to me about some of the difficulties encountered by the Antitrust Division in certain action that was taken by the National Petroleum Council. When I say that and I take it your question refers to National Petroleum Council and its predecessors, not specifically this one Mr. HARKINS. Yes. Mr. BARNES. That is correct. Mr. HARKINS. Will copies of those reports be made available to this committee? Mr. BARNES. Again I doubt it. But again, if you want it, write us, and we will check it and see if we can give it to you. That will come under the head of interagency communications, and I doubt very much if we would be privileged to give it to you. Mr. WALDEN. The letter of November 19, 1953, do you still have it? Mr. WALDEN. Could we please put that in the record? STEPHEN F. DUNN, Esq., General Counsel, Department of Commerce, Washington, D. C. JUNE 12, 1953. Dear Mr. DUNN: We believe that your staff has made an effort to apply the criteria established in this Department's October 19, 1950, letter with respect to the organization and operation of advisory committees, but under your plan proposed in your letter of June 3, 1953, it is apparent that the greater part of the activities of the council and its subcommittee will not be in accordance with such criteria. I suggest that a conference be set up between representatives of this Department and representatives of the Department of Commerce in which it should be attempted: (1) To devise procedures for the Iron and Steel Advisory Council which will comply with the minimum criteria we have established; (2) To make the council membership more representative of the industry, along the lines set forth in section 701 (b) (ii) of the Defense Production Act of 1950, as amended; and (3) To persuade the Department of Commerce to promulgate a general regulation which will cover the organization and operation of all permanent advisory groups, possibly by adopting in toto the present NPA General Program Order No. 6, dated January 2, 1952. Inasmuch as I must be out of town for several days, and I know time is of the essence, I have requested Mr. Hodges, of the Antitrust Division, to arrange a date for him, and Mr. Jacobs and Mr. Harkins of this office, to meet with such delegates as you may designate, at such time as may be mutually agreeable. Sincerely yours, STANLEY N. BARNES, Assistant Attorney General. NOVEMBER 19, 1953. Hon. SINCLAIR WEEKS, Secretary of Commerce, Washington 25, D. C. MY DEAR MR. SECRETARY: This refers to your letter of August 6, 1953, and to our recent discussions concerning your plans for the organization and operation of advisory councils to the Department of Commerce. I understand that these councils are to be organized in order to provide you with information regarding business viewpoints and operations, which you require to assist you to discharge effectively your statutory responsibilities for the operations of the Department of Commerce and to advise the President on policies of the executive branch. In addition, I understand that information which would be obtained from the councils is needed for use in appearances before the Congress when it is considering legislation involving national economic policies that affect business and business operations. This Department does not have control over, nor supervision of, the organization and operation of advisory committees utilized by the various departments and agencies of the Government. Our principal interest in such advisory groups relates to our responsibilities under the antitrust laws. As a general matter, this Department is of the view that the decision as to the necessity for the formation of committees to advise a Government department, and the responsibility for their formation and operation, rests with the specific department. In organizing such committees, however, there are certain recommendations which this Department makes to minimize the possibility of violation of the antitrust laws. These are: (1) There should be statutory authority for the employment of such committees or an administrative finding that it is necessary to utilize such committees to perform certain statutory duties. (2) The agenda for such committees and their meetings should be initiated and formulated by the Government. (3) The meetings to be held should be at the call of and under the chairmanship of full-time Government officials. (4) Full and complete minutes of each meeting should be kept. (5) The functions of such committees should be purely advisory and any determinations of action to be taken should be made solely by Government representatives. The information which you have submitted with respect to the organization and operation of the industry advisory councils which you propose to utilize indicates that these councils will furnish advice and make recommendations to the Department of Commerce under procedures which depart from points 2, 3, and 4 set forth above. The alternative procedures which you have proposed do not in our opinion afford equally effective safeguards against possible violation of the antitrust laws. This is not to say that participation in the advisory councils under the procedures you have outlined automatically involves the participants in activities which violate the provisions of the antitrust laws. It may be possible for the participants to furnish you the information you desire without engaging in conduct which would violate the antitrust laws. We have given further consideration, since our discussions, to your request that we comment upon the aspect of your plans whereby trade-association representatives would serve on the advisory groups. In this instance, and in view of your representations in this regard, this Department raises no objection to trade-association representatives serving on the advisory groups, in the event you should proceed with your proposed program. As you stated in your letter, the activities of the participants of the proposed councils would have no immunity from the provisions of the antitrust laws. The Department of Justice retains complete freedom to institute proceedings, either civil or criminal, or both, in the event that any particular plan or course of action involved in council activity is used to accomplish unlawful private ends. Sincerely yours, HERBERT BROWNELL, Jr., Attorney General. (In addition, the Department of Justice has sent the following letters concerning the activities of specific advisory groups :) STEPHEN F. DUNN, Esq., General Counsel, Department of Commerce, Washington 25, D. C. APRIL 24, 1953. DEAR MR. DUNN: This will acknowledge your letter of March 4, 1953, in which you requested the approval of the Department of Justice with respect to the organization and continued operation of the logistics working group, established by the Defense Air Transportation Administration to implement the plan of the Department of Defense for the formation of a Civil Reserve Air Fleet. This Department does not have control over, nor supervision of, the organization and operation of advisory committees utilized by the various departments and agencies of the Government. Our principal interest in such advisory groups relates to our responsibilities under the antitrust laws. As a general matter, this Department is of the view that the decision as to the necessity for the formation of committees to advise a Government department, and the responsibility for their formation, rests with the specific department. In organizing such committees, however, there are certain requirements which this Department feels should be observed in order to minimize the possi bility of violation of the antitrust laws. These requirements have been set forth in letters to the Department of Commerce dated October 19, 1950, and March 15, September 13, and October 8, 1951. In this correspondence with the Department of Commerce, this Department also recommended that regulations which would conform to our requirements be formulated to cover the organization and operation of advisory groups. When requested, this Department assists in the formation of such regulations, and, if the proposed regulations conform with our requirements, gives its approval thereto. In the Department of Commerce, approval has been given to the regulations of the National Production Authority under this procedure. Our review of the material transmitted with your letter as well as the material and information previously submitted by representatives of DATA, the Air Force and Materiel Air Transport Service, indicates that the committees and subcommittees of the logistics working group have been organized and will operate for the purpose of furnishing advice and making recommendations to DATA. In order to insure to the greatest extent possible that participants in these committees and subcommittees do not undertake unauthorized activities which could subject them to liability under the antitrust laws, including possible treble-damage actions, and to define clearly the extent to which the Government has requested joint action by competitors, we believe it is essential that these committees and subcommittees comply fully with the requirements we have established. We do not believe that the proposal to utilize our requirements with respect to the activities of the top committee only provides adequate safeguards to either the participants or to the United States with respect to the activities of the Atlantic and Pacific Committees or to the activities of the technical advisory groups. Accordingly, you are advised that the Department of Justice endorses the recommendation which representatives of the Antitrust Division informally conveyed to the Department of Commerce on February 11, 1955, with respect to this matter. These recommendations are: 1. All meetings of the committees and subcommittees of the logistics working group should be at the call of and under the chairmanship of Government officials; 2. The agenda for the meetings of all committees and subcommittees should be formulated by the Government; 3. Full and complete minutes of each committee and subcommittee meeting should be kept; 4. The functions of all committees and subcommittees of the logistics working group must be purely advisory, and any determinations of action to be taken must be made solely by Government representatives. If it is deemed necessary, in order to secure cooperation and leadership in technical matters from industry, this Department has no objection to the appointment of industry representatives as assistants to the Government chairman. With respect to the matter of trade association representation on the technical advisory groups, this Department has no objection to such representation provided it is limited to specialists in the technical field covered by the particular advisory group. It should be recognized, however, that this relaxation of our general requirements is made because of the exceptional nature of the trade association activities in this field and is limited to the technical advisory groups formed in the logistics working group. Sincerely yours, WILLIAM P. ROGERS, Deputy Attorney General. FEBRUARY 25, 1955. CHARLES W. BUCY, ESQ., Associate Solicitor, Department of Agriculture, Washington 25, D. C. DEAR MR. BUCY: This has reference to your letter of October 25, 1954, addressed to the Attorney General, concerning the relation of the antitrust laws to discussions of prices at meetings of agricultural administrative committees, as illustrated by minutes of raisin program committee meetings enclosed with your letter. You indicate that, if we are in agreement that such discussions of prices do not violate the antitrust laws, you would like our permission to so inform committee members, some of whom have been reluctant to participate in discussions relating to prices because of their belief that such discussions might be considered violative of the antitrust laws. We understand that the advisory committees to which you refer are those authorized by marketing orders issued by the Secretary of Agriculture pursuant to provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U. S. C. 601 et seq.), and that such committees generally consist of representatives of producers, processors, packers, and handlers of the commodities involved. A review of the minutes of the raisin program committees indicates that certain of the discussions engaged in at various of their meetings raise serious questions under the antitrust laws. For this reason, we are unable to consent to your informing committee members that such price discussions do not violate the antitrust laws. While we do not mean to imply that any one of the specific illustrations which we list below is necessarily a violation of the antitrust laws, or that those listed are the only instances of possible violations found in minutes of the meetings, it appears to us that each of the listed discussions creates antitrust implications about which members of the committees might be justifiably concerned. Illustrations of discussions which we believe raise antitrust questions are the following: (1) Statements by a Mr. Grady at the raisin advisory committee meeting of September 23, 1949, as reported at page 74 of the transcript of that meeting, concerning the interest of commercial packers in increasing their prices for raisins; (2) Statements on pages 97-98 of the transcript of the September 23, 1949 meeting suggesting that packers had agreed or should agree to a specific field price; (3) Statement on page 6 of the transcript of the meeting of the Federal raisin advisory board held on October 23, 1951, to the effect that raisin growers had agreed on a minimum price for field sales; (4) Indications from statements on page 17 of the transcript of the October 23, 1951 meeting that packers had arranged with growers to prevent other packers from purchasing raisins; (5) References to packer pricing policies on page 18 of the transcript of the October 23, 1951 meeting; (6) Reference to packer pricing policies and urging maintenance of higher prices on page 47 of the transcript of the September 8, 1952 meeting; and (7) The indication on page 36 of the transcript of the August 26, 1953 meeting that growers may have combined to prevent purchases by short sellers to cover short sales. Since it is the function of advisory committees to determine quantity limits which will be recommended to the Secretary of Agriculture, it would seem that discussions at advisory committee meetings should resolve themselves fairly easily into factual discussions which strictly avoid references to the pricing policies or practices of individuals or firms engaged in the production or handling of the related commodity or agreement as to future action by the participants. In accordance with your request, we are returning the enclosures received with your letter. Sincerely yours, Enclosure No. 16362. STANLEY N. BARNES, Assistant Attorney General. Mr. WALDEN. That establishes certain criteria for the conduct of these advisory groups. 67271-55-pt. 1—39 Mr. BARNES. It represents the Department of Justice opinion as to what those criteria should be. Mr. WALDEN. Is one of those criteria recommended by the Department that full and complete minutes of each meeting must be kept? Mr. BARNES. It is. Mr. WALDEN. Now, I call your attention to a statement by Charles R. Hersum who is director of the industrial advisory committee staff of BDSA before the Titanium Producers Industry Advisory Committee meeting on November 18, 1954. Mr. Hersum said there, and I quote from the minutes: He also directed attention to the fact that a record of the meeting is kept, reflecting the highlights of the discussion, in which only Government speakers are identified. My question is, Do you feel that your requirement of full and complete minutes is met when the minutes contain only a summary of the highlights of the discussion? Mr. BARNES. That would be difficult to answer without the factual weighing of what was considered to be highlights and we should define that. Very obviously full and complete minutes mean just that, that means an honest factual account of what takes place. It should not be restricted to Government men if there are other men there who will take part in the discussion. Mr. WALDEN. Do you feel that a full verbatim transcript would meet your requirements? Mr. BARNES. Certainly, it would be the most expensive but best answer. Mr. WALDEN. Now, do you feel that the requirement is met with respect to full and complete minutes when, as Mr. Hersum indicated, only Government speakers are identified at these meetings? Mr. BARNES. That is a question you are asking a Government man. Some people may say that at a meeting of this kind the only people that talk are the Government men. If that were the case, I would say that was accurate. If it were not the case, I would say it was not fair and accurate and full report. Mr. WALDEN. These are industry advisory committee meetings and I assume that in that situation Mr. BARNES. Somebody will have to give advice. Mr. WALDEN. Yes. In that situation, when only the Government speakers are identified, would you feel that the requirement of full and complete minutes is met? Mr. BARNES. I would not. Mr. WALDEN. Now I show you the minutes of the integral horsepower motor and generator task group. This is the horsepower motor and generator task group for BDSA. Could you please look at those minutes, Judge and read the last paragraph. Maybe you can answer this question. What was the duration of this meeting? The last paragraph will give you the answer. Mr. BARNES. It speaks for itself. I don't want to interpret the document. Mr. WALDEN. Would you look at the last paragraph? Mr. BARNES (reading): * * * 9:30 a. m. Wednesday, February 9 to 6:30 p. m., and from 9:30 a. m. to 12:30 a. m. |