Federal Register / Vol. 62, No. 183 / Monday, September 22, 1997 / Notices 49535

1 119 Cong. Rec. 24598 (1973). See United States

v. Gillette Co., 406 F. Supp. 713, 715 (D. Mass.

1975). A ‘‘public interest’’ determination can be

made properly on the basis of the Competitive

Impact Statement and Response to Comments filed

pursuant to the APPA. Although the APPA

authorizes the use of additional procedures, 15

U.S.C. § 16(f), those procedures are discretionary. A

court need not invoke any of them unless it believes

that the comments have raised significant issues

and that further proceedings would aid the court in

resolving those issues. See H.R. Rep. 93–1463, 93rd

Cong. 2d Sess. 8–9, reprinted in (1974) U.S. Code

Cong. & Ad. News 6535, 6538.

2United States v. Bechtel, 648 F.2d at 666

(citations omitted) (emphasis added); see United

States v. BNS, Inc., 858 F2d at 463; United States

v. National Broadcasting Co., 449 F. Supp. 1127,

1143 (C.D. Cal. 1978); United States v. Gillette Co.,

406 F. Supp. at 716; see also Microsoft, 56 F.3d at

1461 (whether ‘‘the remedies [obtained in the

decree are] so inconsonant with the allegations

charged as to fall outside of the ‘reaches of the

public interest.’ ’’) (citations omitted).

3United States v. American Tel. and Tel. Co.; 552

F. Supp. 131, 150 (D.D.C. 1982), aff’d sub nom,

Maryalnd v. United States, 460 U.S. 1001 (1983),

quotating United States v. Gillette Co., supra, 406

F. Supp. at 716; United States v. Alcan Aluminum,

Ltd., 605 F. Supp. 619, 622 (W.D. Key. 1985).

secured and the specific allegations set

forth in the government’s complaint,

whether the decree is sufficiently clear,

whether enforcement mechanisms are

sufficient, and whether the decree may

positively harm third parties. See

United States v. Microsoft, 56 F.3d 1448,

1461–62 (D.C. Cir. 1995).

In conducting this inquiry, ‘‘[t]he

court is nowhere compelled to go to trial

or to engage in extended proceedings

which might have the effect of vitiating

the benefits of prompt and less costly

settlement through the consent decree

process.1 Rather,

absent a showing of corrupt failure of the

government to discharge its duty, the Court,

in making its public interest finding, should

* * * carefully consider the explanations of

the government in the competitive impact

statement and its responses to comments in

order to determine whether those

explanations are reasonable under the

circumstances.

United States v. Mid-America

Dairymen, Inc., 1977–1 Trade Cas.

¶ 61,508, at 71,980 (W.D. Mo. 1977).

Accordingly, with respect to the

adequacy of the relief secured by the

decree, a court may not ‘‘engage in an

unrestricted evaluation of what relief

would best serve the public.’’ United

States v. BNS, Inc., 858 F.2d 456, 462

(9th Cir. 1988), quoting United States v

Bechtel Corp., 648 F.2d 660, 666 (9th

Cir.), cert. denied, 454 U.S. 1083 (1981);

see also Microsoft, 56 F.3d at 1460–62.

Precedent requires that

the balancing of competing social and

political interests affected by a proposed

antitrust consent decree must be left, in the

first instance, to the discretion of the

Attorney General. The court’s role in

protecting the public interest is one of

insuring that the government has not

breached its duty to the public in consenting

to the decree. The court is required to

determine not whether a particular decree is

the one that will best serve society, but

whether the settlement is within the reaches

of the public interest.’’ More elaborate

requirements might undermine the

effectiveness of antitrust enforcement by

consent decree.2

The proposed Final Judgment,

therefore, should not be reviewed under

a standard of whether it is certain to

eliminate every anticompetitive effect of

a particular practice or whether it

mandates certainty of free competition

in the future. Court approval of a final

judgment requires a standard more

flexible and less strict than the standard

required for a finding of liability. ‘‘[A]

proposed decree mut be approved even

if it falls short of the remedy the court

would impose on its own, as long as it

falls within the range of acceptability or

is ‘within the reaches of public interest.’

(citations omitted).’’ 3

VII

Determinative Documents

There are no determinative materials

or documents within the meaning of the

APPA that were considered by the

United States in formulating the

proposed Final Judgment.

Dated: September 5, 1997.

Respectfully submitted.

Joan S. Huggler,

DC Bar #927244.

Michael P. Harmonis,

PA Bar #17994.

Robert D. Young,

DC Bar #248260.

Attorneys, Antitrust Division, U.S.

Department of Justice, Transportation,

Energy and Agriculture Section, Suite

500, 325 Seventh Street, N.W.,

Washington, D.C. 20530, (202) 307–6456.

Certificate of Service

I hereby certify that I have caused a

copy of the foregoing Competitive

Impact Statement to be served on

counsel for defendants in this matter in

the manner set forth below:

By first class mail, postage prepaid:

W. Todd Miller, Esquire, Baker & Miller

PLLC, Suite 615, 700 Eleventh Street,

N.W., Washington, D.C. 20530

(Counsel for Mid-America Dairymen,

Inc.)

Jerry L. Beane, Esquire, Strasburger &

Price LLP, Suite 4300, 901 Main

Street, Dallas, Texas 75202

(Counsel for Southern Foods Group LP

and Milk Products LLC)

Dated: September 5, 1997.

Joan S. Huggler,

DC Bar #9272244.

Antitrust Division, U.S. Department of

Justice, 325 Seventh Street, N.W., Suite

500, Washington, D.C. 20530, (202) 307–

6456, (202) 616–2441.

[FR Doc. 97–25077 Filed 9–19–97; 8:45 am]

BILLING CODE 4410–01–M

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

Meeting

AGENCY: National Aeronautics and

Space Administration.

ACTION: Notice of meeting.

SUMMARY: NASA will conduct an open

forum meeting to solicit questions,

views and opinions of interested

persons or firms concerning NASA’s

procurement policies and practices. The

purpose of the meeting is to have an

open discussion between NASA’s

Associate Administrator for

Procurement, industry, and the public.

DATES: November 12, 1997, from 2:00

p.m. to 4:00 p.m.

ADDRESSES: The meeting will be held at

the Florida Solar Energy Center

Auditorium located at 1679 Clearlake

Road, Cocoa, Florida.

FOR FURTHER INFORMATION CONTACT:

Joy Colston, NASA Kennedy Space

Center, Code OP, Kenndey Space

Center, FL 32899, (407) 867-7212.

SUPPLEMENTARY INFORMATION:

Format

There will be a presentation by the

Associate Administrator for

Procurement, followed by a question

and answer period. Procurement issues

will be discussed including NASA

policies used in the award and

administration of contracts.

Admittance

Doors will open at 1:30 p.m.

Admittance will be on a first-come, firstserved basis. Auditorium capacity is

limited to approximately 120 persons;

therefore, a maximum of two

representatives per firm is requested. No

reservations will be accepted. Questions

for the open forum should be presented

at the meeting and should not be

submitted in advance. Position papers

are not being solicited.

Initiatives

In addition to the general discussion

mentioned above, NASA invites

comments or questions relative to its
49536 Federal Register / Vol. 62, No. 183 / Monday, September 22, 1997 / Notices

ongoing Procurement Initiatives, some

of which include the following:

Consolidated Contracting Initiative

The CCI initiative emphasizes

developing, using, and sharing contract

resources to meet Agency objectives.

Single Process Intiative/Block Changes

The purpose of the Single Process

Initiative/Block changes is to eliminate

duplicative, highly-tailored or customerunique requirements from contacts and

adopt instead, a single process proposed

by the contractor.

Contractor Performance Assessment

Program

The Contractor Performance

Assessment Program assesses the overall

performance of NASA’s top contractors

across all of their major NASA

contracts.

Performance Based Contracting

This initiative is focused on

structuring an acquisition around the

purpose of the work to be performed

instead of how the work is to be

performed or broad and imprecise

statements of work.

Electronic Contracting

NASA’s EC initiative is moving

procurement transactions from

traditional paper-based systems to

electronic processing whenever

possible. These transactions include

solicitation and award documents as

well as payment for our goods and

services.

Tom Luedtke,

Deputy Associate Administrator for

Procurement.

[FR Doc. 97–25100 Filed 9–19–97; 8:45 am]

BILLING CODE 7510–01–M

NATIONAL FOUNDATION ON THE

ARTS AND HUMANITIES

SES Performance Review Board

AGENCY: National Endowment for the

Arts.

ACTION: Notice.

SUMMARY: Notice is hereby given of the

names of members of the Performance

Review Board for the National

Endowment for the Arts. This notice

supersedes all previous notices of the

PRB membership of the Agency.

DATES: September 22, 1997.

FOR FURTHER INFORMATION CONTACT:

Maxine C. Jefferson, Director of Human

Resources, National Endowment for the

Arts, 1100 Pennsylvania Avenue, N.W.,

Room 627, Washington, DC 20506, (202)

682–5405.

SUPPLEMENTARY INFORMATION: Sec.

4314(c)(1) through (5) of Title 5, USC,

requires each agency to establish, in

accordance with regulations prescribed

by the Office of Personnel Management,

one or more SES Performance Review

Boards. The Board shall review and

evaluate the initial appraisal of a senior

executive’s performance by the

supervisor, along with any response by

the senior executive, and make

recommendations to the appointing

authority relative to the performance of

the senior executive.

The following persons have been

selected to serve on the Performance

Review Board of the National

Endowment for the Arts:

Ana M. Steele, Deputy Chairman for

Management and Budget

Laurence M. Baden, Director of

Administration

Scott Shanklin Peterson, Deputy

Chairman for Grants and Partnership

Alfred B. Spellman, Jr., Director of

Office of Guidelines and Panel

Operations

Maxine C. Jefferson,

Director of Human Resources, National

Endowment for the Arts.

[FR Doc. 97–25062 Filed 9–19–97; 8:45 am]

BILLING CODE 7536–01–M

NUCLEAR REGULATORY

COMMISSION

[IA 97–070]

In the Matter of Magdy Elamir, Newark,

New Jersey; Order Superseding Order

Prohibiting Involvement in NRCLicensed Activities (Effective

Immediately)

I

Magdy Elamir, M.D. (Dr. Elamir), is

the Owner/President of Newark Medical

Associates, P.A. (licensee). The licensee

holds Byproduct Nuclear Material

License No. 29–30282–01 (license)

issued by the Nuclear Regulatory

Commission (NRC or Commission)

pursuant to 10 CFR Part 30. The license

authorizes possession and use of any

radiopharmaceutical identified in 10

CFR 35.200 for any imaging and

localization procedure approved in 10

CFR 35.200. The license was originally

issued on September 25, 1996, and is

due to expire on September 30, 2001.

II

During a new license inspection

conducted on January 29, 1997, at the

licensee’s facility, several apparent

violations of NRC requirements were

identified. Subsequent to the inspection,

the NRC initiated an investigation

which led the NRC to issue to Dr.

Elamir, on July 31, 1997, an Order

Prohibiting Involvement in NRC

Licensed Activities (Effective

Immediately) Pending Further Order (62

FR 43360). That Order was issued

pending completion of the NRC staff

review of the results of the

investigation, which was conducted by

the NRC’s Office of Investigations (OI).

The NRC staff’s review of the results of

the OI investigation is now complete.

III

The OI investigation focused, in part,

on Dr. Elamir’s actions in causing the

licensee to be in violation of NRC

requirements. The NRC learned during

the investigation that Dr. Elamir

transmitted an inaccurate license

application (NRC Form 313, dated

February 21, 1996) to the NRC. The

license application named Newark

Medical Associates as the prospective

licensee. The license application was

inaccurate in that it named Gerard W.

Moskowitz, M.D. (Dr. Moskowitz), as

the only authorized user and Radiation

Safety Officer (RSO) without Dr.

Moskowitz’s consent or knowledge, and

without Dr. Moskowitz’s ever having

been affiliated or associated with the

licensee. Dr. Moskowitz did not ever

perform the role of authorized user or

RSO at the licensee’s facility, and did

not become aware that he was listed on

the application and the license until

notified by the NRC on February 6,

1997, more than four months after the

license was originally issued. These

inaccurate statements in the license

application submitted by Dr. Elamir,

formed, in part, the basis for the

issuance of the license to Newark

Medical Associates on September 25,

1996.

On October 17, 1996, Dr Elamir

notified the NRC by letter that Newark

Medical Associates was initiating

activities authorized by the license; and

during the period from November 1996

through February 6, 1997, Dr. Elamir, in

his capacity as president and owner of

Newark Medical Associates, caused and

permitted the licensee to conduct NRClicensed activities even though he knew

that the licensee did not employ the

authorized user or the RSO named in

the license application and,

subsequently, on the NRC license, and

that the named individual did not serve

in these capacities. Based on the results

of the OI investigation, the NRC has

determined that Dr. Elamir’s actions

constitute violations of the

Commission’s requirements as follows:

A. 10 CFR 30.10(a)(2) requires, in

part, that any licensee or employee of a

licensee may not deliberately submit to