Access to Records by Foreign Governments

FEDERAL TRADE COMMISSION

16 CFR Part 4

Access to Records by Foreign Governments

AGENCY: Federal Trade Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Federal Trade Commission is amending Rules 4.10(d) and (e)

of its Rules of Practice, which describe confidentiality protections

for materials that the agency obtains pursuant to process in a law

enforcement investigation, materials that the agency obtains

voluntarily in lieu of such process that are designated confidential by

their submitters, and other materials designated as confidential. These

amendments conform the agency's rules to its disclosure authority under

the International Antitrust Enforcement Assistance Act.

DATES: The amendments are effective July 17, 1998.

FOR FURTHER INFORMATION CONTACT: Marc Winerman, Office of the General

Counsel, (202) 326-2451.

SUPPLEMENTARY INFORMATION: The Commission is amending Rule 4.10(d) of

its Rules of Practice, 16 C.F.R. 4.10(d), which applies to materials

submitted pursuant to compulsory process in a law enforcement

investigation and to materials designated confidential and submitted

voluntarily in lieu of such process. That rule provides that covered

materials shall not be made available, except as provided therein, to

anyone other than Commission officers, employees, contractors or

consultants.

[[Page 38473]]

The Commission is also amending Rule 4.10(e) of its Rules, 16 C.F.R.

4.10(e), which provides that other materials that are designated

confidential by their submitters may not be disclosed, except as

provided therein, unless the Commission: (1) determines that they are

neither trade secrets nor confidential commercial information; and (2)

provides ten days' pre-disclosure notice to the submitter. These

provisions implement and expand upon protections in sections 6(f) and

21 of the FTC Act, 15 U.S.C. 46(f), 57b-2. The amendments adopted

herein conform the Commission's rules to its authority and obligations

under agreements entered pursuant to the International Antitrust

Enforcement Assistance Act (``IAEAA''), 15 U.S.C 6201 et. seq.

The IAEAA authorizes the Commission and the Department of Justice

(``the agencies'') to enter into mutual assistance agreements with

foreign antitrust authorities for the purpose of providing reciprocal

assistance in antitrust investigations. In accordance with the IAEAA's

terms, 15 U.S.C. 6206, the agencies have published for comment the

first proposed IAEAA agreement.1

---------------------------------------------------------------------------

\1\ ``Request for Comments on Proposed Agreement Between the

Government of the United States of America and the Government of

Australia on Mutual Antitrust Enforcement Assistance,'' 62 FR 20022

(Apr. 24, 1997) (comment period closed June 9, 1997).

---------------------------------------------------------------------------

Pursuant to requests under IAEAA agreements, the agencies may

collect information on behalf of foreign antitrust authorities. 15

U.S.C. 6202. The agencies may also share information with those

authorities, including both information collected at their behest and

certain information already in the agencies' files. As reflected in

these amendments, the IAEAA expressly authorizes disclosures of

materials notwithstanding sections 6(f) and 21 of the FTC Act. 15

U.S.C. 6205.

The amendments adopted herein will reconcile the Commission's rules

with the agency's obligations to provide assistance under IAEAA

agreements. Because failure to make these amendments could impair the

Commission's ability to meet its obligations, the amendments are exempt

from notice and comment under the Administrative Procedure Act by

virtue of the foreign affairs exemption to the Act. 5 U.S.C. 553(a)(1).

They are also exempt from the notice and comment requirements of the

APA and the Commission's rules by virtue of the good cause exemptions

in 5 U.S.C. 553(b)(3) and 16 CFR 1.26(b), respectively. Except for non-

substantive stylistic changes, the amendments merely implement

agreements that are themselves subject to public comment, and comment

on the amendments is therefore unnecessary.2

---------------------------------------------------------------------------

\2\ See International Brotherhood of Teamsters v. Pena, 17 F.3d

1478, 1486 (D.C. Cir. 1994) (APA foreign affairs exemption and good

cause exception of agency rule); WBEN v. United States, 396 F.2d

601, 616 (2d Cir. 1968) (APA foreign affairs exemption).

---------------------------------------------------------------------------

This action does not entail a collection of information for

purposes of the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.

It is not subject to the requirements of the Regulatory Flexibility Act

because it concerns a foreign affairs function of the United States.

See 5 U.S.C. 601(2), Section 1(a)(2) of E.O. 12291, 46 FR 13193 (1981).

List of Subjects in 16 CFR Part 4

Administrative practice and procedure, Freedom of Information Act,

Privacy Act, Sunshine Act.

For the reasons set forth in the preamble, the Federal Trade

Commission amends Title 16, Chapter 1, Subchapter A of the Code of

Federal Regulations, as follows:

PART 4--MISCELLANEOUS RULES

1. The authority citation for Part 4 continues to read as follows:

Authority: Sec. 6, 38 Stat. 721; 15 U.S.C. 46.

2. Amend Sec. 4.10 by revising paragraphs (d) and (e) to read as

follows:

Sec. 4.10 Nonpublic material.

* * * * *

(d) Except as provided in paragraphs (f) or (g) of this section, in

Sec. 4.11(b), (c), or (d), or as contemplated by agreements under the

International Antitrust Enforcement Assistance Act (15 U.S.C. 6201 et

seq.), no material that is marked or otherwise identified as

confidential and that is within the scope of Sec. 4.10(a)(8), and no

material within the scope of Sec. 4.10(a)(9) that is not otherwise

public, will be made available, without the consent of the person who

produced the material, to any individual other than a duly authorized

officer or employee of the Commission or a consultant or contractor

retained by the Commission who has agreed in writing not to disclose

the information. All other Commission records may be made available to

a requester under the procedures set forth in Sec. 4.11 or may be

disclosed by the Commission except where prohibited by law.

(e) Except as provided in paragraphs (f) or (g) of this section, in

Sec. 4.11(b), (c), or (d), or as contemplated by agreements under the

International Antitrust Enforcement Assistance Act (15 U.S.C. 6201 et

seq.), material not within the scope of Sec. 4.10(a)(8) or

Sec. 4.10(a)(9) that is received by the Commission and is marked or

otherwise identified as confidential may be disclosed only if it is

determined that the material is not within the scope of

Sec. 4.10(a)(2), and the submitter is provided at least ten days'

notice of the intent to disclose the material.

* * * * *

By direction of the Commission.

Donald S. Clark,

Secretary.

[FR Doc. 98-19213 Filed 7-16-98; 8:45 am]

BILLING CODE 6750-01-P