Freedom of Information Act; Miscellaneous Rules

SUMMARY: The Federal Trade Commission proposes to amend its Rules of

Practice to address expedited processing and aggregation of requests

under the Freedom of Information Act, as amended by the Electronic

Freedom of Information Act Amendments of 1996. The Commission also

proposes to alter its fee schedule to reflect changes in the costs of

providing services, and to add other fees for new services.

DATES: Comments must be submitted on or before September 25, 1998.

ADDRESSES: Comments should be addressed to the Secretary, Federal Trade

Commission, 6th Street & Pennsylvania Avenue, NW, Washington, DC 20580.

Comments will be entered on the public record of the Commission and

will be available for public inspection in Room 130 at the above

address during the hours of 9 a.m. until 5 p.m.

FOR FURTHER INFORMATION CONTACT: Alex Tang, Attorney, (202) 326-2447,

Office of General Counsel, FTC.

SUPPLEMENTARY INFORMATION: On October 2, 1996, the President signed the

Electronic Freedom of Information Act Amendments of 1996 (E-FOIA), Pub.

L. 104-231, 110 Stat. 3048, amending the Freedom of Information Act

(FOIA), 5 U.S.C. 552. Certain sections of the E-FOIA require or permit

the Commission to make various changes in its procedures for FOIA

requests and appeals, as well as in the descriptions of its public and

non-public records. The Commission has also determined that it is

necessary to revise its fee schedule to reflect the fact that the costs

of providing services related to the dissemination of information and

records under the FOIA have changed since 1992, when the Commission

last assessed those costs.

As required by the FOIA, the Commission is seeking public comment

on the proposed regulations set forth in this notice. In a separate

notice published elsewhere in today's edition of the Federal Register,

the Commission has published final regulations to implement other

portions of the E-FOIA and to make other related administrative rule

changes that do not require public comment. For example, those Rule

amendments reflect the recent organizational transfer of initial FOIA

and Privacy Act request functions and staff to the Commission's Office

of General Counsel, as discussed further in that notice.

Aggregation of Requests

Section (a)(6)(B)(iv) of the FOIA, as amended, permits the

Commission to promulgate regulations that provide for the aggregation

of clearly related requests by the same requester, or by a group of

requesters acting in concert, if the agency reasonably believes that

the requests actually constitute a single request that would otherwise

satisfy the circumstances for an extension of the statutory time

limits. 5 U.S.C. 552(a)(6)(B)(iv). To implement this provision, the

Commission proposes to amend Rule 4.11 by redesignating existing

paragraph (a)(1)(iii)(D) as (E) and inserting a new paragraph (D).

Expedited Processing

Section (a)(6)(E) of the FOIA, as amended, requires the Commission

to promulgate regulations providing for expedited processing of

requests for records where the person requesting the records

demonstrates a compelling need or in other cases where the Commission

determines to expedite processing. See 5 U.S.C. 552(a)(6)(E)(i). The

statute defines ``compelling need'' to include situations where a

failure to obtain requested records on an expedited basis ``could

reasonably be expected to pose an imminent threat to the life or

physical safety of an individual,'' or where, with respect to a request

made by a person primarily engaged in ``disseminating information,''

there is an ``urgency to inform the public concerning actual or alleged

Federal Government activity.'' See 5 U.S.C. 552(a)(6)(E)(v)(I) and

(II).

While the kinds of records generally maintained by the Commission

make it unlikely that requests for expedited processing will meet the

first prong of the ``compelling need'' standard, the Commission does

receive some requests from parties who may qualify for expedited

treatment in certain cases under the standard's second prong. Under

that prong, a request must involve a matter of ``current exigency'' to

the public such that a reasonable person might conclude that a delayed

response ``would compromise a significant recognized interest,'' other

than the public's general ``right to know,'' which is common to all

FOIA requests and will not suffice to meet the standard. H.R. Rep. No.

795, 104th Cong. 25-26 (1996) (standard for granting expedited

treatment is to be construed narrowly).

The Commission proposes to amend paragraph (a)(1)(i)(E) of Rule

4.11 to implement the statutory standard. As required by the FOIA, the

requester shall be responsible for certifying that the standard has

been met. Conforming changes are also being proposed in paragraphs

(a)(1)(i)(B), (a)(1)(iii)(A), (a)(2)(i)(A), (B), and (a)(2)(ii)(A) of

Rule 4.11. (Rule 4.11(a)(1)(iii)(A), as amended, incorporates the

expanded 20-day time limit for responding to initial FOIA requests,

which is discussed more fully in the Commission's separate document,

published elsewhere in today's Federal Register, of final rule changes

not requiring public comment.)

Fees

Rule 4.8(b)(6), 16 CFR 4.8(b)(6), contains the Commission's uniform

schedule of fees that applies to records held by all constituent units

of the Commission and to all requests made for materials on the public

record and those made under the FOIA and Privacy Act. Periodically, the

Commission reviews that rule to update those fees to reflect current

costs to the Commission. The Commission last revised the fee schedule

in 1992. In most instances, costs have increased since that time, but

in a few instances, costs to the Commission have decreased since 1992.

The Commission has also determined that the separate category for

duplication of ``computer paper'' is no longer necessary, and that the

fees specified for paper copies in general will apply to such

duplication. Accordingly, the Commission proposes to amend Rule

4.8(b)(6) to make the following adjustments in its fee schedule.

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Current Proposed Unit

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Duplication:

Paper Copy (up to 8\1/2\'' x 14'') $0.14 $0.14 Per page.

(Reproduced by Commission staff).

(Reproduced by Requester)................. 0.05 0.05 Per page.

Microfilm Services:

Film Copy--Paper to 16mm film............. 0.02 0.04 Per frame.

[[Page 45651]]

Fiche Copy--Paper to 105mm fiche.......... 0.02 0.08 Per frame.

Film Copy--Duplication of existing 100 ft. 3.35 9.50 Per roll.

roll of 16mm film.

Fiche Copy--Duplication of existing 105mm 0.04 0.26 Per fiche.

fiche.

Paper Copy--Converting existing 16mm film 0.23 0.26 Per page.

to paper (by Commission Staff).

Paper Copy--Converting existing 105mm 0.23 0.23 Per page.

fiche to paper (by Commission Staff).

Film Cassettes............................ 3.60 2.00 Per cassette.

Electronic services:

Converting paper into electronic format... N/A 2.50 Per page.

Computer programming...................... N/A 8.00 Per qtr. hour.

Other Fees:

Computer Tape............................. 18.50 18.50 Per tape.

Certification............................. 10.35 10.35 Each.

Express Mail.............................. *5.00 **3.50 Per request.

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* First pound and $.89 for each additional pound

** For the first pound and $3.67 for each additional pound (up to $15.00)

The Commission has determined to retain the existing method,

outlined in Rule 4.8(b)(6), for assessing search and review fees.

The Commission believes that the proposed Rule amendments do not

require an initial or final regulatory analysis under the Regulatory

Flexibility Act because the amendments will not have a significant

economic impact on a substantial number of small entities. See 5 U.S.C.

605(b). Most requests for access to FTC records are filed by

individuals, who are not ``small entities'' within the meaning of that

Act, 5 U.S.C. 601(6), and, in any event, the economic impact of the

rule changes on all requesters is expected to be minimal, if any.

Likewise, the proposed amendments do not appear to contain information

collection requirements within the meaning of the Paperwork Reduction

Act, 44 U.S.C. 3501-3520. The Commission nonetheless solicits comments

on any economic and regulatory impact of the proposed rule; paperwork

requirements, if any, that the amendments are believed to impose upon

private persons; and possible regulatory alternatives to reduce the

amendments' economic impact, if any, while fully implementing the

statutory mandate. The Commission will consider any such comments

before promulgating the amendments in final form.

List of Subjects in 16 CFR Part 4

Administrative practice and procedure, Freedom of Information Act.

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

Commission proposes to amend Title 16, Chapter I, 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. Section 4.8 is amended by revising paragraphs (b)(4) and (b)(6)

to read as follows:

Sec. 4.8 Costs for obtaining Commission records.

* * * * *

(b) * * *

(4) Waiver of small charges. Notwithstanding the provisions of

paragraphs (b)(1), (2), and (3) of this section, charges will be waived

if the total chargeable fees for a request do not exceed $14.00.

* * * * *

(6) Schedule of direct costs. The following uniform schedule of

fees applies to records held by all constituent units of the

Commission.

Paper Fees

Paper copy (up to 8.5'' x 14'').....

Reproduced by Commission............ $0.14 per page.

Reproduced by Requester............. 0.05 per page.

Microfiche Fees

Film Copy--Paper to 16mm film....... 0.04 per frame.

Fiche Copy--Paper to 105mm fiche.... 0.08 per frame.

Film Copy--Duplication of existing 9.50 per roll.

100 ft. roll of 16mm film.

Fiche Copy--Duplication of existing 0.26 per fiche.

105mm fiche.

Paper Copy--Converting existing 16mm 0.26 per page.

film to paper (Conversion by

Commission Staff).

Paper Copy--Converting existing 0.23 per page.

105mm fiche to paper (Conversion by

Commission Staff).

Film Cassettes...................... 2.00 per cassette.

Electronic Services

Converting paper into electronic 2.50 per page.

format (scanning).

Computer programming................ 8.00 per qtr. hour.

Other Fees

Computer Tape....................... 18.50 each.

Certification....................... 10.35 each.

Express Mail........................ 3.50 for first pound and 3.67 for

each additional pound (up to

15.00)

Search and Review Fees

Agency staff is divided into three categories: clerical, attorney/

economist, and other professional. Fees for search and review are

assessed on a quarter-hourly basis, and are determined by identifying

the category into which the staff member(s) conducting the search or

review belong(s), determining the average quarter-hourly wages of all

staff

[[Page 45652]]

members within that category, and adding 16 percent to reflect the cost

of additional benefits accorded to government employees. The exact fees

are calculated and announced periodically and are available from the

Consumer Response Center, Federal Trade Commission, Sixth Street and

Pennsylvania Avenue, NW., Washington, DC 20580; (202) 326-2222.

* * * * *

3. Section 4.11 is amended by redesignating paragraphs (a)(1)(i)(E)

and (a)(1)(iii)(D) as new paragraphs (a)(1)(i)(F) and (a)(1)(iii)(E),

respectively; by adding new paragraphs (a)(1)(i)(E) and (a)(1)(iii)(D);

and by revising paragraphs (a)(1)(i)(B), (a)(1)(iii)(A), (a)(2)(i)(A),

(a)(2)(i)(B), and (a)(2)(ii)(A) to read as follows:

Sec. 4.11 Disclosure requests.

(a) * * *

(1) * * *

(i) * * *

(B) Failure to mark the envelope and the request in accordance with

paragraph (a)(1)(i)(A) of this section, or the filing of a request for

expedited treatment under paragraph (a)(1)(i)(E) of this section, will

result in the request (or requests, if expedited treatment has been

requested) being treated as received on the date that the processing

unit in the Office of General Counsel actually receives the request(s).

* * * * *

(E) Expedited treatment. Requests may include an application for

expedited treatment. Where such an application is not included with an

initial request for access to records under paragraph (a)(1) of this

section, the application may be included in any appeal of that request

filed under paragraph (a)(2). Such application, which shall be

certified by the requester to be true and correct to the best of such

person's knowledge and belief, shall describe the compelling need for

expedited treatment, including an explanation as to why a failure to

obtain the requested records on an expedited basis could reasonably be

expected to pose an imminent threat to the life or physical safety of

an individual, or, with respect to a request made by a person primarily

engaged in disseminating information, an explanation of the urgency to

inform the public concerning actual or alleged Federal Government

activity. The Assistant General Counsel for Legal Counsel (Management &

Access) or his or her designee will, within 10 calendar days of receipt

of a request for expedited treatment, notify the requester, in writing,

of the decision to either grant or deny the request for expedited

treatment, and, if the request is denied, advise the requester that

this determination may be appealed to the General Counsel.

* * * * *

(iii) Time limit for initial determination. (A) The Assistant

General Counsel for Legal Counsel (Management & Access) or his or her

designee will, within 20 working days of the receipt of a request,

either grant or deny, in whole or in part, such request, unless the

request has been granted expedited treatment in accordance with this

section, in which case the request will be processed as soon as

practicable.

* * * * *

(D) If the Assistant General Counsel for Legal Counsel (Management

& Access) or his or her designee reasonably believes that requests made

by a requester, or a group of requesters acting in concert, actually

constitute a single request that would otherwise involve unusual

circumstances, as specified in paragraph (a)(1)(iii)(B) of this

section, and the requests involve clearly related matters, those

multiple requests may be aggregated.

* * * * *

(2) * * *

(i) * * *

(A)(1) If an initial request for expedited treatment is denied, the

requester, at any time before the initial determination of the

underlying request for records by the Assistant General Counsel for

Legal Counsel (Management & Access) or his or her designee (or, if the

request for expedited treatment was filed with any appeal filed under

paragraph (a)(2)(i)(A)(2) of this section, at any time before the

General Counsel's determination on such an appeal), may appeal the

denial of expedited treatment to the General Counsel.

(2) If an initial request for records is denied in its entirety,

the requester may, within 30 days of the date of the determination,

appeal such denial to the General Counsel. If an initial request is

denied in part, the time for appeal will not expire until 30 days after

the date of the letter notifying the requester that all records to

which access has been granted have been made available.

(3) The appeal shall be in writing and should include a copy of the

initial request and a copy of the response to that initial request, if

any. The appeal shall be addressed as follows:

Freedom of Information Act Appeal, Office of the General Counsel,

Federal Trade Commission, 6th Street and Pennsylvania Avenue, NW.,

Washington, DC 20580.

(B) Failure to mark the envelope and the appeal in accordance with

paragraph (a)(2)(i)(A) of this section will result in the appeal (and

any request for expedited treatment filed with that appeal) being

treated as received on the actual date of receipt by the Office of

General Counsel.

* * * * *

(ii) * * *

(A) Regarding appeals from initial denials of a request for

expedited treatment, the General Counsel will either grant or deny the

appeal expeditiously; regarding appeals from initial denials of a

request for records, the General Counsel will, within 20 working days

of the receipt of such an appeal, either grant or deny it, in whole or

in part, unless expedited treatment has been granted in accordance with

this section, in which case the appeal will be processed as soon as

practicable.

* * * * *

By direction of the Commission.

Donald S. Clark,

Secretary.

[FR Doc. 98-22632 Filed 8-25-98; 8:45 am]

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