Freedom of Information Act, Miscellaneous Rules

FEDERAL TRADE COMMISSION

16 CFR Part 4

Freedom of Information Act, Miscellaneous Rules

AGENCY: Federal Trade Commission (FTC).

ACTION: Final rule.

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SUMMARY: This document amends the Commission's Rules of Practice to

incorporate procedures for the expedited processing and aggregation of

requests received by the Commission under the Freedom of Information

Act and to revise the Commission's

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schedule of fees charged to members of the public for access to agency

records.

EFFECTIVE DATE: January 20, 1999.

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

Office of General Counsel, FTC, 600 Pennsylvania Ave., NW., Washington,

DC 20580.

SUPPLEMENTARY INFORMATION: On August 26, 1998, the Commission published

a proposal to amend its Rules of Practice to incorporate certain

procedures for the expedited processing and aggregation of requests

under the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended

by the Electronic FOIA Amendments of 1996 (E-FOIA), and to revise the

schedule of fees charged to the public by the Commission in providing

access to its records. See 64 FR 45650 (Aug. 26, 1998). The Commission

received no responses to its request for comments on these amendments.

Accordingly, for the reasons set forth in the statement of basis

and purpose accompanying the proposed amendments, the Commission has

determined to adopt the amendments as final without change, except for

technical corrections needed to bring the FTC's mailing address, as set

forth in Rules 4.8(b)(6) (search and review fees) and 4.11(a)(2)(i)(A)

(address for FOIA appeals), into conformity with U.S. Postal Service

standards. The same corrections are being made in the corresponding

provisions for initial FOIA requests under Rule 4.11(a)(1)(i)(A) and

Privacy Act requests and appeals under Rules 4.13(c) and (i)(1), which

were previously amended by the Commission when it implemented other E-

FOIA provisions and made other technical corrections in its Rules. See

63 FR 45644 (Aug. 26, 1998) (final rule).

In addition, the Commission is adding a new paragraph (h) to

Commission Rule 4.11, 16 CFR 4.11(h), to permit a Commission member,

official or staff to disclose items or categories of information not

currently on the Commission's public record upon a determination by the

General Counsel (or his or her designee) that the disclosure of such

Commission information would facilitate the conduct of official agency

business and would not be otherwise prohibited by law, order, or

regulation. In determining whether disclosure would facilitate the

conduct of official agency business, the General Counsel (or his or her

designee) will consider the interest in disclosure and any

countervailing agency interests or policies (e.g., whether disclosure

would interfere with any ongoing law enforcement investigations). The

General Counsel will designate the Deputy General Counsel or an

Assistant General Counsel (or a senior manager in an equivalent level)

to make these determinations, if delegated. This procedure avoids the

need for the full Commission to authorize disclosures by its own

members, officials or staff, and will thereby help minimize the

administrative burden and delay associated with the authorization

process. The General Counsel retains the discretion, which may be

exercised by an Acting General Counsel, but is not otherwise intended

to be delegated, to refer unusual or difficult cases to the Commission

for determination.

Like information released in response to an FOIA request,

information disclosed under Rule 4.11(h) will not automatically be

placed on the agency's ``public record'' for routine public inspection

and copying under Rule 4.9(b) (i.e., ``reading room'' materials).

Nothing in new Rule 4.11(h), however, is intended to prevent the

information from being included in other documents that are routinely

placed on the public record (e.g., press releases). Likewise, new Rule

4.11(h) is not intended to prevent the Commission from later placing

the particular category of information on the public record by amending

the list of public records in Rule 4.9(b) to that effect, or from

voting to place a particular item (rather than the entire category) of

information on the public record on an individual, case-by-case basis.

See Commission Rule 4.9(b)(10)(xiii); 63 FR at 45646 (discussing the

addition of Rule 4.9(b)(10)(xiii) as a catch-all category for

individual documents not specifically listed in Rule 4.9(b) that the

Commission may from time to time place on the public record).

New Rule 4.11(h) is intended as a rule of purely internal agency

applicability and is not intended to confer on the public any

additional or separate right of access to nonpublic agency records.

Requests by members of the public for access to such records remain

subject to the FOIA procedures set forth in Rule 4.11(a).

The Commission hereby certifies that no final regulatory

flexibility analysis is required 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).

In any event, the economic impact of the rule changes on requesters is

expected to be minimal, if any. None of the amendments contains any

information collection requirements within the meaning of the Paperwork

Reduction Act, 44 U.S.C. 3501-3520. Finally, new Rule 4.11(h), which

was not published in the earlier notice of proposed rulemaking, is a

purely technical amendment and relates solely to agency rules of

practice and procedure. For those reasons, the amendment is exempt from

the notice-and-comment requirements of the Administrative Procedure

Act. See 5 U.S.C. 553(A), (B).

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 amends 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. Amend Sec. 4.8 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.

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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 100 9.50 per roll.

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 105mm 0.23 per page.

fiche to paper (Conversion by

Commission Staff).

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

Electronic Services:

Converting paper into electronic format 2.50 per page.

(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 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, 600

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

* * * * *

3. Amend Sec. 4.11 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), (a)(1)(iii)(D),

and (h); and by revising paragraphs (a)(1)(i) (A) and (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) * * *

(A) A request under the provisions of the Freedom of Information

Act, 5 U.S.C. 552, as amended, for access to Commission records shall

be in writing and addressed as follows: Freedom of Information Act

Request, Assistant General Counsel for Legal Counsel, (Management &

Access), Office of the General Counsel, Federal Trade Commission, 600

Pennsylvania Avenue, NW., Washington, DC 20580.

(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) of this section. 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

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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,

600 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)(1) Regarding appeals from initial denials of a request for

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

appeal expeditiously;

(2) 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.

* * * * *

(h) The General Counsel (or General Counsel's designee) may

authorize a Commission member, other Commission official, or Commission

staff to disclose an item or category of information from Commission

records not currently available to the public for routine inspection

and copying under Rule 4.9(b) where the General Counsel (or General

Counsel's designee) determines that such disclosure would facilitate

the conduct of official agency business and would not otherwise be

prohibited by applicable law, order, or regulation. Requests for such

determinations shall be set forth in writing and, in the case of staff

requests, shall be forwarded to the General Counsel (or General

Counsel's designee) through the relevant Bureau. In unusual or

difficult cases, the General Counsel may refer the request to the

Commission for determination.

Sec. 4.13 [Amended]

4. In Sec. 4.13, the reference in paragraph (c) to ``6th Street and

Pennsylvania Avenue NW.,'' and the reference in paragraph (i)(1) to

``6th Street & Pennsylvania Avenue, NW.,'' are revised to read ``600

Pennsylvania Avenue, NW.,''

By direction of the Commission.

Donald S. Clark,

Secretary.

[FR Doc. 99-1178 Filed 1-19-99; 8:45 am]

BILLING CODE 6750-01-P