[Federal Register Volume 63, Number 137 (Friday, July 17, 1998)]
[Rules and Regulations]
[Pages 38472-38473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19213]


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FEDERAL TRADE COMMISSION

16 CFR Part 4


Access to Records by Foreign Governments

AGENCY: Federal Trade Commission.

ACTION: Final rule.

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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
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    \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).
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    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
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    \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).
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    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