[Federal Register Volume 63, Number 165 (Wednesday, August 26, 1998)]
[Rules and Regulations]
[Pages 45644-45649]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22631]



[[Page 45643]]

_______________________________________________________________________

Part VII





Federal Trade Commission





_______________________________________________________________________



16 CFR Part 4



Electronic Freedom of Information Act of 1996; Miscellaneous Rules; 
Final Rule and Proposed Rule

  Federal Register / Vol. 63, No. 165 / Wednesday, August 26, 1998 / 
Rules and Regulations  

[[Page 45644]]



FEDERAL TRADE COMMISSION

16 CFR Part 4


Electronic Freedom of Information Act of 1996; Miscellaneous 
Rules

AGENCY: Federal Trade Commission (FTC).

ACTION: Final rule.

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

SUMMARY: The Federal Trade Commission is implementing the requirements 
of the Electronic Freedom of Information Act Amendments of 1996 by 
revising its Rules of Practice governing access to agency records. The 
Commission is also making other ``housekeeping'' amendments to its 
Rules, including changes to reflect the Commission's establishment of a 
Consumer Response Center, which replaces the former Public Reference 
Branch, and the transfer of responsibility for initial Freedom of 
Information Act and Privacy Act requests to the Office of the General 
Counsel.

DATES: These amendments are effective August 26, 1998.

FOR FURTHER INFORMATION CONTACT: Alex Tang, Attorney, (202) 326-2447, 
Office of the 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. In a separate document published elsewhere in 
today's Federal Register, the Commission is seeking public comment on 
its proposal to amend its Rules of Practice to incorporate, among other 
things, procedures for expedited processing and aggregation of 
requests. This document contains implementing Rule amendments that do 
not require public comment. This document also includes Rule amendments 
reflecting recent organizational changes that affected the agency units 
responsible, respectively, for providing routine access to public 
records and for processing initial requests for non-public records 
under the FOIA and Privacy Act.

Making Certain Documents Previously Released Under the FOIA 
Available For Routine Public Inspection And Copying

    Section (a)(2) of the FOIA, 5 U.S.C. 552(a)(2), which lists the 
agency records that must be made available for routine public 
inspection and copying, was amended by adding two new subsections, 5 
U.S.C. 552(a)(2) (D) and (E). Previously, section (a)(2) applied only 
to final opinions and orders in the adjudication of cases, agency 
policy statements and interpretations not published in the Federal 
Register, and administrative staff manuals and instructions affecting 
the public. See 5 U.S.C. 552(a)(2)(A), (B), (C). In practice, the 
Commission makes these and numerous other materials available for 
routine inspection and copying on its public record. See Commission 
Rule 4.9(b), 16 CFR 4.9(b).
    The FOIA, as amended by the E-FOIA, now requires that the 
Commission also make routinely available ``copies of all records, 
regardless of form or format, which have been released to any person 
under [the FOIA] and which, because of the nature of their subject 
matter, the agency determines have become or are likely to become the 
subject of subsequent requests for substantially the same records.'' 5 
U.S.C. 552(a)(2)(D). An index of those records must also be made 
routinely available. 5 U.S.C. 552(a)(2)(E). Accordingly, the Commission 
is revising its list of public records in Rule 4.9(b) to include these 
items. The new provisions are being designated as Rules 4.9(b)(10) (ix) 
and (x), respectively, and certain existing paragraphs are being 
revised and redesignated.
    These changes will likely reduce the number of requests made under 
the FOIA, although the Commission expects a corresponding increase in 
the number of requests received for public record materials. Because 
placing previously released documents on the public record and 
providing access through that process is generally less costly than 
providing access through the Commission's FOIA process, this proposed 
change to the Rules will probably decrease the overall costs to the 
Commission and should eliminate search and review fees that might 
otherwise be incurred by requesters with respect to such records.
    The General Counsel (or designee) will determine, on a case-by-case 
basis, which documents may be appropriate to make routinely available 
on the public record under Rule 4.9(b)(10)(ix). The Commission, 
however, does not intend that documents placed on the public record 
under that Rule will include information that is legally exempt from 
public disclosure. One example is information about an individual that, 
even where it is not exempt from mandatory disclosure to that 
individual as a first-party requester, would still be withheld in 
response to subsequent requests from others if the materials are 
otherwise exempt under the FOIA. See, e.g., 5 U.S.C. 552(b)(6), (7)(C). 
Other examples include information that is submitted to the Commission 
(either under compulsory process, or voluntarily in lieu thereof) in a 
Commission law enforcement investigation, or confidential business 
information. Again, that information may be released back to a first-
party requester, but would be withheld from others under FOIA Exemption 
3, by virtue of sections 6(f) and 21 (b) and (f) of the FTC Act, 15 
U.S.C. 46(f) and 57b-2 (b) and (f), and FOIA Exemption 4.
    Likewise, the Commission does not intend for Rule 4.9(b)(10)(ix) to 
apply where the public interest in the documents is insufficient to 
conclude that the documents are likely to be requested by others. 
Further, documents placed on the public record under the Rule will be 
removed, consistent with the statutory language and purpose of the 
requirement, when it appears that they are no longer likely to be 
routinely requested.

Making Certain Records Available Electronically

    Section (a)(2) of the FOIA, as amended, further provides that 
documents subject to routine public inspection and copying under that 
provision must also be made accessible to the public electronically 
(e.g., by ``computer telecommunications,'' such as a direct computer 
dial-in system or through the Internet). This provision, which became 
effective on November 1, 1997, applies to all covered records created 
on or after November 1, 1996. Furthermore, beginning December 31, 1999, 
the agency must make the document index required under section 
(a)(2)(E) of the FOIA and new Rule 4.9(b)(10)(x), as discussed earlier, 
publicly accessible by computer telecommunications, whether or not the 
agency employs such a system for making other required documents 
electronically available. The Commission is using its Internet Web site 
(WWW.FTC.GOV) to meet the requirements of this provision. Accordingly, 
the Commission is amending Rule 4.9(a)(3), which identifies the 
locations from which public record materials may be obtained, to 
include the Commission's Web site address. This change is intended to 
promote electronic access to Commission information and documents.

Providing Records In the Format Requested

    The FOIA, as amended, now requires that records released thereunder 
be made available in the form or format requested if the material is 
``readily

[[Page 45645]]

reproducible'' in that form or format. See 5 U.S.C. 552(a)(3)(B). The 
Commission is amending Rule 4.11(a)(1)(iv)(C) to reflect this 
requirement.
    In most instances, records are reproduced in their existing format 
(e.g., paper) because no particular format has been requested. In other 
cases, no version of the requested records may exist in the particular 
format specified by the requester (e.g., a request that paper-only 
records be made available in electronic form, or that records 
maintained in one electronic format be made available in a different 
electronic format). The Commission has determined that, in those cases, 
whether a record is ``readily reproducible'' in the requested format 
will depend on whether the record can be converted to that format with 
a reasonable amount of effort. The relevant time and cost to the 
requester, if any, will be determined in accordance with Commission 
Rule 4.8 before such records are converted and reproduced in the 
requested format. (The companion rulemaking document being published by 
the Commission in today's Federal Register proposes a new category of 
fees to be charged for conversions of paper records to electronic 
format.)

Searching For Electronic Records

    New section (a)(3)(C) of the FOIA, 5 U.S.C. 552(a)(3)(C), requires 
that the Commission, in processing a FOIA request, make reasonable 
efforts to search for any responsive records that may exist in 
electronic form or format, except when such efforts would significantly 
interfere with the operation of the agency's automated information 
systems. In practice, the Commission already follows this procedure. 
Accordingly, the Commission is modifying Rules 4.8(a)(1) and 
4.11(a)(1)(iv)(A) to conform its Rules with the statute and the 
Commission's current practice.

Amended Time Limit For Responding To Initial Requests

    Section (a)(6) of the FOIA provides that the agency must determine 
whether requested records will be released or withheld, either in whole 
or in part, and respond to the request within specified periods of 
time. The E-FOIA increased the time available to the Commission to 
respond to an initial request from 10 working days to 20 working days. 
See 5 U.S.C. 552(a)(6)(A)(i), as amended. Rule 4.11(a)(1)(iii)(A) is 
amended to incorporate that change into the agency's Rules of Practice. 
(This particular amendment is also included in the Commission 
rulemaking document being published elsewhere in today's Federal 
Register, which proposes other changes to Rule 4.11(a)(1)(iii)(A) 
requiring public comment.) The E-FOIA did not change the time available 
to respond to an administrative appeal of an initial denial of records, 
which remains 20 working days. Therefore, no change is being made to 
the corresponding portions of the Rules related to appeals.

Extensions Of Time For Responding To FOIA Requests

    The FOIA permits agencies to extend the time limit for responding 
to a FOIA request, including any appeal of a denied request, by up to 
10 working days in ``unusual'' circumstances. 5 U.S.C. 552(a)(6)(B); 
see Commission Rule 4.11(a)(1)(iii)(B). While the criteria for such 
extensions were not amended, the FOIA now provides that when an agency 
determines, in ``exceptional'' circumstances, that it cannot meet the 
extended deadline, the requester will be so notified and given the 
opportunity to modify the request or agree to an alternative time-
frame. 5 U.S.C. 552(a)(6)(B)(ii). The Commission's FOIA unit has 
employed a similar procedure for many years to satisfy the needs of 
requesters and to limit the Commission's costs in responding to 
requests. Rules 4.11(a)(1)(iii)(B) and (C) and 4.11(a)(2)(ii)(B) have 
been amended to incorporate this statutory change.

Estimating the Volume Of Withheld Materials

    The amended statute now requires that, at both the initial and 
administrative appeal levels, the agency must reasonably estimate the 
volume of materials to which access is denied and to provide that 
estimate to the requester, unless providing such an estimate would harm 
an interest protected by an exemption in section (b) of the statute 
that was cited as a basis for withholding materials. See 5 U.S.C. 
552(a)(6)(F).
    The statute does not state how specific the estimate must be. The 
Commission has determined that a good-faith approximation of the number 
of pages (or boxes of documents) being withheld should be sufficient to 
comply with this provision, and has modified Rules 4.11(a)(1)(iv)(A) 
(related to initial determinations) and 4.11(a)(2)(iii)(A) (related to 
appeal determinations) to effect these statutory changes.

Guide To Requesting Information

    The FOIA now requires that the agency prepare and make publicly 
available reference material or a guide for requesting records or 
information from the Commission, including an index of all major 
information systems, a description of major information and record 
locator systems maintained, and a handbook for obtaining various types 
and categories of public information. See 5 U.S.C. 552(g). The 
Commission has developed a handbook containing all of the required 
guidance in one document, and is adding a new Rule 4.9(b)(8)(v) to 
include that document in the list of agency records that are routinely 
available to the public.

Organizational Changes

    The Commission has established within its Bureau of Consumer 
Protection a new Consumer Response Center, which is responsible for 
providing access to public records previously provided by the 
Commission's former Public Reference unit. The Commission has also 
transferred agency staff responsible for processing initial requests 
for non-public records under the FOIA and the Privacy Act, 5 U.S.C. 
552a, from the Office of Information and Technology Management to the 
Office of the General Counsel. Thus, the processing of initial requests 
under the FOIA and Privacy Act, and initial determinations on all 
requests for fee waivers, are now consolidated in the General Counsel's 
office, which also retains its authority over the processing of appeals 
in such matters. Initial request and appeal functions will remain 
separate, however, and different staff and officials will process and 
decide initial requests and appeals. Revisions are being made 
throughout Rules 4.8, 4.11 and 4.13 to reflect these organizational 
changes.
    The Rules are also being amended to clarify the General Counsel's 
responsibility for appeals of initial FOIA and Privacy Act requests and 
related matters (e.g., initial denials of fee waivers, expedited 
treatment, etc.), including the General Counsel's discretion to refer 
unusual or difficult appeals of such matters to the Commission. See, 
e.g., 16 CFR 4.11(a)(2)(iii)(A), 4.13(i)(1). In that regard, various 
references to the ``Commission'' in Rules 4.8, 4.11 and 4.13 have been 
deleted as unnecessary, as it is implicit that the Commission may 
exercise any of the authority over appeals that it has otherwise 
delegated to the General Counsel in cases where the General Counsel has 
referred the appeal to the Commission.

Public Records Previously Omitted From Rule 4.9

    In amending Rule 4.9 to include certain materials on the public 
record, as required by the E-FOIA, the Commission is also taking the

[[Page 45646]]

opportunity to update that rule to include three additional categories 
of records that the Commission is otherwise required by law, or has 
determined as a matter of policy, to make routinely available on its 
public record. These three categories are being added to Rule 4.9 as 
paragraphs (b)(10) (xi), (xii), and (xiii), respectively.
    The first category comprises grants of early termination of waiting 
periods by the Commission under the premerger review provisions of the 
Hart-Scott-Rodino amendments to the Clayton Act. That Act requires that 
such early terminations be published in the Federal Register. See 15 
U.S.C. 18a(b)(2). Thus, the Commission recognizes that this information 
should be treated as part of its public record. The second category is 
reports on applicable energy consumption and efficiency submitted under 
the Commission's Appliance Labeling Rule, 16 CFR 305.8. The Commission 
has previously voted to make such reports routinely available to the 
public without a FOIA request. The third category is a ``catch-all'' 
provision for any other documents that the Commission determines to 
place on its public record as a matter of policy, where such records 
would otherwise be considered non-public under the Commission's Rules 
and, thus, subject to release only upon a written FOIA request. This 
category includes, for example, particular responses to inquiries from 
Congressional committees and subcommittees that the Commission 
determines are of sufficient public interest or importance to make 
available for routine public inspection and copying (after any portions 
exempt from mandatory disclosure under the FOIA have been redacted).

Method of Payment

    Rule 4.8 (i) is also being amended to delete the option for payment 
of processing fees by credit card, which the Commission no longer 
accepts. The Commission has found that the small volume of such 
transactions did not justify their processing costs. Requesters 
continue to have the option of paying fees by check or money order.
    The Commission certifies that the Rule amendments set forth in this 
notice 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). In any event, the economic impact of the 
rule changes on all requestors is expected to be minimal, if any. The 
Rule amendments also do not contain information collection requirements 
within the meaning of the Paperwork Reduction Act, 44 U.S.C. 3501-3520. 
The Commission has also determined, in consultation with the Office of 
Management and Budget, that none of the amendments constitutes a major 
rule within the meaning of the Small Business Regulatory Enforcement 
Fairness Act, 5 U.S.C. 801-808.
    Furthermore, the notice-and-comment requirements of the 
Administrative Procedure Act (APA), 5 U.S.C. 553, do not apply to these 
Rule amendments. The Commission has determined that it is unnecessary 
to obtain public comment on the amendments to implement the E-FOIA, to 
the extent those amendments are required by statute and do not involve 
an exercise of agency discretion. See 5 U.S.C. 553(B). The Rule 
amendments that reflect organizational changes within the Commission 
are matters relating to agency management or personnel that are 
expressly exempt from the APA's requirements. See 5 U.S.C. 553(a)(2). 
Finally, the addition of certain categories of public records to the 
Commission's rules are merely technical amendments to rules of 
procedure that do not require public comment. See 5 U.S.C. 553(A).

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. Section 4.8 is amended by revising paragraphs (a)(1), (c), 
(e)(1), (g), (h) and (i) to read as follows:


Sec. 4.8  Costs for obtaining Commission records.

    (a) * * *
    (1) The term search includes all time spent looking, manually or by 
automated means, for material that is responsive to a request, 
including page-by-page or line-by-line identification of material 
within documents.
* * * * *
    (c) Information to determine fees. Each request for records shall 
set forth whether the request is made for other than commercial 
purposes and whether the requester is an educational institution, a 
noncommercial scientific institution, or a representative of the news 
media. The Assistant General Counsel for Legal Counsel (Management & 
Access) or his or her designee initially, or the General Counsel on 
appeal, will use this information, any additional information provided 
by the requester, and any other relevant information to determine the 
appropriate fee category in which to place the requester.
* * * * *
    (e) Public interest fee waivers.--(1) Procedures. A requester may 
apply for a waiver of fees. The requester shall explain why a waiver is 
appropriate under the standards set forth in this paragraph. The 
application shall also include a statement, as provided by paragraph 
(d) of this section, of whether the requester agrees to pay costs if 
the waiver is denied. The Assistant General Counsel for Legal Counsel 
(Management & Access) or his or her designee initially, or the General 
Counsel on appeal, will rule on applications for fee waivers.
* * * * *
    (g) Aggregating requests. If the Assistant General Counsel for 
Legal Counsel (Management & Access) or his or her designee initially, 
or the General Counsel on appeal, reasonably believes that a requester, 
or a group of requesters acting in concert, is attempting to evade an 
assessment of fees by dividing a single request into a series of 
smaller requests, the requests may be aggregated and fees charged 
accordingly.
    (h) Advance payment. If the Assistant General Counsel for Legal 
Counsel (Management & Access) or his or her designee initially, or the 
General Counsel on appeal, estimates or determines that allowable 
charges that a requester may be required to pay are likely to exceed 
$250.00, or if the requester has previously failed to pay a fee within 
30 days of the date of billing, the requester may be required to pay 
some or all of the total estimated charge in advance. Further, the 
requester may be required to pay all unpaid bills, including accrued 
interest, prior to processing the request.
    (i) Means of payment. Payment shall be made by check or money order 
payable to the Treasury of the United States.
* * * * *
    3. Section 4.9 is amended by: redesignating paragraph (b)(10)(ix) 
as (b)(10)(xiv); adding new paragraphs (b)(8)(v) and (b)(10)(ix), (x), 
(xi), (xii) and (xiii); and revising paragraphs

[[Page 45647]]

(a)(3), (a)(4)(i), (b)(8)(iii) and (iv), and (b)(10)(viii) to read as 
follows:


Sec. 4.9  The public record.

    (a) * * *
    (3) Location. All of the public records of the Commission are 
available for inspection at the principal office of the Commission on 
each business day from 9 a.m. to 5 p.m., and copies of some of those 
records are available at the regional offices on each business day from 
8:30 a.m. to 5 p.m. Copies of records that the Commission is required 
to make available to the public electronically, pursuant to 5 U.S.C. 
552(a)(2), may be obtained in that format from the Commission's Web 
site on the Internet, WWW.FTC.GOV.
    (4) Copying of public records--(i) Procedures. Reasonable 
facilities for copying public records are provided at each office of 
the Commission. Subject to appropriate limitations and the availability 
of facilities, any person may copy public records available for 
inspection at each of those offices. Further, the agency will provide 
copies to any person upon request. Written requests for copies of 
public records shall be addressed to the Supervisor, Consumer Response 
Center, and shall specify as clearly and accurately as reasonably 
possible the records desired. For records that cannot be specified with 
complete clarity and particularity, requesters shall provide 
descriptions sufficient to enable qualified Commission personnel to 
locate the records sought. In any instance, the Commission, the 
Supervisor of the Consumer Response Center, the General Counsel, the 
Assistant General Counsel for Legal Counsel (Management & Access), or 
the official in charge of each office may prohibit the use of 
Commission facilities to produce more than one copy of any public 
record, and may refuse to permit the use of such facilities for copying 
records that have been published or are publicly available at places 
other than the offices of the Commission.
* * * * *
    (b) * * *
    (8) * * *
    (iii) Summaries or other explanatory materials relating to matters 
to be considered at open meetings made available pursuant to 
Sec. 4.15(b)(3)
    (iv) Commission minutes of open meetings, and, to the extent they 
are not exempt from mandatory public disclosure under the Sunshine Act 
or the Freedom of Information Act, portions of minutes or transcripts 
of closed meetings; and
    (v) A guide for requesting records or information from the 
Commission, including an index of all major information systems, a 
description of major information and record locator systems maintained 
by the Commission, and a handbook for obtaining various types and 
categories of public information.
* * * * *
    (10) * * *
    (viii) The Commission's annual report submitted after the end of 
each fiscal year, summarizing its work during the year (available for 
inspection at each of the offices of the Commission with copies 
obtainable from the Superintendent of Documents, U.S. Government 
Printing Office, Washington, DC 20402) and any other annual reports 
made to Congress on activities of the Commission as required by law;
    (ix) Records, as determined by the General Counsel or his or her 
designee, that have been released in response to a request made under 
the Freedom of Information Act, 5 U.S.C. 552, and which, because of the 
nature of the subject matter, have become or are likely to become the 
subject of subsequent requests for substantially the same records, 
except where some or all of those records would be exempt from 
disclosure under 5 U.S.C. 552 if requested by another party;
    (x) A general index of the records referred to under paragraph 
(b)(10)(ix) of this section;
    (xi) Grants of early termination of waiting periods published in 
accordance with the Hart-Scott-Rodino premerger notification provisions 
of the Clayton Act, 15 U.S.C. 18a(b)(2);
    (xii) Reports on appliance energy consumption or efficiency filed 
with the Commission pursuant to Sec. 305.8 of this chapter;
    (xiii) Other documents that the Commission has determined to place 
on the public record; and
* * * * *
    4. Section 4.11 is amended by revising paragraphs (a)(1)(i)(A); 
(a)(1)(iii)(A), (B), introductory text, and (C); (a)(1)(iv)(A), (B), 
and (C); (a)(2)(ii)(B); and (a)(2)(iii)(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, 6th Street and Pennsylvania Avenue, NW., 
Washington, DC 20580.
* * * * *
    (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.
    (B) Except in exceptional circumstances as provided in paragraph 
(a)(1)(iii)(C) of this section, the Assistant General Counsel for Legal 
Counsel (Management & Access) or his or her designee may extend the 
time limit by not more than 10 working days if such extension is: * * *
    (C) If the Assistant General Counsel for Legal Counsel (Management 
& Access) or his or her designee extends the time limit for initial 
determination pursuant to paragraph (a)(1)(iii)(B) of this section, the 
requester will be notified in accordance with 5 U.S.C. 552(a)(6)(B). In 
exceptional circumstances, when the request cannot be processed within 
the extended time limit, the requester will be so notified and provided 
an opportunity to limit the scope of the request so that it may be 
processed within such time limit, or to arrange an alternative time 
frame for processing the request or a modified request. ``Exceptional'' 
circumstances will not include delays resulting from a predictable 
workload of requests under this section. Unwillingness to make 
reasonable modifications in the scope of the request or to agree to an 
alternative time frame may be considered as factors in determining 
whether exceptional circumstances exist and whether the agency has 
exercised due diligence in responding to the request.
* * * * *
    (iv) Initial determination. (A) The Assistant General Counsel for 
Legal Counsel (Management & Access) or his or her designee will make 
reasonable efforts to search, using either manual or electronic means, 
for the requested records in electronic form or format, except when 
such efforts would significantly interfere with the operation of the 
Commission's automated information systems. Access will be granted to 
requested records, or any portions thereof, that must be made available 
under the Freedom of Information Act. Access will be denied to records 
that are exempt under the Freedom of Information Act, 5 U.S.C. 552(b), 
unless the Assistant General Counsel for Legal Counsel (Management & 
Access) or his or her designee determines that such records fall within

[[Page 45648]]

a category the Commission or the General Counsel has previously 
authorized to be made available to the public as a matter of policy. 
Denials will set forth the reasons therefor and advise the requester 
that this determination may be appealed to the General Counsel if the 
requester believes either that the records are not exempt, or that the 
General Counsel should exercise discretion to release such records 
notwithstanding their exempt status. The Assistant General Counsel for 
Legal Counsel (Management & Access) or his or her designee will also 
provide a reasonable, good-faith estimate of the volume of any 
materials to which access is denied, unless providing such an estimate 
would harm an interest protected by an exemption in 5 U.S.C. 552(b) 
that was cited as a basis for withholding materials.
    (B) The Assistant General Counsel for Legal Counsel (Management & 
Access) or his or her designee is deemed to be the sole official 
responsible for all denials of initial requests, except denials of 
access to materials contained in active investigatory files, in which 
case the Director or Deputy Director of the Bureau or the Director of 
the Regional Office responsible for the investigation will be the 
responsible official.
    (C) Records to which access has been granted will be made available 
to the requester in any form or format specified by the requester, if 
the records are readily reproducible in that form or format, or can be 
converted to that form or format with a reasonable amount of effort, 
and they will remain available for inspection and copying for a period 
not to exceed 30 days from date of notification to the requester unless 
the requester asks for and receives the consent of the Assistant 
General Counsel for Legal Counsel (Management & Access) or his or her 
designee to a longer period. Records assembled pursuant to a request 
will remain available only during this period and thereafter will be 
refiled. Appropriate fees may be imposed for any new or renewed request 
for the same records.
* * * * *
    (2) * * *
    (ii) * * *
    (B) The General Counsel may, by written notice to the requester in 
accordance with 5 U.S.C. 552(a)(6)(B), extend the time limit for 
deciding an appeal by not more than 10 working days pursuant to 
paragraph (a)(1)(iii)(B) of this section, provided that the amount of 
any extension utilized during the initial consideration of the request 
under that paragraph will be subtracted from the amount of additional 
time otherwise available. Where exceptional circumstances do not permit 
the processing of the appeal within the extended time limit, the notice 
and procedures set forth in paragraph (a)(1)(iii)(C) of this section 
shall apply.
    (iii) * * *
    (A) The General Counsel has the authority to grant or deny all 
appeals and to release as an exercise of discretion records exempt from 
mandatory disclosure under 5 U.S.C. 552(b). In unusual or difficult 
cases, the General Counsel may, in his or her sole discretion, refer an 
appeal to the Commission for determination. A denial of an appeal in 
whole or in part will set forth the basis for the denial; will include 
a reasonable, good-faith estimate of the volume of any materials to 
which access is denied, unless providing such an estimate would harm an 
interest protected by an exemption in 5 U.S.C. 552(b) that was cited as 
a basis for withholding materials; and will advise the requester that 
judicial review of the decision is available by civil suit in the 
district in which the requester resides, or has his principal place of 
business, or in which the agency records are situated, or in the 
District of Columbia.
* * * * *
    5. Section 4.13 is amended by revising paragraphs (c), (d), (e), 
(f), (h), (i), (j), and (k) to read as follows:


Sec. 4.13  Privacy Act rules.

* * * * *
    (c) Procedures for requests pertaining to individual records in a 
record system. An individual may request access to his or her records 
or any information pertaining to that individual in a system of 
records, and notification of whether and to whom the Commission has 
disclosed a record for which an accounting of disclosures is required 
to be kept and made available to the individual, using the procedures 
of this section. Requests for the disclosure of records under this 
section or to determine whether a system of records contains records 
pertaining to an individual or to obtain an accounting of disclosures, 
shall be in writing and if mailed, addressed as follows:

Privacy Act Request, Assistant General Counsel for Legal Counsel 
(Management & Access), Office of the General Counsel, Federal Trade 
Commission, 6th Street and Pennsylvania Avenue N.W., Washington, DC 
20580.

    If requests are presented in person at the Office of the General 
Counsel, the individual shall be required to execute a written request. 
All requests shall name the system of records that is the subject of 
the request, and shall include any additional information specified in 
the pertinent system notice as necessary to locate the records 
requested. If the requester wants another person to accompany him or 
her to review the records, the request shall so state. Nothing in this 
section will allow an individual access to any information compiled in 
reasonable anticipation of a civil action or proceeding.
    (d) Times, places, and requirements for identification of 
individuals making requests. Verification of identity of persons making 
written requests to the Assistant General Counsel for Legal Counsel 
(Management & Access) ordinarily will not be required. The signature on 
such requests will be deemed a certification by the signatory that he 
or she is the individual to whom the record pertains or is the parent 
or guardian of a minor or the legal guardian of the individual to whom 
the record pertains. The Assistant General Counsel for Legal Counsel 
(Management & Access) or his or her designee may require additional 
verification of a requester's identity when such information is 
reasonably necessary to assure that records are not improperly 
disclosed; provided, however, that no verification of identity will be 
required if the records sought are publicly available under the Freedom 
of Information Act.
    (e) Disclosure of requested information to individuals. Within 10 
working days of receipt of a request under Sec. 4.13(c), the Assistant 
General Counsel for Legal Counsel (Management & Access) or his or her 
designee will acknowledge receipt of the request. Within 30 working 
days of the receipt of a request under Sec. 4.13(c), the Assistant 
General Counsel for Legal Counsel (Management & Access) or his or her 
designee will inform the requester whether a system of records 
containing retrievable information pertaining to the requester exists, 
and if so, either that the request has been granted or that the 
requested records or information is exempt from disclosure pursuant to 
Sec. 4.13(m). When, for good cause shown, the Assistant General Counsel 
for Legal Counsel (Management & Access) or his or her designee is 
unable to respond within 30 working days of the receipt of the request, 
that official will notify the requester and inform him or her 
approximately when a response will be made.
    (f) Special procedures: Medical records. When the Assistant General 
Counsel for Legal Counsel (Management & Access) or his or her designee 
determines that disclosure of a medical

[[Page 45649]]

or psychological record directly to a requesting individual could have 
an adverse effect on the individual, he or she will require the 
individual to designate a medical doctor to whom the record will be 
transmitted.
* * * * *
    (h) Agency review of request for correction or amendment of record. 
Whether presented in person or by mail, requests under Sec. 4.13(g) 
will be acknowledged by the Assistant General Counsel for Legal Counsel 
(Management & Access) or his or her designee within 10 working days of 
the receipt of the request if action on the request cannot be completed 
and the individual notified of the results within that time. 
Thereafter, the Assistant General Counsel for Legal Counsel (Management 
& Access) or his or her designee will promptly either make the 
requested amendment or correction or inform the requester of his 
refusal to make the amendment or correction, the reasons for the 
refusal, and the requester's right to appeal that refusal in accordance 
with Sec. 4.13(i).
    (i) Appeal of initial adverse agency determination. (1) If an 
initial request filed under Sec. 4.13(c) or Sec. 4.13(g) is denied, the 
requester may appeal that denial to the General Counsel. The appeal 
shall be in writing and addressed as follows:

Privacy Act Appeal, Office of the General Counsel, Federal Trade 
Commission, 6th Street & Pennsylvania Avenue, NW., Washington, DC 
20580.

    Within 30 working days of the receipt of the appeal, the General 
Counsel will notify the requester of the disposition of that appeal, 
except that the General Counsel may extend the 30-day period for good 
cause, in which case, the General Counsel will advise the requester of 
the approximate date on which review will be completed. In unusual or 
difficult cases, the General Counsel may, in his or her sole 
discretion, refer an appeal to the Commission for determination.
    (2)(i) If the General Counsel refuses to amend or correct the 
record in accordance with a request under Sec. 4.13(g), the General 
Counsel will notify the requester of that decision and inform the 
requester of the right to file with the Assistant General Counsel for 
Legal Counsel (Management & Access) a concise statement setting forth 
the reasons for the requester's disagreement with the General Counsel's 
determination and the fact that the requester's statement will be 
treated as set forth in paragraph (i)(2)(ii) of this section. The 
General Counsel will also inform the requester that judicial review of 
the decision is available by a civil suit in the district in which the 
requester resides, or has his principal place of business, or in which 
the agency records are situated, or in the District of Columbia.
    (ii) If the individual files a statement disagreeing with the 
General Counsel's determination not to amend or correct a record, such 
disagreement will be clearly noted in the record involved and the 
individual's statement will be made available to anyone to whom the 
record has been disclosed after September 27, 1975, or is subsequently 
disclosed together with, if the General Counsel deems it appropriate, a 
brief statement of his or her reasons for declining to amend the 
record.
    (j) Disclosure of record to person other than the individual to 
whom it pertains. Except as provided by 5 U.S.C. 552a(b), the written 
request or prior written consent of the individual to whom a record 
pertains, or of his parent if a minor, or legal guardian if 
incompetent, shall be required before such record is disclosed. If the 
individual elects to inspect a record in person and desires to be 
accompanied by another person, the Assistant General Counsel for Legal 
Counsel (Management & Access) or his or her designee may require the 
individual to furnish a signed statement authorizing disclosure of his 
or her record in the presence of the accompanying named person.
    (k) Fees. No fees will be charged for searching for a record, 
reviewing it, or for copies of records made by the Commission for its 
own purposes incident to granting access to a requester. Copies of 
records to which access has been granted under this section may be 
obtained by the requester from the Assistant General Counsel for Legal 
Counsel (Management & Access) or his or her designee on payment of the 
reproduction fees provided in Sec. 4.8(b)(6).
* * * * *
    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 98-22631 Filed 8-25-98; 8:45 am]
BILLING CODE 6750-01-P