[Federal Register Volume 63, Number 165 (Wednesday, August 26, 1998)]
[Proposed Rules]
[Pages 45650-45652]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22632]



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

[[Page 45650]]



FEDERAL TRADE COMMISSION

16 CFR Part 4


Freedom of Information Act; Miscellaneous Rules

AGENCY: Federal Trade Commission (FTC).

ACTION: Proposed rule.

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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.

----------------------------------------------------------------------------------------------------------------
                                                  Current      Proposed                    Unit                 
----------------------------------------------------------------------------------------------------------------
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.                          
----------------------------------------------------------------------------------------------------------------
* 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]
BILLING CODE 6750-01-P