[Federal Register Volume 64, Number 12 (Wednesday, January 20, 1999)]
[Rules and Regulations]
[Pages 3011-3014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1178]


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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

[[Page 3012]]

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