[Federal Register Volume 64, Number 115 (Wednesday, June 16, 1999)]
[Rules and Regulations]
[Pages 32179-32180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15187]


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FEDERAL TRADE COMMISSION

16 CFR Part 4


Miscellaneous Rules: Disclosure Requests

AGENCY: Federal Trade Commission.

ACTION: Final rule.

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SUMMARY: The Commission is amending a rule of practice and procedure 
that governs disclosure requests. These amendments add requests for 
voluntary testimony to the scope of the rule's coverage. The amendments 
also clarify the existing scope of various paragraphs of the rule.

EFFECTIVE DATE: June 16, 1999.

FOR FURTHER INFORMATION CONTACT:
Gary M. Greenfield, (202) 326-2753, Office of the General Counsel, 
Federal Trade Commission, 600 Pennsylvania Ave., NW, Washington, DC 
20580.

SUPPLEMENTARY INFORMATION: The Commission is amending 16 CFR 4.11(e), 
which governs compulsory process requiring disclosure by Commission 
employees of material and information relating to their official 
duties. This provision also governs compulsory process to former 
Commission employees and to current and former special government 
employees that requires the disclosure of nonpublic information 
acquired during their Commission employment.
    The amendments expand the scope of Sec. 4.11(e) to include requests 
for voluntary testimony. As with requests by compulsory process for 
documents or testimony, the amended Rule requires anyone seeking 
voluntary testimony from Commission employees (and, where applicable, 
special government employees or former employees) to furnish a 
statement to the General Counsel setting forth information that will 
enable the General Counsel to make an informed decision regarding the 
request.
    Amendments to paragraphs (c) and (d) of Sec. 4.11 clarify that 
paragraph (e) of that section governs compulsory process from 
government agencies for Commission documents or testimony. Paragraph 
(e)(3), as amended, provides that the General Counsel may 
discretionarily waive the statement required by the Rule with respect 
to any individual request by a government agency.
    The requirements of Sec. 4.11(e) do not apply to invitations to 
testify before Congress or to testify before other government bodies on 
the possible effects of proposed legislation or regulations.
    The Commission does not seek public comment on these amendments 
because they relate solely to agency practice and procedure. Thus, the 
amendments are exempt from the notice-and-comment requirements of the 
Administrative Procedure Act. See 5 U.S.C. 553(b)(A). In addition, the 
Commission certifies that these amendments will not have a significant 
impact on small business entities. Accordingly, no final regulatory 
flexibility analysis is required by the Regulatory Flexibility Act. See 
5 U.S.C. 605(b).

List of Subjects in 16 CFR Part 4

    Administrative practice and procedure.

    For the reasons set forth in the preamble, the Commission amends 
part 4 of 16 CFR as follows:

PART 4--MISCELLANEOUS RULES

    1. The authority for part 4 continues to read as follows:


[[Page 32180]]


    Authority: Sec. 6, 38 Stat. 721; 15 U.S.C. 46.

    2. Section 4.11 is amended by adding a sentence at the end of 
paragraphs (c) and (d) and revising paragraph (e) to read as follows:


Sec. 4.11  Disclosure requests.

* * * * *
    (c) * * * Requests for material pursuant to compulsory process, or 
for voluntary testimony, in cases or matters in which the Commission is 
not a party will be treated in accordance with paragraph (e) of this 
section.
    (d) * * * Request for material pursuant to compulsory process, or 
for voluntary testimony, in cases or matters in which the Commission is 
not a party will be treated in accordance with paragraph (e) of this 
section.
    (e) Requests for testimony, pursuant to compulsory process or 
otherwise, and requests for material pursuant to compulsory process, in 
cases or matters to which the Commission is not a party. (1) The 
procedures specified in this section will apply to compulsory process 
and requests for voluntary testimony directed to Commission employees, 
except special government employees, that relate in any way to the 
employees' official duties. These procedures will also apply to 
compulsory process and requests for voluntary testimony directed to 
former Commission employees or to current or former special government 
employees of the Commission that seek nonpublic materials or 
information acquired during Commission employment. The provisions of 
paragraph (e)(3) of this section will also apply when requests 
described above are directed to the Commission. For purposes of this 
section, the term testimony includes any written or oral statement by a 
witness, such as depositions, affidavits, declarations, and statements 
at a hearing or trial; the term nonpublic includes any material or 
information which, under Sec. 4.10, is not required to be more public; 
the term employees, except where otherwise specified, includes special 
government employees and other Commission employees; and the term 
special government employees includes consultants and other employees 
as defined by section 202 of title 18 of the United States Code.

    (2) Any employee or former employee who is served with compulsory 
process shall promptly advise the General Counsel of its service, the 
nature of the material or information sought, and all relevant facts 
and circumstances. This notification requirement also applies to any 
employee or former employee whose testimony is sought on a voluntary 
basis under the conditions set forth in paragraph (e)(1) of this 
section.

    (3) A party who causes compulsory process to be issued to, or who 
requests testimony by, the Commission or any employee or former 
employee of the Commission shall furnish a statement to the General 
Counsel, unless, with respect to a request by a Federal or State 
agency, the General Counsel determines, as a matter of discretion, to 
waive this requirement. The statement shall set forth the party's 
interest in the case or matter, the relevance of the desired testimony 
or material, and a discussion of whether it is reasonably available 
from other sources. If testimony is desired, the statement shall also 
contain a general summary of the testimony and a discussion of whether 
Commission records could be produced and used in its place. Any 
authorization for testimony will be limited to the scope of the demand 
as summarized in such statement.

    (4) Absent authorization from the General Counsel, the employee or 
former employee shall respectfully decline to produce requested 
material or to disclose requested information. The refusal should be 
based on this paragraph and on United States ex rel. Touhy v. Ragen, 
340 U.S. 462 (1951).

    (5) The General Counsel will consider and act upon compulsory 
process and requests for voluntary testimony under this section with 
due regard for statutory restrictions, the Commission's rules and the 
public interest, taking into account such factors as the need to 
conserve the time of employees for conducting official business; the 
need to avoid spending the time and money of the United States for 
private purposes; the need to maintain impartiality between private 
litigants in cases where a substantial government interest is not 
involved; and the established legal standards for determining whether 
justification exists for the disclosure of confidential information and 
material.
    (6) Invitations to testify before Congressional committees or 
subcommittees or to testify before other government bodies on the 
possible effects of legislative and regulatory proposals are not 
subject to paragraphs (e)(1) through (5) of this section.

* * * * *
    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 99-15187 Filed 6-15-99; 8:45 am]
BILLING CODE 6750-01-M