[Federal Register Volume 65, Number 218 (Thursday, November 9, 2000)]
[Rules and Regulations]
[Pages 67258-67260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-28691]


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FEDERAL TRADE COMMISSION

16 CFR Parts 2 and 4


Access Requests From Foreign and Domestic Law Enforcement 
Agencies

AGENCY: Federal Trade Commission (FTC).

ACTION: Final rule amendments.

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SUMMARY: The Federal Trade Commission is amending its Rules of Practice 
to delegate to the Director of the Bureau of Competition the authority 
to respond to certain requests made pursuant to agreements under the 
International Antitrust Enforcement Assistance Act. The Commission is 
also providing that requests from state agencies may be addressed to an 
appropriate liaison officer (rather than the General Counsel).

DATES: The amendments are effective on November 2, 2000.

FOR FURTHER INFORMATION CONTACT: Marc Winerman, Attorney, Office of the 
General Counsel, FTC, 600 Pennsylvania Avenue, NW., Washington, DC 
20580, 202-326-2451, [email protected].

SUPPLEMENTARY INFORMATION: Authority to respond to requests for 
materials made pursuant to agreements under the International Antitrust 
Enforcement Assistance Act. The International Antitrust Enforcement 
Assistance Act (IAEAA), 15 U.S.C. 6201 et seq., authorizes the 
Commission and the Justice Department to assist foreign antitrust 
agencies, and anticipates that foreign agencies will assist them in 
return, pursuant to IAEAA agreements. After making a public interest 
determination and other determinations set forth in the Act, 15 U.S.C. 
6207(a), the agencies can share information already in their files, 
including, for example, information made confidential by the Federal 
Trade Commission Act. 15 U.S.C. 6201, 6205.\1\ They can also conduct 
investigations to help an IAEAA requester, during which they can use 
compulsory process if needed. 15 U.S.C. 6202. The first IAEAA 
agreement, an agreement with Australia, was signed on April 27, 1999. 
The Commission has delegated to the Director of the Bureau of 
Competition the authority to respond to certain requests under this and 
future IAEAA agreements, in accordance with the IAEAA.
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    \1\ Certain materials cannot be shared, however, including 
premerger filings under the Hart-Scott-Rodino Antitrust Improvements 
Act. 15 U.S.C. 6204.
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    Requests for records (including information within records). Rule 
4.11(i), a new provision, delegates to the Director of the Bureau of 
Competition the authority to respond to requests under IAEAA agreements 
seeking access to existing Commission records. This includes requests 
that seek, through discussion or otherwise, information contained in 
such records. The authority cannot be redelegated, and the delegation 
is subject to negative option review; before responding to a request, 
the Bureau Director must give the Commission three days' notice of the 
intended response and, during that time, any Commissioner may bring the 
matter to the full Commission.
    The Commission has also amended sections 4.10(d) and (e) of its 
Rules of Practice, which describe materials that the Commission 
generally cannot make public at all or can make public only after 
finding the material is not confidential and giving ten days' notice to 
the submitter. These provisions also describe situations where their 
general restrictions on disclosure do not apply, including disclosure 
to IAEAA requesters.\2\ The Commission is

[[Page 67259]]

replacing language in both provisions that simply references the IAEAA 
with cross-references to new Rule 4.11(i), which both references the 
IAEAA and delegates to the Bureau Director substantial authority to 
implement it.
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    \2\ While Rule 4.10(e) does not require notice before 
disclosures to IAEAA requesters, the Commission will consider notice 
on a case-by-case basis. See H. Rep. No. 772, 103d Cong., 2d Sess. 
20 (1994).
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    Requests for investigations. The Commission has also amended Rule 
2.1, which describes delegations to Commission staff to open 
investigations. This delegation, as well, is subject to a three-day 
negative option review by the Commission. Because a Commission 
resolution is required for process, see 15 U.S.C. 57b-1(i), this 
delegation does not extend to requests that seek such process.
    Liaison officers for state access requests. The Commission is also 
amending Rule 4.11(c), which governs access requests for law 
enforcement purposes from domestic agencies. The rule formerly provided 
that requests from federal agencies could be processed by the General 
Counsel or a designated liaison officer, while requests from state 
agencies could be processed only by the General Counsel. The rule now 
provides that appropriate liaison officers can respond to state as well 
as federal access requests.\3\
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    \3\ For example, the Commission has designated a liaison 
officer, currently the Associate Director for Planning and 
Information in the Bureau of Consumer Protection, who can grant 
access requests from the Commission's partners in the Consumer 
Sentinel program. That program maintains a database, with 
information entered by the Commission, by other agencies, and by 
private entities (who can enter but not retrieve data). The database 
does not include information subject to prohibitions on disclosure. 
The Associate Director is the liaison officer to Consumer Sentinel's 
government participants, who can seek more detailed information 
through an access request after they learn about an investigation 
from the database.
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    Procedural Matters. These amendments are exempt from the notice and 
comment requirements of the Administrative Procedure Act as ``rules of 
agency organization, procedure, or practice.'' 5 U.S.C. 553(b)(A). They 
do not entail information collection for purposes of the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq., and are not subject to the 
requirements of the Regulatory Flexibility Act, 5 U.S.C. 605(b). Nor 
are they subject to the Small Business Regulatory Enforcement Fairness 
Act, because that law does not apply to procedural rules that do not 
substantially affect the rights or obligations of non-agency parties. 5 
U.S.C. 803(3)(C).

List of Subjects

16 CFR Part 2

    Administrative practice and procedure, Reporting and recordkeeping 
requirements.

16 CFR Part 4

    Administrative practice and procedure, Freedom of information.


    Accordingly, the Federal Trade Commission amends title 16, chapter 
I, subchapter A, of the Code of Federal Regulations as follows:

PART 2--NONADJUDICATIVE PROCEDURES

    1. The authority citation for part 2 continues to read as follows:

    Authority: 15 U.S.C. 46.


    2. Amend Sec. 2.1 by adding to the end new sentences to read as 
follows:


Sec. 2.1  How initiated.

    * * * The Director of the Bureau of Competition has also been 
delegated, without power of redelegation, authority to open 
investigations in response to requests pursuant to an agreement under 
the International Antitrust Enforcement Assistance Act, 15 U.S.C. 6201 
et seq., if the requests do not ask the Commission to use process. 
Before responding to such a request, the Bureau Director shall transmit 
the proposed response to the Secretary and the Secretary shall notify 
the Commission of the proposed response. If no Commissioner objects 
within three days following the Commission's receipt of such 
notification, the Secretary shall inform the Bureau Director that he or 
she may proceed.

PART 4--MISCELLANEOUS RULES

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

    Authority: 15 U.S.C. 46, unless otherwise noted.

    4. 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 or 
in Sec. 4.11 (b), (c), (d), or (i), 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 or 
in Sec. 4.11 (b), (c), (d), or (i), 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.
* * * * *

    5. Amend Sec. 4.11 by revising paragraph (c) and by adding a new 
paragraph (i), to read as follows:


Sec. 4.11  Disclosure requests.

* * * * *
    (c) Requests from Federal and State law enforcement agencies. 
Requests from law enforcement agencies of the Federal and State 
governments for nonpublic records shall be addressed to a liaison 
officer, where the Commission has appointed such an officer, or if 
there is none, to the General Counsel. With respect to requests under 
this paragraph, the General Counsel, the General Counsel's designee, or 
the appropriate liaison officer is delegated the authority to dispose 
of them. Alternatively, the General Counsel may refer such requests to 
the Commission for determination, except that requests must be referred 
to the Commission for determination where the Bureau having the 
material sought and the General Counsel do not agree on the 
disposition. Prior to granting access under this section to any 
material submitted to the Commission, the General Counsel, the General 
Counsel's designee, or the liaison officer will obtain from the 
requester a certification that such information will be maintained in 
confidence and will be used only for official law enforcement purposes. 
The certificate will also describe the nature of the law enforcement 
activity and the anticipated relevance of the information to that 
activity. A copy of the certificate will be forwarded to the submitter 
of the information at the time the request is granted unless the agency 
requests that the submitter not be notified. 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.
* * * * *
    (i) The Director of the Bureau of Competition is authorized, 
without power of redelegation, to respond to

[[Page 67260]]

access requests for records and other materials pursuant to an 
agreement under the International Antitrust Enforcement Assistance Act, 
15 U.S.C. 6201 et seq. Before responding to such a request, the Bureau 
Director shall transmit the proposed response to the Secretary and the 
Secretary shall notify the Commission of the proposed response. If no 
Commissioner objects within three days following the Commission's 
receipt of such notification, the Secretary shall inform the Bureau 
Director that he or she may proceed.
* * * * *

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 00-28691 Filed 11-8-00; 8:45 am]
BILLING CODE 6750-01-P