[Federal Register Volume 81, Number 246 (Thursday, December 22, 2016)]
[Rules and Regulations]
[Pages 93804-93806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30507]


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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: The Federal Trade Commission is revising its Rules of Practice 
governing access to agency records to implement provisions of the FOIA 
Improvement Act of 2016.

DATES: These amendments are effective December 22, 2016.

FOR FURTHER INFORMATION CONTACT: G. Richard Gold, Attorney, Office of 
the General Counsel, Federal Trade Commission, 600 Pennsylvania Avenue 
NW., Washington, DC 20580, (202) 326-3355.

SUPPLEMENTARY INFORMATION: On June 30, 2016, President Obama signed 
into law the FOIA Improvement Act of 2016, Public Law 114-185 (the 
``2016 Amendments''), amending the Freedom of Information Act (FOIA), 5 
U.S.C. 552. The new law addresses a range of procedural issues, 
including requirements that agencies establish a minimum of 90 days for 
requesters to file an administrative appeal and that they provide 
dispute resolution services at various times throughout the FOIA 
process. The 2016 FOIA Amendments also codify the Department of 
Justice's ``foreseeable harm'' standard, amend FOIA Exemption 5, create 
a new ``FOIA Council,'' and add two new elements to agency Annual FOIA 
Reports. Agencies are directed to include procedures in their FOIA 
regulations for engaging in dispute resolution through agency FOIA 
Public Liaisons and the National Archives and Records Administration's 
Office of Government Information Services (OGIS). Finally, the new law 
requires the head of each agency to review and update their agency's 
regulations as necessary within 180 days of enactment.
    As set out below, this document implements Rule amendments that 
incorporate the 2016 FOIA Amendments. Pursuant to 5 U.S.C. 553, these 
changes do not require public

[[Page 93805]]

comment because they relate solely to agency practice and procedure.
    In a separate document published in today's Federal Register, the 
Commission seeks public comment pursuant to 5 U.S.C. 552(a)(4)(A)(i) on 
its proposal to amend its Rules of Practice relating to fees charged 
for obtaining Commission records.

The Public Record (16 CFR 4.9)

    The 2016 FOIA Amendments clarified that ``frequently requested'' 
records include any document that has been requested under FOIA three 
or more times. 5 U.S.C. 552(a)(2)(D). The Commission is amending Rule 
4.9(b)(10)(ix) to incorporate this revised statutory definition of 
``frequently requested'' records.

Nonpublic Material (16 CFR 4.10)

    The 2016 FOIA Amendments revised FOIA Exemption 5, 5 U.S.C. 
552(b)(5), to provide that ``the deliberative process privilege shall 
not apply to records created 25 years or more before the date on which 
the records were requested.'' \1\ The Commission is amending Rule 
4.10(a)(3) to incorporate this.
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    \1\ See 5 U.S.C. 552(b)(5) as amended.
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Disclosure Requests (16 CFR 4.11)

    The Commission is amending Rule 4.11(a)(1)(i)(A) to update the 
agency's FOIA Web site address.
    The Commission is updating Rule 4.11(a)(1)(i)(D)(1) to assist 
requesters in providing sufficient contact information to enable the 
agency to send a response to a FOIA request. A mailing address is 
generally required although an email address can be sufficient in some 
instances as determined by the FOIA Office.
    The Commission is amending Rule 4.11(a)(1)(ii)(B)(1) to set out the 
FOIA's precise statutory language of what constitutes an ``unusual 
circumstance.'' 5 U.S.C. 552(a)(6)(B)(iii).
    The 2016 FOIA Amendments require agencies to notify a requester at 
various stages through the FOIA process of the requester's right to 
seek dispute resolution services from agency FOIA Public Liaisons and 
OGIS.\2\ Thus, the Commission is amending Rule 4.11(a)(1)(ii)(C), 
4.11(a)(1)(iii)(A), and 4.11(a)(2) to incorporate this notice into the 
agency's regulations.
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    \2\ For example, see 5 U.S.C. 552 (a)(6)(A)(i)(for adverse 
determinations) and 5 U.S.C. 552(a)(6)(B)(ii)(for extending time 
limits by ten days under unusual circumstances).
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    The 2016 FOIA Amendments also codify the Department of Justice's 
guidance relating to a foreseeable harm standard. The Amendments 
prohibit an agency from withholding information requested under FOIA 
unless the agency reasonably foresees that disclosure would harm an 
interest protected by a FOIA exemption or the disclosure is prohibited 
by law. The Commission is amending Rule 4.11(a)(1)(iii)(A) to 
incorporate this.
    The 2016 FOIA Amendments also codify the requirement that agencies 
shall consider whether partial disclosure of information is possible 
whenever there is a determination that a full disclosure of a requested 
record is not possible and take reasonable steps necessary to segregate 
and release nonexempt information. The obligation to segregate 
releaseable portions of responsive records was already part of the 
Commission's pre-existing regulations, in Rule 4.11(a)(1)(iii)(A). 
However, the language there has been changed to follow the new language 
from the 2016 FOIA Amendments.
    The Commission is amending Rule 4.11(a)(1)(iii)(A) and 
4.11(a)(3)(i)(A)(2) to incorporate the new law's mandate that a FOIA 
requester has the right to file an administrative appeal within a 
period of time ``that is not less than 90 days after the date of such 
adverse determination.''
    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. Id. at 601(6). In any event, the economic impact of the Rule 
changes on all requesters is expected to be minimal, if any, and the 
Act does not require an analysis for rules that are not subject to the 
notice-and-comment requirements of the Administrative Procedure Act, as 
discussed below. The Rule amendments also do not contain information 
collection requirements within the meaning of the Paperwork Reduction 
Act, 44 U.S.C. 3501-3520. Furthermore, the Rule amendments relate 
solely to agency practice and procedure, and thus are not subject to 
the notice and comment requirements of the Administrative Procedure 
Act. See 5 U.S.C. 553(b)(3)(A).

List of Subjects in 16 CFR Part 4

    Administrative practice and procedure, Freedom of information.

    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

0
1. The authority citation for part 4 continues to read as follows:

    Authority:  15 U.S.C. 46.


0
2. Amend Sec.  4.9 by revising paragraph (b)(10)(ix) to read as 
follows:


Sec.  4.9   The public record.

* * * * *
    (b) * * *
    (10) * * *
    (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, or 
that have been requested three or more times, except where some or all 
of those records would be exempt from disclosure under 5 U.S.C. 552 if 
requested by another party;
* * * * *

0
3. Revise Sec.  4.10(a)(3) to read as follows:


Sec.  4.10   Nonpublic material.

    (a) * * *
    (3) Interagency or intra-agency memoranda or letters that would not 
routinely be available by law to a private party in litigation with the 
Commission, provided that the deliberative process privilege shall not 
apply to records created 25 years or more before the date on which the 
records are requested. This exemption preserves the existing freedom of 
Commission officials and employees to engage in full and frank 
communication with each other and with officials and employees of other 
governmental agencies. This exemption includes records of the 
deliberations of the Commission except for the record of the final 
votes of each member of the Commission in every agency proceeding. It 
includes intraagency and interagency reports, memorandums, letters, 
correspondence, work papers, and minutes of meetings, as well as staff 
papers prepared for use within the Commission or between the Commission 
and other governmental agencies. It also includes information scheduled 
for public release, but as to which premature release would be contrary 
to the public interest;
* * * * *

0
4. Amend Sec.  4.11 by revising paragraphs (a)(1)(i)(A), 
(a)(1)(i)(D)(1), (a)(1)(ii)(B)(1), (a)(1)(ii)(C), (a)(1)(iii)(A),

[[Page 93806]]

(a)(2), and (a)(3)(i)(A)(2) 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 transmitted by one of the 
following means: by the form located on the FTC's FOIA Web site, found 
at www.ftc.gov; by email message to the FOIA email account at 
[email protected]; by facsimile transmission to (202) 326-2477; or by mail 
to the following address: Freedom of Information Act Request, Office of 
the General Counsel, Federal Trade Commission, 600 Pennsylvania Avenue 
NW., Washington, DC 20580.
* * * * *
    (D) * * * (1) A properly filed FOIA request shall reasonably 
describe the records sought with enough detail to enable the Commission 
to locate them with a reasonable amount of effort. Whenever possible, 
the request should include specific information about each record 
sought such as date, title, name, author, recipient, subject matter of 
the record, provide information regarding fees pursuant to Sec.  
4.8(c), and provide sufficient contact information for a response to be 
sent. Although a mailing address is generally required, an email 
address can suffice in some instances. The FOIA Office will consider 
requests to send responses by email.
* * * * *
    (ii) * * *
    (B) * * *
    (1) Necessary to search for and collect the records from field 
facilities or other establishments that are separate from the office 
processing the request; or
* * * * *
    (C) If the deciding official (as designated by the General Counsel) 
extends the time limit for initial determination pursuant to paragraph 
(a)(1)(ii)(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. In exceptional circumstances, when the 
request cannot be processed within the extended time limit, the 
Commission will also make available the agency's FOIA Public Liaison to 
assist in the resolution of any disputes and notify the requester of 
the right to seek dispute resolution services from the Office of 
Government Information Services. ``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.
* * * * *
    (iii) * * * (A) The deciding official (as designated by the General 
Counsel) will make reasonable efforts to search, using either manual or 
electronic means, for documents that exist as of the date of the 
receipt of a request 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. The 
deciding official will only withhold information if the agency 
reasonably foresees that disclosure would harm an interest protected by 
a FOIA exemption or disclosure is prohibited by law. The deciding 
official shall consider whether partial disclosure of information is 
possible whenever there is a determination that a full disclosure of a 
requested record is not possible and take reasonable steps necessary to 
segregate and release nonexempt information. Determination letters to a 
requester shall include the reasons therefor and the right of such 
person to seek assistance from the FTC's FOIA Public Liaison. Denials 
will advise the requester that this determination may be appealed to 
the General Counsel not more than 90 days after the date of the 
determination 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 deciding 
official (as designated by the General Counsel) 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. In the case of an adverse 
determination, FOIA response letters will notify requesters that they 
may seek dispute resolution services from the FTC's FOIA Public Liaison 
or from the Office of Government Information Services.
* * * * *
    (2) FOIA Requester Service Center. If a requester has questions or 
comments about the FOIA process, the requester should call the FOIA 
Requester Service Center at (202) 326-2430 to either speak directly to 
a FOIA Case Officer or leave a voice message. A requester should also 
ask the FOIA Case Officer to speak with the FOIA Public Liaison if 
there are concerns about the quality of the service received, or seek 
mediation resolution assistance during the FOIA response process.
    (3) * * * (i) * * * (A) * * *
    (2) If an initial request for records is denied in its entirety, 
the requester may, within 90 days after the adverse determination, 
appeal such denial to the General Counsel. If an initial request is 
denied in part, the time for appeal will not expire until 90 days after 
the date of the final letter notifying the requester that all records 
to which access has been granted have been made available. In unusual 
circumstances, the General Counsel or his or her designee may extend 
the time to appeal.
* * * * *

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2016-30507 Filed 12-21-16; 8:45 am]
 BILLING CODE 6750-01-P