[Federal Register Volume 65, Number 218 (Thursday, November 9, 2000)]
[Rules and Regulations]
[Pages 67258-67260]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 00-28691]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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, mwinerman@ftc.gov.
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.
---------------------------------------------------------------------------
\1\ Certain materials cannot be shared, however, including
premerger filings under the Hart-Scott-Rodino Antitrust Improvements
Act. 15 U.S.C. 6204.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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