[Federal Register Volume 63, Number 116 (Wednesday, June 17, 1998)]
[Rules and Regulations]
[Pages 32977-32978]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16030]


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FEDERAL TRADE COMMISSION

16 CFR Parts 2 and 4


Delegation of Authority to Respond To Requests for Information

AGENCY: Federal Trade Commission (FTC).

ACTION: Final rules.

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SUMMARY: The Commission is revising its rules to authorize the General 
Counsel's designee to: determine whether information is confidential or 
should be placed on the public record; respond to requests for 
nonpublic information by Federal and State agencies; determine which 
portions of closed meeting transcripts or minutes to make public; 
determine which portions of compliance reports, prior approval requests 
and related supplemental materials, will be treated as confidential 
when confidential treatment is requested at the time of submission; and 
respond to requests to use nonpublic memoranda as writing samples or 
for purposes of teaching, lecturing or writing. 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. The Commission is adopting these changes in order to 
improve and expedite the process for responding to such requests. The 
changes will affect internal procedures only and are not intended to 
influence the outcomes of requests made under the Rules.
    The Commission is inserting cross-references to certain 
confidentiality rules to clarify and make consistent its procedures and 
is removing language that is thereby made repetitive or is otherwise 
unnecessary.

EFFECTIVE DATE: These amendments are effective June 17, 1998.

FOR FURTHER INFORMATION CONTACT:
Laura Berger, Attorney, 202-326-2471, Office of the General Counsel, 
FTC, Sixth Street & Pennsylvania Avenue, NW, Washington, D.C. 20580.

SUPPLEMENTARY INFORMATION: The rule amendments relate solely to agency 
practice and thus are not subject to the notice and comment 
requirements of the Administrative Procedure Act, 5 U.S.C. 553(a)(2), 
or to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 
601(2). The Paperwork Reduction Act, 44 U.S.C. 3501-3520, does not 
apply to these amendments because they do not involve a request for any 
person to report, keep records, or disclose information, and because 
the amendment is purely administrative and does not affect persons as 
defined by the Act. See 5 CFR 1320.3(c), 5 CFR 1320.3(c)(4).

List of Subjects

16 CFR Part 2

    Administrative practice and procedure.

16 CFR Part 4

    Administrative practice and procedure, Sunshine Act.

    For the reasons set forth in the preamble, the Federal Trade 
Commission amends Title 16, chapter 1, 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: Sec. 6, 38 Stat. 721; 15 U.S.C. 46.

    2. Section 2.33 is revised to read as follows:


Sec. 2.33  Compliance procedure.

    The Commission may in its discretion require that a proposed 
agreement containing an order to cease and desist be accompanied by an 
initial report signed by the respondent setting forth in precise detail 
the manner in which the respondent will comply with the order when and 
if entered. Such report will not become part of the public record 
unless and until the accompanying agreement and order are accepted by 
the Commission. At the time any such report is submitted a respondent 
may request confidentiality for any portion thereof with a precise 
showing of justification therefor as set out in Sec. 4.9(c) and the 
General Counsel or the General Counsel's designee will dispose of such 
requests in accordance with that section.
    3. Section 2.41(f)(5) is revised to read as follow:


Sec. 2.41  Reports of compliance.

* * * * *
    (f) *  *  *
    (5) Persons submitting information that is subject to public record 
disclosure under this section may request confidential treatment for 
that information or portions thereof in accordance with Sec. 4.9(c) and 
the General Counsel or the General Counsel's designee will dispose of 
such requests in accordance with that section. Nothing in this section 
requires that confidentiality requests be resolved prior to, or 
contemporaneously with, the disposition of the application.

PART 4--MISCELLANEOUS RULES

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

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

    5. Section 4.9 is amended by revising paragraphs (b)(7)(i), (c)(1) 
and (c)(3) to read as follows:


Sec. 4.9  The public record.

* * * * *
    (b) *  *  *
    (7) Compliance/Enforcement (16 CFR 2.33, 2.41). (i) Reports of 
compliance filed pursuant to the rules in this chapter or pursuant to a 
provision in a Commission order and supplemental

[[Page 32978]]

materials filed in connection with these reports, except for reports of 
compliance, and supplemental materials filed in connection with 
Commission orders requiring divestitures or establishment of business 
enterprises of facilities, which are confidential until the last 
divestiture or establishment of a business enterprise or facility, as 
required by a particular order, has been finally approved by the 
Commission, and staff letters to respondents advising them that their 
compliance reports do not warrant any further action. At the time each 
such report is submitted the filing party may request confidential 
treatment in accordance with paragraph (c) of this section and the 
General Counsel or the General Counsel's designee will pass upon such 
request in accordance with that paragraph;
* * * * *
    (c) Confidentiality and in camera material. (1) Persons submitting 
material to the Commission described in this section may designate that 
material or portions of it confidential and request that it be withheld 
from the public record. All requests for confidential treatment shall 
be supported by a showing of justification in light of applicable 
statutes, rules, orders of the Commission or its administrative law 
judges, orders of the courts, or other relevant authority. The General 
Counsel or the General Counsel's designee will act upon such request 
with due regard for legal constraints and the public interest. No such 
material or portions of material (including documents generated by the 
Commission or its staff containing or reflecting such material or 
portions of material) will be placed on the public record until the 
General Counsel or the General Counsel's designee has ruled on the 
request for confidential treatment and provided any prior notice to the 
submitter required by law.
* * * * *
    (3) To the extent that any material or portions of material 
otherwise falling within paragraph (b) of this section contain 
information that is not required to be made public under Sec. 4.10 of 
this part, the General Counsel or the General Counsel's designee may 
determine, with due regard for legal constraints and the public 
interest, to withhold such materials from the public record.
    6. Section 4.11 is amended by revising paragraphs (c), (d), (f) and 
(g) 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 government for 
nonpublic records shall be addressed to the liaison officer for the 
requesting agency, or if there is none, to the General Counsel. 
Requests from State agencies for nonpublic records shall be addressed 
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.
    (d) Requests from Federal and State agencies for purposes other 
than law enforcement. Requests from Federal and State agencies for 
access to nonpublic records for purposes not related to law enforcement 
should be addressed to the General Counsel. The General Counsel or the 
General Counsel's designee is delegated the authority to dispose of 
requests under this paragraph. Disclosure of nonpublic information will 
be made consistent with sections 6(f) and 21 of the FTC Act. Requests 
under this section shall be subject to the fee and fee waiver 
provisions of Sec. 4.8.
* * * * *
    (f) Requests by current or former employees to use nonpublic 
memoranda as writing samples shall be addressed to the General Counsel. 
The General Counsel or the General Counsel's designee is delegated the 
authority to dispose of such requests consistent with applicable 
nondisclosure provisions, including sections 6(f) and 21 of the FTC 
Act.
    (g) Employees are encouraged to engage in teaching, lecturing, and 
writing that is not prohibited by law, Executive order, or regulation. 
However, an employee shall not use information obtained as a result of 
his Government employment, except to the extent that such information 
has been made available to the general public or will be made available 
on request, or when the General Counsel or the General Counsel's 
designee gives written authorization for the use of nonpublic 
information on the basis that the use is in the public interest.
    7. Section 4.15 is amended by revising paragraph (c)(3) to read as 
follows:


Sec. 4.15  Commission meetings.

* * * * *
    (c) * * *
    (3) Closed meeting transcripts or minutes required by 5 U.S.C. 
552b(f)(1) will be released to the public insofar as they contain 
information that either is not exempt from disclosure under 5 U.S.C. 
552b(c), or, although exempt, should be disclosed in the public 
interest. The Commission will determine whether to release, in whole or 
in part, the minutes of its executive sessions to consider oral 
arguments. With regard to all other closed meetings, the General 
Counsel or the General Counsel's designee shall determine, in 
accordance with Sec. 4.9(c), which portions of the transcripts or 
minutes may be released.
* * * * *
    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 98-16030 Filed 6-16-98; 8:45 am]
BILLING CODE 6750-01-M