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[Federal Register: April 9, 1997 (Volume 62, Number 68)]
[Rules and Regulations]
[Page 17068-17070]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09ap97_dat-19]

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COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 145


Commission Records and Information

AGENCY: Commodity Futures Trading Commission.

ACTION: Final rule.

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SUMMARY: The Commodity Futures Trading Commission (``Commission'' or
``CFTC'') is amending its rules relating to Commission records and
information. The modifications implement the portions of the Electronic
Freedom of Information Act Amendments of 1996 which become effective
March 31, 1997. As these modifications involve solely agency procedure
and practice, public comment is not being sought.

EFFECTIVE DATE: March 31, 1997.

ADDRESSES: Jean A. Webb, Secretary of the Commission, Commodity Futures
Trading Commission, Three Lafayette Centre, 1155 21st Street, NW,
Washington, DC 20581; or by electronic mail to [email protected].

FOR FURTHER INFORMATION CONTACT: Merry Lymn, Assistant General Counsel,
Office of the General Counsel, Commodity Futures Trading Commission,
Three Lafayette Centre, 1155 21st Street, NW, Washington, DC 20581.
Telephone: (202) 418-5120.

SUPPLEMENTARY INFORMATION:

I. Background--Need for Revisions

    The Electronic Freedom of Information Act Amendments of 1996,
Public Law 104-231, 110 Stat. 3048 (1996) (``EFOIA''), amended the
Freedom of Information Act (``FOIA'') (5 U.S.C. 552) to facilitate the
dissemination of agency records created and retained in electronic
formats and to assist requesters in obtaining information in the form
or format most useful to them. EFOIA provides dates by which certain
provisions must be implemented. This notice sets forth the Commission's
modifications of its regulations found at 17 CFR Part 145 to implement
those EFOIA provisions with a March 31, 1997 effective date. EFOIA
provisions with a later effective date will be treated subsequently.

A. Definitions

1. EFOIA Definition
    Section 3 of EFOIA amends FOIA by modifying its definition of
``record.'' Consequently, the Commission is revising its definition of
``record'' found at 17 CFR 145.0 to conform to EFOIA usage.
Furthermore, because the current definition is inconsistent with United
States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 144-145, 149-154
(1989) (court opinions in agency files held to be agency records), and
the Commission's subsequent practice, the definition of ``record'' is
also revised by deleting the sentence ``Further, the term `records,' as
used in this Part, does not include materials such as Federal Register
notices or court filings that are available from public sources other
than the Commission.''
2. Alphabetical Order
    The definitional section of Part 145 is not in alphabetical order.
The Commission believes that re-ordering the definitions alphabetically
will make it easier for the user and will facilitate adding or deleting
definitions in the future. Consequently, the new definitional section
is alphabetized. Additionally, some of the existing definitions are
redrafted to conform to the revised format.

B. Availability of Records

    Under Section 5 of EFOIA, the Commission is required to make
records available in any form or format requested if the Commission can
readily reproduce them in that form or format. Accordingly, the
Commission is amending Sec. 145.7 to indicate that requesters should
specify the form or format (including electronic formats) in which they
prefer to receive a response. When requesters do not specify the form
or format for a response, the Commission will respond in the form or
format in which the document is most accessible to the Commission.

[[Page 17069]]

C. Reference Materials and Guides

    In accordance with Section 11 of EFOIA, as of March 31, 1997,
individuals may obtain a guide for requesting records or information
from the Commission which includes an index of all publicly available
information of the Commission; a description of major information and
record locator systems maintained by the Commission; and guidance for
obtaining various types and categories of public information from the
Commission. These reference materials will be available at Commission
offices for public inspection and copying, and by writing or
telephoning the Commission. Consequently, the Commission is modifying
Secs. 145.2 and 145.7 to include information about access to these
materials.

II. Related Matters

Regulatory Flexibility Act

    The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601, et seq.
(1988), requires that agencies, in proposing rules, consider the impact
of those rules on small businesses. The Commission has previously
determined, pursuant to 5 U.S.C. 605(b), that Part 145 rules relating
to Commission records and information do not have a significant
economic impact on a substantial number of small entities. Because they
do not impose regulatory obligations on commodity professionals and
small commodity firms, and because the amendments will enhance the FOIA
process, the Commission does not expect the rule to have a significant
economic impact on a substantial number of small business entities.
    Accordingly, pursuant to Rule 3(a) of the RFA (5 U.S.C. 605(b)),
the Chairperson, on behalf of the Commission, certifies that this rule

will not have a significant economic impact on a substantial number of
small entities. The Commission nonetheless invites comment from any
member of the public who believes that these revisions would have a
significant impact on small businesses.

List of Subjects in 17 CFR Part 145

    Confidential business treatment, Freedom of information.

    For the reasons set forth in the preamble, Title 17, Part 145 is
amended as follows:

PART 145--COMMISSION RECORDS AND INFORMATION

    1. The authority for Part 145 is revised to read:

    Authority: Pub. L. 104-231, 110 Stat. 3048, Pub. L. 99-570, 100
Stat. 3207, Pub. L. 89-554, 80 Stat. 383, Pub. L. 90-23, 81 Stat.
54, Pub. L. 93-502, 88 Stat. 1561-1564 (5 U.S.C. 552); Sec. 101(a),
Pub. L. 93-463, 88 Stat. 1389 (5 U.S.C. 4a(j)); unless otherwise
noted.

    2. Sec. 145.0 is revised to read as follows:


Sec. 145.0  Definitions.

    For the purposes of Part 145 the following definitions are
applicable:
    Assistant Secretary--refers to the Assistant Secretary of the
Commission for FOI, Privacy and Sunshine Acts Compliance.
    Compliance Staff--refers to the FOI, Privacy and Sunshine Acts
Compliance staff of the Office of the Secretariat at the Commission's
principal office in Washington, DC assigned to respond to requests for
information and to handle various other matters under the Freedom of
Information Act, the Privacy Act of 1974, and the Government in the
Sunshine Act.
    Public Records--in addition to the records described in Sec. 145.1
(material published in the Federal Register) and in Sec. 145.2 (records
required to be made publicly available under the Freedom of Information
Act), includes those records that have been determined by the
Commission to be generally available to the public directly upon oral
or written request from the Commission office or division responsible
for the maintenance of such records. A compilation of Commission
records routinely available to the public upon request appears in
Appendix A to this Part 145.
    Nonpublic records--are records not identified in Sec. 145.1,
Sec. 145.2, or Appendix A of this Part 145. Nonpublic records must be
requested, in writing, in accordance with the provisions of Sec. 145.7.
    Record--is any information or agency record maintained by the
Commission in any format, including an electronic format. It includes
any document, writing, photograph, sound or magnetic recording,
videotape, microfiche, drawing, or computer-stored information or
output in the possession of the Commission. The term ``record'' does
not include personal convenience materials over which the Commission
has no control, such as appointment calendars and handwritten notes,
which may be retained or destroyed at an employee's discretion.
    3. Section 145.2 is revised to read as follows:


Sec. 145.2  Records available for public inspection and copying;
documents published and indexed.

    Except as provided in Sec. 145.5, pertaining to nonpublic matters,
and in addition to those documents listed in Appendix A to Part 145,
Compilation of Commission Records Available to the Public, the
following materials are available for public inspection and copying
during normal business hours at the Commission's Public Reading Room,
located at the principal office of the Commission in Washington, DC and
at the regional offices of the Commission:
    (a) A guide for requesting records or publicly available
information from the Commission which includes:
    (1) An index of all publicly available information of the
Commission;
    (2) A description of major information and record locator systems;
    (3) Guidance for obtaining various types and categories of public
information from the Commission;
    (b) Final opinions and orders of the Commission in the adjudication
of cases, including concurring and dissenting opinions;
    (c) Statements of policy and interpretations which have been
adopted by the Commission and are not published in the Federal
Register;
    (d) Records released in response to FOIA requests that have been,
or the Commission anticipates will be, the subject of additional FOIA
requests;
    (e) Administrative manuals and instructions that affect the public;
and
    (f) Indices providing identifying information to the public as to
the materials made available pursuant to paragraphs (a) through (e) of
this section.
    4. Sec. 145.7 is amended by adding an introductory paragraph and
revising paragraph (a) to read as follows:


Sec. 145.7  Requests for Commission records and copies thereof.

    Requests for Commission records and copies thereof shall specify
the preferred form or format (including electronic formats) of the
response. The Commission will accommodate requesters as to form or
format if the record is readily available in that form or format. When
requesters do not specify the form or format of the response, the
Commission will respond in the form or format in which the document is
most accessible to the Commission.
    (a) Public inquiries and inspection of public records. Information
concerning the nature and extent of available public records may be
obtained in person, by telephone, via Internet (http://www.cftc.gov),
or by writing to the Commission offices designated in Secs. 145.2 and
145.6.
* * * * *
    Issued by the Commission.


[[Page 17070]]


    Dated: April 3, 1997.
Jean A. Webb,
Secretary of the Commission, Commodity Futures Trading Commission.
[FR Doc. 97-9003 Filed 4-8-97; 8:45 am]
BILLING CODE 6351-01-P
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