Organization, procedures, and practice rules: Records access by foreign governments,

[Federal Register: July 17, 1998 (Volume 63, Number 137)]

[Rules and Regulations]

[Page 38472-38473]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr17jy98-8]

FEDERAL TRADE COMMISSION

16 CFR Part 4

Access to Records by Foreign Governments

AGENCY: Federal Trade Commission.

ACTION: Final rule.

SUMMARY: The Federal Trade Commission is amending Rules 4.10(d) and (e) of its Rules of Practice, which describe confidentiality protections for materials that the agency obtains pursuant to process in a law enforcement investigation, materials that the agency obtains voluntarily in lieu of such process that are designated confidential by their submitters, and other materials designated as confidential. These amendments conform the agency's rules to its disclosure authority under the International Antitrust Enforcement Assistance Act.

DATES: The amendments are effective July 17, 1998.

FOR FURTHER INFORMATION CONTACT: Marc Winerman, Office of the General Counsel, (202) 326-2451.

SUPPLEMENTARY INFORMATION: The Commission is amending Rule 4.10(d) of its Rules of Practice, 16 C.F.R. 4.10(d), which applies to materials submitted pursuant to compulsory process in a law enforcement investigation and to materials designated confidential and submitted voluntarily in lieu of such process. That rule provides that covered materials shall not be made available, except as provided therein, to anyone other than Commission officers, employees, contractors or consultants.

[[Page 38473]]

The Commission is also amending Rule 4.10(e) of its Rules, 16 C.F.R. 4.10(e), which provides that other materials that are designated confidential by their submitters may not be disclosed, except as provided therein, unless the Commission: (1) determines that they are neither trade secrets nor confidential commercial information; and (2) provides ten days' pre-disclosure notice to the submitter. These provisions implement and expand upon protections in sections 6(f) and 21 of the FTC Act, 15 U.S.C. 46(f), 57b-2. The amendments adopted herein conform the Commission's rules to its authority and obligations under agreements entered pursuant to the International Antitrust Enforcement Assistance Act (``IAEAA''), 15 U.S.C 6201 et. seq.

The IAEAA authorizes the Commission and the Department of Justice (``the agencies'') to enter into mutual assistance agreements with foreign antitrust authorities for the purpose of providing reciprocal assistance in antitrust investigations. In accordance with the IAEAA's terms, 15 U.S.C. 6206, the agencies have published for comment the first proposed IAEAA agreement.‹SUP›1‹/SUP›

\1\ ``Request for Comments on Proposed Agreement Between the Government of the United States of America and the Government of Australia on Mutual Antitrust Enforcement Assistance,'' 62 FR 20022 (Apr. 24, 1997) (comment period closed June 9, 1997).

Pursuant to requests under IAEAA agreements, the agencies may collect information on behalf of foreign antitrust authorities. 15 U.S.C. 6202. The agencies may also share information with those authorities, including both information collected at their behest and certain information already in the agencies' files. As reflected in these amendments, the IAEAA expressly authorizes disclosures of materials notwithstanding sections 6(f) and 21 of the FTC Act. 15 U.S.C. 6205.

The amendments adopted herein will reconcile the Commission's rules with the agency's obligations to provide assistance under IAEAA agreements. Because failure to make these amendments could impair the Commission's ability to meet its obligations, the amendments are exempt from notice and comment under the Administrative Procedure Act by virtue of the foreign affairs exemption to the Act. 5 U.S.C. 553(a)(1). They are also exempt from the notice and comment requirements of the APA and the Commission's rules by virtue of the good cause exemptions in 5 U.S.C. 553(b)(3) and 16 CFR 1.26(b), respectively. Except for non- substantive stylistic changes, the amendments merely implement agreements that are themselves subject to public comment, and comment on the amendments is therefore unnecessary.‹SUP›2‹/SUP›

\2\ See International Brotherhood of Teamsters v. Pena, 17 F.3d 1478, 1486 (D.C. Cir. 1994) (APA foreign affairs exemption and good cause exception of agency rule); WBEN v. United States, 396 F.2d 601, 616 (2d Cir. 1968) (APA foreign affairs exemption).

This action does not entail a collection of information for purposes of the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. It is not subject to the requirements of the Regulatory Flexibility Act because it concerns a foreign affairs function of the United States. See 5 U.S.C. 601(2), Section 1(a)(2) of E.O. 12291, 46 FR 13193 (1981).

List of Subjects in 16 CFR Part 4

Administrative practice and procedure, Freedom of Information Act, Privacy Act, 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 4--MISCELLANEOUS RULES

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

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

2. 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, in Sec. 4.11(b), (c), or (d), or as contemplated by agreements under the International Antitrust Enforcement Assistance Act (15 U.S.C. 6201 et seq.), 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, in Sec. 4.11(b), (c), or (d), or as contemplated by agreements under the International Antitrust Enforcement Assistance Act (15 U.S.C. 6201 et seq.), 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. * * * * *

   By direction of the Commission. Donald S. Clark, Secretary.

   [FR Doc. 98-19213Filed7-16-98; 8:45 am]

   BILLING CODE 6750-01-P