[Federal Register Volume 63, Number 137 (Friday, July 17, 1998)]
[Rules and Regulations]
[Pages 38472-38473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19213]
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FEDERAL TRADE COMMISSION
16 CFR Part 4
Access to Records by Foreign Governments
AGENCY: Federal Trade Commission.
ACTION: Final rule.
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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.1
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\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).
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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.2
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\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).
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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. 98-19213 Filed 7-16-98; 8:45 am]
BILLING CODE 6750-01-P
