00-28691. 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, [e-mail].

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.

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 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.

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]

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 § 2.1 by adding to the end new sentences to read as follows:

§ 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 § 4.10 by revising paragraphs (d) and (e) to read as follows:

§ 4.10

Nonpublic material.

* * * * *

(d) Except as provided in paragraphs (f) or (g) of this section or in § 4.11 (b), (c), (d), or (i), no material that is marked or otherwise identified as confidential and that is within the scope of § 4.10(a)(8), and no material within the scope of § 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 § 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 § 4.11 (b), (c), (d), or (i), material not within the scope of § 4.10(a)(8) or § 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 § 4.10(a)(2), and the submitter is provided at least ten days' notice of the intent to disclose the material.

* * * * *

5. Amend § 4.11 by revising paragraph (c) and by adding a new paragraph (i), to read as follows:

§ 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 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.

Footnotes

1.  Certain materials cannot be shared, however, including premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act. 15 U.S.C. 6204.

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).

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.