[Federal Register Volume 64, Number 115 (Wednesday, June 16, 1999)]
[Rules and Regulations]
[Pages 32179-32180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15187]
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FEDERAL TRADE COMMISSION
16 CFR Part 4
Miscellaneous Rules: Disclosure Requests
AGENCY: Federal Trade Commission.
ACTION: Final rule.
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SUMMARY: The Commission is amending a rule of practice and procedure
that governs disclosure requests. These amendments add requests for
voluntary testimony to the scope of the rule's coverage. The amendments
also clarify the existing scope of various paragraphs of the rule.
EFFECTIVE DATE: June 16, 1999.
FOR FURTHER INFORMATION CONTACT:
Gary M. Greenfield, (202) 326-2753, Office of the General Counsel,
Federal Trade Commission, 600 Pennsylvania Ave., NW, Washington, DC
20580.
SUPPLEMENTARY INFORMATION: The Commission is amending 16 CFR 4.11(e),
which governs compulsory process requiring disclosure by Commission
employees of material and information relating to their official
duties. This provision also governs compulsory process to former
Commission employees and to current and former special government
employees that requires the disclosure of nonpublic information
acquired during their Commission employment.
The amendments expand the scope of Sec. 4.11(e) to include requests
for voluntary testimony. As with requests by compulsory process for
documents or testimony, the amended Rule requires anyone seeking
voluntary testimony from Commission employees (and, where applicable,
special government employees or former employees) to furnish a
statement to the General Counsel setting forth information that will
enable the General Counsel to make an informed decision regarding the
request.
Amendments to paragraphs (c) and (d) of Sec. 4.11 clarify that
paragraph (e) of that section governs compulsory process from
government agencies for Commission documents or testimony. Paragraph
(e)(3), as amended, provides that the General Counsel may
discretionarily waive the statement required by the Rule with respect
to any individual request by a government agency.
The requirements of Sec. 4.11(e) do not apply to invitations to
testify before Congress or to testify before other government bodies on
the possible effects of proposed legislation or regulations.
The Commission does not seek public comment on these amendments
because they relate solely to agency practice and procedure. Thus, the
amendments are exempt from the notice-and-comment requirements of the
Administrative Procedure Act. See 5 U.S.C. 553(b)(A). In addition, the
Commission certifies that these amendments will not have a significant
impact on small business entities. Accordingly, no final regulatory
flexibility analysis is required by the Regulatory Flexibility Act. See
5 U.S.C. 605(b).
List of Subjects in 16 CFR Part 4
Administrative practice and procedure.
For the reasons set forth in the preamble, the Commission amends
part 4 of 16 CFR as follows:
PART 4--MISCELLANEOUS RULES
1. The authority for part 4 continues to read as follows:
[[Page 32180]]
Authority: Sec. 6, 38 Stat. 721; 15 U.S.C. 46.
2. Section 4.11 is amended by adding a sentence at the end of
paragraphs (c) and (d) and revising paragraph (e) to read as follows:
Sec. 4.11 Disclosure requests.
* * * * *
(c) * * * 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.
(d) * * * Request 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.
(e) Requests for testimony, pursuant to compulsory process or
otherwise, and requests for material pursuant to compulsory process, in
cases or matters to which the Commission is not a party. (1) The
procedures specified in this section will apply to compulsory process
and requests for voluntary testimony directed to Commission employees,
except special government employees, that relate in any way to the
employees' official duties. These procedures will also apply to
compulsory process and requests for voluntary testimony directed to
former Commission employees or to current or former special government
employees of the Commission that seek nonpublic materials or
information acquired during Commission employment. The provisions of
paragraph (e)(3) of this section will also apply when requests
described above are directed to the Commission. For purposes of this
section, the term testimony includes any written or oral statement by a
witness, such as depositions, affidavits, declarations, and statements
at a hearing or trial; the term nonpublic includes any material or
information which, under Sec. 4.10, is not required to be more public;
the term employees, except where otherwise specified, includes special
government employees and other Commission employees; and the term
special government employees includes consultants and other employees
as defined by section 202 of title 18 of the United States Code.
(2) Any employee or former employee who is served with compulsory
process shall promptly advise the General Counsel of its service, the
nature of the material or information sought, and all relevant facts
and circumstances. This notification requirement also applies to any
employee or former employee whose testimony is sought on a voluntary
basis under the conditions set forth in paragraph (e)(1) of this
section.
(3) A party who causes compulsory process to be issued to, or who
requests testimony by, the Commission or any employee or former
employee of the Commission shall furnish a statement to the General
Counsel, unless, with respect to a request by a Federal or State
agency, the General Counsel determines, as a matter of discretion, to
waive this requirement. The statement shall set forth the party's
interest in the case or matter, the relevance of the desired testimony
or material, and a discussion of whether it is reasonably available
from other sources. If testimony is desired, the statement shall also
contain a general summary of the testimony and a discussion of whether
Commission records could be produced and used in its place. Any
authorization for testimony will be limited to the scope of the demand
as summarized in such statement.
(4) Absent authorization from the General Counsel, the employee or
former employee shall respectfully decline to produce requested
material or to disclose requested information. The refusal should be
based on this paragraph and on United States ex rel. Touhy v. Ragen,
340 U.S. 462 (1951).
(5) The General Counsel will consider and act upon compulsory
process and requests for voluntary testimony under this section with
due regard for statutory restrictions, the Commission's rules and the
public interest, taking into account such factors as the need to
conserve the time of employees for conducting official business; the
need to avoid spending the time and money of the United States for
private purposes; the need to maintain impartiality between private
litigants in cases where a substantial government interest is not
involved; and the established legal standards for determining whether
justification exists for the disclosure of confidential information and
material.
(6) Invitations to testify before Congressional committees or
subcommittees or to testify before other government bodies on the
possible effects of legislative and regulatory proposals are not
subject to paragraphs (e)(1) through (5) of this section.
* * * * *
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 99-15187 Filed 6-15-99; 8:45 am]
BILLING CODE 6750-01-M
