Commercial Practices; Organization, Procedures, and Rules of Practice

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BILLING CODE 4910-13-M FEDERAL TRADE COMMISSION 16 CFR Part 4 Commercial Practices; Organization, Procedures, and Rules of Practice agency: Federal Trade Commission. action: Final rule.

sum mary: The Commission has revised § 4.9 of its Rules of Practice and Procedure to clarify and reorganize the rule to reflect current procedures and to enable the public to identify more easily publicly accessible documents. In addition, the Commission is amending § 4.1(c) of its Rules to conform with changes being made to § 4.9. effective d a te: December 12,1985. FOR FURTHER INFORMATION CO N TACT: Nancy Kantrowitz, (2 0 2 ) 523-3906, Office of General Counsel, Federal Trade Commission, 6th Street and Pennsylvania Avenue NW., Washington, DC 20580.

SUPPLEMENTARY INFORMATION: Several substantive changes have been made from the former Rule 4.9. First, § 4.9(a) now specifies that no one may obtain documents which are not on the public record except in accordance with the Commission’s Rules of Practice. Second, § 4.9(b)(1)(h) provides that the votes of every Commissioner shall be placed on the public record “in all matters of public record, including matters of public record decided by notational voting.” Formerly, § 4.9(b)(2) provided that the Commissioner’s votes would be made public “in every agency proceeding.” The change to this section was made to clarify Commission procedure. The Commission will place on the public record a statement identifying those matters of public record when the Commissioners’ votes are placed on the public record. In addition to the above changes, a few deletions have been made from the old rule. For example, the revised rule omits language in the old Rule 4.9(b)(21) which states that information exempt from disclosure under §§ 4.10(a)(2), 4.10(a)(4), or 4.10(a)(7) will not be placed on the public record with clearance requests filed by former employees for ' authorization to participate in Commission proceedings. By specifying only three exemptions, the old § 4.9(b)(21) suggested that information falling under other exemptions in Rule 4.10 would necessarily be placed on the public record.

Although the names of parties under investigation are exempt from mandatory disclosure under Rule 4.10(a)(5) (i), the Commission decided in 1977 not to delete the names of the investigated parties when their identities are revealed in clearance requests and petitions to limit or quash compulsory process. See 42 FR 64,135 (1977). Revised Rule 4.9(b)(10)(ii) makes it clear that other information which is exempt from mandatory disclosure under Rule 4.10 will not be placed on the public record routinely.1 We have also deleted a portion of § 4.9(b)(5) of the old rule to clarify that petitions requesting the Commission to take law enforcement action are not placed on the public record. It is Commission policy to protect the identities of both the petitioners and the targets of a potential investigation. Two provisions, § 4.9(b) (9)(i) and § 4.9(c), have been added to Rule 4.9, and these provisions merely explain current Commission procedure. The remaining changes are technical and are not intended to change current 1A conforming amendment has been made to Rule 4.1(c).

practice. For example, some of the language in § 4.9(bJ(7)(i) differs from the language in the former § 4.9(b)(13). These changes are intended to clarify that when compliance reports concerning divestitures required by Commission order are submitted to the Commission, the submitting party may request confidentiality for each report at the time it is submitted. Absent such a request, all such compliance reports are placed on the public record after the Commission has approved the last divestiture required by a particular order. In addition, paragraph 4.9(b)(2)(i) specifies that advisory opinions by both the staff and the Commission are placed on the public record. Under the present Commission policy, both types of advisory opinions are placed on the public record. The new language states this policy more directly than the former language in Rule 4.9(b)(ll), which simply stated that “any” such advice would be put on the public record. Similarly, paragraph 4.9(b)(4) (i) and (ii) specify that both initial rulings and full Commission rulings on petitions to limit or quash compulsory process are placed on the public record as are closing letters in initial phase and full phase investigations.

Rule 4.9 is a rule of agency organization, procedure or practice and it is being amended without notice and comment. 5 U.S.C. 553(b)(A). List of Subjects in 16 CFR Part 4 Administrative practice and procedure, Freedom of information, Privacy, Sunshine Act.

PART 4— [AMENDED] For the reasons given in the preamble above, Part 4 of Title 16 of the Code of Federal Regulations is amended as follows:

1. The authority citation for 16 CFR Part 4 continues to read as follows: Authority: 5 U.S.C. 552; 15 U.S.C. 46(g). 2. The Commission revises 16 CFR 4.9 to read as follows:

§ 4.9 Public Records.

(a) G eneral (1) All records of the Commission are available for public inspection and copying either routinely or upon request except to the extent that they are exempt by law from mandatory public disclosure and are described in § 4.10 of this part.

(2) Records that arfe exempt from disclosure or are otherwise not available from the Commission’s public record may be made available for inspection and copying only upon request under the procedures set forth in

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50780__FederanEegister / Vol, 50, No. 239 / Thursday, December 12, 1985 / Rules and Regulations § 4.11 of this part, or as provided in §§ 4.10(d)—(g), 4.13, and 4.15(b)(3) of this • part, by the Chairman under § 5.12(c) of this chapter, or by the Commission. (b) Categories of Public Records. The public records of the Commission that are routinely available for inspection and copying include (except as provided in paragraph (c) of this section): (1) Commission Organization and Procedures (16 CFR Part 0 and §§ 4.14- 4.15, 4.17). (i) A current index of opinions, orders, statements of policy and interpretations, administrative staff manuals, general instructions and other public records of the Commission; (ii) A current record of the final votes of each member of the Commission in all matters of public record, including matters of public record decided by notational voting;

(iii) Descriptions of the Commission’s organization, including descriptions of where, from whom, and how the public may secure information, submit documents or requestsr and obtain copies of orders, decisions and other materials;

(iv) Statements of the Commission’s general procedures and policies and interpretations, its nonadjudicative procedures, its rules of practice for adjudicative proceedings, and its miscellaneous rules, including descriptions of the nature and requirements of all formal and informal procedures available, and (v) Reprints of the principal laws under which the Commission exercises enforcement or administrative responsibilities.

(2) Industry Guidance (16 CFR 1.1- 1.6). (i) Any advice, advisory opinion or response given and required to be made public under §§ 1.4 and 2.41 (d) or (f) of this chapter (whether by the Commission or the staff), together with a statement of supporting reasons; (ii) Industry guides, digests of advisory opinions and compliance advice believed to be of interest to the public generally and other administrative interpretations; (iii) Transcripts of hearings in all industry guide proceedings, as well as written statements filed with or forwarded to the. Commission in connection with these proceedings; and (iv) Petitions filed with the Secretary of the Commission for the promulgation or issuance, amendment, or repeal of industry guides.

(3) Rulemaking (16 CFR 1.7-1.97). (i) Petitions filed with the Secretary of the Commission for the promulgation or issuance, amendment, or repeal of rules or regulations within the scope of § § 1.7 and 1.21 of this chapter, and petitions for exemptions;

(ii) Notices and advance notices of proposed rulemaking and rules and orders issued in rulemaking proceedings; and (iii) Transcripts of hearings of all rulemaking proceedings, as well as written statements filed with or forwarded to the Commission in , connection with these proceedings. (4) Investigations (16 CFR 2.7). (i) Petitions to limit or quash compulsory process and the rulings thereon, requests for review by the full Commission of those rulings, and Commission rulinga.on such requests; and (ii) Closing letters in initial phase and full phase investigations. (5) Adjudicative Proceedings and Litigated Orders (16 CFR 3.1-3.24, 3.31- 3.55, 4.7). (i) The pleadings and prehearing conferences (to the extent* made available under § 3.21(d)), motions, certifications, orders, and the transcripts of hearings (including public conferences), testimony, oral arguments, and other material made a part thereof, and exhibits and all documents received in evidence or made a part of the record in adjudicative proceedings (except matters heard or filed in cam era); (ii) Initial decisions of administrative law judges;

(iii) Orders and opinions in interlocutory matters;

(iv) Final orders and opinions in adjudications, including separate statements of Commissioners; (v) Petitions, applications, pleadings, briefs, and other records filed by the Commission with the courts in connection with adjudicative, injunctive, enforcement, compliance, and condemnation proceedings, and in connection with judicial review of Commission actions, and opinions and orders of the courts in disposition thereof;

(vi) Records of ex parte communications in adjudicative proceedings; and (vii) Petitions to reopen proceedings and orders to determine whether orders should be altered, modified, or set aside in accordance with § 2.51. (6) Consent Agreements (16 CFR 2.31- 2.34, 3.25, 3.71-3.72). (i) Agreements containing orders, after acceptance by the Commission pursuant to § § 2.34 and 3.25(f) of this chapter; (ii) Comments filed under §§ 2.34 and 3.25(f) of this chapter concerning proposed consent agreements; (iii) Final decisions and orders issued after the comment period prescribed in § § 2.34 and 3.25(f), including separate statements of Commissioners; and (iv) Petitions to reopen consent agreements to determine whether they should be altered, modified, or set aside in accordance with § 2.51. (7) Compliance/Enforcement (16 CFR 2.33, 2.41). (i) Reports of compliance filed pursuant to the rules in this chapter or pursuant to a provision in a Commission order and supplemental materials filed in connection with these reports, except for reports of compliance, and supplemental materials filed in connection with Commission orders requiring divestitures or establishment of business enterprises or facilities, which are confidential until the last divestiture or establishment of a business enterprise or facility, as required by a particular order, has been finally approved by the Commission. At the time each such report is submitted the filing party may request confidential treatment in whole or in part and submit satisfactory reasons therefor, and the Commission with due regard for statutory restrictions, its rules and the public interest will pass upon such request;

(ii) Requests for advice concerning proposed mergers and material required to be made public under § 2.41(f) of the Commission Rules; and (iii) Applications for approval of proposed divestitures, acquisitions or similar transactions subject to Commission review under outstanding orders together with supporting materials, objections and comments concerning these transactions submitted by the public and Commission responses.

(8) A ccess to Documents and Meeting (16 CFR 4.8, 4.11, 4.13). (i) Letters requesting access to Commission records pursuant to § 4.11(a) of this chapter and the Freedom of Information Act, 5 U.S.C. 552, and letters granting or denying such requests (not including access requests and answers thereto from the Congress or other government agencies);

(ii) Announcements of Commission meetings as required under the Sunshine Act, 5 U.S.C. 552b, including records of the votes to close such meetings; (iii) Summaries or other explanatory materials relating to matters to be considered at open meetings made available pursuant to § 4.15(b)(3) of this chapter; and (iv) Commission minutes of open meetings, and, to the extent they are not exempt from mandatory public disclosure under the Sunshine Act or the Freedom of Information Act, portions of minutes or transcripts of closed meetings.

(9) Standards o f Conduct (16 CFR 5.5- 5.6, 5.10-5.26, 5.31, 5.57-5.68).

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Federal Register / Vol. 50, No. 239 / Thursday, December 12, 1985 / Rules and Regulations 50781 (i) Memoranda to staff elaborating or clarifying standards described in administative staff manuals and Part 5 of this subchapter.

(10) Miscellaneous (Press Releases, Clearance Requests, Reports Filed by or with the Commission, Continuing Guaranties, Regis tered Identification Numbers), (i) Releases by the Commission's Office of Public Affairs supplying information concerning the activities of the Commission; (ii) Applications under § 4.1(b)(2) of this chapter for clearance or authorization to appear or participate in a proceeding or investigation and of the Commission's responses thereto; (iii) Continuing guaranties filed under the Wool, Fur, and Textile Acts; (iv) Published reports by the staff or by the Commission on economic surveys and investigations of general interest; (v) Filings by the Commission or by the staff in connection with proceedings before other federal agencies or state or local government bodies; (vi) Registration statements and annual reports filed with the Commission by export trade associations, and bulletins, pamphlets, and reports with respect to such associations released by the Commission;

(vii) The identities of holders of registered identification numbers issued by the Commission pursuant to § 1.32 of this chapter;

(viii) The Commission’s annual report submitted after the end of each fiscal year, summarizing its work during the year (available for inspection at each of the offices of the Commission with copies obtainable from the Superintendent of Documents, U.S. * Government Printing Office, Washington, DC 20402) and any other annual reports made to Congress on activities of the Commission as required by law; and (ix) Every amendment, revision, substitute, or repeal of any of the foregoing items listed in § § 4.9(b)(1) through 4.9(b)(10) of this section. (c) Confidentiality. (1) Persons submitting documentary material to the Commission described in this section may designate that material or portions of it confidential and request that it be withheld from the public record. No such material or portions of material 1 (including documents generated by the Commission or its staff containing or reflecting such material or portions of material) will be placed on the public record pursuant to this section until the Commission has ruled on the request for confidential treatment and provided any prior notice to the submitter required by law. All requests for confidential treatment shall be supported by a showing of justification in light of applicable statutes, rules, orders of the Commission or its administrative law judges, orders of the courts, or other relevant authority.

(2) The Commission may withhold from the public record any documents or portions of documents otherwise falling within § 4.9(b) of this section to the extent they contain information that would be exempt from mandatory public disclosure under § 4.10 of this part 3.

Section 4.1(c) is revised to read a follows;

§ 4.1 Appearances ★ * * * * .

(c) Public disclosure. All applications requesting authorization to appear or participate in a proceeding or investigation, and the Commission’s responses thereto, are part of the public records of the Commission, except for information exempt from disclosure under § 4.10(a) of this chapter. * * * ★ * Dated: December 2,1985. By direction of the Commission. Benjamin I. Berman, Acting Secretary. - [FR Doc. 85-29236 Filed 12-11-85; 8:45 am]