Freedom of Information Act, Miscellaneous Rules

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FEDERAL TRADE COMMISSION 16 CFR Part 4 Freedom of Information Act, Miscellaneous Rules AGENCY: Federal Trade Commission (FTC).

ACTION: Final rule.

SUMMARY: This document amends the Commission’s Rules of Practice to incorporate procedures for the expedited processing and aggregation of requests received by the Commission under the Freedom of Information Act and to revise the Commission’s

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Federal Register / Vol. 64, No. 12 / Wednesday, January 20, 1999 / Rules and Regulations schedule of fees charged to members of the public for access to agency records. EFFECTIVE DATE: January 20, 1999. FOR FURTHER INFORMATION CONTACT: Alex Tang, Attorney, (202) 326–2447, Office of General Counsel, FTC, 600 Pennsylvania Ave., NW., Washington, DC 20580.

SUPPLEMENTARY INFORMATION: On August 26, 1998, the Commission published a proposal to amend its Rules of Practice to incorporate certain procedures for the expedited processing and aggregation of requests under the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended by the Electronic FOIA Amendments of 1996 (E–FOIA), and to revise the schedule of fees charged to the public by the Commission in providing access to its records. See 64 FR 45650 (Aug. 26, 1998). The Commission received no responses to its request for comments on these amendments.

Accordingly, for the reasons set forth in the statement of basis and purpose accompanying the proposed amendments, the Commission has determined to adopt the amendments as final without change, except for technical corrections needed to bring the FTC’s mailing address, as set forth in Rules 4.8(b)(6) (search and review fees) and 4.11(a)(2)(i)(A) (address for FOIA appeals), into conformity with U.S. Postal Service standards. The same corrections are being made in the corresponding provisions for initial FOIA requests under Rule 4.11(a)(1)(i)(A) and Privacy Act requests and appeals under Rules 4.13(c) and (i)(1), which were previously amended by the Commission when it implemented other E–FOIA provisions and made other technical corrections in its Rules. See 63 FR 45644 (Aug. 26, 1998) (final rule).

In addition, the Commission is adding a new paragraph (h) to Commission Rule 4.11, 16 CFR 4.11(h), to permit a Commission member, official or staff to disclose items or categories of information not currently on the Commission’s public record upon a determination by the General Counsel (or his or her designee) that the disclosure of such Commission information would facilitate the conduct of official agency business and would not be otherwise prohibited by law, order, or regulation. In determining whether disclosure would facilitate the conduct of official agency business, the General Counsel (or his or her designee) will consider the interest in disclosure and any countervailing agency interests or policies (e.g., whether disclosure would interfere with any ongoing law enforcement investigations). The General Counsel will designate the Deputy General Counsel or an Assistant General Counsel (or a senior manager in an equivalent level) to make these determinations, if delegated. This procedure avoids the need for the full Commission to authorize disclosures by its own members, officials or staff, and will thereby help minimize the administrative burden and delay associated with the authorization process. The General Counsel retains the discretion, which may be exercised by an Acting General Counsel, but is not otherwise intended to be delegated, to refer unusual or difficult cases to the Commission for determination. Like information released in response to an FOIA request, information disclosed under Rule 4.11(h) will not automatically be placed on the agency’s ‘‘public record’’ for routine public inspection and copying under Rule 4.9(b) (i.e., ‘‘reading room’’ materials). Nothing in new Rule 4.11(h), however, is intended to prevent the information from being included in other documents that are routinely placed on the public record (e.g., press releases). Likewise, new Rule 4.11(h) is not intended to prevent the Commission from later placing the particular category of information on the public record by amending the list of public records in Rule 4.9(b) to that effect, or from voting to place a particular item (rather than the entire category) of information on the public record on an individual, caseby-case basis. See Commission Rule 4.9(b)(10)(xiii); 63 FR at 45646 (discussing the addition of Rule 4.9(b)(10)(xiii) as a catch-all category for individual documents not specifically listed in Rule 4.9(b) that the Commission may from time to time place on the public record). New Rule 4.11(h) is intended as a rule of purely internal agency applicability and is not intended to confer on the public any additional or separate right of access to nonpublic agency records. Requests by members of the public for access to such records remain subject to the FOIA procedures set forth in Rule 4.11(a).

The Commission hereby certifies that no final regulatory flexibility analysis is required under the Regulatory Flexibility Act because the amendments will not have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 605(b). Most requests for access to FTC records are filed by individuals, who are not ‘‘small entities’’ within the meaning of that Act. 5 U.S.C. 601(6). In any event, the economic impact of the rule changes on requesters is expected to be minimal, if any. None of the amendments contains any information collection requirements within the meaning of the Paperwork Reduction Act, 44 U.S.C. 3501–3520. Finally, new Rule 4.11(h), which was not published in the earlier notice of proposed rulemaking, is a purely technical amendment and relates solely to agency rules of practice and procedure. For those reasons, the amendment is exempt from the noticeand-comment requirements of the Administrative Procedure Act. See 5 U.S.C. 553(A), (B).

List of Subjects in 16 CFR Part 4 Administrative practice and procedure, Freedom of Information Act. For the reasons set forth in the preamble, the Federal Trade Commission amends Title 16, Chapter I, 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 § 4.8 by revising paragraphs (b)(4) and (b)(6) to read as follows: § 4.8 Costs for obtaining Commission records.

* * * * * (b) * * * (4) Waiver of small charges. Notwithstanding the provisions of paragraphs (b)(1), (2), and (3) of this section, charges will be waived if the total chargeable fees for a request do not exceed $14.00.

* * * * * (6) Schedule of direct costs. The following uniform schedule of fees applies to records held by all constituent units of the Commission. Paper Fees:

Paper copy (up to 8.5′′ x 14′′). Reproduced by Commission ...................................................................................................................... $0.14 per page.

Reproduced by Requester .......................................................................................................................... 0.05 per page.

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Federal Register / Vol. 64, No. 12 / Wednesday, January 20, 1999 / Rules and Regulations Microfiche Fees:

Film Copy—Paper to 16mm film .............................................................................................................. 0.04 per frame.

Fiche Copy—Paper to 105mm fiche ......................................................................................................... 0.08 per frame.

Film Copy—Duplication of existing 100 ft. roll of 16mm film .............................................................. 9.50 per roll.

Fiche Copy—Duplication of existing 105mm fiche ................................................................................. 0.26 per fiche.

Paper Copy—Converting existing 16mm film to paper (Conversion by Commission Staff) ................. 0.26 per page.

Paper Copy—Converting existing 105mm fiche to paper (Conversion by Commission Staff) ............. 0.23 per page.

Film Cassettes ............................................................................................................................................. 2.00 per cassette.

Electronic Services:

Converting paper into electronic format (scanning) ................................................................................ 2.50 per page.

Computer programming ............................................................................................................................. 8.00 per qtr. hour.

Other Fees:

Computer Tape ........................................................................................................................................... 18.50 each.

Certification ................................................................................................................................................ 10.35 each.

Express Mail ............................................................................................................................................... 3.50 for first pound and 3.67 for each additional pound (up to $15.00).

Search and Review Fees Agency staff is divided into three categories: clerical, attorney/economist, and other professional. Fees for search and review are assessed on a quarterhourly basis, and are determined by identifying the category into which the staff member(s) conducting the search or review belong(s), determining the average quarter-hourly wages of all staff members within that category, and adding 16 percent to reflect the cost of additional benefits accorded to government employees. The exact fees are calculated and announced periodically and are available from the Consumer Response Center, Federal Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC 20580; (202) 326–2222.

* * * * * 3. Amend § 4.11 by redesignating paragraphs (a)(1)(i)(E) and (a)(1)(iii)(D) as new paragraphs (a)(1)(i)(F) and (a)(1)(iii)(E), respectively; by adding new paragraphs (a)(1)(i)(E), (a)(1)(iii)(D), and (h); and by revising paragraphs (a)(1)(i) (A) and (B), (a)(1)(iii)(A), (a)(2)(i)(A), (a)(2)(i)(B), and (a)(2)(ii)(A) to read as follows:

§ 4.11 Disclosure requests.

(a) * * * (1) * * * (i) * * * (A) A request under the provisions of the Freedom of Information Act, 5 U.S.C. 552, as amended, for access to Commission records shall be in writing and addressed as follows: Freedom of Information Act Request, Assistant General Counsel for Legal Counsel, (Management & Access), Office of the General Counsel, Federal Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC 20580. (B) Failure to mark the envelope and the request in accordance with paragraph (a)(1)(i)(A) of this section, or the filing of a request for expedited treatment under paragraph (a)(1)(i)(E) of this section, will result in the request (or requests, if expedited treatment has been requested) being treated as received on the date that the processing unit in the Office of General Counsel actually receives the request(s). * * * * * (E) Expedited treatment. Requests may include an application for expedited treatment. Where such an application is not included with an initial request for access to records under paragraph (a)(1) of this section, the application may be included in any appeal of that request filed under paragraph (a)(2) of this section. Such application, which shall be certified by the requester to be true and correct to the best of such person’s knowledge and belief, shall describe the compelling need for expedited treatment, including an explanation as to why a failure to obtain the requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual, or, with respect to a request made by a person primarily engaged in disseminating information, an explanation of the urgency to inform the public concerning actual or alleged Federal Government activity. The Assistant General Counsel for Legal Counsel (Management & Access) or his or her designee will, within 10 calendar days of receipt of a request for expedited treatment, notify the requester, in writing, of the decision to either grant or deny the request for expedited treatment, and, if the request is denied, advise the requester that this determination may be appealed to the General Counsel.

* * * * * (iii) Time limit for initial determination. (A) The Assistant General Counsel for Legal Counsel (Management & Access) or his or her designee will, within 20 working days of the receipt of a request, either grant or deny, in whole or in part, such request, unless the request has been granted expedited treatment in accordance with this section, in which case the request will be processed as soon as practicable.

* * * * * (D) If the Assistant General Counsel for Legal Counsel (Management & Access) or his or her designee reasonably believes that requests made by a requester, or a group of requesters acting in concert, actually constitute a single request that would otherwise involve unusual circumstances, as specified in paragraph (a)(1)(iii)(B) of this section, and the requests involve clearly related matters, those multiple requests may be aggregated. * * * * * (2) * * * (i) * * * (A)(1) If an initial request for expedited treatment is denied, the requester, at any time before the initial determination of the underlying request for records by the Assistant General Counsel for Legal Counsel (Management & Access) or his or her designee (or, if the request for expedited treatment was filed with any appeal filed under paragraph (a)(2)(i)(A)(2) of this section, at any time before the General Counsel’s determination on such an appeal), may appeal the denial of expedited treatment to the General Counsel.

(2) If an initial request for records is denied in its entirety, the requester may, within 30 days of the date of the determination, appeal such denial to the General Counsel. If an initial request is denied in part, the time for appeal will

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Federal Register / Vol. 64, No. 12 / Wednesday, January 20, 1999 / Rules and Regulations not expire until 30 days after the date of the letter notifying the requester that all records to which access has been granted have been made available. (3) The appeal shall be in writing and should include a copy of the initial request and a copy of the response to that initial request, if any. The appeal shall be addressed as follows: Freedom of Information Act Appeal, Office of the General Counsel, Federal Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC 20580. (B) Failure to mark the envelope and the appeal in accordance with paragraph (a)(2)(i)(A) of this section will result in the appeal (and any request for expedited treatment filed with that appeal) being treated as received on the actual date of receipt by the Office of General Counsel.

* * * * * (ii) * * * (A)(1) Regarding appeals from initial denials of a request for expedited treatment, the General Counsel will either grant or deny the appeal expeditiously;

(2) Regarding appeals from initial denials of a request for records, the General Counsel will, within 20 working days of the receipt of such an appeal, either grant or deny it, in whole or in part, unless expedited treatment has been granted in accordance with this section, in which case the appeal will be processed as soon as practicable. * * * * * (h) The General Counsel (or General Counsel’s designee) may authorize a Commission member, other Commission official, or Commission staff to disclose an item or category of information from Commission records not currently available to the public for routine inspection and copying under Rule 4.9(b) where the General Counsel (or General Counsel’s designee) determines that such disclosure would facilitate the conduct of official agency business and would not otherwise be prohibited by applicable law, order, or regulation. Requests for such determinations shall be set forth in writing and, in the case of staff requests, shall be forwarded to the General Counsel (or General Counsel’s designee) through the relevant Bureau. In unusual or difficult cases, the General Counsel may refer the request to the Commission for determination. § 4.13 [Amended] 4. In § 4.13, the reference in paragraph (c) to ‘‘6th Street and Pennsylvania Avenue NW.,’’ and the reference in paragraph (i)(1) to ‘‘6th Street & Pennsylvania Avenue, NW.,’’ are revised to read ‘‘600 Pennsylvania Avenue, NW.,’’ By direction of the Commission. Donald S. Clark, Secretary.

[FR Doc. 99–1178 Filed 1–19–99; 8:45 am] BILLING CODE 6750–01–P DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 24 CFR Part 1000 [Docket No. FR–4419–F–01] RIN 2577–AB93 Due Date of First Annual Performance Report Under the Native American Housing Assistance and Self- Determination Act of 1996 AGENCY: Office of the Assistant Secretary for Public and Indian Housing, HUD.

ACTION: Final rule.

SUMMARY: This final rule sets January 31, 1999 as the due date for recipients of Indian Housing Block Grant funds to submit the first annual performance reports under the Native American Housing Assistance and Self- Determination Act of 1996 (NAHASDA). This date provides an additional 60 days to the 60 day period that was assumed to apply, and allows recipients and HUD more time to work out the difficulties of the first performance report submissions.

EFFECTIVE DATE: February 19, 1999. FOR FURTHER INFORMATION CONTACT: Bruce Knott, Director, Office of Housing and Community Development, Office of Native American Programs, 1999 Broadway, Suite 3390, Denver, CO 80202; telephone (303) 675–1600 (this is not a toll-free number). Speech or hearing-impaired individuals may access this number via TTY by calling the toll-free Federal Information Relay Service at 1–800–877–8339. SUPPLEMENTARY INFORMATION: NAHASDA section 404 (25 U.S.C. 4164) and 24 CFR 1000.514 require each recipient of Indian Housing Block Grant (IHBG) funds to submit an annual performance report to HUD. Under 24 CFR 1000.514, a performance report must be submitted within 60 days of the end of the recipient’s program year. For the first year of NAHASDA, 24 CFR 1000.516 provides that the period to be covered by the annual performance report will be October 1, 1997 through September 30, 1998, and that subsequent reporting periods will coincide with the recipient’s program year.

The Department has received numerous inquiries concerning the due date for the first annual report under § 1000.516. Recipients cite unfamiliarity with the new reporting format, the late date at which Indian Housing Plans (IHPs) were approved, and the requirement for public comment on their annual performance reports as reasons why a 60-day due date for the first annual reports is impracticable. In addition, there is an issue as to when the first annual report is due. Although § 1000.514 provides that the annual performance report is due within 60 days of the end of the recipient’s program year, the period to be covered by the first report, set by § 1000.516, does not coincide with the program year of many recipients. While it has been generally assumed that the first report would be due within 60 days of September 30, 1998, § 1000.516 does not explicitly establish this submission period.

For these reasons, HUD has determined to amend § 1000.516 to establish January 31, 1999 as the due date for performance reports under the first year of NAHASDA. This date provides an additional 60 days to the 60 day period that was assumed to apply, and allows recipients and HUD more time to work out the difficulties of the first performance report submissions. Findings and Certifications Justification for Final Rulemaking In general, the Department publishes a rule for public comment before issuing a rule for effect, in accordance with its own regulations on rulemaking, 24 CFR part 10; however, part 10 does provide for exceptions from that general rule where the agency finds good cause to omit advance notice and public participation. The good cause requirement is satisfied when prior public procedure is ‘‘impracticable, unnecessary, or contrary to the public interest.’’ (24 CFR 10.1) The Department finds that good cause exists to publish this rule for effect without first soliciting public comment, in that prior public procedure is unnecessary because of the limited scope of the rule. This rule only provides clarification of the date by which the first annual performance reports under NAHASDA are due.

Paperwork Reduction Act The information collection requirements contained in the IHBG rule at 24 CFR part 1000 have been approved by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act of 1995 (42 U.S.C. 3501–3530), and assigned OMB control number 2577–0218. An