Freedom of Information Act; Miscellaneous Rules, 93861-93864 [2016-30508]

Agencies

• FEDERAL TRADE COMMISSION

[Federal Register Volume 81, Number 246 (Thursday, December 22, 2016)]
[Proposed Rules]
[Pages 93861-93864]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30508]


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FEDERAL TRADE COMMISSION

16 CFR Part 4


Freedom of Information Act; Miscellaneous Rules

AGENCY: Federal Trade Commission (FTC).

ACTION: Proposed rule.

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SUMMARY: The Federal Trade Commission proposes to implement provisions 
of the FOIA Improvement Act of 2016 by amending the regulation 
governing fees the agency may assess to offset the cost of 
disseminating information and records to the public. The FTC also 
proposes other clarifying changes and updates to the fee regulation.

DATES: Comments must be submitted on or before January 23, 2017.

ADDRESSES: Interested parties may file written comments electronically 
or in paper form by following the instructions in the Request for 
Comment part of the SUPPLEMENTARY INFORMATION section below. Write 
``Fee Schedule Rulemaking, 16 CFR 4.8, Project No. 122102'' on your 
comment, and file your comment online at https://ftcpublic.commentworks.com/ftc/feeschedule, by following the 
instructions on the web-based form. If you prefer to file your comment 
on paper, mail your comment to the following address: Federal Trade 
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite 
CC-5610 (Annex T), Washington, DC 20580, or deliver your comment to the 
following address: Federal Trade Commission, Office of the Secretary, 
Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex 
T), Washington, DC 20024.

FOR FURTHER INFORMATION CONTACT: G. Richard Gold, Attorney, Office of 
the General Counsel, Federal Trade Commission, 600 Pennsylvania Avenue 
NW., Washington, DC 20580, (202) 326-3355.

SUPPLEMENTARY INFORMATION: On June 30, 2016, President Obama signed 
into law the FOIA Improvement Act of 2016 (the ``2016 FOIA 
Amendments''), Public Law 114-185, amending the Freedom of Information 
Act (FOIA), 5 U.S.C. 552. The new law addresses a range of procedural 
issues and places additional limitations on assessing search fees (or, 
for requesters with preferred fee status, duplication fees) if an 
agency's response time to a requester is delayed. The new law also 
requires the head of each agency to review and update their agency's 
regulations as necessary within 180 days of enactment.
    The Commission proposes to change its fee schedule to implement the 
2016 FOIA Amendments as appropriate. The Commission also proposes other 
fee-related changes that will serve to provide additional notice to the 
public or update the Commission's fee schedule. The additional guidance 
will be available at the FOIA page on the FTC Web site, https://www.ftc.gov/about-ftc/foia.

[[Page 93862]]

    As required by the FOIA, the Commission seeks public comment on the 
proposed revisions to its fee regulations set forth in this document. 
See 5 U.S.C. 552(a)(4)(A)(i). In a separate document published in 
today's Federal Register, the Commission has published final 
regulations making other related administrative rule changes that 
incorporate the 2016 FOIA Amendments which do not require public 
comment.

Proposed Changes to Fee Regulation

    In Rule 4.8(b)(2)(iii), the Commission proposes to clarify that, 
for any given FOIA request, a requester qualifies as a representative 
of the news media only if it does not intend to make commercial use of 
the material it seeks. The proposed language more closely comports with 
the FOIA by clarifying that an entity will not qualify for the fee 
category status afforded to a representative of the news media where it 
makes the request in a corporate, rather than journalistic, capacity. 
See 5 U.S.C. 552(a)(4)(A)(ii)(II) (fee reduction applies only if 
``records are not sought for commercial use''). However, the proposed 
clarification also makes clear that, in the context of a news media 
request, ``commercial use'' does not include a request for records 
supporting the requester's underlying news dissemination function.
    Rule 4.8(b)(6) contains the Commission's uniform schedule of fees 
that applies to records held by all constituent units of the Commission 
and to all requests made for materials on the public record and those 
made under the FOIA and the Privacy Act of 1974, 5 U.S.C. 552a. In Rule 
4.8(b)(6)(i), the Commission proposes to eliminate a duplicative and 
outdated line item charge found under Electronic Services that is 
already covered under the Duplication category. Specifically, 
Electronic Services: Preparing electronic records and media is already 
covered and subsumed under Duplication: Other reproduction (e.g., 
computer disk or printout, microfilm, microfiche, or microform). We are 
also clarifying that the existing line item for Duplication: Other 
reproduction covers operator time for conversions from one electronic 
format to a different electronic format as requested by the FOIA 
requester.
    Rule 4.8(b)(7) contains the Commission's provisions relating to 
limitations on FOIA fees if an agency's response time to a requester is 
delayed (e.g., untimely responses). The 2016 FOIA Amendments mandated 
additional limitations on assessing search fees (or, for requesters 
with preferred fee status, duplication fees) for delayed responses. The 
Commission proposes modifying Rule 4.8(b)(7) to closely track the 
revised FOIA statutory language as appropriate.
    In Rule 4.8(e)(2)(i)(C), the Commission proposes to add language 
that tracks the FOIA statutory standards for public interest fee 
waivers. 5 U.S.C. 552(a)(4)(iii). Specifically, the Commission proposes 
to replace ``the understanding of the public at large'' with ``public 
understanding.''
    In Rule 4.8(i), the Commission proposes to add an additional option 
for FOIA requesters to pay electronically through the Department of 
Treasury's pay.gov Web site. Requesters would still have the option of 
paying through check or money order to the Treasury of the United 
States.

Request for Comments

    You can file a comment online or on paper. For the Commission to 
consider your comment, it must be received on or before January 23, 
2017. Write ``FOIA Fee Rulemaking, 16 CFR 4.8, Project No. P122102'' on 
your comment. Your comment--including your name and your state--will be 
placed on the public record of this proceeding, including, to the 
extent practicable, on the public Commission Web site, at https://www.ftc.gov/policy/public-comments. As a matter of discretion, the 
Commission tries to remove individuals' home contact information from 
comments before placing them on the Commission Web site.
    Because your comment will be made public, you are solely 
responsible for making sure that your comment does not include any 
sensitive personal information, like anyone's Social Security number, 
date of birth, driver's license number or other state identification 
number or foreign country equivalent, passport number, financial 
account number, or credit or debit card number. You are also solely 
responsible for making sure that your comment does not include any 
sensitive health information, like medical records or other 
individually identifiable health information. In addition, do not 
include any ``[t]rade secret or any commercial or financial information 
which is . . . privileged or confidential,'' as provided in Section 
6(f) of the FTC Act, 15 U.S.C. 46(f). See also FTC Rule 4.10(a)(2), 16 
CFR 4.10(a)(2). In particular, do not include competitively sensitive 
information such as costs, sales statistics, inventories, formulas, 
patterns, devices, manufacturing processes, or customer names.
    If you want the Commission to give your comment confidential 
treatment, you must file it in paper form, with a request for 
confidential treatment, and you must follow the procedure explained in 
FTC Rule 4.9(c), 16 CFR 4.9(c).\1\ Your comment will be kept 
confidential only if the FTC General Counsel grants your request in 
accordance with the law and the public interest.
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    \1\ In particular, the written request for confidential 
treatment that accompanies the comment must include the factual and 
legal basis for the request, and must identify the specific portions 
of the comment to be withheld from the public record. See 16 CFR 
4.9(c).
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    Postal mail addressed to the Commission is subject to delay due to 
heightened security screening. As a result, we encourage you to submit 
your comments online. To make sure that the Commission considers your 
online comment, you must file it at https://ftcpublic.commentworks.com/ftc/feeschedule, by following the instructions on the web-based form. 
If this Notice appears at https://www.regulations.gov, you also may file 
a comment through that Web site.
    If you file your comment on paper, write ``FOIA Fee Rulemaking, 16 
CFR 4.8, Project No. P122102'' on your comment, and on the envelope, 
and mail it to the following address: Federal Trade Commission, Office 
of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex T), 
Washington, DC 20580, or deliver your comment to the following address: 
Federal Trade Commission, Office of the Secretary, Constitution Center, 
400 7th Street SW., 5th Floor, Suite 5610 (Annex T), Washington, DC 
20024. If possible, submit your paper comment to the Commission by 
courier or overnight service.
    Visit the Commission Web site at https://www.ftc.gov to read this 
Notice and the news release describing it. The FTC Act and other laws 
that the Commission administers permit the collection of public 
comments to consider and use in this proceeding as appropriate. The 
Commission will consider all timely and responsive public comments that 
it receives on or before January 23, 2017. For information on the 
Commission's privacy policy, including routine uses permitted by the 
Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.
    The Commission believes that the proposed Rule amendments do not 
require an initial regulatory analysis 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

[[Page 93863]]

meaning of that Act, 5 U.S.C. 601(6), and, in any event, the economic 
impact of the rule changes on all requesters is expected to be minimal, 
if any. Likewise, the proposed amendments do not contain information 
collection requirements within the meaning of the Paperwork Reduction 
Act, 44 U.S.C. 3501-520. The Commission nonetheless solicits comments 
on any economic and regulatory impact of the proposed rule; paperwork 
requirements, if any, that commenters believe the amendments impose 
upon private persons; and possible regulatory alternatives to reduce 
the amendments' economic impact, if any, while fully implementing the 
statutory mandate. The Commission will consider any such comments 
before promulgating the amendments in final form.

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 proposes to amend Title 16, Chapter I, Subchapter A, Part 4 
of the Code of Federal Regulations as follows:

PART 4--MISCELLANEOUS RULES

0
 1. The authority citation for part 4 continues to read as follows:

    Authority:  15 U.S.C. 46.

0
2. Amend Sec.  4.8 by revising paragraphs (b)(2)(iii), (b)(6)(i), 
(b)(7), (e)(2)(i)(C) and (i) to read as follows:


Sec.  4.8.   Costs for obtaining Commission records.

* * * * *
    (b) * * *
    (2) * * *
    (iii) A representative of the news media is any person or entity 
that gathers information of potential interest to a segment of the 
public, uses its editorial skills to turn the raw materials into a 
distinct work, and distributes that work to the public. The term 
``news'' means information that is about current events or that would 
be of current interest to the public. Examples of news media entities 
include television or radio stations broadcasting to the public at 
large and publishers of periodicals (but only in those instances where 
they can qualify as disseminators of news) who make their products 
available for purchase by or subscription by the general public or free 
distribution to the general public. These examples are not intended to 
be all-inclusive. As traditional methods of news delivery evolve (e.g., 
electronic dissemination of newspapers through telecommunications 
services), such alternative media shall be considered to be news-media 
entities. A freelance journalist shall be regarded as working for a 
news-media entity if the journalist can demonstrate a solid basis for 
expecting publication through that entity, whether or not the 
journalist is actually employed by the entity. A publication contract 
would provide a solid basis for such an expectation, but the past 
publication record of a requester may also be considered in making such 
a determination. To qualify for news media status, a request must not 
be for a nonjournalistic commercial use. A request for records 
supporting the news dissemination function of the requester is not 
considered a commercial use.
* * * * *
    (6)(i) Schedule of direct costs. The following uniform schedule of 
fees applies to records held by all constituent units of the 
Commission:

------------------------------------------------------------------------
 
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Duplication:
    Paper to paper copy (up to 8.5'' x   $0.14 per page.
     14'').
    Converting paper into electronic     Quarter hour rate of operator
     format (scanning).                   (Clerical, Other Professional,
                                          Attorney/Economist).
    Other reproduction (e.g.,            Actual direct cost, including
     converting from one electronic       operator time.
     format to computer disk or
     printout, microfilm, microfiche,
     or microform).
Electronic Services:
    Compact disc (CD)..................  3.00 per disc.
    DVD................................  3.00 per disc.
    Videotape cassette.................  2.00 per cassette.
Microfilm Services:
    Conversion of existing fiche/film    0.14 per page.
     to paper.
Other Fees:
    Certification......................  25.00 each.
    Express Mail.......................  U.S. Postal Service Market
                                          Rates.
    Records maintained at Iron Mountain  Contract Rates.
     or Washington National Records
     Center facilities (records
     retrieval, refiling, et cetera).
    Other Services as they arise.......  Market Rates.
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* * * * *
    (7) Untimely responses. (i) Except as provided in paragraphs 
(b)(7)(ii)-(iv) of this section, search fees for responding to a 
Freedom of Information Act request will not be assessed for responses 
that fail to comply with the time limits, as provided at 5 U.S.C. 
552(a)(4)(A)(viii), Sec.  4.11(a)(1)(ii) and Sec.  4.11(a)(3)(ii), if 
there are no unusual or exceptional circumstances, as those terms are 
defined by 5 U.S.C. 552(a)(6) and Sec.  4.11(a)(1)(ii). Except as 
provided in paragraphs (b)(7)(ii)-(iv) of this section, duplication 
fees will not be assessed for an untimely response, where there are no 
unusual or exceptional circumstances, made to a requester qualifying 
for one of the fee categories set forth in Sec.  4.8(b)(2).
    (ii) If the Commission has determined that unusual circumstances 
apply and has provided a timely written notice to the requester in 
accordance with 5 U.S.C. 552(a)(6)(B), the delay in a response is 
excused for an additional 10 days. If the Commission fails to comply 
with the extended time limit, it will not charge search fees (or, for a 
requester qualifying for one of the fee categories set forth in Sec.  
4.8(b)(2), will not charge duplication fees).
    (iii) If the Commission has determined that unusual circumstances 
apply and more than 5,000 pages are necessary to respond to the 
request, the agency may charge search fees (or, for requesters 
qualifying for one of the fee categories set forth in Sec.  4.8(b)(2), 
may charge duplication fees) if timely written notice has been provided 
to the requester and the agency has discussed with the requester via 
written mail, electronic mail, or telephone (or made not less than 3 
good-faith attempts to do so) how the requester could effectively limit 
the scope of the request.
    (iv) If a court determines that exceptional circumstances exist, 
the Commission's failure to comply with a time limit shall be excused 
for the

[[Page 93864]]

length of time provided by the court order.
* * * * *
    (e) Public interest fee waivers
    (2) * * *
    (i) * * *
    (C) The understanding to which disclosure is likely to contribute 
is public understanding, as opposed to the understanding of the 
individual requester or a narrow segment of interested persons (e.g., 
by providing specific information about the requester's expertise in 
the subject area of the request and about the ability and intention to 
disseminate the information to the public); and
* * * * *
    (i) Means of payment. Payment shall be made either electronically 
through the Department of Treasury's pay.gov Web site or by check or 
money order payable to the Treasury of the United States.
* * * * *

    By direction of the Commission.

Donald S. Clark,
Secretary.
[FR Doc. 2016-30508 Filed 12-21-16; 8:45 am]
 BILLING CODE 6750-01-P