Access Requests From Foreign Law Enforcement Agencies for Consumer Protection Materials, 28851-28854 [E7-9966]

Download as PDF Federal Register / Vol. 72, No. 99 / Wednesday, May 23, 2007 / Rules and Regulations paragraph (b)(2) of this section will replace the level identified in paragraph (a)(1) of this section. Subpart D—Report, Recordkeeping and Audits 19. Amend § 158.63 by revising paragraphs (a) and (c) to read as follows: I § 158.63 agency. Reporting requirements: Public (a) The public agency must provide quarterly reports to air carriers collecting PFCs for the public agency with a copy to the appropriate FAA Airports Office. The quarterly report must include: (1) Actual PFC revenue received from collecting air carriers, interest earned, and project expenditures for the quarter; (2) Cumulative actual PFC revenue received, interest earned, project expenditures, and the amount committed for use on currently approved projects, including the quarter; (3) The PFC level for each project; and (4) Each project’s current schedule. * * * * * (c) For medium and large hub airports, the public agency must provide to the FAA, by July 1 of each year, an estimate of PFC revenue to be collected for each airport in the following fiscal year. I 20. Revise § 158.65 to read as follows: cprice-sewell on PROD1PC71 with RULES § 158.65 Reporting requirements: Collecting air carriers. (a) Each air carrier collecting PFCs for a public agency must provide quarterly reports to the public agency unless otherwise agreed by the collecting air carrier and public agency, providing an accounting of funds collected and funds remitted. (1) Unless otherwise agreed by the collecting air carrier and public agency, reports must state: (i) The collecting air carrier and airport involved, (ii) The total PFC revenue collected, (iii) The total PFC revenue refunded to passengers, (iv) The collected revenue withheld for reimbursement of expenses under § 158.53, and (v) The dates and amounts of each remittance for the quarter. (2) The report must be filed by the last day of the month following the calendar quarter or other period agreed by the collecting carrier and public agency for which funds were collected. (b) A covered air carrier must provide the FAA with: (1) A copy of its quarterly report by the established schedule under paragraph (a) of this section; and VerDate Aug<31>2005 15:35 May 22, 2007 Jkt 211001 28851 (2) A monthly PFC account statement delivered not later than the fifth day of the following month. This monthly statement must include: (i) The balance in the account on the first day of the month, (ii) The total funds deposited during the month, (iii) The total funds disbursed during the month, and (iv) The closing balance in the account. I 21. Amend § 158.67 by revising paragraph (c)(2) to read as follows: Issued in Washington, DC, on May 14, 2007. Marion C. Blakey, Administrator. [FR Doc. E7–9941 Filed 5–22–07; 8:45 am] § 158.67 Recordkeeping and auditing: Public agency. AGENCY: * * * * * (c) * * * (2) Conducted as part of an audit under Office of Management and Budget Circular A–133 (the Single Audit Act of 1984, Pub. L. 98–502, and the Single Audit Act Amendments of 1996, Pub. L. 104–156) provided the auditor specifically addresses the PFC. * * * * * Subpart E—Termination I 22. Revise § 158.81 to read as follows: § 158.81 General. This subpart contains the procedures for termination of PFCs or loss of Federal airport grant funds for violations of this part or 49 U.S.C. 40117. This subpart does not address the circumstances under which the authority to collect PFCs may be terminated for violations of 49 U.S.C. 47523 through 47528. § 158.97 [Removed] 23. Remove § 158.97. I 24. Amend appendix A to part 158 by revising paragraphs 10 and 12 of section B of this appendix to read as follows: I Appendix A to Part 158—Assurances * * * * * * * * 10. Recordkeeping and Audit. It will maintain an accounting record for audit purposes for 3 years after physical and financial completion of the project. All records must satisfy the requirements of 14 CFR part 158 and contain documentary evidence for all items of project costs. * * * * * 12. Compliance with 49 U.S.C. 47523 through 47528. It understands 49 U.S.C. 47524 and 47526 require that the authority to impose a PFC be terminated if the Administrator determines the public agency has failed to comply with those sections of the United States Code or with the implementing regulations published under the Code. PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 BILLING CODE 4910–13–P FEDERAL TRADE COMMISSION 16 CFR Part 4 Access Requests From Foreign Law Enforcement Agencies for Consumer Protection Materials ACTION: Federal Trade Commission. Final rule amendment. SUMMARY: The Federal Trade Commission is amending Rule 4.11 of its Rules of Practice, which addresses disclosure requests, to add a new provision, Rule 4.11(j). The new provision conforms the agency’s rules to its authority to share confidential information in non-antitrust matters with foreign law enforcers, with appropriate confidentiality assurances and subject to certain restrictions, as provided for under the recently-enacted U.S. SAFE WEB Act of 2006, Pub. L. No. 109–455, 120 Stat. 3372 (2006). The Commission is also amending Rules 4.10(d) and (e), which describe certain materials subject to prohibitions on disclosures and exceptions for specified circumstances, to cross-reference the new Rule 4.11(j). DATES: Effective Date: May 23, 2007. FOR FURTHER INFORMATION CONTACT: Joannie T. Wei, Attorney, Office of the General Counsel, Federal Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC 20580, (202) 326– 2840, jwei@ftc.gov. SUPPLEMENTARY INFORMATION: The Undertaking Spam, Spyware and Fraud Enforcement With Enforcers beyond Borders Act of 2006 (U.S. SAFE WEB Act), Pub. L. No. 109–455, 120 Stat. 3372 (2006), was enacted to enhance the Federal Trade Commission’s enforcement activities against a range of practices that harm U.S. consumers, including illegal spam, spyware, crossborder fraud and deception, misleading health and safety advertising, privacy and security breaches, and other law violations. The practices the FTC enforces against are increasingly global in nature, and the U.S. SAFE WEB Act improves the FTC’s ability to cooperate with its foreign counterparts to combat such practices. Authority to share certain materials with foreign law enforcement agencies. Information sharing is one area in which the U.S. SAFE WEB Act strengthens the E:\FR\FM\23MYR1.SGM 23MYR1 28852 Federal Register / Vol. 72, No. 99 / Wednesday, May 23, 2007 / Rules and Regulations cprice-sewell on PROD1PC71 with RULES Commission’s authority to cooperate with its foreign counterparts. Sections 4 and 6 of the U.S. SAFE WEB Act amend sections 6(f) and 21(b)(6) of the Federal Trade Commission Act to allow the Commission to share certain confidential and compelled information in its files with foreign law enforcement agencies.1 15 U.S.C. 46(f), 57b–2(b)(6). These sections of the U.S. SAFE WEB Act do not provide authority for the disclosure of material obtained in connection with the administration of the Federal antitrust laws or foreign antitrust laws (as defined in paragraphs (5) and (7), respectively, of section 12 of the International Antitrust Enforcement Assistance Act of 1994 (15 U.S.C. 6211)). 15 U.S.C. 57b–2(b)(6). The Commission’s disclosure authority under the U.S. SAFE WEB Act is subject to appropriate limitations and assurances. Under section 6 of the statute, the Commission must obtain certification from an appropriate official of the foreign law enforcement agency, either by prior agreement or memorandum of understanding or by other written certification, that such material will be maintained in confidence and will only be used for official law enforcement purposes. 15 U.S.C. 57b–2(b)(6). The foreign law enforcement agency must have set forth a bona fide legal basis for its authority to maintain the material in confidence. In addition, the foreign law enforcement agency must be using the materials for purposes of investigating or engaging in enforcement proceedings related to possible violations of: (1) Foreign laws prohibiting fraudulent or deceptive practices or other practices substantially similar to practices prohibited by any law administered by the Commission; (2) a law administered by the Commission if disclosure would further a Commission investigation or proceeding; or (3) with the approval of the Attorney General, other foreign criminal laws that are encompassed in an applicable mutual legal assistance treaty. 15 U.S.C. 57b–2(b)(6)(A), 57b– 2(b)(6)(B). If the materials to be provided to the foreign law enforcement agency are requested for the purpose of investigating or engaging in enforcement proceedings based on possible violations by a bank, savings and loan 1 ‘‘Foreign law enforcement agency’’ means—(1) any agency or judicial authority of a foreign government, including a foreign state, a political subdivision of a foreign state, or a multinational organization constituted by and comprised of foreign states, that is vested with law enforcement or investigate authority in civil, criminal, or administrative matters; and (ii) any multinational organization, to the extent that it is acting on behalf of an entity described in paragraph (i). 15 U.S.C. 44. VerDate Aug<31>2005 15:35 May 22, 2007 Jkt 211001 institution, or Federal credit union, the material will not be disclosed unless the appropriate Federal banking agency, or the National Credit Union Administration in the case of a Federal credit union, has given its prior approval. 15 U.S.C. 57b–2(b)(6)(C). Further, section 6 of the U.S. SAFE WEB Act does not permit disclosure to foreign law enforcement agencies from foreign states that the Secretary of State has determined, in accordance with section 6(j) of the Export Administration Act of 1979, 50 U.S.C. App. 2405, have repeatedly provided support for acts of international terrorism, unless and until such determination has been rescinded pursuant to section 6(j)(4) of that Act, 50 U.S.C. App. 2405(j)(4). Rule provisions. To implement this new authority under the U.S. SAFE WEB Act, the Commission’s Rules of Practice have been amended to create a new provision, Rule 4.11(j), that delineates the internal procedure for handling requests from foreign law enforcement agencies for nonpublic material other than material subject to disclosure pursuant to other delegations. Rule 4.11(j) is not intended to supersede existing Commission delegations or to preclude additional future delegations, subject to any statutory constraints. The new provision, Rule 4.11(j), generally adopts the procedures of the current Rule 4.11(c) (sharing confidential information with Federal and State law enforcement agencies), and incorporates the requirements and restrictions of the U.S. SAFE WEB Act. Under the new provision, requests for nonpublic records from foreign law enforcement agencies will be addressed to the Director of the Office of International Affairs or the Director’s designee. For any material requested that is subject to the disclosure restrictions in sections 6(f) 2 or 21(b) 3 of the FTC Act or Rule 4.10(d) of the Commission’s Rules of Practice,4 the 2 Section 6(f) of the FTC Act protects from public disclosure ‘‘any trade secret or any commercial or financial information which is obtained from any person and which is privileged or confidential,’’ except in certain specified circumstances. 15 U.S.C. 46(f). 3 Section 21(b) of the FTC Act protects from public disclosure material received by the Commission ‘‘pursuant to compulsory process in an investigation, a purpose of which is to determine whether any person may have violated any provision of the laws administered by the Commission,’’ except in certain specified circumstances. 15 U.S.C. 57b–2(b). 4 In addition to the two categories listed above, Rule 4.10(d) also protects from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. 552, material submitted to the Commission voluntarily in lieu of compulsory process in a law enforcement investigation and marked or otherwise identified as confidential. 16 CFR 4.10(d). PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 Director or the Director’s designee will obtain any certification required by the U.S. SAFE WEB Act from an appropriate official of such foreign law enforcement agency. Rule 4.11(j)(3) establishes the requirements for access to such material in accordance with the U.S. SAFE WEB Act. The Director will then, with approval of the Bureau of Consumer Protection, forward the requests to the General Counsel with recommendations for disposition. The General Counsel or the General Counsel’s designee is delegated the authority to dispose of the requests in accordance with the requirements of the U.S. SAFE WEB Act. Under Rule 4.11(j), the General Counsel may refer such requests to the Commission for determination, and must do so when the Bureau of Consumer Protection or the Office of International Affairs do not agree with the General Counsel’s proposed disposition. The Commission has also amended Rules 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 set forth exceptions to these restrictions, including, inter alia, certain disclosures to Federal and State law enforcement agencies. Rules 4.10(d) and (e) have been amended to include disclosure to foreign law enforcement agencies pursuant to the new Rule 4.11(j) as a specifically stated exception. The amendments to Rules 4.10(d) and (e) and Rule 4.11(j)(3) will apply to all material that is subject to the disclosure restrictions in sections 6(f) and 21(b) of the FTC Act or in Rule 4.10(d) of the Commission’s Rules of Practice, and that was submitted to the Commission on or after December 22, 2006, the date of enactment of the U.S. SAFE WEB Act. Procedural matters. These amendments adopted herein will reconcile the Commission’s rules with existing agency memoranda of understanding (MOUs), under which the Commission has an obligation to use its best efforts to share relevant consumer protection law enforcement material requested by applicable foreign agencies to the extent consistent with national laws, international obligations, enforcement policies and other important interests. Under these MOUs, the Commission has the implied obligation to implement any internal procedures required to allow the Commission to take into account all applicable laws, including the new U.S. SAFE WEB Act authority, in processing and considering applicable foreign E:\FR\FM\23MYR1.SGM 23MYR1 Federal Register / Vol. 72, No. 99 / Wednesday, May 23, 2007 / Rules and Regulations agency requests for information. Because failure to make the proposed amendments would impair the Commission’s ability to meet its foreign obligations, the amendments are exempt, by virtue of the foreign affairs exemption to the Act, 5 U.S.C. 553(a)(1), from both the Administrative Procedure Act’s notice and comment requirement, 5 U.S.C. 553(b), and its restriction on the rules’ effective date, 5 U.S.C. 553(d). These amendments are also exempt from the notice and comment requirement and effective date restriction of the Commission’s Rules of Practice by virtue of the good cause exceptions in Rules 1.26(b) and 1.26(e). 16 CFR 1.26(b), (e). In these circumstances, providing a period of public comment would delay implementation of these rules and is both unnecessary and contrary to the public interest.5 Finally, these amendments are not a collection of information 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. 601(2). List of Subjects in 16 CFR Part 4 Administrative practice and procedure, Freedom of Information Act, Sunshine Act. I 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: Subchapter A—Organization, Procedures, And Rules Of Practice PART 4—MISCELLANEOUS RULES 1. The authority citation for part 4 continues to read as follows: I Authority: 15 U.S.C. 46, unless otherwise noted. 2. Amend § 4.10 by revising paragraphs (d) and (e) to read as follows: I § 4.10 Nonpublic material. cprice-sewell on PROD1PC71 with RULES * * * * * (d) Except as provided in paragraphs (f) or (g) of this section or in § 4.11(b), (c), (d), (i), or (j), 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 5 See Int’l Brotherhood of Teamsters v. Pena, 17 ˜ F. 3d 1478 (D.C. Cir. 1994) (applying APA foreign affairs exemption and good cause exception of agency rule). VerDate Aug<31>2005 15:35 May 22, 2007 Jkt 211001 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), (i), or (j), 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. * * * * * I 3. Amend § 4.11 by adding a new paragraph (j) to the end that reads as follows: § 4.11 Disclosure requests. * * * * * (j)(1) The procedures specified in this section apply to disclosures of certain records to foreign law enforcement agencies in specified circumstances in accordance with the U.S. SAFE WEB Act of 2006. Nothing in this section authorizes the disclosure of material obtained in connection with the administration of the Federal antitrust laws or foreign antitrust laws, as defined in paragraph (j)(5)(i) of this section. (2) Requests from foreign law enforcement agencies, as defined in paragraph (j)(5)(ii) of this section, for nonpublic records shall be addressed to the Director of the Office of International Affairs or the Director’s designee, who shall forward them to the General Counsel with recommendations for disposition after obtaining any required certification described in paragraph (j)(3) of this section and approval of the Bureau of Consumer Protection. With respect to requests under this paragraph, the General Counsel or the General Counsel’s designee 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 of Consumer Protection or the Office of International Affairs disagrees with the General Counsel’s proposed disposition. (3) Access under this section to any material subject to the disclosure restrictions in sections 6(f) or 21(b) of the FTC Act or § 4.10(d) may not be granted unless— PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 28853 (i) An appropriate official of the foreign law enforcement agency has certified, either by prior agreement or memorandum of understanding or by other written certification, that such material will be maintained in confidence and will be used only for official law enforcement purposes; and (ii)(A) The foreign law enforcement agency has set forth a bona fide legal basis for its authority to maintain the material in confidence; (B) The materials are to be used for purposes of investigating, or engaging in enforcement proceedings related to, possible violations of: (1) Foreign laws prohibiting fraudulent or deceptive commercial practices, or other practices substantially similar to practices prohibited by any law administered by the Commission; (2) A law administered by the Commission, if disclosure of the material would further a Commission investigation or enforcement proceeding; or (3) With the approval of the Attorney General, other foreign criminal laws, if such foreign criminal laws are offenses defined in or covered by a criminal mutual legal assistance treaty in force between the government of the United States and the foreign law enforcement agency’s government; (C) The appropriate Federal banking agency, (as defined in section 3(q) of the Federal Deposit Insurance Act (12 U.S.C. 1813(q)) or, in the case of a Federal credit union, the National Credit Union Administration has given its prior approval if the materials to be provided under paragraph (j)(3)(ii)(B) of this section are requested by the foreign law enforcement agency for the purpose of investigating, or engaging in enforcement proceedings based on, possible violations of law by a bank, a savings and loan institution described in section 18(f)(3) of the Federal Trade Commission Act (15 U.S.C. 57a(f)(3)), or a Federal credit union described in section 18(f)(4) of the Federal Trade Commission Act (15 U.S.C. 57a(f)(4)); and (D) The foreign law enforcement agency is not from a foreign state that the Secretary of State has determined, in accordance with section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)), has repeatedly provided support for acts of international terrorism, unless and until such determination is rescinded pursuant to section 6(j)(4) of that Act (50 U.S.C. App. 2405(j)(4)). (4) A copy of the certificate described in paragraph (j)(3) of this section will be forwarded to the submitter of the E:\FR\FM\23MYR1.SGM 23MYR1 28854 Federal Register / Vol. 72, No. 99 / Wednesday, May 23, 2007 / Rules and Regulations information at the time the request is granted unless the foreign law enforcement agency requests that the submitter not be notified. (5) For purposes of this section: (i) ‘‘Federal antitrust laws’’ and ‘‘foreign antitrust laws’’ are to be interpreted as defined in paragraphs (5) and (7), respectively, of section 12 of the International Antitrust Enforcement Assistance Act of 1994 (15 U.S.C. 6211); and (ii) ‘‘Foreign law enforcement agency’’ is defined as: (A) Any agency or judicial authority of a foreign government, including a foreign state, a political subdivision of a foreign state, or a multinational organization constituted by and comprised of foreign states, that is vested with law enforcement or investigative authority in civil, criminal, or administrative matters and (B) Any multinational organization, to the extent that it is acting on behalf of an entity described in paragraph (j)(5)(i)(A) of this section. Background By direction of the Commission. Donald S. Clark, Secretary. [FR Doc. E7–9966 Filed 5–22–07; 8:45 am] I Par. 2. Section 1.415(b)–1 is amended by revising paragraph (c)(5)(i)(A), and the second sentence of paragraph (c)(6) Example 6, paragraph (iv). The revisions read as follows: BILLING CODE 6750–01–P The final regulations that are the subject of this document are under sections 401(a), 401(a)(4), 401(a)(9), 401(k), 402, 414(s), 415, 416, 457, and 924 of the Internal Revenue Code. Need for Correction As published, final regulations (TD 9319) contain errors that may prove to be misleading and are in need of clarification. List of Subjects in 26 CFR Part 1 Income taxes, Reporting and recordkeeping requirements. § 1.457–5 Individual limitation for combined annual deferrals under multiple eligible plans. * Correction of Publication Accordingly, 26 CFR part 1 is corrected by making the following correcting amendments: I PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read as follows: I Authority: 26 U.S.C. 7805 * * * § 1.415(b)–1 plans. DEPARTMENT OF THE TREASURY * * * * (c) * * * (5) * * * (i) * * * (A) The benefit is paid in a form to which section 417(e)(3) does not apply. * * * * * (6) * * * 26 CFR Part 1 [TD 9319] RIN 1545–BD52 Limitations on Benefits and Contributions Under Qualified Plans; Correction Internal Revenue Service (IRS), Treasury. ACTION: Correcting amendments. AGENCY: This document contains corrections to final regulations (TD 9319) that were published in the Federal Register on Thursday, April 5, 2007 (72 FR 16878) regarding the limitations of section 415, including updates to the regulations for numerous statutory changes since comprehensive final regulations were last published under section 415. DATES: These correcting amendments are effective May 23, 2007. FOR FURTHER INFORMATION CONTACT: Vernon S. Carter at (202) 622–6060 or Linda S. F. Marshall at (202) 622–6090 (not toll-free numbers). SUPPLEMENTARY INFORMATION: cprice-sewell on PROD1PC71 with RULES SUMMARY: VerDate Aug<31>2005 15:35 May 22, 2007 Jkt 211001 Limitations for defined benefit * Internal Revenue Service paragraph (c)(1) of this section, any nontransferred benefits provided under plans maintained by the predecessor employer with respect to a participant whose benefits have been transferred to the transferee plan. * * * * * I Par. 5. Section 1.457–5(d), Example 2, paragraphs (ii) and (iii) are amended by revising the third sentence of (ii) and all of (iii) to read as follows: Example 6. * * * (iv) * * * With respect to the single-sum distribution, the annual amount of the actuarially equivalent straight life annuity commencing at the same age determined using the plan’s actuarial factors is equal to $45,000. * * * * * * * * I Par. 3. Section 1.415(d)–1 is amended by revising its heading to read as follows: § 1.415(d)–1 Cost-of-living adjustments. * * * * * I Par. 4. Section 1.415(f)–1 is amended by revising the last sentence of paragraph (d)(1) to read as follows: § 1.415(f)–1 Aggregating plans. * * * * * (d) * * * (1) * * * Instead, the transferee plan takes into account the transferred benefits that are actually provided under the transferee plan (see § 1.415(b)–1(b)(3)(i)(C)) and, pursuant to PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 * * (d) * * * * * Example 2. * * * (ii) * * * Alternatively, Participant E could instead elect to defer the following combination of amounts: An aggregate total of $15,000 to Plans X, Y, and Z, if no contribution is made to Plan W; an aggregate total of $20,000 to any of the four plans, assuming at least $5,000 is contributed to Plan W; or $22,000 to Plan W and none to any of the other three plans. (iii) * * * If the underutilized amount under Plans W, X, and Y for year 2006 were in each case zero (because E had always contributed the maximum amount or E was a new participant) or an amount not in excess of $5,000, the maximum exclusion under this section would be $20,000 for Participant E for year 2006 ($15,000 plus the $5,000 age 50 catch-up amount), which Participant E could contribute to any of the plans assuming at least $5,000 is contributed to Plan W. LaNita Van Dyke, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration). [FR Doc. E7–9877 Filed 5–22–07; 8:45 am] BILLING CODE 4830–01–P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9319] RIN 1545–BD52 Limitations on Benefits and Contributions Under Qualified Plans; Correction Internal Revenue Service (IRS), Treasury. ACTION: Correction to final regulations. AGENCY: SUMMARY: This document contains a correction to final regulations (TD 9319) that were published in the Federal Register on Thursday, April 5, 2007 (72 FR 16878) regarding the limitations of section 415, including updates to the regulations for numerous statutory changes since comprehensive final E:\FR\FM\23MYR1.SGM 23MYR1

Agencies

[Federal Register Volume 72, Number 99 (Wednesday, May 23, 2007)]
[Rules and Regulations]
[Pages 28851-28854]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-9966]


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FEDERAL TRADE COMMISSION

16 CFR Part 4


Access Requests From Foreign Law Enforcement Agencies for 
Consumer Protection Materials

AGENCY: Federal Trade Commission.

ACTION: Final rule amendment.

-----------------------------------------------------------------------

SUMMARY: The Federal Trade Commission is amending Rule 4.11 of its 
Rules of Practice, which addresses disclosure requests, to add a new 
provision, Rule 4.11(j). The new provision conforms the agency's rules 
to its authority to share confidential information in non-antitrust 
matters with foreign law enforcers, with appropriate confidentiality 
assurances and subject to certain restrictions, as provided for under 
the recently-enacted U.S. SAFE WEB Act of 2006, Pub. L. No. 109-455, 
120 Stat. 3372 (2006). The Commission is also amending Rules 4.10(d) 
and (e), which describe certain materials subject to prohibitions on 
disclosures and exceptions for specified circumstances, to cross-
reference the new Rule 4.11(j).

DATES: Effective Date: May 23, 2007.

FOR FURTHER INFORMATION CONTACT: Joannie T. Wei, Attorney, Office of 
the General Counsel, Federal Trade Commission, 600 Pennsylvania Avenue, 
NW., Washington, DC 20580, (202) 326-2840, jwei@ftc.gov.

SUPPLEMENTARY INFORMATION: The Undertaking Spam, Spyware and Fraud 
Enforcement With Enforcers beyond Borders Act of 2006 (U.S. SAFE WEB 
Act), Pub. L. No. 109-455, 120 Stat. 3372 (2006), was enacted to 
enhance the Federal Trade Commission's enforcement activities against a 
range of practices that harm U.S. consumers, including illegal spam, 
spyware, cross-border fraud and deception, misleading health and safety 
advertising, privacy and security breaches, and other law violations. 
The practices the FTC enforces against are increasingly global in 
nature, and the U.S. SAFE WEB Act improves the FTC's ability to 
cooperate with its foreign counterparts to combat such practices.
    Authority to share certain materials with foreign law enforcement 
agencies. Information sharing is one area in which the U.S. SAFE WEB 
Act strengthens the

[[Page 28852]]

Commission's authority to cooperate with its foreign counterparts. 
Sections 4 and 6 of the U.S. SAFE WEB Act amend sections 6(f) and 
21(b)(6) of the Federal Trade Commission Act to allow the Commission to 
share certain confidential and compelled information in its files with 
foreign law enforcement agencies.\1\ 15 U.S.C. 46(f), 57b-2(b)(6). 
These sections of the U.S. SAFE WEB Act do not provide authority for 
the disclosure of material obtained in connection with the 
administration of the Federal antitrust laws or foreign antitrust laws 
(as defined in paragraphs (5) and (7), respectively, of section 12 of 
the International Antitrust Enforcement Assistance Act of 1994 (15 
U.S.C. 6211)). 15 U.S.C. 57b-2(b)(6).
---------------------------------------------------------------------------

    \1\ ``Foreign law enforcement agency'' means--(1) any agency or 
judicial authority of a foreign government, including a foreign 
state, a political subdivision of a foreign state, or a 
multinational organization constituted by and comprised of foreign 
states, that is vested with law enforcement or investigate authority 
in civil, criminal, or administrative matters; and (ii) any 
multinational organization, to the extent that it is acting on 
behalf of an entity described in paragraph (i). 15 U.S.C. 44.
---------------------------------------------------------------------------

    The Commission's disclosure authority under the U.S. SAFE WEB Act 
is subject to appropriate limitations and assurances. Under section 6 
of the statute, the Commission must obtain certification from an 
appropriate official of the foreign law enforcement agency, either by 
prior agreement or memorandum of understanding or by other written 
certification, that such material will be maintained in confidence and 
will only be used for official law enforcement purposes. 15 U.S.C. 57b-
2(b)(6). The foreign law enforcement agency must have set forth a bona 
fide legal basis for its authority to maintain the material in 
confidence. In addition, the foreign law enforcement agency must be 
using the materials for purposes of investigating or engaging in 
enforcement proceedings related to possible violations of: (1) Foreign 
laws prohibiting fraudulent or deceptive practices or other practices 
substantially similar to practices prohibited by any law administered 
by the Commission; (2) a law administered by the Commission if 
disclosure would further a Commission investigation or proceeding; or 
(3) with the approval of the Attorney General, other foreign criminal 
laws that are encompassed in an applicable mutual legal assistance 
treaty. 15 U.S.C. 57b-2(b)(6)(A), 57b-2(b)(6)(B).
    If the materials to be provided to the foreign law enforcement 
agency are requested for the purpose of investigating or engaging in 
enforcement proceedings based on possible violations by a bank, savings 
and loan institution, or Federal credit union, the material will not be 
disclosed unless the appropriate Federal banking agency, or the 
National Credit Union Administration in the case of a Federal credit 
union, has given its prior approval. 15 U.S.C. 57b-2(b)(6)(C).
    Further, section 6 of the U.S. SAFE WEB Act does not permit 
disclosure to foreign law enforcement agencies from foreign states that 
the Secretary of State has determined, in accordance with section 6(j) 
of the Export Administration Act of 1979, 50 U.S.C. App. 2405, have 
repeatedly provided support for acts of international terrorism, unless 
and until such determination has been rescinded pursuant to section 
6(j)(4) of that Act, 50 U.S.C. App. 2405(j)(4).
    Rule provisions. To implement this new authority under the U.S. 
SAFE WEB Act, the Commission's Rules of Practice have been amended to 
create a new provision, Rule 4.11(j), that delineates the internal 
procedure for handling requests from foreign law enforcement agencies 
for nonpublic material other than material subject to disclosure 
pursuant to other delegations. Rule 4.11(j) is not intended to 
supersede existing Commission delegations or to preclude additional 
future delegations, subject to any statutory constraints.
    The new provision, Rule 4.11(j), generally adopts the procedures of 
the current Rule 4.11(c) (sharing confidential information with Federal 
and State law enforcement agencies), and incorporates the requirements 
and restrictions of the U.S. SAFE WEB Act. Under the new provision, 
requests for nonpublic records from foreign law enforcement agencies 
will be addressed to the Director of the Office of International 
Affairs or the Director's designee. For any material requested that is 
subject to the disclosure restrictions in sections 6(f) \2\ or 21(b) 
\3\ of the FTC Act or Rule 4.10(d) of the Commission's Rules of 
Practice,\4\ the Director or the Director's designee will obtain any 
certification required by the U.S. SAFE WEB Act from an appropriate 
official of such foreign law enforcement agency. Rule 4.11(j)(3) 
establishes the requirements for access to such material in accordance 
with the U.S. SAFE WEB Act. The Director will then, with approval of 
the Bureau of Consumer Protection, forward the requests to the General 
Counsel with recommendations for disposition. The General Counsel or 
the General Counsel's designee is delegated the authority to dispose of 
the requests in accordance with the requirements of the U.S. SAFE WEB 
Act. Under Rule 4.11(j), the General Counsel may refer such requests to 
the Commission for determination, and must do so when the Bureau of 
Consumer Protection or the Office of International Affairs do not agree 
with the General Counsel's proposed disposition.
---------------------------------------------------------------------------

    \2\ Section 6(f) of the FTC Act protects from public disclosure 
``any trade secret or any commercial or financial information which 
is obtained from any person and which is privileged or 
confidential,'' except in certain specified circumstances. 15 U.S.C. 
46(f).
    \3\ Section 21(b) of the FTC Act protects from public disclosure 
material received by the Commission ``pursuant to compulsory process 
in an investigation, a purpose of which is to determine whether any 
person may have violated any provision of the laws administered by 
the Commission,'' except in certain specified circumstances. 15 
U.S.C. 57b-2(b).
    \4\ In addition to the two categories listed above, Rule 4.10(d) 
also protects from mandatory disclosure under the Freedom of 
Information Act, 5 U.S.C. 552, material submitted to the Commission 
voluntarily in lieu of compulsory process in a law enforcement 
investigation and marked or otherwise identified as confidential. 16 
CFR 4.10(d).
---------------------------------------------------------------------------

    The Commission has also amended Rules 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 set forth exceptions to these 
restrictions, including, inter alia, certain disclosures to Federal and 
State law enforcement agencies. Rules 4.10(d) and (e) have been amended 
to include disclosure to foreign law enforcement agencies pursuant to 
the new Rule 4.11(j) as a specifically stated exception.
    The amendments to Rules 4.10(d) and (e) and Rule 4.11(j)(3) will 
apply to all material that is subject to the disclosure restrictions in 
sections 6(f) and 21(b) of the FTC Act or in Rule 4.10(d) of the 
Commission's Rules of Practice, and that was submitted to the 
Commission on or after December 22, 2006, the date of enactment of the 
U.S. SAFE WEB Act.
    Procedural matters. These amendments adopted herein will reconcile 
the Commission's rules with existing agency memoranda of understanding 
(MOUs), under which the Commission has an obligation to use its best 
efforts to share relevant consumer protection law enforcement material 
requested by applicable foreign agencies to the extent consistent with 
national laws, international obligations, enforcement policies and 
other important interests. Under these MOUs, the Commission has the 
implied obligation to implement any internal procedures required to 
allow the Commission to take into account all applicable laws, 
including the new U.S. SAFE WEB Act authority, in processing and 
considering applicable foreign

[[Page 28853]]

agency requests for information. Because failure to make the proposed 
amendments would impair the Commission's ability to meet its foreign 
obligations, the amendments are exempt, by virtue of the foreign 
affairs exemption to the Act, 5 U.S.C. 553(a)(1), from both the 
Administrative Procedure Act's notice and comment requirement, 5 U.S.C. 
553(b), and its restriction on the rules' effective date, 5 U.S.C. 
553(d).
    These amendments are also exempt from the notice and comment 
requirement and effective date restriction of the Commission's Rules of 
Practice by virtue of the good cause exceptions in Rules 1.26(b) and 
1.26(e). 16 CFR 1.26(b), (e). In these circumstances, providing a 
period of public comment would delay implementation of these rules and 
is both unnecessary and contrary to the public interest.\5\
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    \5\ See Int'l Brotherhood of Teamsters v. Pe[ntilde]a, 17 F. 3d 
1478 (D.C. Cir. 1994) (applying APA foreign affairs exemption and 
good cause exception of agency rule).
---------------------------------------------------------------------------

    Finally, these amendments are not a collection of information 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. 601(2).

List of Subjects in 16 CFR Part 4

    Administrative practice and procedure, Freedom of Information Act, 
Sunshine Act.


0
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:

Subchapter A--Organization, Procedures, And Rules Of Practice

PART 4--MISCELLANEOUS RULES

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

    Authority: 15 U.S.C. 46, unless otherwise noted.


0
2. Amend Sec.  4.10 by revising paragraphs (d) and (e) to read as 
follows:


Sec.  4.10  Nonpublic material.

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

0
3. Amend Sec.  4.11 by adding a new paragraph (j) to the end that reads 
as follows:


Sec.  4.11  Disclosure requests.

* * * * *
    (j)(1) The procedures specified in this section apply to 
disclosures of certain records to foreign law enforcement agencies in 
specified circumstances in accordance with the U.S. SAFE WEB Act of 
2006. Nothing in this section authorizes the disclosure of material 
obtained in connection with the administration of the Federal antitrust 
laws or foreign antitrust laws, as defined in paragraph (j)(5)(i) of 
this section.
    (2) Requests from foreign law enforcement agencies, as defined in 
paragraph (j)(5)(ii) of this section, for nonpublic records shall be 
addressed to the Director of the Office of International Affairs or the 
Director's designee, who shall forward them to the General Counsel with 
recommendations for disposition after obtaining any required 
certification described in paragraph (j)(3) of this section and 
approval of the Bureau of Consumer Protection. With respect to requests 
under this paragraph, the General Counsel or the General Counsel's 
designee 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 of Consumer Protection or the Office 
of International Affairs disagrees with the General Counsel's proposed 
disposition.
    (3) Access under this section to any material subject to the 
disclosure restrictions in sections 6(f) or 21(b) of the FTC Act or 
Sec.  4.10(d) may not be granted unless--
    (i) An appropriate official of the foreign law enforcement agency 
has certified, either by prior agreement or memorandum of understanding 
or by other written certification, that such material will be 
maintained in confidence and will be used only for official law 
enforcement purposes; and
    (ii)(A) The foreign law enforcement agency has set forth a bona 
fide legal basis for its authority to maintain the material in 
confidence;
    (B) The materials are to be used for purposes of investigating, or 
engaging in enforcement proceedings related to, possible violations of:
    (1) Foreign laws prohibiting fraudulent or deceptive commercial 
practices, or other practices substantially similar to practices 
prohibited by any law administered by the Commission;
    (2) A law administered by the Commission, if disclosure of the 
material would further a Commission investigation or enforcement 
proceeding; or
    (3) With the approval of the Attorney General, other foreign 
criminal laws, if such foreign criminal laws are offenses defined in or 
covered by a criminal mutual legal assistance treaty in force between 
the government of the United States and the foreign law enforcement 
agency's government;
    (C) The appropriate Federal banking agency, (as defined in section 
3(q) of the Federal Deposit Insurance Act (12 U.S.C. 1813(q)) or, in 
the case of a Federal credit union, the National Credit Union 
Administration has given its prior approval if the materials to be 
provided under paragraph (j)(3)(ii)(B) of this section are requested by 
the foreign law enforcement agency for the purpose of investigating, or 
engaging in enforcement proceedings based on, possible violations of 
law by a bank, a savings and loan institution described in section 
18(f)(3) of the Federal Trade Commission Act (15 U.S.C. 57a(f)(3)), or 
a Federal credit union described in section 18(f)(4) of the Federal 
Trade Commission Act (15 U.S.C. 57a(f)(4)); and
    (D) The foreign law enforcement agency is not from a foreign state 
that the Secretary of State has determined, in accordance with section 
6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)), 
has repeatedly provided support for acts of international terrorism, 
unless and until such determination is rescinded pursuant to section 
6(j)(4) of that Act (50 U.S.C. App. 2405(j)(4)).
    (4) A copy of the certificate described in paragraph (j)(3) of this 
section will be forwarded to the submitter of the

[[Page 28854]]

information at the time the request is granted unless the foreign law 
enforcement agency requests that the submitter not be notified.
    (5) For purposes of this section:
    (i) ``Federal antitrust laws'' and ``foreign antitrust laws'' are 
to be interpreted as defined in paragraphs (5) and (7), respectively, 
of section 12 of the International Antitrust Enforcement Assistance Act 
of 1994 (15 U.S.C. 6211); and
    (ii) ``Foreign law enforcement agency'' is defined as:
    (A) Any agency or judicial authority of a foreign government, 
including a foreign state, a political subdivision of a foreign state, 
or a multinational organization constituted by and comprised of foreign 
states, that is vested with law enforcement or investigative authority 
in civil, criminal, or administrative matters and
    (B) Any multinational organization, to the extent that it is acting 
on behalf of an entity described in paragraph (j)(5)(i)(A) of this 
section.

    By direction of the Commission.
Donald S. Clark,
Secretary.
 [FR Doc. E7-9966 Filed 5-22-07; 8:45 am]
BILLING CODE 6750-01-P