Freedom of Information Act; Miscellaneous Rules, 93861-93864 [2016-30508]
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Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Proposed Rules
prevent unauthorized access to its
systems of records, unauthorized or
inadvertent disclosure of records, and
physical damage to or destruction of
records. The stringency of these controls
corresponds to the sensitivity of the
records that the controls protect. At a
minimum, the administrative and
physical controls must ensure that:
(1) Records are protected from public
view;
(2) The area in which records are kept
is supervised during business hours to
prevent unauthorized persons from
having access to them;
(3) Records are inaccessible to
unauthorized persons outside of
business hours; and
(4) Records are not disclosed to
unauthorized persons or under
unauthorized circumstances in either
oral or written form.
(b) Limited access. Access to records
is restricted only to individuals who
require access in order to perform their
official duties.
§ 2004.28 Use and collection of Social
Security numbers.
We will collect Social Security
numbers only when it is necessary and
we are authorized to do so. At least
annually, the Privacy Act Office will
inform employees who are authorized to
collect information that:
(a) Individuals may not be denied any
right, benefit or privilege as a result of
refusing to provide their Social Security
numbers, unless the collection is
authorized either by a statute or by a
regulation issued prior to 1975; and
(b) They must inform individuals who
are asked to provide their Social
Security numbers:
(1) If providing a Social Security
number is mandatory or voluntary;
(2) If any statutory or regulatory
authority authorizes collection of a
Social Security number; and
(3) The uses that will be made of the
Social Security number.
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§ 2004.29 Employee responsibilities under
the Privacy Act.
At least annually, the Privacy Act
Office will inform employees about the
provisions of the Privacy Act, including
the Act’s civil liability and criminal
penalty provisions. Unless otherwise
permitted by law, a USTR employee
must:
(a) Collect from individuals only
information that is relevant and
necessary to discharge USTR’s
responsibilities.
(b) Collect information about an
individual directly from that individual
whenever practicable.
(c) Inform each individual from whom
information is collected of:
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(1) The legal authority to collect the
information and whether providing it is
mandatory or voluntary;
(2) The principal purpose for which
USTR intends to use the information;
(3) The routine uses, i.e., disclosures
of records and information contained in
a system of records without the consent
of the subject of the record, USTR may
make; and
(4) The effects on the individual, if
any, of not providing the information.
(d) Ensure that the employee’s office
does not maintain a system of records
without public notice and notify
appropriate officials of the existence or
development of any system of records
that is not the subject of a current or
planned public notice.
(e) Maintain all records that are used
in making any determination about an
individual with such accuracy,
relevance, timeliness and completeness
as is reasonably necessary to ensure
fairness to the individual in the
determination.
(f) Except for disclosures made to an
agency or under the FOIA, make
reasonable efforts, prior to
disseminating any record about an
individual, to ensure that the record is
accurate, relevant, timely and complete.
(g) When required by the Privacy Act,
maintain an accounting in the specified
form of all disclosures of records by
USTR to persons, organizations or
agencies.
(h) Maintain and use records with
care to prevent the unauthorized or
inadvertent disclosure of a record to
anyone.
(i) Notify the appropriate official of
any record that contains information
that the Privacy Act does not permit
USTR to maintain.
PART 2005—[REMOVED]
■
3. Remove part 2005.
Janice Kaye,
Chief Counsel for Administrative Law, Office
of the U.S. Trade Representative.
[FR Doc. 2016–30495 Filed 12–21–16; 8:45 am]
BILLING CODE 3290–F7–P
FEDERAL TRADE COMMISSION
16 CFR Part 4
Freedom of Information Act;
Miscellaneous Rules
AGENCY:
Federal Trade Commission
(FTC).
ACTION:
Proposed rule.
The Federal Trade
Commission proposes to implement
SUMMARY:
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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.
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 feerelated 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.
DATES:
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Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Proposed Rules
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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
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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
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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.
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
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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Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Proposed Rules
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
1. The authority citation for part 4
continues to read as follows:
■
Authority: 15 U.S.C. 46.
2. Amend § 4.8 by revising paragraphs
(b)(2)(iii), (b)(6)(i), (b)(7), (e)(2)(i)(C) and
(i) to read as follows:
■
§ 4.8. Costs for obtaining Commission
records.
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*
(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
Duplication:
Paper to paper copy (up to 8.5’’ x 14’’) ............................................
Converting paper into electronic format (scanning) ..........................
Other reproduction (e.g., converting from one electronic format to
computer disk or printout, microfilm, microfiche, or microform).
Electronic Services:
Compact disc (CD) ............................................................................
DVD ...................................................................................................
Videotape cassette ............................................................................
Microfilm Services:
Conversion of existing fiche/film to paper .........................................
Other Fees:
Certification ........................................................................................
Express Mail ......................................................................................
Records maintained at Iron Mountain or Washington National
Records Center facilities (records retrieval, refiling, et cetera).
Other Services as they arise .............................................................
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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),
§ 4.11(a)(1)(ii) and § 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
§ 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
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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:
$0.14 per page.
Quarter hour rate of operator (Clerical, Other Professional, Attorney/
Economist).
Actual direct cost, including operator time.
3.00 per disc.
3.00 per disc.
2.00 per cassette.
0.14 per page.
25.00 each.
U.S. Postal Service Market Rates.
Contract Rates.
Market Rates.
circumstances, made to a requester
qualifying for one of the fee categories
set forth in § 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 § 4.8(b)(2), will not charge
duplication fees).
(iii) If the Commission has
determined that unusual circumstances
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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 § 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
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length of time provided by the court
order.
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(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
*
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*
(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.
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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
OVERSEAS PRIVATE INVESTMENT
CORPORATION
22 CFR Part 706
[No. FOIA–2016]
RIN 3420–AA02
Freedom of Information
Overseas Private Investment
Corporation.
ACTION: Notice of proposed rulemaking.
AGENCY:
This rule proposes revisions
to the Overseas Private Investment
Corporation’s (‘‘OPIC’’) Freedom of
Information Act (FOIA) regulations by
making substantive and administrative
changes. These revisions are intended to
supersede OPIC’s current FOIA
regulations, located at this Part. The
proposed rule incorporates the FOIA
revisions contained in the FOIA
Improvement Act of 2016, makes
administrative changes to reflect OPIC’s
costs, and conforms more closely to the
language recommended by the
Department of Justice, Office of
Information Policy.
DATES: Written comments must be
postmarked and electronic comments
must be submitted on or before January
23, 2017.
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SUMMARY:
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You may submit comments,
identified by Docket Number FOIA–
2016, by one of the following methods:
• Email: foia@opic.gov. Include
docket number FOIA–2016 in the
subject line of the message.
• Mail: Nichole Skoyles,
Administrative Counsel, Overseas
Private Investment Corporation, 1100
New York Avenue NW., Washington,
DC 20527. Include docket number
FOIA–2016 on both the envelope and
the letter.
FOR FURTHER INFORMATION CONTACT:
Nichole Skoyles, Administrative
Counsel, (202) 336–8400, or foia@
opic.gov.
SUPPLEMENTARY INFORMATION: The
revision of Part 706 incorporates
changes to the language and structure of
the regulations and adds new provisions
to implement the FOIA Improvement
Act of 2016. OPIC is already complying
with these changes and this proposed
revision serves as OPIC’s formal
codification of the applicable law and
its practice.
OPIC has also updated its regulations
to incorporate much of the suggested
language provided by the Department of
Justice, Office of Information Policy.
Adopting this language allows OPIC to
adopt many of the recommended best
practices in FOIA administration. This
update also assists requesters as much
of OPIC’s regulations are now similar to
those of other agencies.
In general, comments received,
including attachments and other
supporting materials, are part of the
public record and are available to the
public. Do not submit any information
in your comment or supporting
materials that you consider confidential
or inappropriate for public disclosure.
ADDRESSES:
Regulatory Flexibility Act (5 U.S.C. 601
et seq.)
Pursuant to the Regulatory Flexibility
Act, 5 U.S.C. 601 et seq., the head of
OPIC has certified that this proposed
rule, as promulgated, will not have a
significant economic impact on a
substantial number of small entities.
The proposed rule implements the
FOIA, a statute concerning the release of
federal records, and does not
economically impact Federal
Government relations with the private
sector. Further, under the FOIA,
agencies may recover only the direct
costs of searching for, reviewing, and
duplicating the records processes for
requesters. Based on OPIC’s experience,
these fees are nominal.
Executive Order 12866
OPIC is exempted from the
requirements of this Executive Order
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per the Office of Management and
Budget’s October 12, 1993
memorandum. Accordingly, OMB did
not review this proposed rule. However
this rule was generally composed with
the principles stated in section 1(b) of
the Executive Order in mind.
Unfunded Mandates Reform Act of
1995 (2 U.S.C. 202–05)
This proposed rule will not result in
the expenditure by State, local, and
tribal governments in the aggregate, or
by the private sector, of $100,000,000 or
more in any one year, and it will not
significantly or uniquely affect small
governments. Therefore, no actions were
deemed necessary under the provisions
of the Unfunded Mandates Reform Act
of 1995.
Small Business Regulatory Enforcement
Fairness Act of 1996 (5 U.S.C. 801 et
seq.)
This proposed rule is not a major rule
as defined by section 804 of the Small
Business Regulatory Enforcement
Fairness Act of 1996. This regulation
will not result in an annual effect on the
economy of $100,000,000 or more; a
major increase in costs or prices; or
significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of United State based companies
to compete with foreign-based
companies in domestic and export
markets.
List of Subjects in 22 CFR Part 706
Administrative practice and
procedure, Freedom of Information,
Privacy.
For the reasons stated in the preamble
the Overseas Private Investment
Corporation proposes to revise 22 CFR
part 706 as follows:
PART 706—INFORMATION
DISCLOSURE UNDER THE FREEDOM
OF INFORMATION ACT
Sec.
Subpart A—General
706.1 Description.
706.2 Policy.
706.3 Scope.
706.4 Preservation and transfer of records.
706.5 Other rights and services.
Subpart B—Obtaining OPIC Records
706.10 Publically available records.
706.11 Requesting non-public records.
Subpart C—Fees for Requests for NonPublic Records
706.20 In general.
706.21 Types of fees.
706.22 Requester categories.
706.23 Fees charged.
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]]>Agencies
[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]
=======================================================================
-----------------------------------------------------------------------
FEDERAL TRADE COMMISSION
16 CFR Part 4
Freedom of Information Act; Miscellaneous Rules
AGENCY: Federal Trade Commission (FTC).
ACTION: Proposed rule.
-----------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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:
------------------------------------------------------------------------
------------------------------------------------------------------------
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.
------------------------------------------------------------------------
* * * * *
(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
