[Federal Register: April 9, 1997 (Volume 62, Number 68)] [Rules and Regulations] [Page 17068-17070] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr09ap97_dat-19] ======================================================================= ----------------------------------------------------------------------- COMMODITY FUTURES TRADING COMMISSION 17 CFR Part 145 Commission Records and Information AGENCY: Commodity Futures Trading Commission. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Commodity Futures Trading Commission (``Commission'' or ``CFTC'') is amending its rules relating to Commission records and information. The modifications implement the portions of the Electronic Freedom of Information Act Amendments of 1996 which become effective March 31, 1997. As these modifications involve solely agency procedure and practice, public comment is not being sought. EFFECTIVE DATE: March 31, 1997. ADDRESSES: Jean A. Webb, Secretary of the Commission, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW, Washington, DC 20581; or by electronic mail to [email protected]. FOR FURTHER INFORMATION CONTACT: Merry Lymn, Assistant General Counsel, Office of the General Counsel, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW, Washington, DC 20581. Telephone: (202) 418-5120. SUPPLEMENTARY INFORMATION: I. Background--Need for Revisions The Electronic Freedom of Information Act Amendments of 1996, Public Law 104-231, 110 Stat. 3048 (1996) (``EFOIA''), amended the Freedom of Information Act (``FOIA'') (5 U.S.C. 552) to facilitate the dissemination of agency records created and retained in electronic formats and to assist requesters in obtaining information in the form or format most useful to them. EFOIA provides dates by which certain provisions must be implemented. This notice sets forth the Commission's modifications of its regulations found at 17 CFR Part 145 to implement those EFOIA provisions with a March 31, 1997 effective date. EFOIA provisions with a later effective date will be treated subsequently. A. Definitions 1. EFOIA Definition Section 3 of EFOIA amends FOIA by modifying its definition of ``record.'' Consequently, the Commission is revising its definition of ``record'' found at 17 CFR 145.0 to conform to EFOIA usage. Furthermore, because the current definition is inconsistent with United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 144-145, 149-154 (1989) (court opinions in agency files held to be agency records), and the Commission's subsequent practice, the definition of ``record'' is also revised by deleting the sentence ``Further, the term `records,' as used in this Part, does not include materials such as Federal Register notices or court filings that are available from public sources other than the Commission.'' 2. Alphabetical Order The definitional section of Part 145 is not in alphabetical order. The Commission believes that re-ordering the definitions alphabetically will make it easier for the user and will facilitate adding or deleting definitions in the future. Consequently, the new definitional section is alphabetized. Additionally, some of the existing definitions are redrafted to conform to the revised format. B. Availability of Records Under Section 5 of EFOIA, the Commission is required to make records available in any form or format requested if the Commission can readily reproduce them in that form or format. Accordingly, the Commission is amending Sec. 145.7 to indicate that requesters should specify the form or format (including electronic formats) in which they prefer to receive a response. When requesters do not specify the form or format for a response, the Commission will respond in the form or format in which the document is most accessible to the Commission. [[Page 17069]] C. Reference Materials and Guides In accordance with Section 11 of EFOIA, as of March 31, 1997, individuals may obtain a guide for requesting records or information from the Commission which includes an index of all publicly available information of the Commission; a description of major information and record locator systems maintained by the Commission; and guidance for obtaining various types and categories of public information from the Commission. These reference materials will be available at Commission offices for public inspection and copying, and by writing or telephoning the Commission. Consequently, the Commission is modifying Secs. 145.2 and 145.7 to include information about access to these materials. II. Related Matters Regulatory Flexibility Act The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601, et seq. (1988), requires that agencies, in proposing rules, consider the impact of those rules on small businesses. The Commission has previously determined, pursuant to 5 U.S.C. 605(b), that Part 145 rules relating to Commission records and information do not have a significant economic impact on a substantial number of small entities. Because they do not impose regulatory obligations on commodity professionals and small commodity firms, and because the amendments will enhance the FOIA process, the Commission does not expect the rule to have a significant economic impact on a substantial number of small business entities. Accordingly, pursuant to Rule 3(a) of the RFA (5 U.S.C. 605(b)), the Chairperson, on behalf of the Commission, certifies that this rule will not have a significant economic impact on a substantial number of small entities. The Commission nonetheless invites comment from any member of the public who believes that these revisions would have a significant impact on small businesses. List of Subjects in 17 CFR Part 145 Confidential business treatment, Freedom of information. For the reasons set forth in the preamble, Title 17, Part 145 is amended as follows: PART 145--COMMISSION RECORDS AND INFORMATION 1. The authority for Part 145 is revised to read: Authority: Pub. L. 104-231, 110 Stat. 3048, Pub. L. 99-570, 100 Stat. 3207, Pub. L. 89-554, 80 Stat. 383, Pub. L. 90-23, 81 Stat. 54, Pub. L. 93-502, 88 Stat. 1561-1564 (5 U.S.C. 552); Sec. 101(a), Pub. L. 93-463, 88 Stat. 1389 (5 U.S.C. 4a(j)); unless otherwise noted. 2. Sec. 145.0 is revised to read as follows: Sec. 145.0 Definitions. For the purposes of Part 145 the following definitions are applicable: Assistant Secretary--refers to the Assistant Secretary of the Commission for FOI, Privacy and Sunshine Acts Compliance. Compliance Staff--refers to the FOI, Privacy and Sunshine Acts Compliance staff of the Office of the Secretariat at the Commission's principal office in Washington, DC assigned to respond to requests for information and to handle various other matters under the Freedom of Information Act, the Privacy Act of 1974, and the Government in the Sunshine Act. Public Records--in addition to the records described in Sec. 145.1 (material published in the Federal Register) and in Sec. 145.2 (records required to be made publicly available under the Freedom of Information Act), includes those records that have been determined by the Commission to be generally available to the public directly upon oral or written request from the Commission office or division responsible for the maintenance of such records. A compilation of Commission records routinely available to the public upon request appears in Appendix A to this Part 145. Nonpublic records--are records not identified in Sec. 145.1, Sec. 145.2, or Appendix A of this Part 145. Nonpublic records must be requested, in writing, in accordance with the provisions of Sec. 145.7. Record--is any information or agency record maintained by the Commission in any format, including an electronic format. It includes any document, writing, photograph, sound or magnetic recording, videotape, microfiche, drawing, or computer-stored information or output in the possession of the Commission. The term ``record'' does not include personal convenience materials over which the Commission has no control, such as appointment calendars and handwritten notes, which may be retained or destroyed at an employee's discretion. 3. Section 145.2 is revised to read as follows: Sec. 145.2 Records available for public inspection and copying; documents published and indexed. Except as provided in Sec. 145.5, pertaining to nonpublic matters, and in addition to those documents listed in Appendix A to Part 145, Compilation of Commission Records Available to the Public, the following materials are available for public inspection and copying during normal business hours at the Commission's Public Reading Room, located at the principal office of the Commission in Washington, DC and at the regional offices of the Commission: (a) A guide for requesting records or publicly available information from the Commission which includes: (1) An index of all publicly available information of the Commission; (2) A description of major information and record locator systems; (3) Guidance for obtaining various types and categories of public information from the Commission; (b) Final opinions and orders of the Commission in the adjudication of cases, including concurring and dissenting opinions; (c) Statements of policy and interpretations which have been adopted by the Commission and are not published in the Federal Register; (d) Records released in response to FOIA requests that have been, or the Commission anticipates will be, the subject of additional FOIA requests; (e) Administrative manuals and instructions that affect the public; and (f) Indices providing identifying information to the public as to the materials made available pursuant to paragraphs (a) through (e) of this section. 4. Sec. 145.7 is amended by adding an introductory paragraph and revising paragraph (a) to read as follows: Sec. 145.7 Requests for Commission records and copies thereof. Requests for Commission records and copies thereof shall specify the preferred form or format (including electronic formats) of the response. The Commission will accommodate requesters as to form or format if the record is readily available in that form or format. When requesters do not specify the form or format of the response, the Commission will respond in the form or format in which the document is most accessible to the Commission. (a) Public inquiries and inspection of public records. Information concerning the nature and extent of available public records may be obtained in person, by telephone, via Internet (http://www.cftc.gov), or by writing to the Commission offices designated in Secs. 145.2 and 145.6. * * * * * Issued by the Commission. [[Page 17070]] Dated: April 3, 1997. Jean A. Webb, Secretary of the Commission, Commodity Futures Trading Commission. [FR Doc. 97-9003 Filed 4-8-97; 8:45 am] BILLING CODE 6351-01-P
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