82 FR 37004 - Procedures for Disclosure or Production of Information Under the Freedom of Information Act

CONSUMER PRODUCT SAFETY COMMISSION

Federal Register Volume 82, Issue 151 (August 8, 2017)

The Consumer Product Safety Commission (Commission, CPSC, or we) is issuing a final rule to update its Freedom of Information Act (FOIA) rule. The final rule revises the rule to conform to the amendments of the FOIA Improvement Act of 2016 (the 2016 FOIA) to the FOIA. The final rule is also updated to reflect changes in Commission procedures; updates Commission contact information, including current methods of submitting requests for records to the Commission; revises employee titles; and makes various technical changes and corrections.

[Federal Register Volume 82, Number 151 (Tuesday, August 8, 2017)]
[Rules and Regulations]
[Pages 37004-37010]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-16550]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1015

[Docket No. CPSC-2016-0030]


Procedures for Disclosure or Production of Information Under the 
Freedom of Information Act

AGENCY: Consumer Product Safety Commission.

ACTION: Final rule.

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SUMMARY: The Consumer Product Safety Commission (Commission, CPSC, or 
we) is issuing a final rule to update its Freedom of Information Act 
(FOIA) rule. The final rule revises the rule to conform to the 
amendments of the FOIA Improvement Act of 2016 (the 2016 FOIA) to the 
FOIA. The final rule is also updated to reflect changes in Commission 
procedures; updates Commission contact information, including current 
methods of submitting requests for records to the Commission; revises 
employee titles; and makes various technical changes and corrections.

DATES: The rule is effective on September 7, 2017.

FOR FURTHER INFORMATION CONTACT: Renee McCune, Office of the General 
Counsel, Consumer Product Safety Commission, 4330 East West Highway, 
Bethesda, MD 20814, (301) 504-7673; or Todd A. Stevenson, Chief Freedom 
of Information Officer, Consumer Product Safety Commission, 4330 East 
West

[[Page 37005]]

Highway, Bethesda, MD 20814, (301) 504-6836.

SUPPLEMENTARY INFORMATION: The Commission amends the agency's 
procedures for disclosure or production of information under the 
Freedom of Information Act. 16 CFR part 1015.

Table of Contents

I. Background Information
II. Response to Comments
III. Environmental Considerations
IV. Regulatory Flexibility Act
V. Paperwork Reduction Act
VI. Executive Order 12988 (Preemption)
VII. Effective Date

I. Background Information

    On June 30, 2016, the President signed into law the 2016 FOIA, 
Public Law 114-185 (2016). The 2016 FOIA amends the Freedom of 
Information Act, 5 U.S.C. 552, requiring an agency to review its FOIA 
regulations and issue regulations on procedures for the disclosure of 
records under the new amendments. Specifically, the 2016 FOIA requires: 
Certain records be available for public inspection in an electronic 
format; agencies to make available for public inspection in an 
electronic format records that have been requested three or more times; 
that an agency not withhold information under FOIA unless the agency 
reasonably foresees that disclosure would harm an interest protected by 
a FOIA Exemption or disclosure is prohibited by law; extending the 
number of days for an administrative appeal of an adverse determination 
from 30 to 90 days; the assessment of fees be limited in certain 
circumstances; and requesters be notified of available dispute 
resolution services from the FOIA Public Liaison of the agency or the 
Office of Government Information Services.
    The Commission amends its regulations to implement the 2016 FOIA, 
16 CFR part 1015, by incorporating these new statutory requirements. 
The amendments revise the Commission's FOIA regulations to comply with 
the FOIA, as amended by the 2016 FOIA, and update Commission 
procedures, contact information, and methods of submitting requests for 
records to the Commission, in addition to other conforming and 
technical revisions. Updating Commission procedures and Commission 
contact information provides clarity for requesters seeking records 
from the Commission.

II. Response to Comments

    On January 3, 2017, the Commission published a Notice of Proposed 
Rulemaking (NPR) in the Federal Register. 82 FR 59. CPSC received two 
comments in response to the NPR. The comments addressed seven separate 
issues. Comments submitted in response to the NPR are available at: 
www.regulations.gov, by searching under the docket number of the 
rulemaking, CPSC-2016-0030.

A. Purpose and Scope (Sec.  1015.1)

    Based on informal input from the Office of Information Policy 
(``OIP'') within the U.S. Department of Justice, we clarified the 
Privacy Act discussion in Sec.  1015.1(a) to reflect current practices 
and provided further guidance to first and third party requesters. With 
respect to an individual's request for records about himself or 
herself, we clarified that we would process such a request under the 
Privacy Act and then under the FOIA. Thus, if a request is denied under 
the Privacy Act, the records will be processed under the FOIA. This 
change is consistent with the FOIA and allows a requester access to the 
greatest number of records.
    Additionally, with respect to a request by a third party for 
records under the Privacy Act, we removed the sentence on third party 
requests (not including a request on behalf of a first party for 
Privacy Act records) because such requests are only processed under the 
FOIA. Therefore the reference to third party requests being processed 
under the Privacy Act is not required.
    One commenter asserted that the Commission's policy regarding 
requests for records in Sec.  1015.1(b) should not characterize 
disclosure as a ``rule'' and withholding as an ``exception.'' The 
commenter stated that ``disclosure'' and ``withholding'' are 
``prescribed equally by rules'' and suggested that the Commission's 
policy should indicate that the Commission will apply a presumption of 
disclosure when processing responsive records.
    We believe that a presumption of disclosure is already reflected in 
the Commission's policy statement in Sec.  1015.1(b), which states that 
the Commission's policy regarding requests for records is that 
disclosure is the rule and withholding is the exception. The 
Commission's policy is further clarified by the next two sentences in 
the rule, which incorporate a presumption of disclosure in explaining 
the limited circumstances under which records that are exempted from 
disclosure will not be made available. Accordingly, we decline to 
revise the sentence.

B. Time Limitation on Responses to Requests for Records and Requests 
for Expedited Processing (Sec.  1015.5)

    One commenter observed that the time limitations as written in 
Sec. Sec.  1015.5(a) and 1015.7(b) of the NPR could result in 
unintended consequences. The commenter suggested that, under this 
formulation, a request or an appeal submitted at, for example, 7:59 
a.m., would begin running the next work day, instead of one minute 
later, at 8 a.m. Additionally, the commenter noted that the phrase ``to 
requests for records'' should be added after the word ``responses'' at 
the end of the sentence and a comma should be added after the word 
``received.''
    We agree with the commenter. If an electronic submission occurs 
during non-working hours, we intend for time limitations to begin to 
run when working hours resume. Accordingly, we have revised the 
sentence, which also takes into account the grammatical concerns the 
commenter raised. For example, if a request is submitted electronically 
at 7:59 a.m. EST on a working day, the time limitations will begin to 
run at 8 a.m. EST on that day when working hours resume. In response to 
the comment addressing Sec.  1015.7(b) we made the same conforming 
changes to Sec.  1015.7(b).
    One commenter stated that, to be consistent with other provisions 
in the rule that expressly state whether time periods are measured in 
calendar days or working days, the Commission should clarify Sec.  
1015.5(g)(3) to reflect that the Secretariat or delegate of the 
Secretariat will determine whether to grant a request for expedited 
processing within 10 calendar days of receipt of the request.
    The rule does not indicate whether the 10 days are calendar days or 
working days. For clarity and consistency with other provisions in the 
rule that specify ``calendar days'' or ``working days'' we have amended 
the sentence to refer to ``ten (10) calendar days.'' This amendment is 
consistent with the Commission's current practice of treating the 10 
day time period as calendar days. It is also consistent with the FOIA, 
which does not specify ``working days.'' 5 U.S.C. 552(a)(6)(E)(ii)(I).

C. Responses: Form and Content (Sec.  1015.6)

    One commenter remarked that neither party may be able to 
definitively prove the date of receipt of the Commission's denial of a 
request for records under Sec.  1015.6(b)(4) if the Commission sends 
the denial by regular mail. The rule

[[Page 37006]]

states that the requester has 90 calendar days from the receipt of the 
denial or partial denial to make an appeal. To avoid this problem, the 
commenter suggested that the Commission calculate the 90-day deadline 
from the date the Commission issues its denial.
    In response to the comment, we have revised Sec. Sec.  1015.6(b)(4) 
and 1015.7(a) to state that an appeal must be made within 90 calendar 
days of the Commission's response. The Commission's practice is to send 
certified letters of denial, which allow the Commission to determine 
the date that the requester received the letter. This revision 
simplifies the process, eliminates any ambiguity, and allows the 
Commission flexibility to implement future changes electronically where 
feasible. This change also tracks the FOIA, which provides that, in the 
case of an adverse determination, there is a right to appeal ``within a 
period determined by the head of the agency that is not less than 90 
days after the date of such adverse determination.'' 5 U.S.C. 
552(a)(6)(A)(i)(III)(aa). The revisions also revise Sec. Sec.  
1015.6(b), (b)(4), and 1015.7(a) to state that denials include partial 
denials, for consistency with the current language in Sec.  1015.7(a), 
which refers to denials of requests for records ``in whole or in 
part.'' The Commission's practice is to include a date on denial 
letters, but we have amended Sec.  1015.6(b) to explicitly require that 
a denial letter be dated.

D. Appeals From Initial Denials; Reconsideration by the Secretariat 
(Sec.  1015.7)

    As noted above, one commenter identified that proposed Sec.  
1015.7(b), which sets forth time limits for responding to appeals, 
would add an extra day for responding to an appeal received just before 
the start of a working day.
    As stated in our above response, we agree that the sentence should 
be revised. Accordingly, for the same reasons we noted above, we have 
similarly revised the sentence, except that we refer to ``appeals'' 
instead of ``requests'' (an error in the NPR). For that same reason, we 
also revised the preceding sentence to correct ``request'' to state 
``appeal.'' Finally, we updated a parenthetical citation at the end of 
Sec.  1015.7.

E. Fees for Production of Records (Sec.  1015.9)

    One commenter asserted that the definition of a ``representative of 
the news media'' at Sec.  1015.9(c)(8) should be amended because it is 
outdated and conflicts with the FOIA, as amended, and to conform to 
judicial authorities, citing Cause of Action v. Federal Trade 
Commission, 799 F.3d 1108 (D.C. Cir. 2015). Additionally, the commenter 
suggested that we consider other elements of the Cause of Action 
decision with respect to the news media requester fee category. 
Specifically, the commenter stated that the news media requester fee 
category should focus on the nature of the requester, not its request. 
With respect to the requirement that a news media requester use 
``editorial skills'' to turn ``raw materials'' into a ``distinct 
work,'' the commenter asserted that even a simple press release 
commenting on records satisfies this criterion. Finally, the commenter 
stated that the Cause of Action court indicated that the statutory 
definition of a ``representative of the news media'' includes 
``alternative media'' and evolving news media formats, and therefore, 
we should state that any examples of news media entities we may include 
in the rule are non-exhaustive.
    We agree with the commenter that the definition of ``representative 
of the news media,'' which is used to determine fee waivers in Sec.  
1015.9, is outdated and should be amended to track the definition in 
the FOIA at 5 U.S.C. 552(a)(4)(A)(ii). Therefore, we have revised the 
first sentence of the definition to follow the FOIA definition. 
Additionally, to provide further clarification and guidance for this 
definition, we have incorporated some additional language from the FOIA 
definition and the template guidelines for agency FOIA regulations 
provided by the OIP.
    This additional language encompasses the OIP guidance and addresses 
the commenter's suggestions. First, the additional language added to 
the definition of news media focuses on the nature of the requester as 
opposed to the content of the request. Second, the commenter's 
observation that a press release should meet the distinct work standard 
would be permissible under the revised definition as long as it meets 
the requirement that it is about current events or of current interest 
to the public. Finally, we explain that the revised definition uses 
examples of news media entities that are not all-inclusive.
    One commenter suggested clarifying that the ``10 additional days'' 
in Sec.  1015.9(f)(6)(i) are working days. We agree with the commenter 
and for clarity have amended Sec.  1015.9(f)(6)(i) accordingly. This 
section is an exception to the requirement that the Commission waive 
certain fees if it fails to meet certain time limits. Although the ``10 
additional days'' language we proposed in the NPR tracks the language 
used in the 2016 FOIA at 5 U.S.C. 552(a)(4)(A)(viii)(ll), the 10 days 
are in addition to the 20 working days that the Commission has to 
respond to the request for records per 5 U.S.C. 552(a)(6)(A)(i) and 
therefore also are calculated as working days. This revision is 
consistent with 5 U.S.C. 552(a)(6)(B)(i), which refers to the extension 
for unusual circumstances as no more than 10 working days, and the 
revision is also consistent with the Commission's current practices.
    Additionally, on our own initiative, we made some clarifications 
and corrections to Sec.  1015.9(f)(6). Specifically, we added or 
corrected citations to other sections in the rule and made other 
conforming changes to the 2016 FOIA. First, we added or corrected some 
references to sections in the rule that had previously been omitted or 
needed to be revised. Second, we revised the first sentence to remove 
``and notice'' to track the language of the 2016 FOIA at 5 U.S.C. 
552(a)(4)(A)(viii), which only refers to ``any time limits.'' The 
notice portion is instead a requirement of the exceptions at Sec.  
1015.9(f)(6)(i) and (ii), as stated in the 2016 FOIA at 5 U.S.C. 
552(a)(4)(A)(viii)(ll)(aa) and (bb). Finally, we corrected two citation 
errors in Sec.  1015.9(f)(6)(iii).

F. Commission Report of Actions to Congress (Sec.  1015.10)

    Based on informal OIP input on this section we removed Sec.  
1015.10 because it unnecessarily repeats the requirements stated in the 
FOIA at 5 U.S.C. 552(e)(1), and, at the same time, is incomplete and 
lacks various other requirements listed in the FOIA. See 5 U.S.C. 
552(e)(1)(B)(2), (C), and (F)-(M). Amending this section to restate all 
of the requirements from the FOIA would make the rule unnecessarily 
dense and provides no additional guidance about the requirement.

G. Exemptions (5 U.S.C. 552(b)) (Sec.  1015.16)

    Also based on informal OIP input on this section, we removed Sec.  
1015.16 for similar reasons. Because the requirements are already 
specified in the FOIA at 5 U.S.C. 552(b), it is unnecessary to repeat 
them in the rule. Moreover, Sec.  1015.16(c) is incomplete. See 5 
U.S.C. 552(b)(3). In making this revision, we revised Sec.  1015.15(d) 
and Sec.  1015.20 to reference the exemptions contained in the FOIA at 
5 U.S.C. 552(b) instead of the exemptions contained in Sec.  1015.16.

[[Page 37007]]

III. Environmental Considerations

    The Commission's regulations address whether the Commission is 
required to prepare an environmental assessment or an environmental 
impact statement. 16 CFR part 1021. These regulations provide a 
categorical exclusion for certain CPSC actions that normally have 
``little or no potential for affecting the human environment.'' 16 CFR 
1021.5(c)(1). This final rule falls within the categorical exclusion.

IV. Regulatory Flexibility Act

    Under section 603 of the Regulatory Flexibility Act (RFA), when the 
Administrative Procedure Act (APA) or another law requires an agency to 
publish a general notice of proposed rulemaking, the agency must 
prepare an initial regulatory flexibility analysis and a final 
regulatory flexibility analysis assessing the economic impact of the 
rule on small entities or certify that the rule will not have a 
significant economic impact on a substantial number of small entities. 
5 U.S.C. 603(a), 604(a), and 605. As noted in the NPR, the Commission 
chose to provide notice and comment for this rulemaking. However, 
because this is a ``rule of agency organization, procedure, or 
practice,'' the APA does not require an NPR. 5 U.S.C. 553. Thus, the 
RFA requirement does not apply to this rulemaking. We further noted in 
the NPR that the rule would merely set out in a regulation the 
procedural requirements stated in the FOIA of 2016, update Commission 
procedures, and make other technical changes and corrections. We expect 
that the final rule will not have a significant economic impact on a 
substantial number of small entities.

V. Paperwork Reduction Act

    The Paperwork Reduction Act (PRA) establishes certain requirements 
when an agency conducts or sponsors a ``collection of information.'' 44 
U.S.C. 3501-3520. The final rule amends the Commission's rule to 
conform to the 2016 FOIA, to update Commission procedures, and make 
other technical changes and corrections. The final rule would not 
impose any information collection requirements. The existing rule and 
the amendment do not require or request information from firms, but 
rather, explain the Commission's FOIA procedures. Thus, this rulemaking 
does not implicate the PRA.

VI. Executive Order 12988 (Preemption)

    According to Executive Order 12988 (February 5, 1996), agencies 
must state in clear language the preemptive effect, if any, of new 
regulations. Section 26 of the Consumer Product Safety Act (CPSA) 
explains the preemptive effect of consumer product safety standards 
issued under the CPSA. 15 U.S.C. 2075. The final rule is not a consumer 
product safety standard. The final rule revises a rule of agency 
practice and procedure by implementing the FOIA of 2016 and making 
technical revisions or corrections. Therefore, section 26 of the CPSA 
would not apply to this rule.

VII. Effective Date

    The Commission proposed that the final rule would become effective 
30 days after the final rule is published in the Federal Register in 
accordance with the APA's general requirement that the effective date 
of a rule be at least 30 days after publication of the final rule. 5 
U.S.C. 553(d). We received no comments regarding the effective date. 
Therefore, the final rule will become effective 30 days after the final 
rule is published in the Federal Register.

List of Subjects in 16 CFR Part 1015

    Administrative practice and procedure, Consumer protection, 
Disclosure of information, Freedom of information.

    Accordingly, the Commission amends 16 CFR part 1015 as follows:

PART 1015--PROCEDURES FOR DISCLOSURE OR PRODUCTION OF INFORMATION 
UNDER THE FREEDOM OF INFORMATION ACT

0
1. The authority citation for part 1015 is revised to read as follows:

    Authority: 15 U.S.C. 2051-2084; 15 U.S.C. 1261-1278; 15 U.S.C. 
1471-1476; 15 U.S.C. 1211-1214; 15 U.S.C. 1191-1204; 15 U.S.C. 8001-
8008; Pub. L. 110-278, 122 Stat. 2602; 5 U.S.C. 552.


0
2. Revise Sec.  1015.1 to read as follows:


1015.1  Purpose and scope.

    (a) The regulations of this subpart provide information concerning 
the procedures by which Consumer Product Safety Commission records may 
be made available for inspection and the procedures for obtaining 
copies of records from the Consumer Product Safety Commission. Official 
records of the Consumer Product Safety Commission consist of all 
documentary material maintained by the Commission in any format, 
including an electronic format. These records include those maintained 
in connection with the Commission's responsibilities and functions 
under the Consumer Product Safety Act, as well as those 
responsibilities and functions transferred to the Commission under the 
Federal Hazardous Substances Act, the Poison Prevention Packaging Act 
of 1970, the Refrigerator Safety Act, the Flammable Fabrics Act, the 
Children's Gasoline Burn Prevention Act, the Virginia Graeme Baker Pool 
and Spa Safety Act, and the Child Nicotine Poisoning Prevention Act, 
and those maintained under any other authorized activity. Official 
records do not, however, include objects or articles such as tangible 
exhibits, samples, models, equipment, or other items of valuable 
property; books, magazines, or other reference material; or documents 
routinely distributed by the Commission in the normal course of 
business such as copies of Federal Register notices, pamphlets, and 
laws. Official records include only existing records. Official records 
of the Commission made available under the requirements of the Freedom 
of Information Act (5 U.S.C. 552) shall be furnished to the public as 
prescribed by this part 1015. A request by an individual for records 
about himself or herself that are contained in the Commission's system 
of records under the Privacy Act (5 U.S.C. 552a) will be processed 
under the Privacy Act and the FOIA. Documents routinely distributed to 
the public in the normal course of business will continue to be 
furnished to the public by employees of the Commission informally and 
without compliance with the procedures prescribed herein.
    (b) The Commission's policy with respect to requests for records is 
that disclosure is the rule and withholding is the exception. All 
records or portions of records not exempt from disclosure will be made 
available. Records which may be exempted from disclosure will be made 
available unless: Disclosure is prohibited by law; the Commission 
reasonably foresees that disclosure would harm an interest protected by 
an exemption described in 5 U.S.C. 552(b); or disclosure is exempted 
under 5 U.S.C. 552(b)(3). See Sec.  1015.15(b). Section 6(a)(2) of the 
Consumer Product Safety Act, 15 U.S.C. 2055(a)(2), prohibits the 
disclosure of trade secrets or other matters referred to in 18 U.S.C. 
1905; section 6(b) and section 25(c) of the CPSA. The Commission will 
consider the record's age, content, and character in assessing whether 
it reasonably foresees that disclosure of the document would harm an 
interest protected by an exemption. Additionally, the Commission will 
consider whether partial disclosure of information is possible whenever 
the Commission determines that a full disclosure of a requested record 
is not possible and will take reasonable steps

[[Page 37008]]

necessary to segregate and release nonexempt information.
    (c) The Secretariat of the Commission is the designated Chief 
Freedom of Information Officer who, subject to the authority of the 
Chairman, is responsible for compliance with and implementation of 5 
U.S.C. 552(j).

0
3. Revise Sec.  1015.2 to read as follows:


Sec.  1015.2  Public inspection.

    (a) The Consumer Product Safety Commission will maintain in a 
public reference room or area the materials relating to the Consumer 
Product Safety Commission that are required by 5 U.S.C. 552(a)(2) and 
552(a)(5) to be made available for public inspection in an electronic 
format. The principal location will be in the Office of the Secretariat 
of the Commission. The address of this office is: Office of the 
Secretariat, Consumer Product Safety Commission, Room 820, 4330 East 
West Highway, Bethesda, MD 20814.
    (b) This public reference facility will maintain and make available 
for public inspection in an electronic format a current index of the 
materials available at that facility which are required to be indexed 
by 5 U.S.C. 552(a)(2).
    (c) The Consumer Product Safety Commission will maintain an 
``electronic reading room'' on the World-Wide Web at https://www.cpsc.gov for those records that are required by 5 U.S.C. 552(a)(2) 
to be available by ``computer telecommunications.'' Records that the 
FOIA requires the Commission to make available for public inspection in 
an electronic format may be accessed through the e-FOIA Public Access 
Link at https://www.cpsc.gov.
    (d) Subject to the requirements of Section 6 of the CPSA, the 
Commission will make available for public inspection in an electronic 
format copies of all records, regardless of form or format, that:
    (1) Have been released to any person under 5 U.S.C. 552(a)(3); and
    (2) Because of the nature of their subject matter, the Commission 
determines have become or are likely to become the subject of 
subsequent requests for substantially the same records or that have 
been requested three or more times.

0
4. Amend Sec.  1015.3 by:
0
a. Revising the section heading;
0
b. Revising the first sentence of paragraph (a);
0
c. Adding a sentence at the end of paragraph (b); and
0
d. Removing the word ``Secretary'' from paragraphs (d) and (e), 
wherever it appears, and adding, in its place, the word 
``Secretariat''.
    The revisions and additions read as follows:


Sec.  1015.3  Requests for records.

    (a) A request for access to records of the Commission shall be in 
writing addressed to the Secretariat and shall be submitted through any 
of the following methods: The e-FOIA Public Access Link at https://www.cpsc.gov; email to [email protected]; mail to Consumer Product 
Safety Commission, 4330 East West Highway, Room 820, Bethesda, MD 
20814; or facsimile to 301-504-0127. * * *
    (b) * * * Before submitting their requests, requesters may contact 
the Commission's FOIA contact or FOIA Public Liaison to discuss the 
records they seek and to receive assistance in describing the records.
* * * * *


Sec.  1015.4  [Amended]

0
5. Amend Sec.  1015.4 by removing the word ``Secretary'' wherever it 
appears, and adding, in its place, the word ``Secretariat''.
0
6. Amend Sec.  1015.5 by:
0
a. Revising paragraph (a);
0
 b. Removing the word ``Secretary'' in paragraphs (b) introductory 
text, (b)(1), (d), and (d)(2) wherever it appears, and adding, in its 
place, the word ``Secretariat'';
0
c. Redesignating paragraphs (e) through (g) as paragraphs (f) through 
(h), respectively;
0
d. Adding new paragraph (e);
0
e. Removing the word ``Secretary'' in redesignated paragraphs (f), (g) 
introductory text, (g)(5), and (h) wherever it appears, and adding, in 
its place, the word ``Secretariat''; and
0
f. Revising redesignated paragraphs (g)(2) and g(3).
    The revisions and additions read as follows:


Sec.  1015.5  Time limitation on responses to requests for records and 
requests for expedited processing.

    (a) The Secretariat or delegate of the Secretariat shall respond to 
all written requests for records within twenty (20) working days 
(excepting Saturdays, Sundays, and legal public holidays). The time 
limitations on responses to requests for records submitted by mail 
shall begin to run at the time a request for records is received and 
date stamped by the Office of the Secretariat. The Office of the 
Secretariat shall date stamp the request the same day that it receives 
the request. The time limitations on responses to requests for records 
submitted electronically during working hours (8 a.m. to 4:30 p.m. EST) 
shall begin to run at the time the request was electronically received, 
and the time limitations on responses to requests for records submitted 
electronically during non-working hours will begin to run when working 
hours resume.
* * * * *
    (e) If an extension of time greater than ten (10) working days is 
necessary, the Commission shall make available its FOIA Public Liaison 
for this purpose. A list of the Commission FOIA Public Liaisons is 
available at https://www.cpsc.gov/Newsroom/FOIA. The Commission will 
also notify requesters in writing to the availability of the Office of 
Government Information Services of the National Archives and Records 
Administration to provide dispute resolution services.
    (g) * * *
    (2) Requesters for expedited processing must include in their 
requests, which may be submitted through any of the methods described 
in Sec.  1015.3(a), a statement setting forth the basis for the claim 
that a ``compelling need'' exists for the requested information, 
certified by the requester to be true and correct to the best of his or 
her knowledge and belief.
    (3) The Secretariat or delegate of the Secretariat will determine 
whether to grant a request for expedited processing and will notify the 
requester of such determination within ten (10) calendar days of 
receipt of the request.
* * * * *

0
7. Amend Sec.  1015.6 by:
0
a. Revising paragraphs (a), (b) introductory text, and (b)(4);
0
b. Adding paragraph (b)(5); and
0
c. Removing the word ``Secretary'' from paragraph (c) wherever it 
appears, and adding, in its place, the word ``Secretariat''.
    The revisions and additions read as follows:


Sec.  1015.6  Responses: Form and content.

    (a) When a requested record has been identified and is available 
for disclosure, the requester shall be supplied with a copy or notified 
as to where and when the record will be made available for public 
inspection in an electronic format. If the payment of fees is required 
the requester shall be advised by the Secretariat in writing of any 
applicable fees under Sec.  1015.9 hereof. The requester will be 
notified of the right to seek assistance from the Commission's FOIA 
Public Liaison.
    (b) A response denying or partially denying a written request for a 
record shall be in writing, dated, and signed by the Secretariat or 
delegate of the Secretariat and shall include:
* * * * *

[[Page 37009]]

    (4) A statement that the denial may be appealed to the 
Commissioners of the Consumer Product Safety Commission. Any such 
appeal must be made within 90 calendar days after the date of the 
denial or partial denial of the Commission's response to a request for 
records.
    (5) A statement that the requester has the right to seek dispute 
resolution services from the Commission's FOIA Public Liaison or the 
Office of Government Information Services.
* * * * *

0
8. Amend Sec.  1015.7 by:
0
a. Revising the section heading;
0
b. Revising paragraphs (a) and (b);
0
c. Removing the word ``Secretary'' in paragraphs (c) and (g) wherever 
it appears, and adding, in its place, the word ``Secretariat'';
0
d. Revising paragraph (e); and
0
e. Revising the sectional authority citation following paragraph (g).
    The revisions read as follows:


Sec.  1015.7  Appeals from initial denials; reconsideration by the 
Secretariat.

    (a) When the Secretariat or delegate of the Secretariat has denied 
a request for records in whole or in part, the requester may, within 90 
calendar days after the date of the denial or partial denial, appeal 
the denial to the General Counsel of the Consumer Product Safety 
Commission, attention of the Secretariat. Appeals may be submitted 
through any of the following methods: the e-FOIA Public Access Link at 
https://www.cpsc.gov; email to [email protected]; mail to 4330 East 
West Highway, Room 820, Bethesda, MD 20814; or facsimile to 301-504-
0127.
    (b) The General Counsel, or the Secretariat upon reconsideration, 
will act upon an appeal within 20 working days of its receipt. The time 
limitations on an appeal submitted by mail shall begin to run at the 
time an appeal is received and date stamped by the Office of the 
Secretariat. The Office of the Secretariat will date stamp the appeal 
the same day that it receives the appeal. The time limitations on an 
appeal submitted electronically during working hours (8 a.m. to 4:30 
p.m. EST) shall begin to run at the time the appeal was electronically 
received, and the time limitations on appeals submitted electronically 
during non-working hours will begin to run when working hours resume.
* * * * *
    (e) The General Counsel's action on appeal shall be in writing, 
shall be signed by the General Counsel, and shall constitute final 
agency action. A denial in whole or in part of a request on appeal 
shall set forth the exemption relied upon; a brief explanation, 
consistent with the purpose of the exemption, of how the exemption 
applies to the records withheld; and the reasons for asserting it. The 
decision will inform the requester of the right to seek dispute 
resolution services from the Commission's FOIA Liaison or the Office of 
Government Information Services. A denial in whole or in part shall 
also inform the requester of his/her right to seek judicial review of 
the Commission's final determination in a United States district court, 
as specified in 5 U.S.C. 552(a)(4)(B).
* * * * *

(5 U.S.C. 552(a)(6)(A); 5 U.S.C. 553; 15 U.S.C. 2076(b)(10))


0
9. Amend Sec.  1015.9 by:
0
a. Removing the word ``Secretary'' in paragraphs (a), (e)(9), (f)(4), 
and (5), and adding, in its place, the word ``Secretariat'';
0
b. Revising paragraphs (b), (c)(2), (3), and (8);
0
c. Adding a sentence at the end of paragraph (e)(1);
0
d. Redesignating paragraph (f)(6) as paragraph (f)(7);
0
e. Adding new paragraph (f)(6); and
0
f. Removing the word ``Secretary'' in newly redesignated paragraph 
(f)(7) and adding, in its place, the word ``Secretariat''.
    The revisions and additions read as follows:


Sec.  1015.9  Fees for production of records.

* * * * *
    (b) Fees shall be paid to the Treasury of the United States 
according to the directions provided by the Commission.
    (c) * * *
    (2) Search includes all time spent looking for material that is 
responsive to a request, including page-by-page or line-by-line 
identification of material within documents and the reasonable efforts 
expended to locate and retrieve information from electronic records.
    (3) Duplication refers to the process of making a copy of a 
document, including electronically, necessary to respond to a FOIA 
request. The Commission will honor the requester's preference for 
receiving a record in a particular format when it can readily reproduce 
it in the form or format requested.
* * * * *
    (8) Representative of the news media refers to 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 an audience. 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 that broadcast ``news'' to the 
public at large and publishers of periodicals that disseminate ``news'' 
and make their products available through a variety of means to the 
general public, including news organizations that disseminate solely on 
the Internet. A request for records supporting the news-dissemination 
function of the requester will not be considered to be for a commercial 
use. ``Freelance'' journalists who demonstrate a solid basis for 
expecting publication through a news media entity will be considered as 
a representative of the news media. A publishing contract would provide 
the clearest evidence that publication is expected; however, the 
Commission can also consider a requester's past publication record in 
making this determination. These examples are not all-inclusive.
* * * * *
    (e) * * *
    (1) * * * Where paper documents must be scanned in order to comply 
with a requester's preference to receive records in an electronic 
format, the requester must also pay the direct costs associated with 
scanning those materials.
* * * * *
    (f) * * *
    (6) Search fees shall be waived for all requests and duplication 
fees shall be waived for requests from educational institutions, non-
commercial scientific institutions, and representatives of the news 
media if the Commission fails to comply with any time limit under 
Sec. Sec.  1015.5(a), (g)(3), 1015.7(b), and 5 U.S.C. 552(a)(6) other 
than those exceptions stated in 5 U.S.C. 552(a)(4)(A)(viii)(ll). Those 
exceptions include:
    (i) If the Commission has determined that unusual circumstances as 
defined in Sec.  1015.5(b) apply and the Commission provided timely 
written notice to the requester as required by Sec.  1015.5(c) or Sec.  
1015.7(f), then failure to comply with the time limit in Sec. Sec.  
1015.5(a), (g)(3), 1015.7(b), and 5 U.S.C. 552(a)(6) is excused for 10 
additional working days; or
    (ii) If the Commission has determined that unusual circumstances as 
defined in Sec.  1015.5(b) apply and more than 5,000 pages are 
necessary to respond to the request, and the Commission has provided 
timely written notice in accordance with Sec.  1015.5(c) and (e) and 
the Commission has discussed with the requester via written mail, 
email, or telephone (or made not less than three

[[Page 37010]]

good-faith efforts to do so) how the requester could effectively limit 
the scope of the request; or
    (iii) If a court has determined that exceptional circumstances 
exist as defined in 5 U.S.C. 552(a)(6)(C), then failure to comply with 
Sec. Sec.  1015.5(a), (g)(3), 1015.7(b), and 5 U.S.C. 552(a)(6) shall 
be excused for the length of time provided by the court order.
* * * * *


Sec.  1015.10  [Removed and Reserved]

0
10. Remove and reserve Sec.  1015.10.

0
11. Revise Sec.  1015.11 to read as follows:


Sec.  1015.11  Disclosure of trade secrets to consultants and 
contractors; nondisclosure to advisory committees and other government 
agencies.

    (a) In accordance with section 6(a)(2) of the CPSA, the Commission 
may disclose information which it has determined to be a trade secret 
or other matter referred to under 5 U.S.C. 552(b)(4) to Commission 
consultants and contractors for use only in their work for the 
Commission. Such persons are subject to the same restrictions with 
respect to disclosure of such information as any Commission employee.
    (b) In accordance with section 6(a)(2) of the CPSA, the Commission 
is prohibited from disclosing information which it has determined to be 
a trade secret or other matter referred to under 5 U.S.C. 552(b)(4) to 
advisory committees, except when required in the official conduct of 
their business, or to other Federal agencies and state and local 
governments except when permitted by the provisions of section 29(f) of 
the CPSA.

0
12. Revise Sec.  1015.15 to read as follows:


Sec.  1015.15  Purpose and scope.

    (a) The regulations of this subpart provide information concerning 
the types of records which may be withheld from production and 
disclosure by the Consumer Product Safety Commission. These regulations 
also provide information on the method whereby persons submitting 
information to the Commission may request that the information be 
considered exempt from disclosure, and information concerning the 
Commission's treatment of documents submitted with a request that they 
be treated as exempt from disclosure.
    (b) No identifiable record requested in accordance with the 
procedures contained in this part shall be withheld from disclosure 
unless it falls within one of the classes of records exempt under 5 
U.S.C. 552(b). The Commission will make available, to the extent 
permitted by law, records authorized to be withheld under 5 U.S.C. 
552(b) unless the Commission reasonably foresees that disclosure would 
harm an interest protected by the exemption or disclosure is prohibited 
by law or otherwise exempted from disclosure under 5 U.S.C. 552(b)(3). 
In this regard the Commission will not ordinarily release documents 
that provide legal advice to the Commission concerning pending or 
prospective litigation where the release of such documents would 
significantly interfere with the Commission's regulatory or enforcement 
proceedings.
    (c) Draft documents that are agency records are subject to release 
upon request in accordance with this regulation. However, in order to 
avoid any misunderstanding of the preliminary nature of a draft 
document, each draft document released will be marked to indicate its 
tentative nature. Similarly, staff briefing packages, which have been 
completed but not yet transmitted to the Commission by the Office of 
the Secretariat are subject to release upon request in accordance with 
this regulation. Each briefing package or portion thereof released will 
be marked to indicate that it has not been transmitted to or acted upon 
by the Commission. In addition, briefing packages, or portions thereof, 
which the Secretariat upon the advice of the Office of the General 
Counsel has determined would be released upon request in accordance 
with this regulation, will be made available for public inspection in 
an electronic format through the Commission's Web site at https://www.cpsc.gov promptly after the briefing package has been transmitted 
to the Commissioners by the Office of the Secretariat. Such packages 
will be marked to indicate that they have not been acted upon by the 
Commission.
    (d) The exemptions contained in 5 U.S.C. 552(b) will be interpreted 
in accordance with the applicable law at the time a request for 
production or disclosure is considered.


Sec.  1015.16  [Removed and Reserved]

0
13. Remove and reserve Sec.  1015.16.


Sec.  1015.17  [Removed and Reserved]

0
14. Remove and reserve Sec.  1015.17.

0
15. Amend Sec.  1015.20 by removing the first and second sentences of 
paragraph (a) and adding one sentence in their place to read as 
follows:


Sec.  1015.20  Public availability of accident or investigation 
reports.

    (a) Accident or investigation reports made by an officer, employee, 
or agent of the Commission are available to the public under the 
procedures set forth in subpart A of this part 1015 unless such reports 
are subject to the investigatory file exemption contained in the 
Freedom of Information Act (5 U.S.C. 552(b)) except that portions 
identifying any injured person or any person treating such injured 
person will be deleted in accordance with section 25(c)(1) of the CPSA. 
* * *
* * * * *

    Dated: August 2, 2017.
Todd A. Stevenson,
Secretariat, Consumer Product Safety Commission.
[FR Doc. 2017-16550 Filed 8-7-17; 8:45 am]
 BILLING CODE 6355-01-P