83_FR_46615 83 FR 46437 - Public Information

83 FR 46437 - Public Information

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration

Federal Register Volume 83, Issue 178 (September 13, 2018)

Page Range46437-46443
FR Document2018-19864

The Food and Drug Administration (FDA, we, or Agency) is proposing to amend its public information regulations. The proposed rule will revise the current regulations to incorporate changes made to the Freedom of Information Act (FOIA) by the Openness Promotes Effectiveness in our National Government Act of 2007 (OPEN Government Act) and the FOIA Improvement Act of 2016 (FOIA Improvement Act). Additionally, the proposed rule will update the current regulations to reflect changes to the organization, to make the FOIA process easier for the public to navigate, and to make provisions clearer.

Federal Register, Volume 83 Issue 178 (Thursday, September 13, 2018)
[Federal Register Volume 83, Number 178 (Thursday, September 13, 2018)]
[Proposed Rules]
[Pages 46437-46443]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-19864]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

21 CFR Parts 20 and 720

[Docket No. FDA-2018-N-1622]
RIN 0910-AH69


Public Information

AGENCY: Food and Drug Administration, HHS.

ACTION: Proposed rule.

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

SUMMARY: The Food and Drug Administration (FDA, we, or Agency) is 
proposing to amend its public information regulations. The proposed 
rule will revise the current regulations to incorporate changes made to 
the Freedom of Information Act (FOIA) by the Openness Promotes 
Effectiveness in our National Government Act of 2007 (OPEN Government 
Act) and the FOIA Improvement Act of 2016 (FOIA Improvement Act). 
Additionally, the proposed rule will update the current regulations to 
reflect changes to the organization, to make the FOIA process easier 
for the public to navigate, and to make provisions clearer.

DATES: Submit either electronic or written comments on this proposed 
rule by November 13, 2018. See section VI of this document for the 
proposed effective date of a final rule based on this document.

ADDRESSES: You may submit comments as follows. Please note that late, 
untimely filed comments will not be considered. Electronic comments 
must be submitted on or before November 13, 2018. The https://www.regulations.gov electronic filing system will accept comments until 
midnight Eastern Time at the end of November 13, 2018. Comments 
received by mail/hand delivery/courier (for written/paper submissions) 
will be considered timely if they are postmarked or the delivery 
service acceptance receipt is on or before that date.

Electronic Submissions

    Submit electronic comments in the following way:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments. Comments submitted 
electronically, including attachments, to https://www.regulations.gov 
will be posted to the docket unchanged. Because your comment will be 
made public, you are solely responsible for ensuring that your comment 
does not include any confidential information that you or a third party 
may not wish to be posted, such as medical information, your or anyone 
else's Social Security number, or confidential business information, 
such as a manufacturing process. Please note that if you include your 
name, contact information, or other information that identifies you in 
the body of your comments, that information will be posted on https://www.regulations.gov.
     If you want to submit a comment with confidential 
information that you do not wish to be made available to the public 
submit the comment as a written/paper submission and in the manner 
detailed (see ``Written/Paper Submissions'' and ``Instructions.'')

Written/Paper Submissions

    Submit written/paper submissions as follows:
     Mail/Hand delivery/Courier (for written/paper 
submissions): Dockets Management Staff (HFA-305), Food and Drug 
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
     For written/paper comments submitted to the Dockets 
Management Staff, FDA will post your comment, as well as any 
attachments, except for information submitted, marked and identified, 
as confidential, if submitted as detailed in ``Instructions.''
    Instructions: All submissions received must include the Docket No. 
FDA-2018-N-1622 for ``Public Information; Proposed Rule.'' Received 
comments, those received in a timely manner (see ADDRESSES), will be 
placed in the docket and, except for those submitted as ``Confidential 
Submissions,'' publicly viewable at https://www.regulations.gov or at 
the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through 
Friday.
     Confidential Submissions--To submit a comment with 
confidential information that you do not wish to be made publicly 
available, submit your comments only as a written/paper submission. You 
should submit two copies total. One copy will include the information 
you claim to be confidential with a heading or cover note that states 
``THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.'' The Agency will 
review this copy, including the claimed confidential information, in 
its consideration of comments. The second copy, which will have the 
claimed confidential information redacted/blacked out, will be 
available for public viewing and posted on https://www.regulations.gov. 
Submit both copies to the Dockets Management Staff. If you do not wish 
your name and contact information to be made publicly available, you 
can provide this information on the cover sheet and not in the body of 
your comments and you must identify this information as 
``confidential.'' Any information marked as ``confidential'' will not 
be disclosed except in accordance with 21 CFR 10.20 and other 
applicable disclosure law. For more information about FDA's posting of 
comments to public dockets, see 80 FR 56469, September 18, 2015, or 
access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.
    Docket: For access to the docket to read background documents or 
the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in 
the heading of this document, into the ``Search'' box and follow the 
prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, 
Rm. 1061, Rockville, MD 20852.

FOR FURTHER INFORMATION CONTACT: Sarah B. Kotler, Office of the 
Commissioner, Office of the Executive Secretariat, Food and Drug 
Administration, 5630 Fishers Lane, Rm. 1050, Rockville, MD 20857, 301-
796-3900, [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary

[[Page 46438]]

    A. Purpose of the Proposed Rule
    B. Summary of the Major Provisions of the Proposed Rule
    C. Legal Authority
    D. Costs and Benefits
II. Table of Abbreviations and Acronyms Commonly Used Acronyms in 
This Document
III. Background
IV. Legal Authority
V. Description of the Proposed Rule
VI. Proposed Effective Date
VII. Economic Analysis of Impacts
VIII. Analysis of Environmental Impact
IX. Paperwork Reduction Act of 1995
X. Federalism
XI. Consultation and Coordination with Indian Tribal Governments

I. Executive Summary

A. Purpose of the Proposed Rule

    FDA is proposing to amend FDA's public information regulations. The 
regulations are being amended to incorporate changes made to FOIA by 
the OPEN Government Act (Pub. L. 89-487) and the FOIA Improvement Act 
(Pub. L. 114-185). Additionally, the proposed rule will update the 
regulations to reflect changes to the organization, to make the FOIA 
process easier for the public to navigate, and to make certain 
provisions clearer. Taken together, these changes will enhance 
transparency for the public with regard to FDA activities.

B. Summary of the Major Provisions of the Proposed Rule

    The proposed amendments to FDA's public information regulations 
bring the Agency's regulations in line with statutory amendments to the 
FOIA, update cross references to other statutes and parts of the 
Agency's regulations, and clarify certain provisions with minor 
editorial updates.

C. Legal Authority

    We are proposing these amendments based on our authority under FOIA 
(5 U.S.C. 552) and section 701(a) of the Federal Food, Drug, and 
Cosmetic Act (FD&C Act) (21 U.S.C. 371(a)). These proposed amendments 
would allow FDA to more efficiently use our resources to provide 
information to the public.

D. Costs and Benefits

    Although FDA is currently implementing the requirements of the OPEN 
Government Act and the FOIA Improvement Act in FOIA processing as 
standard practice, the requirements are not currently reflected in part 
20 (21 CFR part 20). The revisions made by this proposed rule are 
intended to incorporate all current FOIA requirements into the existing 
regulations. Because the Agency has already adopted many of these 
requirements, we anticipate no additional costs or benefits from this 
rulemaking.

II. Table of Abbreviations and Acronyms Commonly Used in This Document

------------------------------------------------------------------------
          Abbreviation/Acronym                    What it means
------------------------------------------------------------------------
DFOI...................................  Division of Freedom of
                                          Information.
FOIA...................................  Freedom of Information Act.
FOIA Improvement Act...................  FOIA Improvement Act of 2016.
OGIS...................................  Office of Government
                                          Information Services.
OPEN Government Act....................  Openness Promotes Effectiveness
                                          in our National Government Act
                                          of 2007.
------------------------------------------------------------------------

III. Background

    The FOIA is a law that gives the public the right to access 
information from the Federal government. There is a presumption that 
government records must be released under FOIA unless they are subject 
to one of nine FOIA exemptions. FDA's regulations for the 
implementation of the FOIA are in part 20. The FOIA Improvement Act 
specifically requires Agencies to review their FOIA regulations and 
update their regulations for the disclosure of records in accordance 
with its amendments.

IV. Legal Authority

    We are proposing these amendments based on our authority under FOIA 
(5 U.S.C. 552) and section 701(a) of the FD&C Act (21 U.S.C. 371(a)). 
These proposed amendments would allow FDA to more efficiently use our 
resources to provide information to the public.

V. Description of the Proposed Rule

    We are proposing to amend provisions of part 20 regarding the 
Agency's public information regulations. Once effective, the amendments 
contained in the proposed rule would apply to all FOIA requests 
currently pending with, or received in the future by, FDA.
     The proposed amendments to Sec.  20.20 would require FDA 
to withhold information under the FOIA only if the Agency reasonably 
foresees that disclosure would harm an interest protected by an 
exemption or disclosure is prohibited by law. The proposed rule further 
amends this provision to require FDA to establish procedures for 
identifying records of general interest or use to the public that are 
appropriate for public disclosure, and for posting such records in a 
publicly accessible electronic format. These changes will promote 
transparency by reducing the amount of information that will be 
withheld when the Agency has discretion to determine what will be 
withheld under the FOIA exemptions, and will make release of 
information more efficient through the use of information technology. 
These amendments are required by the FOIA Improvement Act, and are 
currently part of FDA's FOIA policy and procedures.
     The proposed amendment to Sec.  20.22 would require FDA to 
indicate the exemption(s) under which information has been deleted at 
the site of the deletion. This change will inform requesters of the 
legal bases under which information has been withheld from Agency 
records, which promotes transparency. This change is required by the 
OPEN Government Act and was adopted by the Agency for FOIA processing 
as of the effective date of the OPEN Government Act.
     The proposed amendment to Sec.  20.26 would require FDA to 
make available for public inspection in an electronic format records 
that have been requested three or more times under the FOIA. This 
change codifies the long-standing Department of Justice policy of 
federal agencies posting records that have been requested three or more 
times. The purpose of this change is to proactively release records to 
the public without the need for submission of additional FOIA requests. 
This change is required by the FOIA Improvement Act.
     The proposed amendment to Sec.  20.33 would require FDA to 
offer the services of their FOIA Public Liaison and notify requesters 
of the services provided by the Office of Government Information 
Services (OGIS) when responding to FOIA requests. This change provides 
requesters with additional avenues for resolving FOIA-related disputes 
beyond the appeals process. This provision is required by the FOIA 
Improvement Act.
     The proposed amendment to Sec.  20.40 updates the 
provision to include reference to the Agency's online FOIA submission 
portal, which has been online since June 2012.
     The proposed amendments to Sec.  20.41 would require that 
when FDA extends the time limit to respond to requests by more than 10 
additional working days, FDA must notify the requester of the right to 
seek dispute resolution services from the FOIA Public Liaison and OGIS. 
This change provides requesters with additional avenues for resolving 
FOIA-related disputes beyond the appeals process.

[[Page 46439]]

We further amended the provision to provide that if a court determines 
that exceptional circumstances exist, the Agency's failure to comply 
with a time limit shall be excused for the length of time provided by 
the court order. These changes are required by the FOIA Improvement 
Act. The revised provision further clarifies that the Agency may toll 
the response period once to seek more information from the requester, 
and more than once (if necessary) to clarify fee assessments. This 
revision is required by the OPEN Government Act.
     The proposed amendment to Sec.  20.44 updates the title of 
the Agency official making determinations regarding requests for 
expedited processing.
     The proposed amendments to Sec.  20.45 would modify the 
fee schedule to prohibit the Agency from assessing fees if the Agency 
fails to comply with time limits to respond and there are no unusual or 
exceptional circumstances that apply to the processing of the request. 
If unusual circumstances apply, these amendments establish a process by 
which the Agency can work with the requester to effectively limit the 
scope of the request. These changes will provide an incentive to the 
Agency to process requests as efficiently as possible, and will provide 
fee relief to requesters who do not receive FOIA responses in a timely 
manner. These provisions are required by the OPEN Government Act. 
Further amendments to this provision clarify how fees are calculated.
     The proposed rule amends Sec.  20.49(c) to require full 
and partial denial letters to include contact information for the FOIA 
Public Liaison and OGIS, and to increase the time for transmittal of an 
appeal to 90 business days. We also made technical revisions to Sec.  
20.49(a) to update the position title of the Agency FOIA Officer, and 
to Sec.  20.49(c) to update the position title of the person to whom 
appeals shall be addressed. These changes provide requesters with 
additional avenues for resolving FOIA-related disputes beyond the 
appeals process and provide requesters with additional time to decide 
whether to pursue an appeal. These amendments are required by the FOIA 
Improvement Act.
     The proposed rule amends Sec.  20.61(e)(2) to allow 10 
days from the date of the notice for submitters of trade secrets or 
confidential commercial information to object to disclosure. This 
change will bring the Agency in line with departmental regulations.
     The proposed rule amends Sec.  20.62 to prohibit the 
application of the deliberative process privilege of Exemption 5 of the 
FOIA to records created 25 years or more before the date on which the 
records were requested. This change will increase transparency by 
requiring the Agency to release information that could otherwise fall 
within the deliberative process privilege of the Exemption. This 
amendment is required by the FOIA Improvement Act.
     The amendment to Sec.  20.82 clarifies that the 
discretionary disclosure standard outlined in that provision will guide 
the Agency's determinations of whether the Agency reasonably foresees 
that a disclosure of information would harm an interest protected by an 
exemption or disclosure is prohibited by law as required in 
administering Sec.  20.20.
     The amendment to Sec.  20.85 updates the statutory 
references.
     The amendment to Sec.  20.86 clarifies that the list of 
proceedings subject to the provision is not exclusive.
     The amendments to Sec.  20.88 clarify that the provisions 
also apply to local officials and remove references to position titles 
that no longer exist.
     The amendments to Sec.  20.89 remove references to 
position titles that no longer exist.
     The amendments to Sec.  20.100 update the regulatory 
cross-references.
     The amendment to Sec.  20.120 updates the contact 
information for the Agency's reading rooms.
     The amendment to 21 CFR 720.8 revises the request for 
confidentiality of the identity of a cosmetic ingredient provision for 
consistency with FDA's disclosure regulation at Sec.  20.29.

VI. Proposed Effective Date

    FDA proposes that any final rule that issues based on this proposal 
become effective 30 days after the final rule publishes in the Federal 
Register.

VII. Preliminary Economic Analysis of Impacts

    We have examined the impacts of the proposed rule under Executive 
Order 12866, Executive Order 13563, Executive Order 13771, the 
Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 
13563 direct us to assess all costs and benefits of available 
regulatory alternatives and, when regulation is necessary, to select 
regulatory approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity). Executive Order 13771 
requires that the costs associated with significant new regulations 
``shall, to the extent permitted by law, be offset by the elimination 
of existing costs associated with at least two prior regulations.'' We 
believe that this proposed rule is not a significant regulatory action 
as defined by Executive Order 12866.
    The Regulatory Flexibility Act requires us to analyze regulatory 
options that would minimize any significant impact of a rule on small 
entities. Because the proposed revisions do not impose any burdens upon 
FOIA requesters, including those that might be small entities, we 
propose to certify that the proposed rule will not have a significant 
economic impact on a substantial number of small entities.
    The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires 
us to prepare a written statement, which includes an assessment of 
anticipated costs and benefits, before proposing ``any rule that 
includes any Federal mandate that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100,000,000 or more (adjusted annually for 
inflation) in any one year.'' The current threshold after adjustment 
for inflation is $150 million, using the most current (2017) Implicit 
Price Deflator for the Gross Domestic Product. This proposed rule would 
not result in an expenditure in any year that meets or exceeds this 
amount.
    We expect to incur negligible costs associated with implementing 
this rule. These costs result from updating titles of Agency officials, 
providing some additional information to FOIA requesters, and compiling 
information for annual reports. These requirements would not require 
more resources from us because we would perform these actions as part 
of our routine practices for FOIA processing. The proposed rule, if 
finalized, would enhance public access to government information as 
required by the FOIA Improvement Act.

VIII. Analysis of Environmental Impact

    We have determined under 21 CFR 25.30(h) that this action is of a 
type that does not individually or cumulatively have a significant 
effect on the human environment. Therefore, neither an environmental 
assessment nor an environmental impact statement is required.

IX. Paperwork Reduction Act of 1995

    FDA tentatively concludes that this proposed rule contains no 
collection of information. Therefore, clearance by OMB under the 
Paperwork Reduction Act of 1995 is not required.

[[Page 46440]]

X. Federalism

    We have analyzed this proposed rule in accordance with the 
principles set forth in Executive Order 13132. We have determined that 
the proposed rule does not contain policies that have substantial 
direct effects on the States, on the relationship between the National 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Accordingly, 
we conclude that the proposed rule does not contain policies that have 
federalism implications as defined in the Executive order and, 
consequently, a federalism summary impact statement is not required.

XI. Consultation and Coordination With Indian Tribal Governments

    We have analyzed this proposed rule in accordance with the 
principles set forth in Executive Order 13175. We have tentatively 
concluded that the rule does not contain policies that would have a 
substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes. Accordingly, we conclude that a tribalism 
summary impact statement is not required.

List of Subjects

21 CFR Part 20

    Confidential business information, Courts, Freedom of information, 
Government employees.

21 CFR Part 720

    Confidential business information, Cosmetics.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under 
authority delegated to the Commissioner of Food and Drugs, we propose 
that 21 CFR parts 20 and 720 be amended as follows:

PART 20--PUBLIC INFORMATION

0
1. The authority citation for part 20 continues to read as follows:

    Authority: 5 U.S.C. 552; 18 U.S.C. 1905; 19 U.S.C. 2531-2582; 21 
U.S.C. 321-393, 1401-1403; 42 U.S.C. 241, 242, 242a, 242l, 242n, 
243, 262, 263, 263b-263n, 264, 265, 300u-300u-5, 300aa-1.

0
2. Revise Sec.  20.20 to read as follows:


Sec.  20.20  Policy on disclosure of Food and Drug Administration 
records.

    (a) The Food and Drug Administration (FDA) will make the fullest 
possible disclosure of records to the public, consistent with the 
rights of individuals to privacy, the property rights of persons in 
trade secrets and confidential commercial or financial information, and 
the need for the Agency to promote frank internal policy deliberations 
and to pursue its regulatory activities without disruption.
    (b) Except where specifically exempt pursuant to the provisions of 
this part, all FDA records shall be made available for public 
disclosure. FDA will make discretionary disclosures of records or 
information exempt from disclosure under the provisions of this part 
whenever disclosure would not foreseeably harm an interest protected by 
an exemption pursuant to this part. This provision does not require 
disclosure of information that is prohibited from disclosure by law.
    (c) In accordance with the FOIA Improvement Act of 2016 (Pub. L. 
114-185), FDA will establish procedures for identifying records of 
general interest or use to the public that are appropriate for public 
disclosure, and for posting and indexing such records in a publicly 
accessible electronic format.
    (d) Except as provided in paragraph (e) of this section, all 
nonexempt records shall be made available for public disclosure upon 
request regardless of whether any justification or need for such 
records have been shown.
    (e) ``Record'' and any other term used in this section in reference 
to information includes any information that would be an Agency record 
subject to the requirements of this part when maintained by the Agency 
in any format, including an electronic format.
0
3. In Sec.  20.22, add paragraph (b)(3) to read as follows:


Sec.  20.22  Partial disclosure of records.

* * * * *
    (b) * * *
    (3) The exemption(s) under which the information has been deleted 
shall be noted at the site of the deletion.
0
4. In Sec.  20.26, revise the section heading and paragraph (a)(4) to 
read as follows:


Sec.  20.26   Electronic availability and indexes of certain records.

    (a) * * *
    (4) Records that have been released to any person in response to a 
Freedom of Information request and that the Agency has determined 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
5. In Sec.  20.33, add paragraph (c) to read as follows:


Sec.  20.33  Form or format of response.

* * * * *
    (c) Response letters shall contain contact information for the FOIA 
Public Liaison and the Office of Government Information Services as 
required by the FOIA Improvement Act of 2016 (Pub. L. 114-185).
0
6. In Sec.  20.40, revise paragraph (a) to read as follows:


Sec.  20.40   Filing a request for records.

    (a) All requests for Food and Drug Administration records shall be 
made in writing by mailing or delivering the request to the Freedom of 
Information Staff at the address on the Agency's website at https://www.fda.gov or by faxing it to the fax number listed on the Agency's 
website at https://www.fda.gov, or by submission through the Agency's 
online FOIA submission portal at https://www.fda.gov. All requests must 
contain the postal address and telephone number of the requester and 
the name of the person responsible for payment of any fees that may be 
charged.
* * * * *
0
7. In Sec.  20.41, revise paragraphs (b)(3)(i)(A) and (b)(4), and add 
paragraphs (b)(5) and (d) to read as follows:


Sec.  20.41   Time limitations.

* * * * *
    (b) * * *
    (3)(i) * * *
    (A) The Agency may provide for an extension of up to 10 working 
days by providing written notice to the requester setting out the 
reasons for the extension and the date by which a determination is 
expected to be sent. In the written notice, the Agency will inform the 
requester of the right to contact the Freedom of Information Act Public 
Liaison and to seek dispute resolution services from the Office of 
Government Information Services.
* * * * *
    (4) The Agency may contact the requester for clarification about 
the request or regarding fee assessment. The Agency may toll the 20-day 
period as follows:
    (i) One time while it is awaiting a response from the requester 
regarding clarification that it has reasonably requested from the 
requester; and
    (ii) One or more times while the Agency is awaiting a response from 
the requester regarding fee assessment.
    (5) If any record is denied, the letter shall state the right of 
the person requesting such records to appeal any

[[Page 46441]]

adverse determination to the Deputy Agency Chief Freedom of Information 
Act Officer, Department of Health and Human Services, in accordance 
with the provisions of 45 CFR 5.62.
* * * * *
    (d) If a court determines that exceptional circumstances exist, as 
defined by the Freedom of Information Act, the Agency's failure to 
comply with a time limit shall be excused for the length of time 
provided by the court order.
0
8. In Sec.  20.44, revise paragraph (e) to read as follows:


Sec.  20.44  Expedited processing.

* * * * *
    (e) The Director, Division of Freedom of Information, (or 
Delegatee) will determine whether to grant a request for expedited 
processing within 10 days of receipt by the Division of Freedom of 
Information of all information required to make a decision.
* * * * *
0
9. In Sec.  20.45, revise paragraphs (a)(1) through (3), add paragraph 
(b)(7), and revise paragraphs (c)(1) and (2) to read as follows:


Sec.  20.45  Fees to be charged.

    (a) * * *
    (1) Commercial use request. If the request is for a commercial use, 
the Food and Drug Administration will charge for the costs of search, 
review, and duplication. The Agency shall not assess search fees if the 
Agency fails to comply with any time limit, as described in Sec.  
20.41, if no unusual or exceptional circumstances apply to the 
processing of the request. If unusual circumstances, as outlined in 
Sec.  20.41, apply and more than 5,000 pages are necessary to respond 
to the request, the Food and Drug Administration may charge search fees 
if timely written notice has been made to the requester and the Agency 
has discussed with the requester via written mail, electronic mail, or 
telephone (or made not less than three good-faith attempts to do so) 
how the requester could effectively limit the scope of the request.
    (2) Educational and scientific institutions and news media. If the 
request is from an educational institution or a noncommercial 
scientific institution, operated primarily for scholarly or scientific 
research, or a representative of the news media, and the request is not 
for a commercial use, the Food and Drug Administration will charge only 
for the duplication of documents. Also, the Food and Drug 
Administration will not charge the copying costs for the first 100 
pages of duplication (or its cost equivalent of other media). The 
Agency shall not assess duplication fees if the Agency fails to comply 
with any time limit, as described in Sec.  20.41, if no unusual or 
exceptional circumstances apply to the processing of the request. If 
unusual circumstances, as outlined in Sec.  20.41, apply and more than 
5,000 pages are necessary to respond to the request, the Food and Drug 
Administration may charge duplication fees if timely written notice has 
been made to the requester and the Agency has discussed with the 
requester via written mail, electronic mail, or telephone (or made not 
less than three good-faith attempts to do so) how the requester could 
effectively limit the scope of the request.
    (3) Other requests. If the request is not the kind described in 
paragraph (a)(1) or (2) of this section, then the Food and Drug 
Administration will charge only for the search and the duplication. 
Also, the Food and Drug Administration will not charge for the first 2 
hours of search time or for the copying costs of the first 100 pages of 
duplication (or the cost equivalent of other media). The Agency shall 
not assess search fees if the Agency fails to comply with any time 
limit, as described in Sec.  20.41, if no unusual or exceptional 
circumstances apply to the processing of the request. If unusual 
circumstances, as outlined in Sec.  20.41, apply and more than 5,000 
pages are necessary to respond to the request, the Food and Drug 
Administration may charge search fees if timely written notice has been 
made to the requester and the Agency has discussed with the requester 
via written mail, electronic mail, or telephone (or made not less than 
three good-faith attempts to do so) how the requester could effectively 
limit the scope of the request.
* * * * *
    (b) * * *
    (7) Requesters may contact Agency Freedom of Information Act staff 
or the Freedom of Information Act Public Liaison to assist in 
reformulating a request to meet their needs at lower cost.
* * * * *
    (c) * * *
    (1) Manual searching for or reviewing of records. When the search 
or review is performed by employees at grade GS-1 through GS-8 (or 
equivalent), an hourly rate based on the salary of a GS-5, step 7, 
employee; when done by a GS-9 through GS-14 (or equivalent), an hourly 
rate based on the salary of a GS-12, step 4, employee; and when done by 
a GS-15 or above (or equivalent), an hourly rate based on the salary of 
a GS-15, step 7, employee. In each case, the hourly rate will be 
computed by taking the current hourly rate for the specified grade and 
step in the General Schedule Locality Pay Table for the Locality of 
Washington-Baltimore-Northern Virginia, DC-MD-VA-WV-PA, adding 16 
percent of that rate to cover benefits, and rounding to the nearest 
whole dollar. When a search involves employees at more than one of 
these levels, the Food and Drug Administration will charge the rate 
appropriate for each.
    (2) Electronic searching. Charges for the time spent by the 
operator to search the computer, database or network, including 
development of any specialized programming required to perform the 
search, at the rate given in paragraph (c)(1) of this section plus the 
cost of any materials.
* * * * *
0
10. In Sec.  20.49, revise paragraphs (a) and (c) and remove paragraph 
(d).
    The revisions read as follows:


Sec.  20.49  Denial of a request for records.

    (a) A denial of a request for records, in whole or in part, shall 
be signed by the Director, Division of Freedom of Information, or other 
official who has been delegated the authority to release or withhold 
records.
* * * * *
    (c) A letter denying a request for records, in whole or in part, 
shall state the reasons for the denial and shall state that an appeal 
may be transmitted to the Deputy Agency Chief Freedom of Information 
Act Officer, Department of Health and Human Services, within 90 
calendar days from the date of the adverse determination, in accordance 
with 45 CFR 5.61. The Agency will also make a reasonable effort to 
include in the letter an estimate of the volume of the records denied, 
unless providing such an estimate would harm an interest protected by 
an exemption under the Freedom of Information Act. This estimate will 
ordinarily be provided in terms of the approximate number of pages or 
some other reasonable measure. This estimate will not be provided if 
the volume of records denied is otherwise indicated through deletions 
on records disclosed in part. The letter will also include contact 
information for the Freedom of Information Act Public Liaison and the 
Office of Government Information Services.
0
11. In Sec.  20.61, revise paragraph (e)(2) to read as follows:


Sec.  20.61  Trade secrets and commercial or financial information 
which is privileged or confidential.

* * * * *
    (e) * * *

[[Page 46442]]

    (2) The submitter has 10 working days from the date of the notice 
to object to disclosure of any part of the records and to state all 
bases for its objections. Division of Freedom of Information may extend 
this period as appropriate and necessary.
* * * * *
0
12. Revise Sec.  20.62 to read as follows:


Sec.  20.62  Inter- or intra-agency memoranda or letters.

    Inter-agency or intra-agency memoranda or letters that would not be 
available by law to a party other than an Agency in litigation with the 
Food and Drug Administration may be withheld from public disclosure 
except that factual information that is reasonably segregable in 
accordance with the rule established in Sec.  20.22 is available for 
public disclosure. The deliberative process privilege shall not apply 
to records created 25 years or more before the date on which the 
records were requested.
0
13. In Sec.  20.82, revise paragraph (a) to read as follows:


Sec.  20.82   Discretionary disclosure by the Commissioner.

    (a) Except as provided in paragraph (b) of this section, the 
Commissioner may, in his or her discretion, disclose part or all of any 
Food and Drug Administration (FDA) record that is otherwise exempt from 
disclosure pursuant to subpart D of this part. As set forth in Sec.  
20.20(b) FDA shall make discretionary disclosures of records or 
information exempt from disclosure under the provisions of this part 
whenever disclosure would not foreseeably harm an interest protected by 
an exemption pursuant to this part. Specifically, FDA shall exercise 
its discretion to disclose such records whenever it determines that 
such disclosure is in the public interest, will promote the objectives 
of the Freedom of Information Act and the Agency, and is consistent 
with the rights of individuals to privacy, the property rights of 
persons in trade secrets, and the need for the Agency to promote frank 
internal policy deliberations and to pursue its regulatory activities 
without disruption.
* * * * *
0
14. Revise Sec.  20.85 to read as follows:


Sec.  20.85  Disclosure to other Federal government departments and 
agencies.

    Any Food and Drug Administration (FDA) record otherwise exempt from 
public disclosure may be disclosed to other Federal government 
departments and agencies, except that trade secrets and confidential 
commercial or financial information prohibited from disclosure by 21 
U.S.C. 331(j), 21 U.S.C. 360j(c), 21 U.S.C. 360ll(d), 21 U.S.C. 
360nn(e) and 21 U.S.C. 387f(c) may be released only as provided by 
those sections. Any disclosure under this section shall be pursuant to 
a written agreement that the record shall not be further disclosed by 
the other department or Agency except with the written permission of 
the FDA.
0
15. Revise Sec.  20.86 to read as follows:


Sec.  20.86  Disclosure in administrative or court proceedings.

    Data and information otherwise exempt from public disclosure may be 
revealed in Food and Drug Administration (FDA) administrative 
proceedings, such as those pursuant to parts 10, 12, 13, 14, 15, 17, 
and 19 of this chapter or court proceedings, where data or information 
are relevant. The FDA will take appropriate measures, or request that 
appropriate measures be taken, to reduce disclosure to the minimum 
necessary under the circumstances.
0
16. In Sec.  20.88, revise paragraphs (d)(1) introductory text, 
(d)(1)(i), (d)(1)(ii)(B) and (C), (d)(2), and (e)(1) and (3) to read as 
follows:


Sec.  20.88  Communications with State and local government officials.

* * * * *
    (d)(1) The Commissioner of Food and Drugs, or any other officer or 
employee of the Food and Drug Administration whom the Commissioner may 
designate to act on his or her behalf for the purpose, may authorize 
the disclosure of confidential commercial information submitted to the 
Food and Drug Administration, or incorporated into Agency-prepared 
records, to State and local government officials as part of cooperative 
law enforcement or regulatory efforts, provided that:
    (i) The State or local government agency has provided both a 
written statement establishing its authority to protect confidential 
commercial information from public disclosure and a written commitment 
not to disclose any such information provided without the written 
permission of the sponsor or written confirmation by the Food and Drug 
Administration that the information no longer has confidential status; 
and
    (ii) * * *
    (B) Disclosure would be in the interest of public health by reason 
of the State or local government's possessing information concerning 
the safety, effectiveness, or quality of a product or information 
concerning an investigation, or by reason of the State or local 
government being able to exercise its regulatory authority more 
expeditiously than the Food and Drug Administration; or
    (C) The disclosure is to a State or local government scientist 
visiting the Food and Drug Administration on the Agency's premises as 
part of a joint review or long-term cooperative training effort 
authorized under section 708 of the Federal Food, Drug, and Cosmetic 
Act, the review is in the interest of public health, the Food and Drug 
Administration retains physical control over the information, the Food 
and Drug Administration requires the visiting State or local government 
scientist to sign a written commitment to protect the confidentiality 
of the information, and the visiting State or local government 
scientist provides a written assurance that he or she has no financial 
interest in the regulated industry of the type that would preclude 
participation in the review of the matter if the individual were 
subject to the conflict of interest rules applicable to the Food and 
Drug Administration advisory committee members under Sec.  14.80(b)(1) 
of this chapter. Subject to all the foregoing conditions, a visiting 
State or local government scientist may have access to trade secret 
information, entitled to protection under section 301(j) of the Federal 
Food, Drug, and Cosmetic Act, in those cases where such disclosures 
would be a necessary part of the joint review or training.
    (2) Except as provided under paragraph (d)(1)(ii)(C) of this 
section, this provision does not authorize the disclosure to State and 
local government officials of trade secret information concerning 
manufacturing methods and processes prohibited from disclosure by 
section 301(j) of the Federal Food, Drug, and Cosmetic Act, unless 
pursuant to an express written authorization provided by the submitter 
of the information.
* * * * *
    (e)(1) The Commissioner of Food and Drugs, or any other officer or 
employee of the Food and Drug Administration whom the Commissioner may 
designate to act on his or her behalf for the purpose, may authorize 
the disclosure to, or receipt from, an official of a State or local 
government agency of nonpublic, predecisional documents concerning the 
Food and Drug Administration's or the other government agency's 
regulations or other regulatory requirements, or other nonpublic 
information relevant to either agency's activities, as part of efforts 
to improve Federal-State and/or Federal-local uniformity, cooperative 
regulatory activities, or implementation of Federal-

[[Page 46443]]

State and/or Federal-local agreements, provided that:
    (i) The State or local government agency has the authority to 
protect such nonpublic documents from public disclosure and will not 
disclose any such documents provided without the written confirmation 
by the Food and Drug Administration that the documents no longer have 
nonpublic status; and
    (ii) The Commissioner or his or her designee makes the 
determination that the exchange is reasonably necessary to improve 
Federal-State and/or Federal-local uniformity, cooperative regulatory 
activities, or implementation of Federal-State and/or Federal-local 
agreements.
* * * * *
    (3) For purposes of this paragraph, the term official of a State or 
local government agency includes, but is not limited to, an agent 
contracted by the State or local government, and an employee of an 
organization of State or local officials having responsibility to 
facilitate harmonization of State or local standards and requirements 
in the Food and Drug Administration's areas of responsibility. For such 
officials, the statement and commitment required by paragraph (e)(1)(i) 
of this section shall be provided by both the organization and the 
individual.
0
17. In Sec.  20.89, revise paragraph (d) to read as follows:


Sec.  20.89  Communications with foreign government officials.

* * * * *
    (d)(1) The Commissioner of Food and Drugs, or any other officer or 
employee of the Food and Drug Administration whom the Commissioner may 
designate to act on his or her behalf for the purpose, may authorize 
the disclosure to, or receipt from, an official of a foreign government 
agency of nonpublic, predecisional documents concerning the Food and 
Drug Administration's or the other government agency's regulations or 
other regulatory requirements, or other nonpublic information relevant 
to either agency's activities, as part of cooperative efforts to 
facilitate global harmonization of regulatory requirements, cooperative 
regulatory activities, or implementation of international agreements, 
provided that:
    (i) The foreign government agency has the authority to protect such 
nonpublic documents from public disclosure and will not disclose any 
such documents provided without the written confirmation by the Food 
and Drug Administration that the documents no longer have nonpublic 
status; and
    (ii) The Commissioner or his or her designee makes the 
determination that the exchange is reasonably necessary to facilitate 
global harmonization of regulatory requirements, cooperative regulatory 
activities, or implementation of international agreements.
    (2) Any exchange under this section of nonpublic documents does not 
invoke the rule established in Sec.  20.21 that such records shall be 
made available to all members of the public.
* * * * *
0
18. In Sec.  20.100, revise paragraph (c)(6), remove and reserve 
paragraphs (c)(20) and (21), and add paragraphs (c)(47) through (51).
    The revision and additions read as follows:


Sec.  20.100  Applicability; cross-reference to other regulations.

* * * * *
    (c) * * *
    (6) Information on thermal processing of low-acid foods packaged in 
hermetically sealed containers, in Sec. Sec.  108.25(k) and 108.35(l) 
of this chapter.
* * * * *
    (47) Status reports of postmarketing study commitments in 
Sec. Sec.  314.81(b)(2)(vii)(b) and 601.70(e) of this chapter.
    (48) Postmarket notification relating to shortages in Sec.  600.82 
of this chapter.
    (49) Postmarket notification relating to shortages in Sec. Sec.  
310.306 and 314.81 of this chapter.
    (50) Minor Species/Minor Use designation, in Sec.  516.52 of this 
chapter.
    (51) Minor Species drug index listing, in Sec.  516.171 of this 
chapter.
0
19. In Sec.  20.120, revise paragraph (a) to read as follows: Sec.  
20.120 Records available in Food and Drug Administration Public Reading 
Rooms.
    (a) The Freedom of Information Staff and the Dockets Management 
Staff Public Reading Room are located at the same address. Both are 
located in Rm. 1061, 5630 Fishers Lane, Rockville, MD 20852. The 
telephone number for the Docket Management Staff is 240-402-7500; the 
telephone number for the Freedom of Information Staff's Public Reading 
Room is located at the address on the Agency's website at https://www.fda.gov. Both public reading rooms are open from 9 a.m. to 4 p.m., 
Monday through Friday, excluding legal public holidays.
* * * * *

PART 720--VOLUNTARY FILING OF COSMETIC PRODUCT INGREDIENT 
COMPOSITION STATEMENTS

0
20. The authority citation for part 720 continues to read as follows:

    Authority: 21 U.S.C. 321, 331, 361, 362, 371, 374.

0
21. In Sec.  720.8, revise paragraphs (e) and (g) to read as follows:


Sec.  720.8  Confidentiality of statements.

* * * * *
    (e) If, after receiving all of the data that are necessary to make 
a determination about whether the identity of an ingredient is a trade 
secret, FDA tentatively decides to deny the request, the Agency will 
inform the person requesting trade secrecy of its tentative 
determination in writing. FDA will set forth the grounds upon which it 
relied in making this tentative determination. The petitioner may 
submit, within 60 days from the date of receipt of the written notice 
of the tentative denial, additional relevant information and arguments 
and request that the Agency reconsider its decision in light of both 
the additional material and the information that it originally 
submitted.
* * * * *
    (g) A final determination that an ingredient is not a trade secret 
within the meaning of Sec.  20.61 of this chapter constitutes final 
Agency action that is subject to judicial review under 5 U.S.C. Chapter 
7. If suit is brought within 30 calendar days after such a 
determination, FDA will not disclose the records involved or require 
that the disputed ingredient or ingredients be disclosed in labeling 
until the matter is finally determined in the courts. If suit is not 
brought within 30 calendar days after a final determination that an 
ingredient is not a trade secret within the meaning of Sec.  20.61 of 
this chapter, the records involved will be available for public 
disclosure in accordance with part 20 of this chapter.

    Dated: September 7, 2018.
Scott Gottlieb,
Commissioner of Food and Drugs.
[FR Doc. 2018-19864 Filed 9-12-18; 8:45 am]
 BILLING CODE 4164-01-P



                                                                       Federal Register / Vol. 83, No. 178 / Thursday, September 13, 2018 / Proposed Rules                                         46437

                                                   Authority: 49 U.S.C. 106(f), 106(g), 40103,              by November 13, 2018. See section VI of               Proposed Rule.’’ Received comments,
                                                 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR,               this document for the proposed effective              those received in a timely manner (see
                                                 1959–1963 Comp., p. 389.                                   date of a final rule based on this                    ADDRESSES), will be placed in the docket
                                                 § 71.1       [Amended]                                     document.                                             and, except for those submitted as
                                                 ■ 2. The incorporation by reference in                     ADDRESSES: You may submit comments                    ‘‘Confidential Submissions,’’ publicly
                                                 14 CFR 71.1 of FAA Order 7400.11B,                         as follows. Please note that late,                    viewable at https://www.regulations.gov
                                                 Airspace Designations and Reporting                        untimely filed comments will not be                   or at the Dockets Management Staff
                                                 Points, dated August 3, 2017, and                          considered. Electronic comments must                  between 9 a.m. and 4 p.m., Monday
                                                 effective September 15, 2017, is                           be submitted on or before November 13,                through Friday.
                                                 amended as follows:                                        2018. The https://www.regulations.gov                    • Confidential Submissions—To
                                                                                                            electronic filing system will accept                  submit a comment with confidential
                                                 Paragraph 6005 Class E Airspace Areas                      comments until midnight Eastern Time                  information that you do not wish to be
                                                 Extending Upward from 700 feet or More                     at the end of November 13, 2018.                      made publicly available, submit your
                                                 Above the Surface of the Earth.                            Comments received by mail/hand                        comments only as a written/paper
                                                 *        *      *       *      *                           delivery/courier (for written/paper                   submission. You should submit two
                                                 AAL AK E5 Badami, AK [Amended]                             submissions) will be considered timely                copies total. One copy will include the
                                                                                                            if they are postmarked or the delivery                information you claim to be confidential
                                                   Badami, Badami Airport, AK
                                                                                                            service acceptance receipt is on or                   with a heading or cover note that states
                                                   (Lat. 70°08′15″ N, long. 147°01′50″ W)
                                                                                                            before that date.                                     ‘‘THIS DOCUMENT CONTAINS
                                                   That airspace extending upward from 700
                                                 feet above the surface within a 6.5-mile                   Electronic Submissions                                CONFIDENTIAL INFORMATION.’’ The
                                                 radius of Badami Airport, AK; and that                                                                           Agency will review this copy, including
                                                                                                              Submit electronic comments in the
                                                 airspace extending upward from 1,200 feet                                                                        the claimed confidential information, in
                                                 above the surface within a 73-mile radius of               following way:
                                                                                                              • Federal eRulemaking Portal:                       its consideration of comments. The
                                                 Badami Airport, AK, excluding that airspace                                                                      second copy, which will have the
                                                 extending beyond 12 miles of the shoreline.                https://www.regulations.gov. Follow the
                                                                                                            instructions for submitting comments.                 claimed confidential information
                                                   Issued in Seattle, Washington, on                        Comments submitted electronically,                    redacted/blacked out, will be available
                                                 September 5, 2018.                                         including attachments, to https://                    for public viewing and posted on
                                                 Shawn M. Kozica,                                           www.regulations.gov will be posted to                 https://www.regulations.gov. Submit
                                                 Manager, Operations Support Group, Western                 the docket unchanged. Because your                    both copies to the Dockets Management
                                                 Service Center.                                            comment will be made public, you are                  Staff. If you do not wish your name and
                                                 [FR Doc. 2018–19728 Filed 9–12–18; 8:45 am]                solely responsible for ensuring that your             contact information to be made publicly
                                                 BILLING CODE 4910–13–P                                     comment does not include any                          available, you can provide this
                                                                                                            confidential information that you or a                information on the cover sheet and not
                                                                                                            third party may not wish to be posted,                in the body of your comments and you
                                                 DEPARTMENT OF HEALTH AND                                   such as medical information, your or                  must identify this information as
                                                 HUMAN SERVICES                                             anyone else’s Social Security number, or              ‘‘confidential.’’ Any information marked
                                                                                                            confidential business information, such               as ‘‘confidential’’ will not be disclosed
                                                 Food and Drug Administration                               as a manufacturing process. Please note               except in accordance with 21 CFR 10.20
                                                                                                            that if you include your name, contact                and other applicable disclosure law. For
                                                 21 CFR Parts 20 and 720                                    information, or other information that                more information about FDA’s posting
                                                                                                            identifies you in the body of your                    of comments to public dockets, see 80
                                                 [Docket No. FDA–2018–N–1622]
                                                                                                            comments, that information will be                    FR 56469, September 18, 2015, or access
                                                 RIN 0910–AH69                                              posted on https://www.regulations.gov.                the information at: https://www.gpo.gov/
                                                                                                              • If you want to submit a comment                   fdsys/pkg/FR-2015-09-18/pdf/2015-
                                                 Public Information                                         with confidential information that you                23389.pdf.
                                                 AGENCY:       Food and Drug Administration,                do not wish to be made available to the                  Docket: For access to the docket to
                                                 HHS.                                                       public submit the comment as a written/               read background documents or the
                                                                                                            paper submission and in the manner                    electronic and written/paper comments
                                                 ACTION:      Proposed rule.
                                                                                                            detailed (see ‘‘Written/Paper                         received, go to https://
                                                 SUMMARY:    The Food and Drug                              Submissions’’ and ‘‘Instructions.’’)                  www.regulations.gov and insert the
                                                 Administration (FDA, we, or Agency) is                     Written/Paper Submissions                             docket number, found in brackets in the
                                                 proposing to amend its public                                                                                    heading of this document, into the
                                                 information regulations. The proposed                        Submit written/paper submissions as
                                                                                                            follows:                                              ‘‘Search’’ box and follow the prompts
                                                 rule will revise the current regulations                     • Mail/Hand delivery/Courier (for                   and/or go to the Dockets Management
                                                 to incorporate changes made to the                         written/paper submissions): Dockets                   Staff, 5630 Fishers Lane, Rm. 1061,
                                                 Freedom of Information Act (FOIA) by                       Management Staff (HFA–305), Food and                  Rockville, MD 20852.
                                                 the Openness Promotes Effectiveness in                     Drug Administration, 5630 Fishers
                                                 our National Government Act of 2007                                                                              FOR FURTHER INFORMATION CONTACT:
                                                                                                            Lane, Rm. 1061, Rockville, MD 20852.                  Sarah B. Kotler, Office of the
                                                 (OPEN Government Act) and the FOIA                           • For written/paper comments
                                                 Improvement Act of 2016 (FOIA                                                                                    Commissioner, Office of the Executive
                                                                                                            submitted to the Dockets Management                   Secretariat, Food and Drug
daltland on DSKBBV9HB2PROD with PROPOSALS




                                                 Improvement Act). Additionally, the                        Staff, FDA will post your comment, as
                                                 proposed rule will update the current                                                                            Administration, 5630 Fishers Lane, Rm.
                                                                                                            well as any attachments, except for                   1050, Rockville, MD 20857, 301–796–
                                                 regulations to reflect changes to the                      information submitted, marked and
                                                 organization, to make the FOIA process                                                                           3900, FDAFOIA@fda.hhs.gov.
                                                                                                            identified, as confidential, if submitted
                                                 easier for the public to navigate, and to                  as detailed in ‘‘Instructions.’’                      SUPPLEMENTARY INFORMATION:
                                                 make provisions clearer.                                     Instructions: All submissions received
                                                                                                                                                                  Table of Contents
                                                 DATES: Submit either electronic or                         must include the Docket No. FDA–
                                                 written comments on this proposed rule                     2018–N–1622 for ‘‘Public Information;                 I. Executive Summary



                                            VerDate Sep<11>2014      19:26 Sep 12, 2018   Jkt 244001   PO 00000   Frm 00014   Fmt 4702   Sfmt 4702   E:\FR\FM\13SEP1.SGM   13SEP1


                                                 46438              Federal Register / Vol. 83, No. 178 / Thursday, September 13, 2018 / Proposed Rules

                                                    A. Purpose of the Proposed Rule                      regulations. Because the Agency has                        records in a publicly accessible
                                                    B. Summary of the Major Provisions of the            already adopted many of these                              electronic format. These changes will
                                                       Proposed Rule                                     requirements, we anticipate no                             promote transparency by reducing the
                                                    C. Legal Authority                                   additional costs or benefits from this                     amount of information that will be
                                                    D. Costs and Benefits
                                                 II. Table of Abbreviations and Acronyms
                                                                                                         rulemaking.                                                withheld when the Agency has
                                                       Commonly Used Acronyms in This                                                                               discretion to determine what will be
                                                                                                         II. Table of Abbreviations and                             withheld under the FOIA exemptions,
                                                       Document                                          Acronyms Commonly Used in This
                                                 III. Background                                                                                                    and will make release of information
                                                                                                         Document                                                   more efficient through the use of
                                                 IV. Legal Authority
                                                 V. Description of the Proposed Rule                                                                                information technology. These
                                                                                                          Abbreviation/
                                                 VI. Proposed Effective Date                                Acronym                        What it means            amendments are required by the FOIA
                                                 VII. Economic Analysis of Impacts                                                                                  Improvement Act, and are currently part
                                                 VIII. Analysis of Environmental Impact                  DFOI ..............      Division of Freedom of Infor-     of FDA’s FOIA policy and procedures.
                                                 IX. Paperwork Reduction Act of 1995                                                mation.                            • The proposed amendment to
                                                 X. Federalism                                           FOIA ...............     Freedom of Information Act.       § 20.22 would require FDA to indicate
                                                 XI. Consultation and Coordination with                  FOIA Improve-            FOIA Improvement Act of
                                                       Indian Tribal Governments
                                                                                                                                                                    the exemption(s) under which
                                                                                                           ment Act.                2016.                           information has been deleted at the site
                                                 I. Executive Summary                                    OGIS ..............      Office of Government Infor-       of the deletion. This change will inform
                                                                                                                                    mation Services.
                                                                                                                                                                    requesters of the legal bases under
                                                 A. Purpose of the Proposed Rule                         OPEN Govern-             Openness Promotes Effec-
                                                                                                          ment Act.                 tiveness in our National        which information has been withheld
                                                    FDA is proposing to amend FDA’s                                                 Government Act of 2007.         from Agency records, which promotes
                                                 public information regulations. The                                                                                transparency. This change is required by
                                                 regulations are being amended to                                                                                   the OPEN Government Act and was
                                                                                                         III. Background
                                                 incorporate changes made to FOIA by                                                                                adopted by the Agency for FOIA
                                                 the OPEN Government Act (Pub. L. 89–                       The FOIA is a law that gives the                        processing as of the effective date of the
                                                 487) and the FOIA Improvement Act                       public the right to access information                     OPEN Government Act.
                                                 (Pub. L. 114–185). Additionally, the                    from the Federal government. There is                         • The proposed amendment to
                                                 proposed rule will update the                           a presumption that government records                      § 20.26 would require FDA to make
                                                 regulations to reflect changes to the                   must be released under FOIA unless                         available for public inspection in an
                                                 organization, to make the FOIA process                  they are subject to one of nine FOIA                       electronic format records that have been
                                                 easier for the public to navigate, and to               exemptions. FDA’s regulations for the                      requested three or more times under the
                                                 make certain provisions clearer. Taken                  implementation of the FOIA are in part                     FOIA. This change codifies the long-
                                                 together, these changes will enhance                    20. The FOIA Improvement Act                               standing Department of Justice policy of
                                                 transparency for the public with regard                 specifically requires Agencies to review                   federal agencies posting records that
                                                 to FDA activities.                                      their FOIA regulations and update their                    have been requested three or more
                                                                                                         regulations for the disclosure of records                  times. The purpose of this change is to
                                                 B. Summary of the Major Provisions of                   in accordance with its amendments.                         proactively release records to the public
                                                 the Proposed Rule                                                                                                  without the need for submission of
                                                                                                         IV. Legal Authority
                                                   The proposed amendments to FDA’s                                                                                 additional FOIA requests. This change
                                                 public information regulations bring the                  We are proposing these amendments                        is required by the FOIA Improvement
                                                 Agency’s regulations in line with                       based on our authority under FOIA (5                       Act.
                                                 statutory amendments to the FOIA,                       U.S.C. 552) and section 701(a) of the                         • The proposed amendment to
                                                 update cross references to other statutes               FD&C Act (21 U.S.C. 371(a)). These                         § 20.33 would require FDA to offer the
                                                 and parts of the Agency’s regulations,                  proposed amendments would allow                            services of their FOIA Public Liaison
                                                 and clarify certain provisions with                     FDA to more efficiently use our                            and notify requesters of the services
                                                 minor editorial updates.                                resources to provide information to the                    provided by the Office of Government
                                                                                                         public.                                                    Information Services (OGIS) when
                                                 C. Legal Authority                                                                                                 responding to FOIA requests. This
                                                                                                         V. Description of the Proposed Rule
                                                   We are proposing these amendments                                                                                change provides requesters with
                                                 based on our authority under FOIA (5                       We are proposing to amend                               additional avenues for resolving FOIA-
                                                 U.S.C. 552) and section 701(a) of the                   provisions of part 20 regarding the                        related disputes beyond the appeals
                                                 Federal Food, Drug, and Cosmetic Act                    Agency’s public information                                process. This provision is required by
                                                 (FD&C Act) (21 U.S.C. 371(a)). These                    regulations. Once effective, the                           the FOIA Improvement Act.
                                                 proposed amendments would allow                         amendments contained in the proposed                          • The proposed amendment to
                                                 FDA to more efficiently use our                         rule would apply to all FOIA requests                      § 20.40 updates the provision to include
                                                 resources to provide information to the                 currently pending with, or received in                     reference to the Agency’s online FOIA
                                                 public.                                                 the future by, FDA.                                        submission portal, which has been
                                                                                                            • The proposed amendments to                            online since June 2012.
                                                 D. Costs and Benefits                                   § 20.20 would require FDA to withhold                         • The proposed amendments to
                                                   Although FDA is currently                             information under the FOIA only if the                     § 20.41 would require that when FDA
                                                 implementing the requirements of the                    Agency reasonably foresees that                            extends the time limit to respond to
daltland on DSKBBV9HB2PROD with PROPOSALS




                                                 OPEN Government Act and the FOIA                        disclosure would harm an interest                          requests by more than 10 additional
                                                 Improvement Act in FOIA processing as                   protected by an exemption or disclosure                    working days, FDA must notify the
                                                 standard practice, the requirements are                 is prohibited by law. The proposed rule                    requester of the right to seek dispute
                                                 not currently reflected in part 20 (21                  further amends this provision to require                   resolution services from the FOIA
                                                 CFR part 20). The revisions made by                     FDA to establish procedures for                            Public Liaison and OGIS. This change
                                                 this proposed rule are intended to                      identifying records of general interest or                 provides requesters with additional
                                                 incorporate all current FOIA                            use to the public that are appropriate for                 avenues for resolving FOIA-related
                                                 requirements into the existing                          public disclosure, and for posting such                    disputes beyond the appeals process.


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                                                                    Federal Register / Vol. 83, No. 178 / Thursday, September 13, 2018 / Proposed Rules                                           46439

                                                 We further amended the provision to                     Exemption 5 of the FOIA to records                    by the elimination of existing costs
                                                 provide that if a court determines that                 created 25 years or more before the date              associated with at least two prior
                                                 exceptional circumstances exist, the                    on which the records were requested.                  regulations.’’ We believe that this
                                                 Agency’s failure to comply with a time                  This change will increase transparency                proposed rule is not a significant
                                                 limit shall be excused for the length of                by requiring the Agency to release                    regulatory action as defined by
                                                 time provided by the court order. These                 information that could otherwise fall                 Executive Order 12866.
                                                 changes are required by the FOIA                        within the deliberative process privilege                The Regulatory Flexibility Act
                                                 Improvement Act. The revised provision                  of the Exemption. This amendment is                   requires us to analyze regulatory options
                                                 further clarifies that the Agency may toll              required by the FOIA Improvement Act.
                                                                                                                                                               that would minimize any significant
                                                 the response period once to seek more                     • The amendment to § 20.82 clarifies
                                                 information from the requester, and                                                                           impact of a rule on small entities.
                                                                                                         that the discretionary disclosure
                                                 more than once (if necessary) to clarify                                                                      Because the proposed revisions do not
                                                                                                         standard outlined in that provision will
                                                 fee assessments. This revision is                       guide the Agency’s determinations of                  impose any burdens upon FOIA
                                                 required by the OPEN Government Act.                    whether the Agency reasonably foresees                requesters, including those that might
                                                    • The proposed amendment to                          that a disclosure of information would                be small entities, we propose to certify
                                                 § 20.44 updates the title of the Agency                 harm an interest protected by an                      that the proposed rule will not have a
                                                 official making determinations                          exemption or disclosure is prohibited by              significant economic impact on a
                                                 regarding requests for expedited                        law as required in administering                      substantial number of small entities.
                                                 processing.                                             § 20.20.                                                 The Unfunded Mandates Reform Act
                                                    • The proposed amendments to                           • The amendment to § 20.85 updates                  of 1995 (section 202(a)) requires us to
                                                 § 20.45 would modify the fee schedule                   the statutory references.                             prepare a written statement, which
                                                 to prohibit the Agency from assessing                     • The amendment to § 20.86 clarifies                includes an assessment of anticipated
                                                 fees if the Agency fails to comply with                 that the list of proceedings subject to the           costs and benefits, before proposing
                                                 time limits to respond and there are no                 provision is not exclusive.                           ‘‘any rule that includes any Federal
                                                 unusual or exceptional circumstances                      • The amendments to § 20.88 clarify                 mandate that may result in the
                                                 that apply to the processing of the                     that the provisions also apply to local               expenditure by State, local, and tribal
                                                 request. If unusual circumstances apply,                officials and remove references to                    governments, in the aggregate, or by the
                                                 these amendments establish a process                    position titles that no longer exist.                 private sector, of $100,000,000 or more
                                                 by which the Agency can work with the                     • The amendments to § 20.89 remove                  (adjusted annually for inflation) in any
                                                 requester to effectively limit the scope                references to position titles that no                 one year.’’ The current threshold after
                                                 of the request. These changes will                      longer exist.                                         adjustment for inflation is $150 million,
                                                 provide an incentive to the Agency to                     • The amendments to § 20.100 update                 using the most current (2017) Implicit
                                                 process requests as efficiently as                      the regulatory cross-references.                      Price Deflator for the Gross Domestic
                                                 possible, and will provide fee relief to                  • The amendment to § 20.120 updates                 Product. This proposed rule would not
                                                 requesters who do not receive FOIA                      the contact information for the Agency’s              result in an expenditure in any year that
                                                 responses in a timely manner. These                     reading rooms.
                                                                                                                                                               meets or exceeds this amount.
                                                 provisions are required by the OPEN                       • The amendment to 21 CFR 720.8
                                                 Government Act. Further amendments                      revises the request for confidentiality of               We expect to incur negligible costs
                                                 to this provision clarify how fees are                  the identity of a cosmetic ingredient                 associated with implementing this rule.
                                                 calculated.                                             provision for consistency with FDA’s                  These costs result from updating titles
                                                    • The proposed rule amends                           disclosure regulation at § 20.29.                     of Agency officials, providing some
                                                 § 20.49(c) to require full and partial                                                                        additional information to FOIA
                                                 denial letters to include contact                       VI. Proposed Effective Date                           requesters, and compiling information
                                                 information for the FOIA Public Liaison                    FDA proposes that any final rule that              for annual reports. These requirements
                                                 and OGIS, and to increase the time for                  issues based on this proposal become                  would not require more resources from
                                                 transmittal of an appeal to 90 business                 effective 30 days after the final rule                us because we would perform these
                                                 days. We also made technical revisions                  publishes in the Federal Register.                    actions as part of our routine practices
                                                 to § 20.49(a) to update the position title                                                                    for FOIA processing. The proposed rule,
                                                                                                         VII. Preliminary Economic Analysis of
                                                 of the Agency FOIA Officer, and to                                                                            if finalized, would enhance public
                                                                                                         Impacts
                                                 § 20.49(c) to update the position title of                                                                    access to government information as
                                                 the person to whom appeals shall be                        We have examined the impacts of the                required by the FOIA Improvement Act.
                                                 addressed. These changes provide                        proposed rule under Executive Order
                                                 requesters with additional avenues for                  12866, Executive Order 13563,                         VIII. Analysis of Environmental Impact
                                                 resolving FOIA-related disputes beyond                  Executive Order 13771, the Regulatory
                                                                                                         Flexibility Act (5 U.S.C. 601–612), and                 We have determined under 21 CFR
                                                 the appeals process and provide                                                                               25.30(h) that this action is of a type that
                                                 requesters with additional time to                      the Unfunded Mandates Reform Act of
                                                                                                         1995 (Pub. L. 104–4). Executive Orders                does not individually or cumulatively
                                                 decide whether to pursue an appeal.                                                                           have a significant effect on the human
                                                 These amendments are required by the                    12866 and 13563 direct us to assess all
                                                                                                         costs and benefits of available regulatory            environment. Therefore, neither an
                                                 FOIA Improvement Act.
                                                                                                                                                               environmental assessment nor an
                                                    • The proposed rule amends                           alternatives and, when regulation is
                                                 § 20.61(e)(2) to allow 10 days from the                 necessary, to select regulatory                       environmental impact statement is
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                                                 date of the notice for submitters of trade              approaches that maximize net benefits                 required.
                                                 secrets or confidential commercial                      (including potential economic,                        IX. Paperwork Reduction Act of 1995
                                                 information to object to disclosure. This               environmental, public health and safety,
                                                 change will bring the Agency in line                    and other advantages; distributive                      FDA tentatively concludes that this
                                                 with departmental regulations.                          impacts; and equity). Executive Order                 proposed rule contains no collection of
                                                    • The proposed rule amends § 20.62                   13771 requires that the costs associated              information. Therefore, clearance by
                                                 to prohibit the application of the                      with significant new regulations ‘‘shall,             OMB under the Paperwork Reduction
                                                 deliberative process privilege of                       to the extent permitted by law, be offset             Act of 1995 is not required.


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                                                 46440              Federal Register / Vol. 83, No. 178 / Thursday, September 13, 2018 / Proposed Rules

                                                 X. Federalism                                           consistent with the rights of individuals             ■ 5. In § 20.33, add paragraph (c) to read
                                                    We have analyzed this proposed rule                  to privacy, the property rights of                    as follows:
                                                 in accordance with the principles set                   persons in trade secrets and confidential
                                                                                                         commercial or financial information,                  § 20.33    Form or format of response.
                                                 forth in Executive Order 13132. We                                                                            *     *     *      *     *
                                                 have determined that the proposed rule                  and the need for the Agency to promote
                                                                                                         frank internal policy deliberations and                 (c) Response letters shall contain
                                                 does not contain policies that have                                                                           contact information for the FOIA Public
                                                 substantial direct effects on the States,               to pursue its regulatory activities
                                                                                                         without disruption.                                   Liaison and the Office of Government
                                                 on the relationship between the                                                                               Information Services as required by the
                                                 National Government and the States, or                     (b) Except where specifically exempt
                                                                                                         pursuant to the provisions of this part,              FOIA Improvement Act of 2016 (Pub. L.
                                                 on the distribution of power and                                                                              114–185).
                                                 responsibilities among the various                      all FDA records shall be made available
                                                                                                                                                               ■ 6. In § 20.40, revise paragraph (a) to
                                                 levels of government. Accordingly, we                   for public disclosure. FDA will make
                                                                                                         discretionary disclosures of records or               read as follows:
                                                 conclude that the proposed rule does
                                                 not contain policies that have                          information exempt from disclosure                    § 20.40    Filing a request for records.
                                                 federalism implications as defined in                   under the provisions of this part                       (a) All requests for Food and Drug
                                                 the Executive order and, consequently,                  whenever disclosure would not                         Administration records shall be made in
                                                 a federalism summary impact statement                   foreseeably harm an interest protected                writing by mailing or delivering the
                                                 is not required.                                        by an exemption pursuant to this part.                request to the Freedom of Information
                                                                                                         This provision does not require                       Staff at the address on the Agency’s
                                                 XI. Consultation and Coordination With                  disclosure of information that is
                                                 Indian Tribal Governments                                                                                     website at https://www.fda.gov or by
                                                                                                         prohibited from disclosure by law.                    faxing it to the fax number listed on the
                                                    We have analyzed this proposed rule                     (c) In accordance with the FOIA                    Agency’s website at https://
                                                 in accordance with the principles set                   Improvement Act of 2016 (Pub. L. 114–                 www.fda.gov, or by submission through
                                                 forth in Executive Order 13175. We                      185), FDA will establish procedures for               the Agency’s online FOIA submission
                                                 have tentatively concluded that the rule                identifying records of general interest or            portal at https://www.fda.gov. All
                                                 does not contain policies that would                    use to the public that are appropriate for            requests must contain the postal address
                                                 have a substantial direct effect on one or              public disclosure, and for posting and                and telephone number of the requester
                                                 more Indian tribes, on the relationship                 indexing such records in a publicly                   and the name of the person responsible
                                                 between the Federal Government and                      accessible electronic format.                         for payment of any fees that may be
                                                 Indian tribes, or on the distribution of                   (d) Except as provided in paragraph                charged.
                                                 power and responsibilities between the                  (e) of this section, all nonexempt
                                                                                                                                                               *     *      *     *     *
                                                 Federal Government and Indian tribes.                   records shall be made available for                   ■ 7. In § 20.41, revise paragraphs
                                                 Accordingly, we conclude that a                         public disclosure upon request                        (b)(3)(i)(A) and (b)(4), and add
                                                 tribalism summary impact statement is                   regardless of whether any justification               paragraphs (b)(5) and (d) to read as
                                                 not required.                                           or need for such records have been                    follows:
                                                                                                         shown.
                                                 List of Subjects
                                                                                                            (e) ‘‘Record’’ and any other term used             § 20.41    Time limitations.
                                                 21 CFR Part 20                                          in this section in reference to                       *       *    *     *     *
                                                   Confidential business information,                    information includes any information                     (b) * * *
                                                 Courts, Freedom of information,                         that would be an Agency record subject                   (3)(i) * * *
                                                 Government employees.                                   to the requirements of this part when                    (A) The Agency may provide for an
                                                                                                         maintained by the Agency in any                       extension of up to 10 working days by
                                                 21 CFR Part 720                                         format, including an electronic format.               providing written notice to the requester
                                                   Confidential business information,                    ■ 3. In § 20.22, add paragraph (b)(3) to              setting out the reasons for the extension
                                                 Cosmetics.                                              read as follows:                                      and the date by which a determination
                                                                                                                                                               is expected to be sent. In the written
                                                   Therefore, under the Federal Food,                    § 20.22   Partial disclosure of records.              notice, the Agency will inform the
                                                 Drug, and Cosmetic Act and under                        *     *     *      *     *                            requester of the right to contact the
                                                 authority delegated to the Commissioner                   (b) * * *                                           Freedom of Information Act Public
                                                 of Food and Drugs, we propose that 21
                                                                                                           (3) The exemption(s) under which the                Liaison and to seek dispute resolution
                                                 CFR parts 20 and 720 be amended as
                                                                                                         information has been deleted shall be                 services from the Office of Government
                                                 follows:
                                                                                                         noted at the site of the deletion.                    Information Services.
                                                 PART 20—PUBLIC INFORMATION                              ■ 4. In § 20.26, revise the section                   *       *    *     *     *
                                                                                                         heading and paragraph (a)(4) to read as                  (4) The Agency may contact the
                                                 ■ 1. The authority citation for part 20                 follows:                                              requester for clarification about the
                                                 continues to read as follows:                                                                                 request or regarding fee assessment. The
                                                                                                         § 20.26 Electronic availability and indexes
                                                   Authority: 5 U.S.C. 552; 18 U.S.C. 1905; 19           of certain records.                                   Agency may toll the 20-day period as
                                                 U.S.C. 2531–2582; 21 U.S.C. 321–393, 1401–                                                                    follows:
                                                 1403; 42 U.S.C. 241, 242, 242a, 242l, 242n,                (a) * * *                                             (i) One time while it is awaiting a
                                                 243, 262, 263, 263b–263n, 264, 265, 300u–                  (4) Records that have been released to             response from the requester regarding
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                                                 300u–5, 300aa–1.                                        any person in response to a Freedom of                clarification that it has reasonably
                                                                                                         Information request and that the Agency               requested from the requester; and
                                                 ■   2. Revise § 20.20 to read as follows:
                                                                                                         has determined have become, or are                       (ii) One or more times while the
                                                 § 20.20 Policy on disclosure of Food and                likely to become, the subject of                      Agency is awaiting a response from the
                                                 Drug Administration records.                            subsequent requests for substantially the             requester regarding fee assessment.
                                                   (a) The Food and Drug Administration                  same records or that have been                           (5) If any record is denied, the letter
                                                 (FDA) will make the fullest possible                    requested three or more times.                        shall state the right of the person
                                                 disclosure of records to the public,                    *      *    *    *     *                              requesting such records to appeal any


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                                                                    Federal Register / Vol. 83, No. 178 / Thursday, September 13, 2018 / Proposed Rules                                               46441

                                                 adverse determination to the Deputy                     other media). The Agency shall not                    hourly rate will be computed by taking
                                                 Agency Chief Freedom of Information                     assess duplication fees if the Agency                 the current hourly rate for the specified
                                                 Act Officer, Department of Health and                   fails to comply with any time limit, as               grade and step in the General Schedule
                                                 Human Services, in accordance with the                  described in § 20.41, if no unusual or                Locality Pay Table for the Locality of
                                                 provisions of 45 CFR 5.62.                              exceptional circumstances apply to the                Washington-Baltimore-Northern
                                                 *      *      *    *     *                              processing of the request. If unusual                 Virginia, DC–MD–VA–WV–PA, adding
                                                    (d) If a court determines that                       circumstances, as outlined in § 20.41,                16 percent of that rate to cover benefits,
                                                 exceptional circumstances exist, as                     apply and more than 5,000 pages are                   and rounding to the nearest whole
                                                 defined by the Freedom of Information                   necessary to respond to the request, the              dollar. When a search involves
                                                 Act, the Agency’s failure to comply with                Food and Drug Administration may                      employees at more than one of these
                                                 a time limit shall be excused for the                   charge duplication fees if timely written             levels, the Food and Drug
                                                 length of time provided by the court                    notice has been made to the requester                 Administration will charge the rate
                                                 order.                                                  and the Agency has discussed with the                 appropriate for each.
                                                 ■ 8. In § 20.44, revise paragraph (e) to                requester via written mail, electronic                  (2) Electronic searching. Charges for
                                                 read as follows:                                        mail, or telephone (or made not less                  the time spent by the operator to search
                                                                                                         than three good-faith attempts to do so)              the computer, database or network,
                                                 § 20.44   Expedited processing.
                                                                                                         how the requester could effectively limit             including development of any
                                                 *     *     *      *     *                              the scope of the request.                             specialized programming required to
                                                   (e) The Director, Division of Freedom                    (3) Other requests. If the request is not          perform the search, at the rate given in
                                                 of Information, (or Delegatee) will                     the kind described in paragraph (a)(1) or             paragraph (c)(1) of this section plus the
                                                 determine whether to grant a request for                (2) of this section, then the Food and                cost of any materials.
                                                 expedited processing within 10 days of                  Drug Administration will charge only                  *     *     *      *    *
                                                 receipt by the Division of Freedom of                   for the search and the duplication. Also,             ■ 10. In § 20.49, revise paragraphs (a)
                                                 Information of all information required                 the Food and Drug Administration will                 and (c) and remove paragraph (d).
                                                 to make a decision.                                     not charge for the first 2 hours of search              The revisions read as follows:
                                                 *     *     *      *     *                              time or for the copying costs of the first
                                                 ■ 9. In § 20.45, revise paragraphs (a)(1)                                                                     § 20.49    Denial of a request for records.
                                                                                                         100 pages of duplication (or the cost
                                                 through (3), add paragraph (b)(7), and                  equivalent of other media). The Agency                  (a) A denial of a request for records,
                                                 revise paragraphs (c)(1) and (2) to read                shall not assess search fees if the                   in whole or in part, shall be signed by
                                                 as follows:                                             Agency fails to comply with any time                  the Director, Division of Freedom of
                                                                                                         limit, as described in § 20.41, if no                 Information, or other official who has
                                                 § 20.45   Fees to be charged.
                                                                                                         unusual or exceptional circumstances                  been delegated the authority to release
                                                   (a) * * *                                                                                                   or withhold records.
                                                   (1) Commercial use request. If the                    apply to the processing of the request.
                                                 request is for a commercial use, the                    If unusual circumstances, as outlined in              *     *     *      *    *
                                                                                                         § 20.41, apply and more than 5,000                      (c) A letter denying a request for
                                                 Food and Drug Administration will
                                                                                                         pages are necessary to respond to the                 records, in whole or in part, shall state
                                                 charge for the costs of search, review,
                                                                                                         request, the Food and Drug                            the reasons for the denial and shall state
                                                 and duplication. The Agency shall not
                                                                                                         Administration may charge search fees                 that an appeal may be transmitted to the
                                                 assess search fees if the Agency fails to
                                                                                                         if timely written notice has been made                Deputy Agency Chief Freedom of
                                                 comply with any time limit, as
                                                                                                         to the requester and the Agency has                   Information Act Officer, Department of
                                                 described in § 20.41, if no unusual or
                                                                                                         discussed with the requester via written              Health and Human Services, within 90
                                                 exceptional circumstances apply to the
                                                                                                         mail, electronic mail, or telephone (or               calendar days from the date of the
                                                 processing of the request. If unusual
                                                                                                         made not less than three good-faith                   adverse determination, in accordance
                                                 circumstances, as outlined in § 20.41,
                                                                                                         attempts to do so) how the requester                  with 45 CFR 5.61. The Agency will also
                                                 apply and more than 5,000 pages are
                                                                                                         could effectively limit the scope of the              make a reasonable effort to include in
                                                 necessary to respond to the request, the
                                                                                                         request.                                              the letter an estimate of the volume of
                                                 Food and Drug Administration may
                                                                                                         *      *     *    *     *                             the records denied, unless providing
                                                 charge search fees if timely written
                                                                                                            (b) * * *                                          such an estimate would harm an interest
                                                 notice has been made to the requester
                                                                                                            (7) Requesters may contact Agency                  protected by an exemption under the
                                                 and the Agency has discussed with the
                                                                                                         Freedom of Information Act staff or the               Freedom of Information Act. This
                                                 requester via written mail, electronic
                                                                                                         Freedom of Information Act Public                     estimate will ordinarily be provided in
                                                 mail, or telephone (or made not less
                                                                                                         Liaison to assist in reformulating a                  terms of the approximate number of
                                                 than three good-faith attempts to do so)
                                                                                                         request to meet their needs at lower                  pages or some other reasonable measure.
                                                 how the requester could effectively limit
                                                                                                         cost.                                                 This estimate will not be provided if the
                                                 the scope of the request.
                                                   (2) Educational and scientific                                                                              volume of records denied is otherwise
                                                                                                         *      *     *    *     *
                                                 institutions and news media. If the                                                                           indicated through deletions on records
                                                                                                            (c) * * *
                                                 request is from an educational                             (1) Manual searching for or reviewing              disclosed in part. The letter will also
                                                 institution or a noncommercial                          of records. When the search or review                 include contact information for the
                                                 scientific institution, operated primarily              is performed by employees at grade GS–                Freedom of Information Act Public
                                                 for scholarly or scientific research, or a              1 through GS–8 (or equivalent), an                    Liaison and the Office of Government
                                                                                                                                                               Information Services.
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                                                 representative of the news media, and                   hourly rate based on the salary of a GS–
                                                                                                                                                               ■ 11. In § 20.61, revise paragraph (e)(2)
                                                 the request is not for a commercial use,                5, step 7, employee; when done by a
                                                                                                                                                               to read as follows:
                                                 the Food and Drug Administration will                   GS–9 through GS–14 (or equivalent), an
                                                 charge only for the duplication of                      hourly rate based on the salary of a GS–              § 20.61 Trade secrets and commercial or
                                                 documents. Also, the Food and Drug                      12, step 4, employee; and when done by                financial information which is privileged or
                                                 Administration will not charge the                      a GS–15 or above (or equivalent), an                  confidential.
                                                 copying costs for the first 100 pages of                hourly rate based on the salary of a GS–              *       *    *      *     *
                                                 duplication (or its cost equivalent of                  15, step 7, employee. In each case, the                   (e) * * *


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                                                 46442              Federal Register / Vol. 83, No. 178 / Thursday, September 13, 2018 / Proposed Rules

                                                    (2) The submitter has 10 working days                financial information prohibited from                 or local government being able to
                                                 from the date of the notice to object to                disclosure by 21 U.S.C. 331(j), 21 U.S.C.             exercise its regulatory authority more
                                                 disclosure of any part of the records and               360j(c), 21 U.S.C. 360ll(d), 21 U.S.C.                expeditiously than the Food and Drug
                                                 to state all bases for its objections.                  360nn(e) and 21 U.S.C. 387f(c) may be                 Administration; or
                                                 Division of Freedom of Information may                  released only as provided by those                       (C) The disclosure is to a State or local
                                                 extend this period as appropriate and                   sections. Any disclosure under this                   government scientist visiting the Food
                                                 necessary.                                              section shall be pursuant to a written                and Drug Administration on the
                                                 *      *     *     *      *                             agreement that the record shall not be                Agency’s premises as part of a joint
                                                 ■ 12. Revise § 20.62 to read as follows:                further disclosed by the other                        review or long-term cooperative training
                                                                                                         department or Agency except with the                  effort authorized under section 708 of
                                                 § 20.62 Inter- or intra-agency memoranda                written permission of the FDA.                        the Federal Food, Drug, and Cosmetic
                                                 or letters.                                             ■ 15. Revise § 20.86 to read as follows:              Act, the review is in the interest of
                                                    Inter-agency or intra-agency                                                                               public health, the Food and Drug
                                                 memoranda or letters that would not be                  § 20.86 Disclosure in administrative or
                                                                                                                                                               Administration retains physical control
                                                 available by law to a party other than an               court proceedings.
                                                                                                                                                               over the information, the Food and Drug
                                                 Agency in litigation with the Food and                    Data and information otherwise                      Administration requires the visiting
                                                 Drug Administration may be withheld                     exempt from public disclosure may be                  State or local government scientist to
                                                 from public disclosure except that                      revealed in Food and Drug                             sign a written commitment to protect
                                                 factual information that is reasonably                  Administration (FDA) administrative                   the confidentiality of the information,
                                                 segregable in accordance with the rule                  proceedings, such as those pursuant to                and the visiting State or local
                                                 established in § 20.22 is available for                 parts 10, 12, 13, 14, 15, 17, and 19 of               government scientist provides a written
                                                 public disclosure. The deliberative                     this chapter or court proceedings, where              assurance that he or she has no financial
                                                 process privilege shall not apply to                    data or information are relevant. The                 interest in the regulated industry of the
                                                 records created 25 years or more before                 FDA will take appropriate measures, or                type that would preclude participation
                                                 the date on which the records were                      request that appropriate measures be                  in the review of the matter if the
                                                 requested.                                              taken, to reduce disclosure to the                    individual were subject to the conflict of
                                                 ■ 13. In § 20.82, revise paragraph (a) to               minimum necessary under the                           interest rules applicable to the Food and
                                                 read as follows:                                        circumstances.                                        Drug Administration advisory
                                                                                                         ■ 16. In § 20.88, revise paragraphs (d)(1)
                                                 § 20.82 Discretionary disclosure by the                                                                       committee members under § 14.80(b)(1)
                                                                                                         introductory text, (d)(1)(i), (d)(1)(ii)(B)           of this chapter. Subject to all the
                                                 Commissioner.                                           and (C), (d)(2), and (e)(1) and (3) to read
                                                    (a) Except as provided in paragraph                                                                        foregoing conditions, a visiting State or
                                                                                                         as follows:                                           local government scientist may have
                                                 (b) of this section, the Commissioner
                                                 may, in his or her discretion, disclose                 § 20.88 Communications with State and                 access to trade secret information,
                                                 part or all of any Food and Drug                        local government officials.                           entitled to protection under section
                                                 Administration (FDA) record that is                     *       *   *     *     *                             301(j) of the Federal Food, Drug, and
                                                 otherwise exempt from disclosure                           (d)(1) The Commissioner of Food and                Cosmetic Act, in those cases where such
                                                 pursuant to subpart D of this part. As set              Drugs, or any other officer or employee               disclosures would be a necessary part of
                                                 forth in § 20.20(b) FDA shall make                      of the Food and Drug Administration                   the joint review or training.
                                                 discretionary disclosures of records or                 whom the Commissioner may designate                      (2) Except as provided under
                                                 information exempt from disclosure                      to act on his or her behalf for the                   paragraph (d)(1)(ii)(C) of this section,
                                                 under the provisions of this part                       purpose, may authorize the disclosure                 this provision does not authorize the
                                                 whenever disclosure would not                           of confidential commercial information                disclosure to State and local government
                                                 foreseeably harm an interest protected                  submitted to the Food and Drug                        officials of trade secret information
                                                 by an exemption pursuant to this part.                  Administration, or incorporated into                  concerning manufacturing methods and
                                                 Specifically, FDA shall exercise its                    Agency-prepared records, to State and                 processes prohibited from disclosure by
                                                 discretion to disclose such records                     local government officials as part of                 section 301(j) of the Federal Food, Drug,
                                                 whenever it determines that such                        cooperative law enforcement or                        and Cosmetic Act, unless pursuant to an
                                                 disclosure is in the public interest, will              regulatory efforts, provided that:                    express written authorization provided
                                                 promote the objectives of the Freedom                      (i) The State or local government                  by the submitter of the information.
                                                 of Information Act and the Agency, and                  agency has provided both a written                    *      *     *     *    *
                                                 is consistent with the rights of                        statement establishing its authority to                  (e)(1) The Commissioner of Food and
                                                 individuals to privacy, the property                    protect confidential commercial                       Drugs, or any other officer or employee
                                                 rights of persons in trade secrets, and                 information from public disclosure and                of the Food and Drug Administration
                                                 the need for the Agency to promote                      a written commitment not to disclose                  whom the Commissioner may designate
                                                 frank internal policy deliberations and                 any such information provided without                 to act on his or her behalf for the
                                                 to pursue its regulatory activities                     the written permission of the sponsor or              purpose, may authorize the disclosure
                                                 without disruption.                                     written confirmation by the Food and                  to, or receipt from, an official of a State
                                                 *      *     *    *      *                              Drug Administration that the                          or local government agency of
                                                 ■ 14. Revise § 20.85 to read as follows:                information no longer has confidential                nonpublic, predecisional documents
                                                                                                         status; and                                           concerning the Food and Drug
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                                                 § 20.85 Disclosure to other Federal                        (ii) * * *                                         Administration’s or the other
                                                 government departments and agencies.                       (B) Disclosure would be in the interest            government agency’s regulations or
                                                   Any Food and Drug Administration                      of public health by reason of the State               other regulatory requirements, or other
                                                 (FDA) record otherwise exempt from                      or local government’s possessing                      nonpublic information relevant to either
                                                 public disclosure may be disclosed to                   information concerning the safety,                    agency’s activities, as part of efforts to
                                                 other Federal government departments                    effectiveness, or quality of a product or             improve Federal-State and/or Federal-
                                                 and agencies, except that trade secrets                 information concerning an                             local uniformity, cooperative regulatory
                                                 and confidential commercial or                          investigation, or by reason of the State              activities, or implementation of Federal-


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                                                                    Federal Register / Vol. 83, No. 178 / Thursday, September 13, 2018 / Proposed Rules                                              46443

                                                 State and/or Federal-local agreements,                  the exchange is reasonably necessary to                 Authority: 21 U.S.C. 321, 331, 361, 362,
                                                 provided that:                                          facilitate global harmonization of                    371, 374.
                                                   (i) The State or local government                     regulatory requirements, cooperative
                                                 agency has the authority to protect such                regulatory activities, or implementation              ■ 21. In § 720.8, revise paragraphs (e)
                                                 nonpublic documents from public                         of international agreements.                          and (g) to read as follows:
                                                 disclosure and will not disclose any                       (2) Any exchange under this section                § 720.8    Confidentiality of statements.
                                                 such documents provided without the                     of nonpublic documents does not
                                                 written confirmation by the Food and                    invoke the rule established in § 20.21                *      *      *     *     *
                                                 Drug Administration that the documents                  that such records shall be made                          (e) If, after receiving all of the data
                                                 no longer have nonpublic status; and                    available to all members of the public.               that are necessary to make a
                                                   (ii) The Commissioner or his or her                                                                         determination about whether the
                                                                                                         *      *     *    *     *
                                                 designee makes the determination that                                                                         identity of an ingredient is a trade
                                                                                                         ■ 18. In § 20.100, revise paragraph
                                                 the exchange is reasonably necessary to                                                                       secret, FDA tentatively decides to deny
                                                                                                         (c)(6), remove and reserve paragraphs
                                                 improve Federal-State and/or Federal-                                                                         the request, the Agency will inform the
                                                                                                         (c)(20) and (21), and add paragraphs
                                                 local uniformity, cooperative regulatory                                                                      person requesting trade secrecy of its
                                                                                                         (c)(47) through (51).
                                                 activities, or implementation of Federal-                                                                     tentative determination in writing. FDA
                                                 State and/or Federal-local agreements.                     The revision and additions read as
                                                                                                         follows:                                              will set forth the grounds upon which
                                                 *      *     *     *    *                                                                                     it relied in making this tentative
                                                   (3) For purposes of this paragraph, the               § 20.100 Applicability; cross-reference to
                                                                                                                                                               determination. The petitioner may
                                                 term official of a State or local                       other regulations.
                                                                                                                                                               submit, within 60 days from the date of
                                                 government agency includes, but is not                  *     *     *     *     *                             receipt of the written notice of the
                                                 limited to, an agent contracted by the                    (c) * * *
                                                 State or local government, and an                                                                             tentative denial, additional relevant
                                                                                                           (6) Information on thermal processing               information and arguments and request
                                                 employee of an organization of State or                 of low-acid foods packaged in
                                                 local officials having responsibility to                                                                      that the Agency reconsider its decision
                                                                                                         hermetically sealed containers, in
                                                 facilitate harmonization of State or local                                                                    in light of both the additional material
                                                                                                         §§ 108.25(k) and 108.35(l) of this
                                                 standards and requirements in the Food                                                                        and the information that it originally
                                                                                                         chapter.
                                                 and Drug Administration’s areas of                                                                            submitted.
                                                                                                         *     *     *     *     *
                                                 responsibility. For such officials, the                                                                       *      *      *     *     *
                                                                                                           (47) Status reports of postmarketing
                                                 statement and commitment required by                                                                             (g) A final determination that an
                                                                                                         study commitments in
                                                 paragraph (e)(1)(i) of this section shall                                                                     ingredient is not a trade secret within
                                                                                                         §§ 314.81(b)(2)(vii)(b) and 601.70(e) of
                                                 be provided by both the organization
                                                                                                         this chapter.                                         the meaning of § 20.61 of this chapter
                                                 and the individual.
                                                 ■ 17. In § 20.89, revise paragraph (d) to
                                                                                                           (48) Postmarket notification relating               constitutes final Agency action that is
                                                 read as follows:                                        to shortages in § 600.82 of this chapter.             subject to judicial review under 5 U.S.C.
                                                                                                           (49) Postmarket notification relating               Chapter 7. If suit is brought within 30
                                                 § 20.89 Communications with foreign                     to shortages in §§ 310.306 and 314.81 of              calendar days after such a
                                                 government officials.                                   this chapter.                                         determination, FDA will not disclose
                                                 *      *     *    *     *                                 (50) Minor Species/Minor Use                        the records involved or require that the
                                                   (d)(1) The Commissioner of Food and                   designation, in § 516.52 of this chapter.             disputed ingredient or ingredients be
                                                 Drugs, or any other officer or employee                   (51) Minor Species drug index listing,              disclosed in labeling until the matter is
                                                 of the Food and Drug Administration                     in § 516.171 of this chapter.                         finally determined in the courts. If suit
                                                 whom the Commissioner may designate                     ■ 19. In § 20.120, revise paragraph (a) to            is not brought within 30 calendar days
                                                 to act on his or her behalf for the                     read as follows: § 20.120 Records                     after a final determination that an
                                                 purpose, may authorize the disclosure                   available in Food and Drug                            ingredient is not a trade secret within
                                                 to, or receipt from, an official of a                   Administration Public Reading Rooms.                  the meaning of § 20.61 of this chapter,
                                                 foreign government agency of                              (a) The Freedom of Information Staff                the records involved will be available
                                                 nonpublic, predecisional documents                      and the Dockets Management Staff
                                                 concerning the Food and Drug                                                                                  for public disclosure in accordance with
                                                                                                         Public Reading Room are located at the                part 20 of this chapter.
                                                 Administration’s or the other                           same address. Both are located in Rm.
                                                 government agency’s regulations or                      1061, 5630 Fishers Lane, Rockville, MD        Dated: September 7, 2018.
                                                 other regulatory requirements, or other                 20852. The telephone number for the        Scott Gottlieb,
                                                 nonpublic information relevant to either                Docket Management Staff is 240–402–        Commissioner of Food and Drugs.
                                                 agency’s activities, as part of                         7500; the telephone number for the         [FR Doc. 2018–19864 Filed 9–12–18; 8:45 am]
                                                 cooperative efforts to facilitate global                Freedom of Information Staff’s Public      BILLING CODE 4164–01–P
                                                 harmonization of regulatory                             Reading Room is located at the address
                                                 requirements, cooperative regulatory                    on the Agency’s website at https://
                                                 activities, or implementation of                        www.fda.gov. Both public reading rooms
                                                 international agreements, provided that:                are open from 9 a.m. to 4 p.m., Monday
                                                   (i) The foreign government agency has                 through Friday, excluding legal public
                                                 the authority to protect such nonpublic                 holidays.
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                                                 documents from public disclosure and
                                                                                                         *     *     *     *     *
                                                 will not disclose any such documents
                                                 provided without the written                            PART 720—VOLUNTARY FILING OF
                                                 confirmation by the Food and Drug                       COSMETIC PRODUCT INGREDIENT
                                                 Administration that the documents no                    COMPOSITION STATEMENTS
                                                 longer have nonpublic status; and
                                                   (ii) The Commissioner or his or her                   ■ 20. The authority citation for part 720
                                                 designee makes the determination that                   continues to read as follows:


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Document Created: 2018-09-13 01:01:14
Document Modified: 2018-09-13 01:01:14
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule.
DatesSubmit either electronic or written comments on this proposed rule by November 13, 2018. See section VI of this document for the proposed effective date of a final rule based on this document.
ContactSarah B. Kotler, Office of the Commissioner, Office of the Executive Secretariat, Food and Drug Administration, 5630 Fishers Lane, Rm. 1050, Rockville, MD 20857, 301- 796-3900, [email protected]
FR Citation83 FR 46437 
RIN Number0910-AH69
CFR Citation21 CFR 20
21 CFR 720
CFR AssociatedConfidential Business Information; Courts; Freedom of Information; Government Employees and Cosmetics

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