[Federal Register Volume 62, Number 169 (Tuesday, September 2, 1997)]
[Rules and Regulations]
[Pages 46192-46198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23242]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1015


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

AGENCY: Consumer Product Safety Commission.

ACTION: Final rule.

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SUMMARY: The Electronic Freedom of Information Act Amendments of 1996, 
which amend the Freedom of Information Act, are designed to make 
government documents more accessible to the public in electronic form. 
The amendments are also intended to expedite and streamline the process 
by which agencies disclose information generally. In this notice, the 
Commission amends its Freedom of Information Act regulations to comply 
with the requirements of the new statute.

DATES: The amendments become effective on October 2, 1997.

FOR FURTHER INFORMATION CONTACT: Jayme Rizzolo Epstein, Office of the 
General Counsel, Consumer Product Safety Commission, Washington, DC 
20207, telephone (301) 504-0980; or Todd Stevenson, Freedom of 
Information Officer, Office of the Secretary, Consumer Product Safety 
Commission, Washington, DC 20207, telephone (301) 504-0800.

SUPPLEMENTARY INFORMATION:

Background Information

    On October 2, 1996, the President signed into law the Electronic 
Freedom of Information Act Amendments of 1996 (``EFOIA''), Public Law 
231, 110 Stat. 3048 (1996). EFOIA includes provisions authorizing or 
requiring agencies to promulgate regulations implementing certain of 
its requirements, including the tracking of Freedom of Information Act 
(``FOIA'') requests, the aggregation of FOIA requests, and the 
expedited processing of FOIA requests. In addition, EFOIA changes the 
time limit for responding to a FOIA request from ten to twenty days, 
the requirements for reporting on FOIA activities to Congress, and the 
cases in which an agency may extend the time for responding to a FOIA 
request. EFOIA also includes provisions regarding the availability of 
documents in electronic form, the treatment of electronic records, and 
the establishment of ``electronic reading rooms.''
    On May 6, 1997 the Consumer Product Safety Commission 
(``Commission'') proposed amendments to its regulations implementing 
the Freedom of Information Act, 16 CFR Part 1015. See 62 FR 24614, May 
6, 1997. The proposed amendments were intended to revise the 
Commission's FOIA regulations to comply with EFOIA. The Commission 
received three comments in response to the proposed amendments. The 
comments are discussed below. The Commission now issues the amendments 
in final form. They are identical to the proposed amendments, except 
for a few changed words in Secs. 1015.2 and 1015.5(f) that clarify the 
meaning of those provisions.

[[Page 46193]]

New Provisions

A. Electronic Records

    Section 3 of EFOIA amends 5 U.S.C. 552(f) to define ``record'' for 
purposes of FOIA as including ``any information that would be an agency 
record subject to the requirements of [5 U.S.C. section 552] when 
maintained by an agency in any format, including an electronic 
format.'' Section 552(f) thus clarifies that the term ``agency record'' 
includes information stored on or by computers as well as traditional 
paper documents. The regulations amend 16 CFR 1015.1(a) by adding 
language to reflect this definition of ``record'' and to clarify that 
the Commission produces all releasable records responsive to a FOIA 
request, whether in traditional paper or electronic form.

B. Electronic Reading Room

    FOIA section 552(a)(2) requires agencies to make available for 
inspection and copying the following: (1) Final opinions and orders 
made in adjudicated cases; (2) statements of policy and interpretations 
not published in the Federal Register; and (3) administrative staff 
manuals and instructions to staff that affect the public. 5 U.S.C. 
552(a)(2). As stated in the Commission's FOIA regulations, the 
Commission maintains these materials in its Public Information Center. 
16 CFR 1015.2(a). EFOIA adds a fourth category to the materials that 
agencies must place in their reading rooms:

copies of all records * * * which have been released to any person 
under [FOIA] and which, because of the nature of their subject 
matter, the agency determines have become or are likely to become 
the subject of subsequent requests for substantially the same 
records.

EFOIA sec. 4; 5 U.S.C. 552(a)(2)(D).
    EFOIA further requires agencies to make available by ``computer 
telecommunications'' all reading room materials that are created on or 
after November 1, 1996. The statute envisions that each agency will 
ultimately have both a traditional reading room and a new ``electronic 
reading room'' on the World-Wide Web.
    Section 1015.2(c) states that the Commission will post the 
requisite materials on its Website. Where appropriate and feasible, and 
as resources permit, the Commission may also place additional reading 
room materials on the Website.

C. Multitrack Processing of Requests

    EFOIA authorizes agencies to promulgate regulations providing for 
multitrack processing of requests for records based on the amount of 
work and/or time involved in processing requests. EFOIA sec. 7(a); 5 
U.S.C. 552(a)(6)(D)(i). This would expedite the production of records 
where little work or time is required. The statute states that an 
agency's regulations may include a provision granting a FOIA requester 
whose request does not qualify for the fastest multitrack processing an 
opportunity to limit the scope of the request in order to qualify for 
faster processing. 5 U.S.C. 552(6)(D)(ii).
    The Commission believes that multitrack processing is the most 
efficient and fair way to process FOIA requests. If requests were 
processed on a strict first in, first out basis, easily filled 
requests--for example for a press release or Commission brochure--would 
be processed only after earlier-received, complex requests for dozens 
of documents located in offices throughout the Commission. The 
Commission currently intends to process FOIA requests on five tracks, 
as follows:

    Track 1: Responsive documents are available in the Office of the 
Secretary in releasable form. Examples include press releases, 
Commission brochures, and cleared Commission briefing packages.
    Track 2: Responsive documents are filed in one easily 
identifiable location, but must be located and copied, and require 
internal clearance. Examples include meeting logs, technical reports 
and contractor reports.
    Track 3: Responsive documents are located in various Commission 
offices and require internal clearance.
    Track 4: Responsive documents require both internal clearance 
and review by identified manufacturers pursuant to sections 6 (a) 
and/or (b) of the Consumer Product Safety Act, 15 U.S.C. 2055 (a) 
and (b). Examples include requests for information regarding 
Commission investigations of specific products and/or companies.
    Track 5: Responsive documents are voluminous or are located in 
various Commission offices, and require section 6(a) and/or (b) 
review.

    In general, when a request is received, the Freedom of Information 
Office will review it and categorize it for tracking purposes. Requests 
within each ``track'' will then be processed according to the date of 
receipt within each category. This should help further expedite 
responses to FOIA requests that are easier to fill. Of course, many 
requests are unique and will not easily fit one of the above 
descriptions. Others may appear to qualify for a fast track but prove 
complex once the search for the responsive documents is underway. As 
the Office of the Secretary implements and gains experience with the 
multitrack system, adjustments will almost certainly be required.
    Pursuant to section 1015.3(e), the Office of the Secretary may 
contact requesters whose requests do not appear to qualify for the 
fastest tracks and provide such requesters the opportunity to limit 
their requests so they qualify for a faster track. Such notification 
will be at the discretion of the Office of the Secretary and will 
depend largely on whether that Office believes that a narrowing of the 
request could put the request on a faster track. The regulation further 
provides that requesters who believe that their requests qualify for 
the fastest tracks and who wish to be notified if the Office of the 
Secretary disagrees may so indicate in the request. If practicable, the 
Office of the Secretary may also work with such requesters to limit 
their requests to qualify for a faster track.

D. Time Limit for Responding to Requests

    1. General: EFOIA lengthened the time within which agencies must 
respond to FOIA requests from ten to twenty working days. EFOIA sec. 
8(b); 5 U.S.C. 552(a)(6)(A)(i). The regulations amend the Commission's 
current regulations to conform to the new time limit. See 16 CFR 
1015.4, 1015.5(a), 1015.6(c).
    2. Extension of time in unusual circumstances: Under FOIA section 
552(a)(6)(B), agencies are permitted to extend the time limit for 
responding to a request or deciding an appeal of a denial of a request 
in ``unusual circumstances,'' as defined in that section, for no more 
than ten working days, upon written notice to the requester. 5 U.S.C. 
552(a)(6)(B). EFOIA amends this provision to permit agencies to extend 
the response time by notifying the requesters and providing them with 
an opportunity to: (1) Limit the scope of the request so that it may be 
timely answered; or (2) arrange with the agency an alternative time 
frame for processing the request. EFOIA sec. 7(b); 5 U.S.C. 
552(a)(6)(B)(ii). EFOIA also provides that a requester's refusal to 
modify a request or arrange an alternative response time shall be 
considered a factor in the judicial review of an agency's failure to 
comply with the applicable time limits. EFOIA does not alter the 
definition of ``unusual circumstances.''
    The regulations add a new paragraph (d) to 16 CFR 1015.5 to 
implement the amended provision.
    3. Aggregation of related requests: EFOIA authorizes agencies to 
promulgate regulations providing for the aggregation of related 
requests by the same requester or a group of requesters acting in 
concert when the requests would, if treated as a single request, 
present ``unusual circumstances'' as

[[Page 46194]]

defined in 5 U.S.C. 552(a)(6)(B). EFOIA sec. 7(b); 5 U.S.C. 
552(a)(6)(B)(iv). Section 1015.5(e) implements this provision. As EFOIA 
specifies, the regulation provides that requests will be aggregated 
only when the Commission ``reasonably believes that such requests 
actually constitute a single request'' and the requests ``involve 
clearly related matters.'' Id.; 16 CFR 1015.5(e).
    4. Requests for expedited processing: EFOIA requires each agency to 
promulgate regulations providing for the expedited processing of FOIA 
requests in cases of ``compelling need'' and in other cases determined 
by the agency. EFOIA sec. 8(a); 5 U.S.C. 552(a)(6)(E)(i). The statute 
specifies two categories of ``compelling need'':

    (1) That a failure to obtain requested records on an expedited 
basis under this paragraph could reasonably be expected to pose an 
imminent threat to the life or physical safety of an individual; or
    (2) With respect to a request made by a person primarily engaged 
in disseminating information, urgency to inform the public 
concerning actual or alleged Federal Government activity.

5 U.S.C. 552(a)(6)(E)(v). Additionally, the statute sets forth 
requirements for the handling of requests for expedited processing and 
for the judicial review of agency denials of such requests. 5 U.S.C. 
552(a)(6)(E) (ii)-(iv).
    Section 1015.5(f) implements the expedited processing requirements 
of EFOIA. The Commission emphasizes that it intends to strictly adhere 
to Congress' express intent that the specified criteria for compelling 
need ``be narrowly applied.'' Expedited processing will be granted only 
in those cases meeting the specific statutory requirements. H.R. Rep. 
795, 104th Cong., 2d Sess. 26 (1996)(hereafter ``House Report''). We 
expect that such cases will be rare. As the legislative history states, 
``the expedited process procedure is intended to be limited to 
circumstances in which a delay in obtaining information can reasonably 
be foreseen to cause a significant adverse consequence to a recognized 
interest.'' Id.
    A requester seeking expedited processing under the ``imminent 
threat'' category of the ``compelling need'' definition must show that: 
(1) The failure to obtain the information expeditiously threatens the 
life or safety of an individual; and (2) the threat is ``imminent.'' 
That an individual or his or her attorney needs information for an 
approaching litigation deadline is not a ``compelling need'' under this 
provision.
    A requester seeking expedited processing under the second, 
``urgency to inform,'' category must show that: (1) he or she is 
``primarily engaged in disseminating information;'' (2) there is an 
``urgency to inform the public'' about the information requested; and 
(3) the information relates to an ``actual or alleged Federal 
government activity.''
    To meet the first ``urgency to inform'' criterion, the requester 
must show that his or her principal occupation is disseminating 
information to the public. As the legislative history makes clear, 
``[a] requestor who only incidentally engages in information 
dissemination, besides other activities, would not satisfy this 
requirement.'' Id.
    To meet the second ``urgency to inform'' criterion, the requester 
must show more than a general interest in the ``public's right to 
know.'' See id. Rather, as explained in the legislative history, a 
requester must show that a delay in the release of the requested 
information would ``compromise a significant recognized interest,'' and 
that the requested information ``pertain[s] to a matter of current 
exigency to the American public.'' Id. (emphasis added). A reporter 
seeking expedited access to information would have to show, for 
example, that processing the requested information under the regular 
time limits would harm the public's ability to assess the subject 
governmental activity. (See also the discussion of the comments, below, 
for a further explanation of this criterion.)
    The final ``urgency to inform'' criterion makes clear that the 
information must relate to the activities of the Commission and its 
staff. A request for expedited processing could thus be considered for 
information relating, for example, to a Commission decision. The Office 
of the Secretary generally would not, however, grant a request for 
expedited processing of information the Commission has collected 
regarding incidents involving specific consumer products.
    EFOIA also authorizes agencies to expand the categories of requests 
qualifying for expedited processing beyond the two specified in the 
statute. EFOIA sec. 8(a); 5 U.S.C. 552 (a)(6)(E)(i)(II). The Commission 
has determined that no further categories are currently necessary or 
appropriate. As the legislative history explains, ``Given the finite 
resources generally available for fulfilling FOIA requests, unduly 
generous use of the expedited processing procedure would unfairly 
disadvantage other requestors who do not qualify for its treatment.'' 
House Report at 26.
    Section 1015.5(f)(5) states that the Secretary will process 
requests granted expedited processing ``as soon as practicable.'' See 
EFOIA sec. 8(a); 5 U.S.C. 552(a)(6)(E)(iii). Pursuant to this 
requirement, the Office of the Secretary will give priority to such 
requests.
    5. Time limits and section 6(b) of the Consumer Product Safety Act: 
Pursuant to section 6(b) of the Consumer Product Safety Act (15 U.S.C. 
2055(b)), prior to the release of information that identifies a 
manufacturer or private labeler, the Commission must ``take reasonable 
steps to assure * * * that [the information] is accurate, and that 
[its] disclosure is fair in the circumstances and reasonably related to 
effectuating the purposes of the [Consumer Product Safety Act].'' 
Section 6(b) requires that the Commission notify identified 
manufacturers and private labelers that it intends to disclose 
information at least 30 days prior to the disclosure. 15 U.S.C. 
2055(b)(1). The manufacturer or private labeler may then submit 
comments regarding the disclosure of the information to the Commission. 
Id. If the Commission, after reviewing the comments, decides to release 
the information over the accuracy objections of the manufacturer or 
private labeler, it must so notify the firm at least 10 days prior to 
the release. 15 U.S.C. 2055(b)(2).
    The Supreme Court, in Consumer Product Safety Commission v. GTE 
Sylvania, Inc., 447 U.S. 102 (1980), ruled that the Commission must 
follow the requirements of section 6(b) prior to the release of 
information in response to a FOIA request. As a result, it is 
frequently impossible for the Commission to comply with FOIA time 
limits when information responsive to a request identifies a 
manufacturer or private labeler. When the Office of the Secretary 
receives a request for information that requires section 6(b) review, 
it routinely notifies the requester that the response will be delayed. 
Section 1015.5(g) is intended to assure that requesters are aware of 
the requirements of section 6(b) and of the Commission's section 6(b) 
regulations at 16 CFR Part 1101.

E. Estimates of the Volume of Materials Denied

    EFOIA requires that agency responses denying information include an 
estimate of the volume of any responsive documents the agency is 
withholding. EFOIA sec. 8(c); 5 U.S.C. 552(a)(6)(F). Additionally, 
EFOIA requires that when an agency withholds only a portion of a 
record, the response shall indicate the amount of information deleted 
on the released record, where possible at the place of the deletion. 
EFOIA sec. 9; 5 U.S.C. 552(b)(9). Section 1015.6 includes a new 
subparagraph

[[Page 46195]]

(b)(3) to implement these new requirements.

F. Fees

    Sections 1015.9 (e)(5) and (g)(1) amend the current regulation on 
fees the agency charges for the production of documents to reflect 
current Commission practices. Current section 1015.9(e)(5) sets forth 
the amount charged for computerized records that the Commission 
retrieves from an offsite central processing system. Currently, the 
majority of computer printouts are made at the Commission's offices, 
and the specified calculation is inapplicable. Section 1015.9(e)(5) 
amends the regulation to specify a charge of ten cents per page for 
computer printouts generated at the Commission.
    Section 1015.9(g)(1) currently states that interest will be charged 
on fees owed ``on the 31st day following the day on which the billing 
was sent.'' (Emphasis added.) Section 1015.9(g)(1) amends the 
regulation to provide that interest will instead be calculated based on 
the day the requester receives the bill, as is the current Commission 
practice.

G. Annual Report to Congress

    The current Commission regulations describe the information the 
Commission submits to Congress annually regarding the Commission's 
processing of FOIA requests. 16 CFR 1015.10. EFOIA amended the FOIA 
provisions regarding reporting in several ways, including the timing of 
reports and the information to be reported. EFOIA sec. 10; 5 U.S.C. 
552(e). The regulations amend section 1015.10 to conform to the EFOIA 
reporting requirements.

Comments

    The Commission received three comments in response to the proposed 
rule, two from trade associations of appliance manufacturers--the 
Association of Home Appliance Manufacturers (AHAM) and the Gas 
Appliance Manufacturers Association (GAMA)--and one from a journalists' 
trade association--The Reporters Committee for Freedom of the Press 
(``Reporters Committee''). The appliance manufacturers commented about 
the effect of the EFOIA amendments on the Commission's regulations 
interpreting section 6(b) of the CPSA. The Reporters Committee objected 
to certain of the provisions for expedited processing in section 
1015.5(f). The Reporters Committee also objected to the absence of a 
discussion in the regulations of access to electronic records.

A. EFOIA and the Commission's Section 6(b) Regulations

    Section 1015.2(c) states: ``The [Commission] will maintain an 
`electronic reading room' on the World-Wide Web for those records which 
are required by 5 U.S.C. 552(a)(2) to be available by `computer 
telecommunications.' '' The preamble to the proposed rule explained 
that, pursuant to 5 U.S.C. 552(a)(2)(D), those records would include 
records that the Commission releases under FOIA and become, or are 
likely to become, the subject of subsequent FOIA requests. 62 FR at 
24615. Neither the regulation nor the preamble further explained what 
records the Commission would make available on the Web.
    AHAM and GAMA urged that the new regulations include a provision 
specifically addressing the effect of the EFOIA electronic reading room 
requirement on documents that are subject to review under section 6(b) 
of the CPSA. 15 U.S.C. 2055(b). As stated above, section 6(b) provides 
manufacturers the opportunity to comment on the disclosure of documents 
that identify them. AHAM and GAMA noted that pursuant to 16 CFR 
1101.31(d), the Commission provides manufacturers the opportunity to 
request renotification each time the Commission receives a FOIA request 
for the documents. AHAM and GAMA asked that the regulations state that 
those documents for which manufacturers request renotification will not 
be placed in the electronic reading room.
    The Commission does not currently intend to place in either the 
traditional or electronic reading rooms records that are described in 5 
U.S.C. 552(a)(2)(D), if the identified manufacturer has requested 
renotification. We do intend to make available in the reading rooms a 
list of those files that would be in the reading rooms pursuant to 5 
U.S.C. 552(a)(2)(D), but for the manufacturer's request for 
renotification.
    We do not, however, agree that the regulation should be changed in 
the final rule to make this policy explicit. Section 1015.2(c) simply 
states that the Commission will comply with the electronic reading room 
provision of EFOIA. It does not--and we believe need not--interpret the 
application of EFOIA to specific Commission records.

B. Expedited Processing

    As explained above, EFOIA requires agencies to promulgate 
regulations providing for the expedited processing of requests when the 
requester demonstrates a ``compelling need'' for the information. 5 
U.S.C. 552(a)(6)(E). ``Compelling need'' is defined to include two 
categories of requests: (1) Where information is necessary to prevent 
an ``imminent threat;'' and (2) where the requester shows an ``urgency 
to inform the public'' about the information. 5 U.S.C. 552(a)(6)(E)(v).
    Section 1015.5(f) sets forth the criteria and process for expedited 
processing. It repeats, without interpretation, the requirements of 5 
U.S.C. 552(a)(6)(E). The preamble to the proposed rule elaborated upon 
the definition of ``compelling need'' with respect to the ``urgency to 
inform'' prong. 62 FR at 24,616. The Reporters Committee objected to 
certain of these statements and to the certification requirement of 16 
CFR 1015.5(f)(2). As explained below, we decline to modify the 
regulation in response to these comments.
1. Expedited Processing and ``Compelling Need''
    The Reporters Committee argues that the statement in the preamble 
to the proposed rule that expedited processing will be granted only in 
``truly extraordinary circumstances'' is too restrictive. 62 FR at 
24616. We do not believe that this statement mischaracterized Congress' 
intent that expedited review be ``narrowly applied.'' H.R. Rep. 795, 
104th Cong., 2d Sess. 26 (1996). However, we have modified the preamble 
and do not now employ the phrase to which objection was made. The 
Commission will grant expedited review to all requests that meet the 
strict statutory requirements for ``compelling need.''
2. The ``Urgency to Inform'' Criteria
    The Reporters Committee objects to the preamble descriptions of the 
showing necessary to support each of the three criterion necessary to 
meet the ``urgency to inform'' prong of the ``compelling need'' 
definition:
    a. ``Primarily engaged in disseminating information''. The preamble 
noted that the first ``urgency to inform'' criterion--that the 
requester is ``primarily engaged in disseminating information''--
requires a showing that the requester's principal occupation is 
disseminating information to the public. 62 FR at 24616. The Reporters 
Committee argues that this provision requires only that the requester 
be primarily engaged in disseminating the information responsive to the 
particular request, not that the requester be so engaged generally.
    We do not believe that this is a reasonable interpretation of the 
statute, as elaborated by the legislative history

[[Page 46196]]

quoted in the preamble. Although the Commission does not intend, as the 
Reporters Committee states, to ``spend time deciding what percentage of 
a requester's occupational workload is devoted to the dissemination of 
information,'' we do intend to limit expedited review to requests from 
media representatives and others whose ``main activity'' is to 
disseminate information. See H.R. Rep. 795, 104th Cong., 2d Sess. 26 
(1996) (``The standard of `primarily engaged' requires that information 
dissemination be the main activity of the requester, although it need 
not be their sole occupation.'').
    b. ``Urgency to inform the public''. The Reporters Committee 
objects that the preamble interpreted the term ``urgency to inform'' 
too narrowly, to include only information ``currently of significant 
interest to the public.'' See 62 FR at 24616. It argues that there may 
be an ``urgency to inform'' the public about information not yet 
publicly known. We agree that there could be information not yet 
publicly known that is, in the words of the House Report, of ``current 
exigency to the American public,'' in that failure to disseminate the 
information would ``compromise a significant recognized interest.'' See 
H.R. Rep. at 26. Accordingly, we have modified the discussion of the 
``urgency to inform'' criterion in the preamble to this final rule. 
(See section D.4 of the discussion of the New Provisions, above.) We 
emphasize, however, that a generalized interest in the public's right 
to know would be an insufficient showing of ``compelling need.''
     c. ``Actual or alleged Federal Government activity''. The preamble 
to the proposed rule explained that only information that relates to 
the activities of the Commission and its staff would meet the third of 
the ``urgency to inform'' criteria. 62 FR at 24616. The preamble noted 
that the Office of the Secretary generally would not grant a request 
for expedited processing of information the Commission has collected 
regarding incidents involving specific consumer products. Id. The 
Reporters Committee objects, arguing that because it is the mission of 
the Commission to collect such information, it cannot be excluded from 
expedited review.
    The preamble stated that such information generally would not 
qualify for expedited processing, a position to which we adhere. The 
Commission's files include thousands of consumer complaints and 
investigation reports regarding incidents involving consumer products 
that the Commission staff has not analyzed or otherwise pursued. 
Although the collection of such information is a Commission activity, 
we do not believe that the collection alone makes the reports subject 
to expedited processing as information ``concerning actual or alleged 
Federal Government activity.'' This is not to suggest that the Office 
of the Secretary would never grant expedited processing of a request 
for this information.
3. The Certification Requirement
    Finally, the Reporters Committee argues that the requirement of 
section 1015.5(f)(2) that requesters submit a certified statement 
demonstrating ``compelling need'' is ``absurd,'' ``completely 
unexpected,'' and designed solely to ``serve the bureaucratic interests 
of the agency.'' However, this requirement is in the statute. Section 
8(a) of EFOIA (codified at 5 U.S.C. 552(a)(6)(E)(vi)) states:

    A demonstration of compelling need by a person making a request 
for expedited processing shall be made by a statement certified by 
such person to be true and correct to the best of such person's 
knowledge and belief.

C. Access to Records in Electronic Format

    The Reporters Committee objects to the absence in the proposed 
regulations of discussion of compliance with the EFOIA provisions 
regarding access to records in electronic format. Although the 
Commission intends to comply with the provisions of EFOIA, the proposed 
regulations amend the Commission's current FOIA regulations only where 
the statute specifically required or authorized new regulations (for 
example, the regulations regarding expedited processing and the 
aggregation of requests) or where the current regulations conflict with 
EFOIA (for example, the time limit for responding to requests). The 
Commission does not believe it is either necessary or advisable to 
further amend the FOIA regulations at this time.

Effective Date

    The amendments become effective October 2, 1997.

Impact on Small Business

    In accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), 
the Commission certifies that these amendments will not have a 
significant economic impact upon a substantial number of small 
entities.

Environmental Considerations

    These amendments do not fall within any of the categories of 
Commission activities described in 16 CFR 1021.5(b) that have the 
potential for producing environmental effects and which, therefore, 
require environmental assessments, and, in some cases, environmental 
impact statements. The Commission does not believe that the amendments 
contain any unusual aspects that may produce effects on the human 
environment, nor can the Commission foresee any circumstances in which 
the amendments may produce such effects. For this reason, neither an 
environmental assessment nor an environmental impact statement is 
required.

Preemption

    In accordance with Executive Order 12988 (February 5, 1996), the 
Commission states that these amendments have no preemptive effect.

Federalism Assessment

    These amendments have been evaluated for federalism implications in 
accordance with Executive Order 12612, and they raise no substantial 
federalism concerns.

List of Subjects in 16 CFR Part 1015

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

    In accordance with the provisions of 5 U.S.C. 553 and under the 
authority of the Consumer Product Safety Act, 15 U.S.C. 2051 et seq., 
the Commission amends Part 1015 of Title 16, Chapter II, of the Code of 
Federal Regulations as follows:

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

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

    Authority: 15 U.S.C. 2051-2084; 15 U.S.C. 1261-1278; 15 U.S.C. 
1471-1476; 15 U.S.C. 1211-1214; 15 U.S.C. 1191-1204; 5 U.S.C. 552.

    2. Section 1015.1 is amended by revising the second and third 
sentences of paragraph (a) as follows:


Sec. 1015.1  Purpose and scope.

    (a) * * * Official records of the Consumer Product Safety 
Commission consist of all documentary material maintained by the 
Commission in any format, including an electronic format. These records 
include those maintained in connection with the Commission's 
responsibilities and functions under the Consumer Product Safety Act, 
as well as those responsibilities and functions transferred to the 
Commission under the Federal Hazardous Substances Act,

[[Page 46197]]

Poison Prevention Packaging Act of 1970, Refrigerator Safety Act, and 
Flammable Fabrics Act, and those maintained under any other authorized 
activity * * *
* * * * *
    3. Section 1015.2 is amended by revising paragraph (a) and adding 
paragraph (c) as follows:


Sec. 1015.2  Public reference facilities.

    (a) The Consumer Product Safety Commission will maintain in a 
public reference room or area the materials relating to the Consumer 
Product Safety Commission that are required by 5 U.S.C. 552(a)(2) and 
552(a)(5) to be made available for public inspection and copying. The 
principal location will be in the Office of the Secretary of the 
Commission. The address of this office is: Office of the Secretary, 
Consumer Product Safety Commission, Room 502, 4330 East West Highway, 
Bethesda, MD 20814.
* * * * *
    (c) The Consumer Product Safety Commission will maintain an 
``electronic reading room'' on the World-Wide Web for those records 
that are required by 5 U.S.C. 552(a)(2) to be available by ``computer 
telecommunications.''
    4. Section 1015.3 is amended by adding a new paragraph (e) as 
follows:


Sec. 1015.3  Requests for records and copies.

* * * * *
    (e) The Consumer Product Safety Commission uses a multitrack system 
to process requests under the Freedom of Information Act that is based 
on the amount of work and/or time involved in processing requests. 
Requests for records are processed in the order they are received 
within each track. Upon receipt of a request for records, the Secretary 
or delegate of the Secretary will determine which track is appropriate 
for the request. The Secretary or delegate of the Secretary may contact 
requesters whose requests do not appear to qualify for the fastest 
tracks and provide such requesters the opportunity to limit their 
requests so as to qualify for a faster track. Requesters who believe 
that their requests qualify for the fastest tracks and who wish to be 
notified if the Secretary or delegate of the Secretary disagrees may so 
indicate in the request and, where appropriate and feasible, will also 
be given an opportunity to limit their requests.
    5. Section 1015.4 is amended by revising the last sentence to read 
as follows:


Sec. 1015.4  Responses to requests for records; responsibility.

    * * * If no response is made by the Commission within twenty 
working days, or any extension thereof, the requester and the 
Commission may take the action specified in Sec. 1015.7(e).
    6. Section 1015.5 is amended by revising the heading and the first 
sentence of paragraph (a), changing the phrase ``Chairman of the 
Commission'' to ``General Counsel of the Commission'' in paragraph (b), 
and adding new paragraphs (d), (e), (f), and (g) as follows:


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

    (a) The Secretary or delegate of the Secretary shall respond to all 
written requests for records within twenty (20) working days (excepting 
Saturdays, Sundays, and legal public holidays). * * *
* * * * *
    (d) If the Secretary at the initial stage or the General Counsel at 
the appellate stage determines that an extension of time greater than 
ten (10) working days is necessary to respond to a request satisfying 
the ``unusual circumstances'' specified in paragraph (b) of this 
section, the Secretary or the General Counsel shall so notify the 
requester and give the requester the opportunity to:
    (1) Limit the scope of the request so that it may be processed 
within the time limit prescribed in paragraph (b); or
    (2) Arrange with the Secretary or the General Counsel an 
alternative time frame for processing the request or a modified 
request.
    (e) The Secretary or delegate of the Secretary may aggregate and 
process as a single request requests by the same requester, or a group 
of requesters acting in concert, if the Secretary or delegate 
reasonably believes that the requests actually constitute a single 
request which would otherwise satisfy the unusual circumstances 
specified in paragraph (b) of this section, and the requests involve 
clearly related matters.
    (f) The Secretary or delegate of the Secretary will provide 
expedited processing of requests in cases where the requester 
demonstrates a compelling need for such processing.
    (1) The term ``compelling need'' means:
    (i) That a failure to obtain requested records on an expedited 
basis could reasonably be expected to pose an imminent threat to the 
life or physical safety of an individual; or
    (ii) With respect to a request made by a person primarily engaged 
in disseminating information, that there is an urgency to inform the 
public concerning actual or alleged Federal Government activity.
    (2) Requesters for expedited processing must include in their 
requests a statement setting forth the basis for the claim that a 
``compelling need'' exists for the requested information, certified by 
the requester to be true and correct to the best of his or her 
knowledge and belief.
    (3) The Secretary or delegate of the Secretary will determine 
whether to grant a request for expedited processing and will notify the 
requester of such determination within ten (10) days of receipt of the 
request.
    (4) Denials of requests for expedited processing may be appealed to 
the Office of the General Counsel as set forth in Sec. 1015.7 of this 
part. The General Counsel will expeditiously determine any such appeal.
    (5) The Secretary or delegate of the Secretary will process as soon 
as practicable the documents responsive to a request for which 
expedited processing is granted.
    (g) The Secretary may be unable to comply with the time limits set 
forth in this Sec. 1015.5 when disclosure of documents responsive to a 
request under this part is subject to the requirements of section 6(b) 
of the Consumer Product Safety Act, 15 U.S.C. 2055(b), and the 
regulations implementing that section, 16 CFR part 1101. The Secretary 
or delegate of the Secretary will notify requesters whose requests will 
be delayed for this reason.
    7. Section 1015.6 is amended by redesignating paragraph (b)(3) as 
(b)(4), adding a new paragraph (b)(3), and revising the first sentence 
of paragraph (c) as follows:


Sec. 1015.6  Responses: Form and content.

* * * * *
    (b) * * *
    (3) An estimation of the volume of requested material withheld. 
When only a portion or portions of a document are withheld, the amount 
of information deleted shall be indicated on the released portion(s) of 
the record. When technically feasible, the indication of the amount of 
material withheld will appear at the place in the document where any 
deletion is made. Neither an estimation of the volume of requested 
material nor an indication of the amount of information deleted shall 
be included in a response if doing so would harm an interest protected 
by the exemption in 5 U.S.C. 552(b) pursuant to which the material is 
withheld.
* * * * *

[[Page 46198]]

    (c) If no response is made within twenty (20) working days or any 
extension thereof, the requester can consider his or her administrative 
remedies exhausted and seek judicial relief in a United States District 
Court as specified in 5 U.S.C. 552(a)(4)(B). * * *
    8. Section 1015.9 is amended by revising paragraphs (e)(5) and 
(g)(1) to read as follows:


Sec. 1015.9  Fees for production of records.

* * * * *
    (e) * * *
    (5) Computerized records: $0.10 per page of computer printouts or, 
for central processing, $0.32 per second of central processing unit 
(CPU) time; for printer, $10.00 per 1,000 lines; and for computer 
magnetic tapes or discs, direct costs.
* * * * *
    (g) * * *
    (1) Interest will be charged on amounts billed, starting on the 
31st day following the day on which the requester received the bill. 
Interest will be at the rate prescribed in 31 U.S.C. 3717.
* * * * *
    9. Section 1015.10 is amended by revising the introductory text and 
paragraphs (b) through (g) as follows:


Sec. 1015.10  Commission report of actions to Congress.

    On or before February 1 of each year, the Commission shall submit a 
report of its activities with regard to freedom of information requests 
during the preceding fiscal year to the Attorney General of the United 
States. This report shall include:
* * * * *
    (b)(1) The number of appeals made by persons under such provisions, 
the result of such appeals, and the reason for the action upon each 
appeal that results in a denial of information; and
    (2) A complete list of all statutes that the Commission relies upon 
to withhold information under such provisions, a description of whether 
a court has upheld the decision of the Commission to withhold 
information under each such statute, and a concise description of the 
scope of any information withheld.
    (c) The number of requests for records pending before the 
Commission as of September 30 of the preceding year, and the median 
number of days that such requests had been pending before the 
Commission as of that date.
    (d) The number of requests for records received by the Commission 
and the number of requests which the Commission processed.
    (e) The median number of days taken by the Commission to process 
different types of requests.
    (f) The total amount of fees collected by the Commission for 
processing requests.
    (g) The number of full-time staff of the Commission devoted to 
processing requests for records under such provisions, and the total 
amount expended by the Commission for processing such requests.

    Dated: August 26, 1997.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
[FR Doc. 97-23242 Filed 8-29-97; 8:45 am]
BILLING CODE 6355-01-U