[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