Fees for Production of Records; Other Amendments to Procedures for Disclosure of Information Under the Freedom of Information Act
| Citation | 86 FR 7499 |
| Published date | 29 January 2021 |
| Record Number | 2020-28336 |
| Section | Rules and Regulations |
| Court | Consumer Product Safety Commission |
Federal Register, Volume 86 Issue 18 (Friday, January 29, 2021)
[Federal Register Volume 86, Number 18 (Friday, January 29, 2021)]
[Rules and Regulations]
[Pages 7499-7507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28336]
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1015
[Docket No. CPSC-2020-0011]
Fees for Production of Records; Other Amendments to Procedures
for Disclosure of Information Under the Freedom of Information Act
AGENCY: Consumer Product Safety Commission.
ACTION: Final rule.
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SUMMARY: The Consumer Product Safety Commission (CPSC) is amending its
Freedom of Information Act (FOIA) fee regulations to reflect more
accurately the CPSC's direct costs of providing FOIA services, as well
as to conform to the Office of Management and Budget's (OMB's) Uniform
Freedom of Information Act Fee Schedule and Guidelines and to omit the
fee category for the production of records on microfiche, an obsolete
format. The CPSC also is amending other sections of its FOIA
regulations to reflect organizational changes in the agency's FOIA
Office; to codify the existing practice of the General Counsel
remanding cases to the Chief FOIA Officer; and to allow for application
of any relevant FOIA exemptions.
DATES: The rule is effective on March 1, 2021.
FOR FURTHER INFORMATION CONTACT: Abioye Ella Mosheim, Chief FOIA
Officer and Assistant General Counsel, email: [email protected];
telephone: (301) 504-7454; or Matthew S. Osei-Bonsu, Attorney-Advisor,
email: [email protected]; telephone: (301) 504-7071; U.S. Consumer
Product Safety Commission, Room 820, 4330 East West Highway, Bethesda,
MD 20814.
SUPPLEMENTARY INFORMATION:
A. Background and Statutory Authority
On June 30, 2016, the President signed into law the FOIA
Improvement Act of 2016, Public Law 114-185 (2016 Act). The 2016 Act
amends the Freedom of Information Act, 5 U.S.C. 552, requiring, inter
alia, the Chief FOIA Officer of every agency to review its FOIA fee
regulations annually. See 5 U.S.C. 552(j)(3)(C).
OMB's Uniform Freedom of Information Act Fee Schedule and
Guidelines (OMB Fee Guidelines) provides Federal agencies with guidance
on reviewing and assessing FOIA fees. 52 FR 10012 (Mar. 27, 1987).
Following OMB's issuance of its Fee Guidelines in March 1987, the CPSC
proposed amendments to its FOIA fee regulations, codified at 16 CFR
part 1015 (part 1015). 52 FR 17767 (May 12, 1987). The CPSC finalized
its amendments on fees to reflect the agency's direct costs, and the
amendments became effective on September 4, 1987. 52 FR 28979 (Aug. 5,
1987). In 1997, CPSC updated one portion of its FOIA fee regulations
regarding computerized records and interest to be charged on fees owed.
62 FR 46198 (Sept. 2, 1997). In 2017, the CPSC also updated portions of
its FOIA fee regulations to revise the definition of ``representative
of the news media'' and to make other clarifications and corrections.
82 FR 37004 (Aug. 8, 2017).
On April 16, 2020, the Commission issued a notice of proposed
rulemaking (NPR) to make the following changes to part 1015:
Amendments concerning FOIA fees;
amendments reflecting recent organizational changes within
the CPSC, and the CPSC's FOIA Office, more specifically;
amendments addressing the FOIA appeals process;
amendments concerning the scope of FOIA Exemptions under
16 CFR 1015.20; and
other miscellaneous conforming amendments, all of which
will be incorporated into the final rule and are summarized in greater
detail below.
[[Page 7500]]
85 FR 21118. CPSC received two comments on the NPR. After reviewing
the comments, the CSPC is finalizing this rule with modifications.
B. Response to Comments
The CPSC received two comments regarding the NPR. The National
Archives and Records Administration (NARA) suggested that paragraphs
(f) and (g) of Sec. 1015.9 should be clarified to further distinguish
between the terms ``fee categories'' and ``fee waivers,'' by removing
language that could unintentionally lead to the mistaken inference that
agencies have the discretion to waive fees based on requester
categories. The CPSC agrees, and therefore, incorporated those comments
into Sec. 1015.9(f) and (g), by distinguishing between fee waivers and
references to free services. The consumer advocacy group, Kids in
Danger, in relevant part, recommended that the CPSC should not charge
duplication fees for pages redacted in full. The CPSC agrees, and
therefore, incorporated those comments into Sec. 1015.9(e)(1)(iv), by
noting that CPSC will not charge a duplication fee for pages redacted
in full. Other Kids in Danger comments included a request for CPSC to
provide more digital delivery methods, and to provide a faster
turnaround for final responses; these comments were not incorporated.
Digital delivery and response turnaround times are outside the scope of
this rule; although it should be noted that CPSC already has a digital
delivery service that every requester can opt into.
C. Description of the Final Rule
A. Amendments Regarding Fees
Direct Costs. The FOIA authorizes agencies to charge certain fees
to recover the direct costs of providing FOIA services. 5 U.S.C.
552(a)(4)(A). Fee schedules must provide for the recovery of only the
direct costs of search, duplication, or review. 5 U.S.C.
552(a)(4)(A)(iv). Under the FOIA, agencies must: Promulgate
regulations, pursuant to notice and public comment, specifying the
schedule of fees applicable to processing FOIA requests; establish
procedures and guidelines for determining when such fees should be
waived or reduced; and conform their fee schedules to the OMB Fee
Guidelines. 5 U.S.C. 552(a)(4)(A)(i). Pursuant to the OMB Fee
Guidelines, agencies should charge fees that ``recoup the full
allowable direct costs they incur'' and ``shall use the most efficient
and least costly methods to comply with requests for documents made
under the FOIA.'' 52 FR 10018.
Duplication Fees. The final rule amends Sec. 1015.9(e)(1)
regarding the current regulations on fees that the agency charges for
reproducing documents, to reflect CPSC staff's review and the
assessment of certain known costs of producing FOIA records for Fiscal
Year 2019, and based on current CPSC practices. The OMB Fee Guidelines
require agencies to ``establish an average agency-wide, per-page charge
for paper copy reproduction of documents,'' which ``shall represent the
reasonable direct costs of making such copies, taking into account the
salary of the operator as well as the cost of the reproduction
machinery.'' 52 FR 10018. For copies prepared by computer, the OMB Fee
Guidelines require agencies to charge the actual cost, including
operator time of production of the printout. Id. For other methods of
duplication, the OMB Fee Guidelines require agencies to charge the
actual direct costs of producing the documents. Id.
Currently, 16 CFR 1015.9(e)(1) sets forth the amount charged for
reproducing documents on a standard photocopying machine at $0.10 per
page. The final rule amends Sec. 1015.9(e)(1) to specify a charge of
$0.15 per page for manual photocopies and for computer printouts that
are sent from a computer to a printer or photocopier machine. We
calculated the fee for manual photocopies and computer printouts using
the 2019 basic hourly pay rate of the average grade and step of staff
members from the Office of the General Counsel, Division of the
Secretariat (GCOS), who charged hours for FOIA projects in Fiscal Year
2019 (GS 12/4, or $33.52/staff hour), plus 16 percent for the allowable
OMB benefit rate; multiplying that amount by the total staff hours
within the GCOS that we estimated to be attributable to FOIA
duplication in Fiscal Year 2019 (486.45 staff hours); adding the
estimated cost of paper and toner used by GCOS staff for computer
printouts in Fiscal Year 2019 ($9,826); and dividing that number by the
corresponding number of pages printed (196,820 pages). CPSC staff
estimated the total hours spent by GCOS staff attributable to FOIA
duplication in Fiscal Year 2019, by taking a poll of the FOIA
specialists, whose most common response was that they spent 5 percent
of their time on duplication.
The final rule amends Sec. 1015.9(e) to clarify that CPSC will not
charge a duplication fee for producing records provided to requesters
in electronic format. Because converting an electronic file, such as a
file in portable document format (PDF), and sending it to requesters
via electronic mail or the FOIA online portal requires minimal operator
time and computer and software costs, the agency's actual costs of
duplicating these records are de minimis. The final rule also clarifies
how the fees for duplication costs will be assessed when records are
available only in paper format and must be scanned to comply with a
requester's preference to receive records in an electronic format.
Search Fees. The final rule amends Sec. 1015.9(e)(2) regarding the
current regulations on fees that the agency charges for searches.
Pursuant to the OMB Fee Guidelines, for manual searches, whenever
feasible, agencies should charge at the salary rate of the employee
making the search, consisting of basic pay, plus 16 percent for the
allowable OMB benefit rate; however, where a ``homogenous class of
personnel'' is used exclusively, agencies may establish an average rate
for the range of grades typically involved in searching for records. 52
FR 10018. For computer searches, agencies should charge the actual
direct cost of providing the service, plus central processing unit
(CPU) time that is directly attributable to searching for responsive
records to a FOIA request. Alternatively, if agencies can do so, they
can establish a reasonable agency-wide rate for operator, programmer,
and CPU costs involved in FOIA searches, and charge accordingly. Id.
Currently, Sec. 1015.9(e)(2) and(3) divide searches into two
categories: (1) Searches conducted by clerical staff; and (2) searches
conducted by non-clerical, professional, or managerial staff. The
current regulations charge $3.00 per quarter-hour for clerical
searches, and $4.90 per quarter-hour for non-clerical searches.
The final rule amends Sec. 1015.9(e)(2) to remove the set dollar
figures for search fees enumerated in the regulation, and in their
place, states that search fees are based on the average grade and step
of certain employees who charged hours in this category. CPSC staff
concluded that this revision eliminates the need to update continuously
the CPSC's published FOIA fee regulations in accord with General
Schedule pay adjustments. This approach is similar to the FOIA fee
regulations at several other agencies, such as the Federal
Communications Commission and the Securities and Exchange Commission.
Additionally, due to organizational changes in the CPSC's FOIA
Office, and how requests are processed, clerical staff members rarely
perform searches. Therefore, the final rule eliminates the category of
clerical search fees.
[[Page 7501]]
Consistent with this recommendation, and consistent with the OMB Fee
Guidelines, the final rule distinguishes between manual and computer-
based searches.
CPSC will charge manual search fees on a per-quarter-hour basis,
and annually calculate and publish on the FOIA web page the exact rate,
using the basic hourly pay rate of the average grade and step of CPSC
program staff who worked outside of the FOIA Office and who charged
hours for FOIA projects in Fiscal Year 2019 (GS 14/7), plus 16 percent
for the allowable OMB benefit rate.
CPSC will charge computer search fees on a per-quarter-hour basis,
and annually calculate and publish the exact rate, using the basic
hourly pay rate of the average grade and step of GCOS staff who charged
hours for FOIA projects in Fiscal Year 2019 (GS 12/4), plus 16 percent
for the allowable OMB benefit rate. CPSC program staff who work outside
of the FOIA Office often conduct FOIA computer searches. The Commission
determined that the average grade and step of staff who charged hours
for FOIA projects represents a reasonable agency-wide rate for operator
costs in this category. The final rule computer search fee does not
include CPU costs, because any agency software or hardware costs
directly attributable to searching for responsive records would be
difficult to quantify, and likely would be de minimis.
Review Fees. The final rule amends Sec. 1015.9(e)(3) regarding
fees that the agency charges for the initial review of documents to
determine whether any portion of any document may be withheld. The OMB
Fee Guidelines permit agencies to establish a reasonable agency-wide
average for such costs, where a single class of reviewers is typically
involved in the review process. 52 FR 10018.
Currently, Sec. 1015.9(e)(4) sets forth the amount charged for
review at $4.90 per quarter-hour. The final rule removes the set dollar
figure review fee enumerated in the regulation. Instead, CPSC will
charge the review fee on a per-quarter-hour basis, and annually
calculate and publish the exact rate, using the basic hourly pay rate
of the average grade and step of GCOS staff who charged hours for FOIA
review (GS 12/9), plus 16 percent for the allowable OMB benefit rate.
Obsolete Formats. The FOIA requires agencies to provide records in
any format requested, if the record is readily reproducible by the
agency in that form or format. 5 U.S.C. 552(a)(3)(B). Currently, CPSC
routinely produces records in one of three formats: (1) Computer
printout, if under 250 pages; (2) compact disc (CD), if more than 250
pages; and (3) electronic files, such as PDF. The final rule clarifies
that requesters may request records in paper, CD, or electronic format.
The final rule also removes the fee for producing records on
microfiche, because this format is obsolete and not routinely produced
by the CPSC.
Annual Publication of Fees. The final rule states that CPSC will
annually calculate and publish the exact per-quarter-hour rates for
searching and reviewing records, using the most recent General Schedule
table published by the Office of Personnel Management (OPM). In
addition, CPSC will annually calculate and publish the actual cost of
CDs, DVDs, and other similar media. CPSC will make exact rates and
costs available to the public on the CPSC's FOIA web page. The public
can also request information on exact rates and costs from GCOS. The
CPSC will annually publish on its FOIA web page the salaries of CPSC
employees associated with FOIA searches and reviews, consistent with
the FOIA fee-posting practice at several other agencies.
Fee Waivers and Fee Categories. The FOIA requires agencies to
provide free search and duplication fees for certain categories of
requesters in increments of the first 100 pages of duplication and the
first 2 hours of search, rather than in dollar amounts. 5 U.S.C.
552(a)(4)(A)(iv). The final rule incorporates more clearly this
statutory requirement into Sec. 1015.9(g), consistent with the OMB Fee
Guidelines. 52 FR 10016. Section 1015.9(g)(2) specifies that CPSC will
provide for free the first 100 pages of duplication for all non-
commercial requesters, consistent with the FOIA and the OMB Fee
Guidelines.
The final rule amends Sec. 1015.9(g)(3) to specify that CPSC will
provide at no cost, the first 2 hours of search time for all requesters
to whom search fees apply, except commercial requesters.
Notice of Anticipated Fees. The OMB Fee Guidelines require agencies
to implement procedures for notifying requesters when fees are
estimated or determined to exceed $25, and provide those requesters an
opportunity to confer with agency staff with the objective of
reformulating their request to meet their needs at a lower cost. 52 FR
10018. The CPSC's current FOIA fee regulations lack procedures for
providing requesters with notice of anticipated fees in excess of $25
and an opportunity to confer with agency staff. The final rule amends
Sec. 1015.9(f) to provide notice of anticipated fees greater than $25,
along with the opportunity to confer with staff on costs. The final
rule also provides that requesters must commit in writing to pay the
actual or estimated fees, or must designate in writing the amount of
fees the requester is willing to pay, before the FOIA Office will do
further work on a FOIA request.
Restrictions on Assessing Fees. The FOIA and the OMB Fee Guidelines
prohibit agencies from charging a fee if the costs of collecting and
processing that fee are likely to equal or exceed the fee. 5 U.S.C.
552(a)(4)(A)(iv); 52 FR 10018-19. Currently, Sec. 1015.9(g)(5) states
that the CPSC will not request payment if the requester's total bill is
less than $9.00. CPSC staff estimates that the current cost to the
agency of collecting and processing a fee is $25. Accordingly, the
final rule deletes Sec. 1015.9(g)(5), and adds Sec. 1015.9(g)(7),
which provides that no fee will be charged when the total fee is equal
to or less than $25.
Advance Payment of Fees. The final rule adds Sec. 1015.9(i), which
sets forth provisions for requiring advance payment in certain cases
before the production of records. The OMB Fee Guidelines instruct
agencies that they cannot require a requester to make an advance
payment unless: (1) The agency estimates that the allowable charges the
requester may be required to pay are likely to exceed $250, in which
case, the agency should notify the requester of the likely cost, and
obtain satisfactory assurance of full payment, where the requester has
a history of prompt payment of FOIA fees, or require payment ``of an
amount up [to] the full estimated charges in the case of requesters
with no history of payment''; or (2) a requester has previously failed
to pay a fee charged in a timely fashion, in which case the agency may
require the requester to pay the full amount owed, plus any applicable
interest, and to make an advance payment of the full amount of the
estimated fee before the agency begins to process a new or pending
request. 52 FR 10020. Currently, Sec. 1015.9(g)(3) provides that
before the Commission begins processing a request or discloses any
information, it will require advance payment if charges are estimated
to exceed $250.00 and the requester has no history of payment and
cannot provide satisfactory assurance that payment will be made; or a
requester failed to pay the Commission for a previous Freedom of
Information Act request within 30 days of the billing date. The final
rule reflects the language used in the OMB Fee Guidelines. See 52 FR
10020. The final rule also codifies the CPSC's current
[[Page 7502]]
practices of tolling the processing of the request while notifying the
requester that advance payment is due, 5 U.S.C. 552(a)(6)(A)(ii)(II),
and closing the request if, after 30 days of receipt, the requester
does not respond to the fee notice.
B. Amendments To Reflect Organizational Changes at CPSC
FOIA Office. CPSC changed the organizational structure of the FOIA
Office since the FOIA regulations were last amended in 2017. See 82 FR
37010. The CPSC's FOIA Office is now housed within the Office of the
General Counsel, rather than within the Office of the Secretary; and
the Commission's Assistant General Counsel for the Office of the
General Counsel, Division of the Secretariat, holds the position of
Chief FOIA Officer, rather than the Secretary of the Commission. The
final rule amends 16 CFR 1015.1, 1015.2, 1015.3, 1015.4, 1015.5,
1015.6, 1015.7, and 1015.9 to replace the designations ``Secretary of
the Commission'', ``Secretary'', or ``Secretariat'' with the title,
``Chief FOIA Officer'', and the final rule also replaces ``Office of
the Secretary'' with ``Office of the General Counsel, Division of the
Secretariat'' or ``Division of the Secretariat''.
C. Amendment Concerning Appeals
Delegation of Authority. The current regulations are inconsistent
regarding the delegation of authority to review and respond to FOIA
appeals. The final rule changes Sec. Sec. 1015.4 and 1015.7(e) to
clarify that the CPSC's General Counsel has responsibility for
reviewing and responding to FOIA appeals, and adds Sec. 1015.1(d). The
Commission delegated this authority to the General Counsel in 1985, 50
FR 7753 (February 26, 1985); however, this authority was not codified
in other relevant FOIA provisions.
Remands. Section 1015.7(c) codifies the existing practice regarding
FOIA appeals. If the General Counsel grants, in whole or in part, a
FOIA appeal, the General Counsel remands the matter to the Chief FOIA
Officer for processing and providing the records to the requester, in
accordance with the General Counsel's decision.
D. Broadening the Scope of FOIA Exemptions Under 16 CFR 1015.20
Currently, Sec. 1015.5(h) states that the CPSC ``may be unable to
comply with the time limits set forth in 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.''
However, the regulation does not take into account that, due to
statutory obligations, the CPSC also may be unable to comply with the
time limits set forth in Sec. 1015.5, when disclosure of documents
responsive to a request is subject to section 6(a) of the Consumer
Product Safety Act (CPSA). As such, the final rule amends Sec.
1015.5(h) to conform to the statute by replacing the phrase, ``section
6(b) of the Consumer Product Safety Act, 15 U.S.C. 2055(b)'' with the
phrase, ``section 6 of the Consumer Product Safety Act, 15 U.S.C.
2055''.
Additionally, the current Sec. 1015.20, which addresses the
release of accident or investigation reports, only allows for the
application of the investigatory file FOIA exemption and the redaction
of the names of injured persons and the persons who treated the
injured, pursuant to section 25(c) of the CPSA. Current CPSC practice,
however, is to redact all personally identifiable information,
including not only the names of injured persons and the persons who
treated them, but also the names of other persons incidental to a
consumer complaint, pursuant to FOIA exemption (b)(6). See 5 U.S.C.
552(b)(6). Rather than limit the applicable FOIA exemptions to the
investigatory file exemption only, the final rule amends Sec.
1015.20(a) to clarify that accident and investigation reports are
subject to all applicable FOIA exemptions.
E. Miscellaneous Amendments
To ensure proper routing of new FOIA requests and appeals, CPSC's
FOIA Office created a separate email address for the submission of new
FOIA requests and appeals. That address is [email protected].
Accordingly, the final rule updates Sec. Sec. 1015.3(a) and 1015.7(a)
to specify the proper email addresses to submit new FOIA requests and
appeals.
F. Environmental Considerations
The CPSC's regulations address whether the agency is required to
prepare an environmental assessment or an environmental impact
statement. 16 CFR part 1021. These regulations provide a categorical
exclusion for certain CPSC actions that normally have ``little or no
potential for affecting the human environment.'' 16 CFR 1021.5(c)(1).
This final rule falls within the categorical exclusion.
IV. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, requires
that agencies review a proposed rule and a final rule for the rule's
potential economic impact on small entities, including small
businesses. Section 604 of the RFA generally requires that agencies
prepare a final regulatory flexibility analysis (FRFA) when
promulgating final rules, unless the head of the agency certifies that
the rule will not have a significant economic impact on a substantial
number of small entities. In this case, we noted in the NPR that
neither the Administrative Procedure Act (APA) nor the FOIA statute
required CPSC to issue an NPR, but CPSC voluntarily chose to follow
notice-and-comment rulemaking.
For the NPR, CPSC staff reviewed the potential impact of the
changes proposed in the NPR on small entities. Staff's analysis
compared the number of fiscal year (FY) 2018 FOIA requesters to the
number of small entities in the relevant North American Industrial
Classification System (NAICS) sectors. Based on this analysis, staff
concluded it was unlikely that a substantial number of small entities
would be impacted by the proposed rule. Staff also concluded that the
impact on noncommercial entities would remain essentially unchanged,
unless noncommercial requesters opt to receive their documents in paper
format, rather than electronically. Staff found that the costs for
commercial firms increased more than for other entities; however,
requesters would be alerted if costs were expected to be greater than
$25; and commercial firms would be expected to proceed with the request
(in whole or in part), only if the perceived benefit at least balanced
the cost. Finally, staff noted that requesting firms can avoid
duplication costs by electing to receive the requested documents
electronically.
The Commission sought comment on staff's regulatory analysis in the
NPR, and it received none. Because we have no information that would
change staff's analysis, the Commission concludes that the final rule
will not have a significant impact on a substantial number of small
entities.
V. Paperwork Reduction Act
The Paperwork Reduction Act (PRA) establishes certain requirements
when an agency conducts or sponsors a ``collection of information.'' 44
U.S.C. 3501-3520. The final rule amends CPSC's regulations to conform
to the 2016 Act, updates certain CPSC's procedures by codifying them,
and makes other technical changes and corrections. The final rule does
not impose any information-collection requirements. Thus, the PRA is
not implicated by this final rule.
VI. Executive Order 12988 (Preemption)
According to Executive Order 12988 (February 5, 1996), agencies
must state in clear language the preemptive effect, if any, of new
regulations. Section 26 of
[[Page 7503]]
the CPSA explains the preemptive effect of consumer product safety
standards issued under the CPSA. 15 U.S.C. 2075. The final rule is not
a consumer product safety standard, but rather, the final rule revises
a rule of agency practice and procedure, by making revisions and
corrections to the agency's FOIA fee regulations. Therefore, section 26
of the CPSA does not apply to this rule.
VII. Congressional Review Act
The Congressional Review Act (CRA; 5 U.S.C. 801-808) states that,
before a rule can take effect, the agency issuing the rule must submit
the rule, and certain related information, to each House of Congress
and the Comptroller General. 5 U.S.C. 801(a)(1). The submission must
indicate whether the rule is a ``major rule.'' The CRA states that the
Office of Information and Regulatory Affairs (OIRA) determines whether
a rule qualifies as a ``major rule.'' Pursuant to the CRA, OIRA
designated this rule as not a ``major rule,'' as defined in 5 U.S.C.
804(2). To comply with the CRA, the Office of the General Counsel will
submit the required information to each House of Congress and the
Comptroller General.
VIII. Effective Date
In accordance with the APA's general requirement that the effective
date of a rule be at least 30 days after publication of the final rule,
the NPR proposed a 30-day effective date for the final rule. The
Commission received no comment on the effective date. Accordingly, the
effective date is 30 days after the date of publication of this final
rule in the Federal Register. 5 U.S.C. 553(d).
List of Subjects in 16 CFR Part 1015
Administrative practice and procedure, Consumer protection,
Disclosure of information, Freedom of information.
For the reasons discussed above, in accordance with the provisions
of 5 U.S.C. 553 and the authority in the Consumer Product Safety Act,
15 U.S.C. 2051 et seq., CPSC 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
0
1. The authority citation for part 1015 continues to read as follows:
Authority: 15 U.S.C. 2051-2084; 15 U.S.C. 1261-1278; 15 U.S.C.
1471-1476; 15 U.S.C. 1211-1214; 15 U.S.C. 1191-1204; 15 U.S.C. 8001-
8008; Pub. L. 110-278, 122 Stat. 2602; 5 U.S.C. 552.
0
2. Amend Sec. 1015.1 as follows:
0
a. In paragraph (c), remove the words ``Secretariat of the Commission''
and add in their place ``Assistant General Counsel, Office of the
General Counsel, Division of the Secretariat''; and
0
b. Add paragraph (d).
The addition reads as follows:
Sec. 1051.1 Purpose and scope.
* * * * *
(d) The General Counsel is the designated authority for the
Commission's Freedom of Information Act (FOIA) appeals and is
responsible for reviewing and responding to appeals from denials or
partial denials of requests for records under this chapter.
0
3. Revise Sec. 1015.2 to read as follows:
Sec. 1015.2 Public inspection.
(a) The Consumer Product Safety Commission (CPSC) will maintain in
a public reference room or area the materials relating to the CPSC that
are required by 5 U.S.C. 552(a)(2) and 552(a)(5) to be made available
for public inspection in an electronic format. The principal location
will be in the Office of the General Counsel, Division of the
Secretariat. The address of this office is: Office of the General
Counsel, Division of the Secretariat, Consumer Product Safety
Commission, Room 820, 4330 East-West Highway, Bethesda, MD 20814.
(b) The CPSC will maintain an electronic reading room on the
internet at: https://www.cpsc.gov for records that are required by 5
U.S.C. 552(a)(2) to be available by computer telecommunications.
Records that the FOIA requires CPSC to make available for public
inspection in an electronic format can be accessed through the CPSC's
FOIA web page, which is accessible by visiting: https://www.cpsc.gov.
(c) Subject to the requirements of section 6 of the Consumer
Product Safety Act (CPSA), the CPSC will make available for public
inspection in an electronic format, copies of all records, regardless
of form or format, which:
(1) Have been released to any person under 5 U.S.C. 552(a)(3);
(2) Because of the nature of their subject matter, the FOIA Office
determines have become or are likely to become the subject of
subsequent requests for substantially the same records; or
(3) Have been requested three or more times.
Sec. 1015.3 [Amended]
0
4. Amend Sec. 1015.3 as follows:
0
a. In paragraph (a), remove the word ``Secretariat'' and add in its
place the words ``Chief FOIA Officer'' and remove ``[email protected]'' and add in its place ``[email protected]''; and
0
b. In paragraphs (d) and (e), remove the word ``Secretariat'' and add
in its place the words ``Chief FOIA Officer''.
0
5. Revise Sec. 1015.4 to read as follows:
Sec. 1015.4 Responses to requests for records; responsibility.
The ultimate responsibility for responding to requests for records
is vested in the Chief FOIA Officer of the Consumer Product Safety
Commission. The Chief FOIA Officer, or the delegate of the Chief FOIA
Officer, can respond directly, or forward the request to any other
office of the CPSC for response. The Chief FOIA Officer's response
shall be in the form set forth in Sec. 1015.7(d), for action on
appeal. If no response is made by the FOIA Office within 20 working
days, or any extension of the 20-day period, the requester and the
General Counsel or the delegate of the General Counsel can take the
action specified in Sec. 1015.7(e).
0
6. Amend Sec. 1015.5 by revising paragraphs (a) through (d), (f), (g)
introductory text, (g)(3) through (5), and (h) to read as follows:
Sec. 1015.5 Time limitation on responses to requests for records and
requests for expedited processing.
(a) The Chief FOIA Officer, or the delegate of the Chief FOIA
Officer, shall respond to all written requests for records within
twenty (20) working days (excepting Saturdays, Sundays, and legal
public holidays). The time limitations on responses to requests for
records submitted by mail shall begin to run at the time a request for
records is received and date-stamped by the Office of the General
Counsel, Division of the Secretariat. The Office of the General
Counsel, Division of the Secretariat shall date-stamp the request the
same day that it receives the request. The time limitations on
responses to requests for records submitted electronically during
working hours (8 a.m. to 4:30 p.m. EST) shall begin to run at the time
the request was electronically received, and the time limitations on
responses to requests for records submitted electronically during non-
working hours will begin to run when working hours resume.
(b) The time for responding to requests for records can be extended
by the Chief FOIA Officer at the initial stage, or by the General
Counsel, at the appellate stage, up to an additional ten (10) working
days, under the following unusual circumstances:
(1) The need to search for and collect the requested records from
field
[[Page 7504]]
facilities or other establishments that are separate from the Office of
the General Counsel, Division of the Secretariat;
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records that are demanded in
a single request; or
(3) The need to consult, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request, or among two or more components of
the CPSC having substantial subject matter interest.
(c) Any extension of time must be accompanied by written notice to
the person making the request, setting forth the reason(s) for such
extension, and the time within which a response is expected.
(d) If the Chief FOIA Officer 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 Chief FOIA Officer, or the General Counsel, shall
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) of this section; or
(2) Arrange with the Chief FOIA Officer, or the General Counsel, an
alternative time frame for processing the request or a modified
request.
* * * * *
(f) The Chief FOIA Officer, or the delegate of the Chief FOIA
Officer, may aggregate and process as a single request, requests by the
same requester, or a group of requesters acting in concert, if the
Chief FOIA Officer, or delegate, reasonably believes that the requests
actually constitute a single request that would otherwise satisfy the
``unusual circumstances'' specified in paragraph (b) of this section,
and the requests involve clearly related matters.
(g) The Chief FOIA Officer, or the delegate of the Chief FOIA
Officer, will provide expedited processing of requests in cases where
the requester requests expedited processing and demonstrates a
compelling need for such processing.
* * * * *
(3) The Chief FOIA Officer or the delegate of the Chief FOIA
Officer will determine whether to grant a request for expedited
processing and will notify the requester of such determination within
ten (10) calendar days of receipt of the request.
(4) Denials of requests for expedited processing may be appealed to
the Office of the General Counsel, as set forth in Sec. 1015.7. The
General Counsel will determine expeditiously any such appeal.
(5) The Chief FOIA Officer, or the delegate of the Chief FOIA
Officer, will process, as soon as is practicable, the documents
responsive to a request for which expedited processing is granted.
(h) The Chief FOIA Officer may be unable to comply with the time
limits set forth in paragraphs (a) through (d) of this section, when
disclosure of documents responsive to a request under this part is
subject to the requirements of section 6 of the Consumer Product Safety
Act, 15 U.S.C. 2055, and the regulations implementing that section, 16
CFR part 1101. The Chief FOIA Officer, or the delegate of the Chief
FOIA Officer, will notify requesters whose requests will be delayed for
this reason.
0
7. Amend Sec. 1015.6 as follows:
0
a. In paragraphs (a) and (b) introductory text, remove the word
``Secretariat'' and add in its place the words ``Chief FOIA Officer'';
0
b. Revise paragraph (b)(4); and
0
c. In paragraph (c), remove the word ``Secretariat'' and add in its
place the words ``Chief FOIA Officer''.
The revision reads as follows:
Sec. 1015.6 Responses: Form and content.
* * * * *
(b) * * *
(4) A statement that the denial can be appealed to the General
Counsel, as specified in Sec. 1015.1(d). Any such appeal must be made
within 90 calendar days after the date of the denial or partial denial
from the Chief FOIA Officer, or the delegate of the Chief FOIA Officer.
* * * * *
0
8. Amend Sec. 1015.7 by revising the section heading and paragraphs
(a) through (e) and (g) and removing the parenthetical authority
citation at the end of the section to read as follows:
Sec. 1015.7 Appeals from initial denials.
(a) When the Chief FOIA Officer, or the delegate of the Chief FOIA
Officer, has denied a request for records, in whole or in part, the
requester can, within 90 calendar days after the date of the denial or
partial denial, appeal the denial to the General Counsel of the
Consumer Product Safety Commission, attention: Division of the
Secretariat. Appeals may be submitted through any of the following
methods: the e-FOIA Public Access Link at https://www.cpsc.gov; email
to: [email protected]; U.S. mail to: 4330 East-West Highway,
Room 820, Bethesda, MD 20814; or by facsimile to: 301-504-0127. To
facilitate handling, the requester should mark both the appeal letter
and envelope, or subject line of the electronic transmission, ``Freedom
of Information Act Appeal.''
(b) The General Counsel will act upon an appeal within 20 working
days of its receipt. The time limitations on an appeal submitted by
mail shall begin to run at the time an appeal is received and date-
stamped by the Division of the Secretariat. The Division of the
Secretariat will date-stamp the appeal the same day that it receives
the appeal. The time limitations on an appeal submitted electronically
during working hours (8 a.m. to 4:30 p.m. EST) shall begin to run at
the time the appeal is received electronically; and the time
limitations on appeals submitted electronically during non-working
hours will begin to run when working hours resume.
(c) After reviewing the appeal, the General Counsel will issue a
decision either to grant or deny the appeal, in whole or in part. If
the General Counsel decides to grant the appeal in whole or in part,
the General Counsel will inform the requester and submitter of the
information, in accordance with Sec. Sec. 1015.6(a) and 1015.18(b).
Thereafter, the Chief FOIA Officer will provide the records in
accordance with the General Counsel's decision.
(d) The General Counsel shall have the authority to grant or deny
all appeals and, as an exercise of discretion, to disclose records
exempt from mandatory disclosure under 5 U.S.C. 552(b). In unusual or
difficult cases, the General Counsel can, in his/her discretion, refer
an appeal to the Chairman for determination.
(e) The General Counsel's decision on appeal shall be in writing,
shall be signed by the General Counsel, and shall constitute final
agency action. A denial in whole or in part of a request on appeal
shall set forth the exemption relied upon; a brief explanation,
consistent with the purpose of the exemption, of how the exemption
applies to the records withheld; and the reasons for asserting it. The
decision will inform the requester of the right to seek dispute
resolution services from CPSC's FOIA Liaison, or the Office of
Government Information Services. A denial in whole or in part shall
also inform the requester of his/her right to seek judicial review of
the General Counsel's final determination in a
[[Page 7505]]
United States district court, as specified in 5 U.S.C. 552(a)(4)(B).
* * * * *
(g) Copies of all appeals and copies of all actions on appeal shall
be furnished to and maintained in a public file by the Office of the
General Counsel, Division of the Secretariat.
0
9. Amend Sec. 1015.9 as follows:
0
a. Revise paragraphs (a) and (e) through (g); and
0
b. Add paragraphs (h) and (i).
The revisions and additions read as follows:
Sec. 1015.9 Fees for production of records.
(a) The CPSC will provide, at no charge, certain routine
information. For other CPSC responses to information requests, the
Chief FOIA Officer, or the delegate of the Chief FOIA Officer, shall
determine and levy fees for duplication, search, review, and other
services, in accordance with this section.
* * * * *
(e) The following fee schedule will apply:
(1) Duplication. (i) Manual photocopies: $0.15 per page.
(ii) Computer printouts that are sent from a computer to a printer
or photocopier machine: $0.15 per page.
(iii) Compact discs, DVDs, or other similar media duplications:
Direct-cost basis. The exact fees for duplication of records on these
forms of media will be calculated and published annually and are
available to the public on the CPSC's FOIA web page at: https://www.cpsc.gov, and from the Office of the General Counsel, Division of
the Secretariat, Consumer Product Safety Commission, Room 820, 4330
East-West Highway, Bethesda, MD 20814.
(iv) There is no duplication fee for producing records provided to
requesters in electronic format, or for pages redacted in full in any
format.
(v) Requesters can request and be provided records in any format
that is readily reproducible by the agency, including electronic
format.
(vi) When records available only in paper format must be scanned to
comply with a requester's preference to receive records in an
electronic format, the requester must pay the direct costs of scanning
those materials. The exact fees for scanning these materials will be
assessed on a quarter-hour basis, will be calculated and published
annually, and are available to the public on the CPSC's FOIA web page
at: https://www.cpsc.gov, and from the Office of the General Counsel,
Division of the Secretariat, Consumer Product Safety Commission, Room
820, 4330 East-West Highway, Bethesda, MD 20814.
(2) Searches. Fees for searches are assessed on a quarter-hour
basis. The exact fees for searches are calculated and published
annually and are available to the public on the CPSC's FOIA web page
at: https://www.cpsc.gov, and from the Office of the General Counsel,
Division of the Secretariat, Consumer Product Safety Commission, Room
820, 4330 East-West Highway, Bethesda, MD 20814.
(i) Manual file searches. Manual search fees are calculated using
the basic hourly pay rate of the average grade and step of employees
who charged hours in this category (GS 14/7), plus 16 percent to
account for the cost of benefits.
(ii) Computer searches. Computer search fees are calculated using
the basic hourly pay rate of the average grade and step of employees
who charged hours in this category (GS 12/4), plus 16 percent to
account for the cost of benefits.
(3) Review. Fees for review are assessed on a quarter-hour basis.
The exact fee for review is calculated and published annually and is
available to the public on the CPSC's FOIA web page at: https://www.cpsc.gov and from the Office of the General Counsel, Division of
the Secretariat, Consumer Product Safety Commission, Room 820, 4330
East-West Highway, Bethesda, MD 20814. The review fee is calculated
using the basic hourly pay rate of the average grade and step of
employees who charged hours in this category (GS 12/9), plus 16 percent
to account for the cost of benefits. Fees for reviewing records will
only be charged to commercial requesters.
(4) Postage. If the requester wants special handling, or if the
volume or dimensions of the materials requires special handling, the
FOIA Office will charge the direct cost of mailing such requested
materials.
(5) Other charges. (i) Materials requiring special reproducing or
handling, such as photographs, slides, blueprints, video and audio tape
recordings, or other similar media: Direct-cost basis.
(ii) Any other service: Direct-cost basis.
(f) Notice of anticipated fees in excess of $25:
(1) When the FOIA Office determines or estimates that the fees to
be assessed will exceed $25, the FOIA Office shall promptly notify the
requester of the actual or estimated amount of the fees, including a
breakdown of the fees for search, review, and duplication, if
applicable, and any applicable fee waivers that would apply to the
request, unless the requester has indicated a willingness to pay fees
as high as those anticipated. The notice shall specify that the
requester may confer with agency staff with the objective of
reformulating the request to meet the requester's needs at a lower
cost. If only a portion of the fee can be estimated readily, the FOIA
Office will advise the requester, accordingly. If the request is not
from a commercial use requester, the notice shall specify that the
requester is entitled to 100 pages of duplication at no charge, and if
the requester is charged search fees, 2 hours of search time at no
charge.
(2) When a requester has been provided notice of anticipated fees
in excess of $25, the FOIA Office shall toll processing of the request,
and further work will not be completed until the requester commits in
writing to pay the actual or estimated total fee, or designates the
amount of fees the requester is willing to pay. In the case of a
requester who is not a commercial requester, the requester may
designate that the requester seeks only those services that can be
provided in paragraphs (g)(2) and (3) of this section, without charge.
The CPSC is not required to accept payment in installments.
(3) If the requester has committed to pay a designated amount of
fees, but the FOIA Office determines or estimates that the total fee
will exceed that amount, the FOIA Office shall toll processing of the
request and notify the requester of the actual or estimated fees in
excess of the requester's commitment. The FOIA Office shall inquire
whether the requester wishes to revise the amount of fees the requester
is willing to pay or wishes to modify the request. Once the requester
responds, the administrative time limits in Sec. 1015.5 will resume.
(4) The Chief FOIA Officer shall make available the FOIA Public
Liaison to assist requesters in reformulating a request to meet the
requester's needs at a lower cost.
(5) If a requester does not commit in writing to pay the actual or
estimated total fee or designate in writing the amount of fees the
requester is willing to pay within 30 working days from the date of the
notification letter, the request shall be closed. The FOIA Office shall
notify the requester that the request has been closed.
(6) Any adverse determination made by the Chief FOIA Officer, or
the designee of the Chief FOIA Officer, concerning a dispute over
actual or estimated fees can be appealed by the requester to the
General Counsel, in the manner described at Sec. 1015.7.
[[Page 7506]]
(g)(1) There are three categories of requesters: Commercial;
educational institutions, noncommercial scientific institutions, and
representatives of the news media; and all other requesters, including
members of the general public.
Table 1 to Paragraph (g)(1)
----------------------------------------------------------------------------------------------------------------
Requester category Search Review Duplication
----------------------------------------------------------------------------------------------------------------
Commercial (including law firms).. Fee.................. Fee........................... Fee.
Educational, noncommercial No Fee............... No Fee........................ Fee after first 100
scientific institutions, or news pages.
media.
All other requesters (including Fee After First 2 No Fee........................ Fee after first 100
members of the general public). Hours. pages.
----------------------------------------------------------------------------------------------------------------
(2) Fees shall be assessed as follows:
(i) Full fees shall apply to commercial-use requests.
(ii) The first 100 pages of duplication shall be free for requests
from the categories of educational institutions, noncommercial
scientific institutions, representatives of the news media, and all
other requesters (including members of the general public).
(iii) The first 2 hours of search time shall be free for the
category of all other requesters (including members of the general
public).
(iv) The Chief FOIA Officer, or the designee of the Chief FOIA
Officer, shall waive or reduce fees whenever disclosure of the
requested information is in the public interest because it is likely to
contribute significantly to public understanding of the operations or
activities of the Government, and disclosure of the requested
information is not primarily in the commercial interest of the
requester.
(v) In making a determination under paragraph (g)(2)(iv) of this
section, the Chief FOIA Officer, or the designee of the Chief FOIA
Officer, shall consider the following factors:
(A) The subject of the request: Whether the subject of the
requested records concerns the operations or activities of the
Government.
(B) The informative value of the information to be disclosed:
Whether the disclosure is likely to contribute to an understanding of
Government operations or activities.
(C) The contribution to an understanding of the subject by the
general public likely to result from disclosure: Whether disclosure of
the requested information will contribute to public understanding.
(D) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute significantly to public
understanding of Government operations or activities.
(E) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure; and, if so
(F) The primary interest in disclosure: Whether the magnitude of
the identified commercial interest of the requester is sufficiently
large, in comparison with the public interest in disclosure, that
disclosure is primarily in the commercial interest of the requester.
(vi) Search fees shall not be charged for all requests and
duplication fees shall not be charged for requests from educational
institutions, noncommercial scientific institutions, and
representatives of the news media, if the FOIA Office fails to comply
with any time limit under Sec. Sec. 1015.5(a) and (g)(3) and 1015.7(b)
and 5 U.S.C. 552(a)(6), other than the exceptions stated in 5 U.S.C.
552(a)(4)(A)(viii)(ll). Those exceptions include:
(A) If the FOIA Office has determined that ``unusual
circumstances,'' as defined in Sec. 1015.5(b) apply, and the FOIA
Office provided timely written notice to the requester, as required by
Sec. 1015.5(c) or Sec. 1015.7(f), then failure to comply with the
time limit in Sec. Sec. 1015.5(a) and (g)(3) and 1015.7(b) and 5
U.S.C. 552(a)(6) is excused for 10 additional working days; or
(B) If the FOIA Office has determined that ``unusual
circumstances,'' as defined in Sec. 1015.5(b), apply and more than
5,000 pages are necessary to respond to the request, and the FOIA
Office has provided timely written notice in accordance with Sec.
1015.5(c) and (e), and the FOIA Office has discussed with the requester
via written mail, email, or telephone (or has made not less than three
good-faith efforts to do so), how the requester could effectively limit
the scope of the request; or
(C) If a court has determined that exceptional circumstances exist,
as defined in 5 U.S.C. 552(a)(6)(C), then failure to comply with
Sec. Sec. 1015.5(a) and (g)(3) and 1015.7(b) and 5 U.S.C. 552(a)(6)
shall be excused for the length of time provided by the court order.
(vii) No fee will be charged when the total fee is equal to or less
than $25.
(viii) Any determination made by the Chief FOIA Officer, or the
designee of the Chief FOIA Officer, concerning fee reductions or fee
waivers may be appealed by the requester to the General Counsel, in the
manner described at Sec. 1015.7.
(h) Collection of fees shall be in accordance with the following:
(1) Interest will be charged on amounts billed, starting on the
31st day following the day on which the requester receives the bill.
Interest will be charged at the rate prescribed in 31 U.S.C. 3717.
(2) Search fees may be charged, even if no responsive documents are
located, or if the search leads to responsive documents that are
withheld under an exemption to the Freedom of Information Act.
(3) The FOIA Office may aggregate requests, for the purposes of
billing, whenever it reasonably believes that a requester, or, on rare
occasions, a group of requesters, is attempting to separate a request
into more than one request to evade fees. The FOIA Office shall not
aggregate multiple requests on unrelated subjects from one requester.
(i)(1) For requests other than those described in paragraphs (i)(2)
and (3) of this section, the FOIA Office shall not require a requester
to make advance payment (i.e., payment made before the FOIA Office
commences or continues work on a request). Payment owed for work
already completed (i.e., payment before copies are sent to a requester)
does not constitute an advance payment for purposes of this part.
(2) When the FOIA Office determines or estimates that a total fee
to be charged under this section will exceed $250, and the requester
has no history of payment, the FOIA Office shall notify the requester
of the actual or estimated fee, and may require the requester to make
an advance payment of the entire anticipated fee before beginning to
process the request. A notice under this paragraph (i)(2) shall offer
the requester an opportunity to discuss the matter with FOIA Office
staff to modify the
[[Page 7507]]
request to meet the requester's needs at a lower cost.
(3) When a requester has previously failed to pay a properly
charged FOIA fee to the CPSC within 30 calendar days of the date of
billing, the FOIA Office may notify the requester that the requester is
required to pay the full amount owed, plus any applicable interest, and
to make an advance payment of the full amount of any anticipated fee,
before the FOIA Office begins to process a new request or continues
processing a pending request from that requester.
(4) When the CPSC FOIA Office requires advance payment, the FOIA
Office will not further process the request until the required payment
is made. The FOIA Office will toll the processing of the request while
it notifies the requester of the advanced payment due, and the
administrative time limits in Sec. 1015.5 will begin only after the
agency has received the advance payments. If the requester does not pay
the advance payment within 30 calendar days from the date of the FOIA
Office's fee notice, the FOIA Office will presume that the requester is
no longer interested in the records and notify the requester that the
request has been closed.
Sec. 1015.20 [Amended]
0
10. Amend Sec. 1015.20(a) by removing the phrase ``the investigatory
file exemption'' and adding in its place the word ``exemptions''.
Alberta E. Mills,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2020-28336 Filed 1-28-21; 8:45 am]
BILLING CODE 6355-01-P
