Procedures for Disclosure or Production of Information Under the Freedom of Information Act; Amendments, 59-67 [2016-31131]

Download as PDF Federal Register / Vol. 82, No. 1 / Tuesday, January 3, 2017 / Proposed Rules Bureau of the Census: Freedom of Information Act Officer * * * * * [FR Doc. 2016–31314 Filed 12–30–16; 8:45 am] BILLING CODE 3510–BX–P CONSUMER PRODUCT SAFETY COMMISSION 16 CFR Part 1015 Procedures for Disclosure or Production of Information Under the Freedom of Information Act; Amendments Consumer Product Safety Commission. ACTION: Notice of proposed rulemaking. AGENCY: The Consumer Product Safety Commission (Commission, CPSC, or we) is issuing this notice of proposed rulemaking (NPR) to update its Freedom of Information Act (FOIA) rule. We are proposing to revise the rule to conform to the amendments of the FOIA Improvement Act of 2016 (the 2016 FOIA) to the FOIA. The Commission also proposes to update the rule to reflect changes in Commission procedures, update Commission contact information, including current methods of submitting requests for records to the Commission, revise employee titles, and make various technical changes and corrections. This NPR seeks comments on the proposed changes to the rule. DATES: Submit comments by March 20, 2017. ADDRESSES: You may submit comments, identified by Docket No. CPSC–2016– 0030, by any of the following methods: Electronic Submissions: Submit electronic comments to the Federal eRulemaking Portal at https:// www.regulations.gov/. Follow the instructions for submitting comments. The Commission does not accept comments submitted by electronic mail (email), except through: https:// www.regulations.gov/. The Commission encourages you to submit electronic comments by using the Federal eRulemaking Portal, as described above. Written Submissions: Submit written comments by mail/hand delivery/ courier to: Office of the Secretariat, Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814; telephone (301) 504–7923. Instructions: All submissions received must include the agency name and docket number for this proposed rulemaking. All comments received may be posted without change, including any personal identifiers, contact sradovich on DSK3GMQ082PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 22:13 Dec 30, 2016 Jkt 241001 59 information, or other personal information provided, to: https:// www.regulations.gov/. Do not submit confidential business information, trade secret information, or other sensitive or protected information that you do not want to be available to the public. If furnished at all, such information should be submitted by mail/hand delivery/courier. Docket: For access to the docket to read background documents or comments received, go to: https:// www.regulations.gov/, and insert the docket number, CPSC–2016–0030, into the ‘‘Search’’ box, and follow the prompts. FOR FURTHER INFORMATION CONTACT: Renee McCune, Office of the General Counsel, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, (301) 504–7673; or Todd A. Stevenson, Chief Freedom of Information Officer, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, (301) 504–6836. SUPPLEMENTARY INFORMATION: The Commission is proposing to amend the agency’s procedures for disclosure or production of information under the Freedom of Information Act. 16 CFR part 1015. administrative appeal of an adverse determination from 30 to 90 days; limiting the FOIA Exemption for records created 25 years or more before the date on which the records were requested; the assessment of fees be limited in certain circumstances; and requesters be notified of available dispute resolution services from the FOIA Public Liaison of the agency or the Office of Government Information Services. The Commission proposes amendments to its regulations implementing the 2016 FOIA, 16 CFR part 1015, to incorporate these new statutory requirements. The proposed amendments would revise the Commission’s FOIA regulations to comply with the FOIA, as amended by the 2016 FOIA, and would update Commission procedures, contact information, and methods of submitting requests for records to the Commission, in addition to other conforming and technical revisions. Updating Commission procedures and Commission contact information would provide clarity for requesters seeking records from the Commission. Table of Contents Subpart A—Production or Disclosure Under 5 U.S.C. 552(a) I. Background Information II. Section-by-Section Analysis of the Proposed Revisions of the Procedures for Disclosure or Production of Information Under the Freedom of Information Act III. Environmental Issues IV. Regulatory Flexibility V. Paperwork Reduction VI. Preemption VII. Effective Date VIII. Request for Comments I. Background Information On June 30, 2016, the President signed into law the 2016 FOIA, Public Law 114–185 (2016). The 2016 FOIA amends the Freedom of Information Act, 5 U.S.C. 552, requiring an agency to review its FOIA regulations and issue regulations on procedures for the disclosure of records under the new amendments. Specifically, the 2016 FOIA requires: Certain records be available for public inspection in an electronic format; agencies to make available for public inspection in an electronic format records that have been requested three or more times; that an agency not withhold information under FOIA unless the agency reasonably foresees that disclosure would harm an interest protected by a FOIA Exemption or disclosure is prohibited by law; extending the number of days for an PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 II. Section-by-Section Analysis of the Proposed Revision of the Procedures for Disclosure or Production of Information Under the Freedom of Information Act Proposed Changes to § 1015.1 (Purpose and Scope) Initially, we would update § 1015.1(a) to add the Children’s Gasoline Burn Prevention Act, the Virginia Graeme Baker Pool and Spa Safety Act, and the Child Nicotine Poisoning Prevention Act to the scope of statutes for which records must be maintained in connection with the Commission’s responsibilities and functions under those acts because they were enacted after the last revision to the regulation in 1997. The proposal also would revise § 1015.1(b) to reflect new FOIA 5 U.S.C. 552(a)(8)(A), requiring agencies to analyze under a foreseeable harm standard the withholding of information permitted by the exemptions set forth in 5 U.S.C. 552(b). The proposal would allow information to be withheld pursuant to the exemptions, only if the Commission reasonably foresees that disclosure would harm an interest protected by a specific FOIA exemption, or if disclosure is otherwise prohibited by law. This proposal, consistent with the 2016 FOIA, would not require disclosure of information otherwise prohibited from disclosure by law, or otherwise exempted from disclosure E:\FR\FM\03JAP1.SGM 03JAP1 sradovich on DSK3GMQ082PROD with PROPOSALS 60 Federal Register / Vol. 82, No. 1 / Tuesday, January 3, 2017 / Proposed Rules under 5 U.S.C. 552(b)(3) (FOIA Exemption 3), which prohibits the disclosure of matters specifically exempted from disclosure by another statute. The proposal would specify that the Commission will consider the record’s age, content, and character in assessing whether it reasonably foresees that disclosure of the document would harm an interest protected by an exemption. Additionally, consistent with the FOIA as amended by the 2016 FOIA, we also propose a revision that would require that we consider partial disclosure when full disclosure of a record is not possible and that we take reasonable steps to segregate and release nonexempt information. Under the proposed revision, for example, Commission records that currently fall within the parameters of 5 U.S.C. 552(b)(5) (FOIA Exemption 5) would be subject to the foreseeable harm standard. FOIA Exemption 5 incorporates, among other privileges, the deliberative process privilege, which is considered a discretionary exemption, meaning that withholding of records resides within the discretion of the agency, rather than mandated by law. As the Senate report on the FOIA amendment explains: ‘‘[t]he foreseeable harm standard applies only to those FOIA Exemptions under which discretionary disclosures can be made. Several FOIA Exemptions, by their own existing terms, cover information that is prohibited from disclosure or exempt from disclosure under a law outside the four corners of the FOIA. Such information is not subject to discretionary disclosure and is therefore not subject to the foreseeable harm standard.’’ Senate Report No. 114–4, p 8 (February 23, 2015). Under this analysis and Department of Justice guidance, records protected by the deliberative process privilege under FOIA Exemption 5 shall be considered for release under the foreseeable harm standard, even if the records may otherwise be properly withheld under this exemption. In deciding whether to make a discretionary release of records protected by the deliberative process privilege, the Commission may consider, in addition to the record’s age, content, and character, the nature of the decision at issue, the status of that decision, and the personnel involved. The foreseeable harm standard, however, would not be applied to disclosures prohibited by law or covered by FOIA Exemption 3, which pertains to matters specifically exempted from disclosure by another statute. Exemption 3 would include disclosures prohibited under section 6 of the Consumer Product Safety Act VerDate Sep<11>2014 22:13 Dec 30, 2016 Jkt 241001 (CPSA), 15 U.S.C. 2055(a)(2), and thus, the proposal to apply the foreseeable harm standard would not alter, or otherwise limit, the information disclosure restrictions set forth in section 6. Current § 1015.1(b) already references disclosures prohibited by law under Section 6(a)(2) of the CPSA. The proposal, as revised, would preserve that prohibition, consistent with the statutory direction, and it would clarify that information covered by FOIA Exemption 3 is prohibited from disclosure and not subject to analysis under the foreseeable harm standard. Specifically, the proposed revision would state that Commission records subject to Section 6 and 25(c) of the CPSA, 15 U.S.C. 2055 and 2074(c), fall within the scope of FOIA Exemption 3. The proposal also would revise § 1015.1(c) to remove the existing statement that the Attorney General’s Memorandum on the 1974 Amendments to the FOIA may be consulted in considering questions arising under the FOIA. That memorandum is outdated and should not be consulted in considering questions arising under the FOIA because the FOIA has been statutorily amended multiple times since 1974. In place of the current § 1015.1(c), we propose a new § 1015.1(c) to reflect that the Commission Secretariat serves as the agency’s Chief FOIA Officer. The 2016 FOIA amends the FOIA at 5 U.S.C. 552(j) to require each agency to designate a Chief FOIA Officer, who shall be a senior official of the agency, and shall have, subject to the authority of the head of the agency, among other responsibilities, responsibility for compliance and implementation of section (j) of the FOIA. The revised § 1015.1(c) would state that the Commission’s Chief Freedom of Information Officer, a senior official at the Commission, would be the Secretariat. Therefore, for clarity and consistency with the provisions of § 1015.4, which vests ultimate authority for responding to FOIA requests in the Commission’s Secretariat, and in conformance with amendments made to the FOIA, we propose new language explaining that the Secretariat of the Commission is the Chief Freedom of Information Officer, who, subject to the authority of the Chairman, is responsible for compliance with, and implementation of, 5 U.S.C. 552(j). We additionally propose minor and non-substantive changes in grammar. Proposed Changes to § 1015.2 (Public Reference Facilities) To reflect amendments in the 2016 FOIA that focus on public inspection in PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 an electronic format, we are proposing to revise the title of this section to ‘‘Public inspection.’’ Additionally, we propose removing ‘‘and copying’’ from § 1015.2(a) and (b), and replacing that phrase with ‘‘in an electronic format,’’ to conform to the amendments to the FOIA at 5 U.S.C. 552(a). We also propose removing the statements in § 1015.2(b) regarding additional Commission public reference facilities. With changes in technology, public inspection at the Commission headquarters is rare, and we do not anticipate a need for additional public reference facilities. To provide additional information to the public about the Commission’s electronic reading room, we propose adding the Commission’s Web site address to § 1015.2(c) and a statement indicating that records that the Commission must make available for public inspection in an electronic format may be accessed through the e-FOIA Public Access Link at the Commission’s Web site address. Additionally, to conform with amendments to the FOIA at 5 U.S.C. 552(a)(2)(D), we are proposing a new § 1015.2(d), which requires the agency, subject to any restrictions imposed by section 6 of the CPSA, to make available for public inspection in an electronic format, copies of certain records, regardless of form. Specifically, the Commission shall make available for public inspection, records that have been released under FOIA, records that, because of the nature of the subject matter, the agency determines are likely to become the subject of subsequent requests for substantially the same records, and records that have been requested three or more times. We additionally propose correcting ‘‘Secretary’’ to the current title of ‘‘Secretariat’’ throughout this paragraph and updating the room number of the Office of the Secretariat. Proposed Changes to § 1015.3 (Requests for Records and Copies) We propose a revision to the title of this section by removing ‘‘and copies’’ to reflect amendments to the FOIA at 5 U.S.C. 552(a). To reflect current practice, we also propose updating § 1015.3(a) on the ways requesters may submit requests for records to the Commission, to include electronic methods. In addition to submitting requests by mail, requesters would be able to submit a request through the Commission’s e-FOIA Public Access Link, email, or facsimile. We also propose a technical correction to reflect the Commission’s address. To promote good FOIA customer service, we also propose to revise § 1015.3(b) to E:\FR\FM\03JAP1.SGM 03JAP1 Federal Register / Vol. 82, No. 1 / Tuesday, January 3, 2017 / Proposed Rules state that, before submitting requests, requesters may contact the Commission’s FOIA contact or FOIA Public Liaison to discuss the records the submitter seeks and to receive assistance in describing the records. Additionally, throughout this section we propose changing ‘‘Secretary’’ to ‘‘Secretariat’’ to update the position to its current title. sradovich on DSK3GMQ082PROD with PROPOSALS Proposed Changes to § 1015.4 (Responses To Requests for Records; Responsibility) We propose changing ‘‘Secretary’’ to ‘‘Secretariat’’ throughout this section to reflect the name of the position to its current title. Proposed Changes to Rule § 1015.5 (Time Limitations on Responses to Requests for Records and Requests for Expedited Processing) We propose updating § 1015.5(a) to incorporate new procedural requirements and to reflect current Commission practices and advances in technology. We propose clarifying that time limitations on responses to requests submitted by postal mail would begin to run at the time the request is received and date-stamped by the Office of the Secretary (which we propose revising to the Office of the Secretariat). We would also update the regulation to reflect the current practice that the Office of the Secretariat will date-stamp requests the same day that it receives the requests. We also propose that time limitations on responses to requests submitted electronically would begin to run at the time the request is electronically received, if the request is submitted during ‘‘working hours,’’ which we define as 8 a.m. to 4:30 p.m. EST. For responses submitted electronically during non-working hours, the proposed change would require that time limitations begin to run the next working day after the request is submitted. If the Commission is unable to respond to a request within this time frame, the current § 1015.5(b) allows the Secretariat, at the initial stage, or the General Counsel, at the appellate stage, to extend the time for responding to requests up to 10 additional working days, if a request satisfies the criteria for ‘‘unusual circumstances.’’ Moreover, as explained in current § 1015.5(d), if the Secretariat or General Counsel determines that an extension of more than 10 days is required, the Secretariat or General Counsel must give the requester an opportunity to limit the scope of the request or arrange for an alternative timeframe to process the request. Under the new FOIA VerDate Sep<11>2014 22:13 Dec 30, 2016 Jkt 241001 amendments, in those circumstances, agencies are required to make available its FOIA Public Liaison to assist in the resolution of any disputes between the requester and the agency. The 2016 FOIA additionally requires agencies to notify requesters of the right to seek dispute resolution services from the Office of Government Information Services. Therefore, we propose adopting language stating that if an extension of time greater than 10 working days is necessary, the Commission will make available its FOIA Public Liaison for purposes of dispute resolution. Additionally, we propose providing information about where on the Commission’s Web site, the Commission’s designated FOIA Liaison(s) is listed and also stating that the Commission will notify requesters in writing of the availability of the Office of Government Information Services to provide dispute resolution services, as required by the 2016 FOIA. We propose inserting this language into a new § 1015.5(e), and we propose redesignating the succeeding paragraphs in § 1015.5 to conform to this change. We also propose adding a statement to the current § 1015.5(f)(2), clarifying that requests for expedited processing may be submitted through any of the methods described in the proposed § 1015.3(a), in which we propose updating the regulation to reflect new electronic methods of submission. We additionally propose revising Secretary’’ to ‘‘Secretariat’’ throughout, to change the name of the position to its current title. Proposed Changes to § 1015.6 (Form and Content) To reflect the current organizational structure of the agency and to align with the 2016 FOIA amendments to the FOIA, indicating that documents for public inspection will be made available in electronic format, we propose revising § 1015.6(a) to state that when a requested record has been identified, requesters shall be supplied with a copy or notified of where and when the document will be made available for public inspection in an electronic format. We also propose removing the reference to making records available at a requested regional office. This option is outdated and no longer applicable because the Commission does not have regional offices that the public can visit. We additionally propose amending § 1015.6(a) to conform with the 2016 FOIA amendments to 5 U.S.C. 552(a)(6)(A)(i), which require the Commission, when responding to a records request, to notify requesters of PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 61 their right to seek assistance from the Commission’s FOIA Public Liaison. In the case of a denial, we propose revisions to conform with the 2016 FOIA amendments to 5 U.S.C. 552(a)(6)(A)(i)(III)(aa), which requires that agencies notify requesters when there is an adverse determination that requesters have the right to appeal within a period determined by the head of the agency that is not less than 90 days after the date of such determination. Accordingly, we propose revising § 1015.6(b)(4) to change ‘‘30 calendar days’’ to ‘‘90 calendar days.’’ We also propose adding a new § 1015.6(b)(5), which would require the Commission, in the case of a denial, to notify requesters of their right to seek dispute resolution services from the Office of Government Information Services. We additionally propose revising ‘‘Secretary’’ to ‘‘Secretariat’’ throughout the section, to revise the title of the position to its current title. Proposed Changes to § 1015.7 (Appeals From Initial Denials; Reconsideration by the Secretary) We propose revising the deadline for appealing a denial of a records request from 30 days to 90 calendar days in § 1015.7(a) to conform with the 2016 FOIA amendments described above regarding proposed changes to § 1015.6. We additionally propose updating the regulation at § 1015.7(a) to list the ways, including electronic methods, that a requester may appeal a denial to the General Counsel of the Commission. To reflect changes in Commission procedures due to advances in information technology, we propose updating § 1015.7(b) to specify that time limitations on appeals submitted by postal mail would begin to run when the appeal is received and date-stamped by the Office of the Secretary (proposed to be changed to the Office of the Secretariat). We would also update the regulation to reflect the current practice that the Office of the Secretariat will date-stamp requests the same day that it receives the requests. We also propose that time limitations on appeals submitted electronically would begin to run at the time the appeal is electronically received, if the request is submitted during ‘‘working hours,’’ which we define as 8 a.m. to 4:30 p.m. EST. For responses submitted electronically during non-working hours, the proposed change would require that time limitations begin to run the next working day. To conform with the 2016 FOIA amendments to 5 U.S.C. 552(a)(6)(A)(i)(III)(bb), which require E:\FR\FM\03JAP1.SGM 03JAP1 62 Federal Register / Vol. 82, No. 1 / Tuesday, January 3, 2017 / Proposed Rules agencies to provide notification in an adverse determination of the right to seek dispute resolution services from the FOIA Public Liaison of the agency or the Office of Government Information Services, we propose including a statement in § 1015.7(e) stating that the Commission will provide such a notification. We additionally propose revising ‘‘Secretary’’ to ‘‘Secretariat’’ throughout the section, including in the title, to correct the name of this position. sradovich on DSK3GMQ082PROD with PROPOSALS Proposed Changes to § 1015.9 (Fees for Production of Records.) We propose to make technical changes throughout this section, including a revision to § 1015.9(b) to reflect updated ways to effectuate fee payment. We also propose to account for efforts expended to locate and retrieve electronic information by revising the term ‘‘search’’ in § 1015.9(c)(2) and the definition of ‘‘duplication’’ in § 1015.9(c)(3) and to account for new technology changes that are not reflected in the regulation. The proposal would also account for the efforts to scan documents through a revision of § 1015.9(e)(1), which would require a requester to pay the direct costs associated with scanning documents. We also propose to revise § 1015.9(f)(6) to conform to the 2016 FOIA amendments to 5 U.S.C. 552(a)(4)(A)(viii)(II). The changes would require the Commission to waive fees where the agency fails to comply with a time limit that it has extended because the agency has determined that unusual circumstances apply. However, if the extension for unusual circumstances involves more than 5,000 responsive pages, the Commission may continue to charge fees, provided it has given timely notice to the requester and has discussed with the requester how to effectively limit the scope of the request. Thus, the regulation would be revised to prevent the Commission from assessing search fees for any requester or duplication fees for an educational institution, non-commercial scientific instiution, or a representative of the news media requester, if the Commission fails to comply with an extended time limit, unless 5,000 pages are responsive to the request, and the Commission has made three good faith attempts to discuss with the FOIA requester limiting the scope of the request. We additionally propose revising ‘‘Secretary’’ to ‘‘Secretariat’’ throughout the section, including in the title, to correct the name of this position. VerDate Sep<11>2014 22:13 Dec 30, 2016 Jkt 241001 Proposed Changes to § 1015.10 (Commission Report of Actions to Congress) We propose revisions to this section to conform to the 2016 FOIA amendments to 5 U.S.C. 552(e)(1). Specifically, we propose adding a statement that the Commission must submit the report to the Director of the Office of Government Information Services in addition to its current requirement to submit the report to the Attorney General of the United States. We also propose adding, in conformance with the statute, new § 1015.10(h), stating that the report shall include the number of times the Commission denied a request for records under 5 U.S.C. 552(c) and new § 1015.10(i), stating that the report shall include the number of records that were made available for public inspection in an electronic format under 5 U.S.C. 552(a)(2). Proposed Changes to Rule § 1015.11 (Disclosure of Trade Secrets to Consultants and Contractors; Nondisclosure to Advisory Committees and Other Government Agencies) We propose to add language to § 1015.11 to clarify that the reference in § 1015.11(a) and (b) to 5 U.S.C. 552(b)(4) includes not only trade secrets, but also includes commercial or financial information. We also propose revising § 1015.11(b) to incorporate an amendment to the CPSA, 15 U.S.C. 2078(f), by the Consumer Product Safety Improvement Act of 2008, Public Law 110–314 (2008), which permits the Commission to share information with federal, state, and local agencies, if certain requirements are satisfied. Subpart B—Exemptions From Production and Disclosure Under 5 U.S.C. 552(b) Proposed Changes to § 1015.15 (Purpose and Scope) We propose removing language in § 1015.15(a) that references the internal Commission procedure for withholding exempt records because, as explained below in Proposed Changes to Rule § 1015.17 (Internal Commission procedure for withholding exempt records.), we propose removing § 1015.17 entirely. We also propose revisions to § 1015.15(b) to conform to the 2016 FOIA amendment to 5 U.S.C. 552(a)(8)(A), which provides that agencies shall withhold information under 5 U.S.C. 552, only if the agency reasonably foresees that disclosure would harm an interest protected by an PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 exemption described in 5 U.S.C. 552(b), or disclosure is otherwise prohibited by law. Currently, the rule states that the Commission will make available, to the extent permitted by law, records authorized to be withheld under 5 U.S.C. 552(b), unless the Commission determines that disclosure is contrary to the public interest. To align with the 2016 FOIA amendments, we propose revising this section to state that the Commission will make available records authorized to be withheld under one of the FOIA exemptions, ‘‘unless the Commission reasonably foresees that disclosure would harm an interest protected by the exemption or disclosure is prohibited by law or otherwise exempted from disclosure under 5 U.S.C. 552(b)(3).’’ Additionally, we propose updating § 1015.15(c) to reflect the focus of the 2016 FOIA on public inspection of documents in an electronic format, which is consistent with current practice. The proposal would require that briefing packages, or portions thereof, which the Secretary (which we propose revising to Secretariat), upon the advice of the Office of the General Counsel, has determined would be released, upon request, would be made available for public inspection in an electronic format through the Commission’s Web site. Specifically, we propose removing the language stating that such briefing packages would be publicly available in the public reference facility established under § 1015.2, and replacing it with proposed language indicating that the information will be available electronically on the Commission’s Web site. We also propose revising ‘‘Secretary’’ to ‘‘Secretariat’’ in § 1015.15(c), to correct the name of this position and propose a non-substantive grammatical revision in the first sentence of § 1015.15(b). Proposed Changes to § 1015.16 (Exemptions (5 U.S.C. 552(b)).) The 2016 FOIA amends 5 U.S.C. 552(b)(5) to include a sunset provision on the deliberative process privilege so that it does not apply to records created 25 years or more before the date on which the records were requested. We propose amending § 1015.16(e) to add language reflecting this change. We also propose non-substantive technical corrections to §§ 1015.16(e) and (f) to track the statutory language. Proposed Changes to § 1015.17 (Internal Commission Procedure for Withholding Exempt Records) We propose removing all of § 1015.17 and reserving this section. Section E:\FR\FM\03JAP1.SGM 03JAP1 Federal Register / Vol. 82, No. 1 / Tuesday, January 3, 2017 / Proposed Rules 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 proposed rule falls within the categorical exclusion. Subpart C—Disclosure of Commission Accident or Investigation Reports Under 15 U.S.C. 2074(c) sradovich on DSK3GMQ082PROD with PROPOSALS 1015.17 describes an internal Commission procedure that allows a Commission bureau or office director who believes that it is against the public interest to disclose a Commission record prepared by his/her office that may be exempt from disclosure under the interintra-agency memorandum exemption at 5 U.S.C. 552(b)(5) or the investigatory file exemption at 5 U.S.C. 552(b)(7) to request that the Secretary withhold the document, and, if necessary, appeal that decision to the Commission. The current § 1015.17(a)(1) states that if the Secretary agrees to withhold the document, the requester shall be notified in writing of the denial and of his/her right to appeal. Section 1015.17 is not necessary and should be removed because procedures for Commission responses to requests based on an analysis of harm to the public interest would now be described in detail in proposed § 1015.1(b) and § 1015.6 and include additional updated requirements not in § 1015.17. Accordingly, we propose removing § 1015.17 because it does not reflect current internal Commission procedures. Moreover, even if the provisions were not outdated, we would propose removing this provision because it describes an internal procedure that is more appropriate for including in a Commission Directive on staff procedure than in a regulatory scheme. 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 proposed rule would amend the Commission’s rule to conform to the 2016 FOIA and to update Commission procedures and make other technical changes and corrections. The proposed rule would not impose any information collection requirements. The existing rule and the proposed revisions do not require or request information from firms, but rather, explain the Commission’s FOIA procedures. Thus, the PRA is not implicated in this proposed rulemaking. Proposed Changes to § 1015.20 (Public Availability of Accident or Investigation Reports) We propose updating § 1015.20(a) to reflect current Commission procedure. The rule currently states that accident or investigation reports are available to the public under the procedures set forth in subpart A and that no portion of such reports are subject to the investigatory file exemption. Current Commission procedure allows for the withholding of accident or investigation reports, if the requirements of the investigatory file exemption are met. Therefore, we propose revising this section to state that accident or investigation reports are available to the public under the procedures set forth in subpart A, unless such reports are subject to the investigatory file exemption. III. Environmental Considerations The Commission’s regulations address whether the Commission is required to prepare an environmental assessment or an environmental impact statement. 16 VerDate Sep<11>2014 22:13 Dec 30, 2016 Jkt 241001 IV. Regulatory Flexibility Analysis Under section 603 of the Regulatory Flexibility Act (RFA), when the Administrative Procedure Act (APA) or another law requires an agency to publish a general notice of proposed rulemaking, the agency must prepare an initial regulatory flexibility analysis (IFRA), assessing the economic impact of the proposed rule on small entities or certify that the rule will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 603(a), 605. The Commission chooses to provide notice and comment for this rulemaking. However, because this is a ‘‘rule of agency organization, procedure, or practice,’’ the APA does not require a notice of proposed rulemaking. 5 U.S.C. 553. Additionally, we note that the rule would merely set out in a regulation the procedural requirements stated in the FOIA of 2016, update Commission procedures, and make other technical changes and corrections. We expect that the proposed rule will not have a significant economic impact on a substantial number of small entities. VI. Executive Order 12988 (Preemption) According to Executive Order 12988 (February 5, 1996), agencies must state in clear language the preemptive effect, if any, of new regulations. Section 26 of the CPSA explains the preemptive effect of consumer product safety standards issued under the CPSA. 15 U.S.C. 2075. The proposed rule is not a consumer product safety standard, but rather, would revise a rule of agency practice and procedure by implementing the PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 63 FOIA of 2016 and making technical revisions or corrections. Therefore, section 26 of the CPSA would not apply to this rulemaking. VII. 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 Commission proposes that the effective date be 30 days after the date of publication of a final rule in the Federal Register. 5 U.S.C. 553(d). VIII. Request for Comments The Commission requests comments on all aspects of the proposed rule. Comments should be submitted in accordance with the instructions in the ADDRESSES section at the beginning of this document. Written comments must be received by March 20, 2017. List of Subjects in 16 CFR 1015 Administrative practice and procedure; Consumer protection; Disclosure of information; Freedom of information. For the reasons set forth in the preamble, the Commission proposes to amend 16 CFR part 1015 to read, 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; 15 U.S.C. 8001–8008; 110 P.L. 278, 122 Stat. 2602; 5 U.S.C. 552. 2. Amend § 1015.1 by revising the third sentence in paragraph (a) and revising paragraphs (b) and (c) to read, as follows: ■ § 1015.1 Purpose and scope. (a) * * * These records include those maintained in connection with the Commission’s responsibilities and functions under the Consumer Product Safety Act, as well as those responsibilities and functions transferred to the Commission under the Federal Hazardous Substances Act, the Poison Prevention Packaging Act of 1970, the Refrigerator Safety Act, the Flammable Fabrics Act, the Children’s Gasoline Burn Prevention Act, the Virginia Graeme Baker Pool and Spa Safety Act, and the Child Nicotine Poisoning Prevention Act, and those maintained under any other authorized activity. * * * E:\FR\FM\03JAP1.SGM 03JAP1 64 Federal Register / Vol. 82, No. 1 / Tuesday, January 3, 2017 / Proposed Rules (b) The Commission’s policy with respect to requests for records is that disclosure is the rule and withholding is the exception. All records or portions of records not exempt from disclosure will be made available. Records which may be exempted from disclosure will be made available unless: (1) Disclosure is prohibited by law; (2) the Commission reasonably foresees that disclosure would harm an interest protected by an exemption described in 5 U.S.C. 552(b); or (3) disclosure is exempted under 5 U.S.C. 552(b)(3). See § 1015.15(b). Section 6(a)(2) of the Consumer Product Safety Act, 15 U.S.C. 2055(a)(2), prohibits the disclosure of trade secrets or other matters referred to in 18 U.S.C. 1905; Section 6(b) and Section 25(c) of the CPSA. The Commission will consider the record’s age, content, and character in assessing whether it reasonably foresees that disclosure of the document would harm an interest protected by an exemption. Additionally, the Commission will consider whether partial disclosure of information is possible whenever the Commission determines that a full disclosure of a requested record is not possible and will take reasonable steps necessary to segregate and release nonexempt information. (c) The Secretariat of the Commission is the designated Chief Freedom of Information Officer who, subject to the authority of the Chairman, is responsible for compliance with and implementation of 5 U.S.C. 552(j). ■ 3. Amend § 1015.2 by: ■ a. Revising the section heading; ■ b. Revising paragraphs (a), (b) and (c); and ■ c. Adding paragraph (d). The revisions read, as follows: sradovich on DSK3GMQ082PROD with PROPOSALS § 1015.2 Public inspection. (a) The Consumer Product Safety Commission will maintain in a public reference room or area the materials relating to the Consumer Product Safety Commission that are required by 5 U.S.C. 552(a)(2) and 552(a)(5) to be made available for public inspection in an electronic format. The principal location will be in the Office of the Secretariat of the Commission. The address of this office is: Office of the Secretariat, Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814. (b) This public reference facility will maintain and make available for public inspection in an electronic format a current index of the materials available at that facility which are required to be indexed by 5 U.S.C. 552(a)(2). (c) The Consumer Product Safety Commission will maintain an VerDate Sep<11>2014 22:13 Dec 30, 2016 Jkt 241001 ‘‘electronic reading room’’ on the World-Wide Web at https:// www.cpsc.gov for those records that are required by 5 U.S.C. 552(a)(2) to be available by ‘‘computer telecommunications.’’ Records that the FOIA requires the Commission to make available for public inspection in an electronic format may be accessed through the e-FOIA Public Access Link at https://www.cpsc.gov. (d) Subject to the requirements of Section 6 of the CPSA, the Commission will make available for public inspection in an electronic format copies of all records, regardless of form or format, that (1) have been released to any person under 5 U.S.C. 552(a)(3) and (2) that because of the nature of their subject matter, the Commission determines have become or are likely to become the subject of subsequent requests for substantially the same records or that have been requested three or more times. ■ 4. Amend § 1015.3 by: ■ a. Revising the section heading; ■ b. Revising the first sentence of paragraph (a); ■ c. Adding a sentence at the end of paragraph (b); and ■ d. Removing the word ‘‘Secretary’’ from paragraphs (d) and (e), wherever it appears, and adding, in its place, the word ‘‘Secretariat’’. The revisions read, as follows: § 1015.3 Requests for records. (a) A request for access to records of the Commission shall be in writing addressed to the Secretariat and shall be submitted through any of the following methods: The e-FOIA Public Access Link at https://www.cpsc.gov; email to cpsc-foia@cpsc.gov; mail to Consumer Product Safety Commission, 4330 East West Highway, Room 820, Bethesda, MD 20814; or facsimile to 301–504– 0127. * * * (b) * * * Before submitting their requests, requesters may contact the Commission’s FOIA contact or FOIA Public Liaison to discuss the records they seek and to receive assistance in describing the records. * * * * * (d) If a requested record cannot be located from the information supplied, or is known to have been destroyed or otherwise disposed of, the requester shall be so notified by the Secretariat or delegate of the Secretariat. (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 PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 are received within each track. Upon receipt of a request for records, the Secretariat or delegate of the Secretariat will determine which track is appropriate for the request. The Secretariat or delegate of the Secretariat 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 Secretariat or delegate of the Secretariat disagrees may so indicate in the request and, where appropriate and feasible, will also be given an opportunity to limit their requests. § 1015.4 [Amended] 5. Amend § 1015.4 by removing the word ‘‘Secretary’’ wherever it appears, and adding, in its place, the word ‘‘Secretariat’’. ■ 6. Amend § 1015.5 by: ■ a. Revising paragraph (a) ■ b. Removing the word ‘‘Secretary’’ in paragraphs (b), (b)(1), (d), and (d)(2) wherever it appears adding, in its place, the word ‘‘Secretariat’’; ■ c. Redesignating paragraphs (e) through (g), as paragraphs (f) through (h), respectively; ■ d. Add new paragraph (e); ■ e. Removing the word ‘‘Secretary’’ in redesignated paragraphs (f), (g), (g)(3), (g)(5), and (h) wherever it appears, and adding, in its place, the word ‘‘Secretariat’’; and ■ f. Revising redesignated paragraph (g)(2). The revisions read, as follows: ■ § 1015.5 Time limitation on responses to requests for records and requests for expedited processing. (a) The Secretariat or delegate of the Secretariat shall respond to all written requests for records within twenty (20) working days (excepting Saturdays, Sundays, and legal public holidays). The time limitations on responses to requests for records submitted by mail shall begin to run at the time a request for records is received and date stamped by the Office of the Secretariat. The Office of the Secretariat shall date stamp the request the same day that it receives the request. The time limitations on responses to requests for records submitted electronically during working hours (8 a.m. to 4:30 p.m. EST) shall begin to run at the time the request was electronically received and the time limitations on responses submitted electronically during non-working hours will begin to run the next working day. (b) The time for responding to requests for records may be extended by E:\FR\FM\03JAP1.SGM 03JAP1 sradovich on DSK3GMQ082PROD with PROPOSALS Federal Register / Vol. 82, No. 1 / Tuesday, January 3, 2017 / Proposed Rules the Secretariat at the initial stage or by the General Counsel of the Commission 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 facilities or other establishments that are separate from the Office of the Secretariat. * * * * * (d) If the Secretariat 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 Secretariat or the General Counsel shall so notify the requester and give the requester the opportunity to: (1) * * * (2) Arrange with the Secretariat or the General Counsel an alternative time frame for processing the request or a modified request. (e) If an extension of time greater than ten (10) working days is necessary, the Commission shall make available its FOIA Public Liaison for this purpose. A list of the Commission FOIA Public Liaisons is available at https:// www.cpsc.gov/Newsroom/FOIA. The Commission will also notify requesters in writing to the availability of the Office of Government Information Services of the National Archives and Records Administration to provide dispute resolution services. (f) The Secretariat or delegate of the Secretariat may aggregate and process as a single request requests by the same requester, or a group of requesters acting in concert, if the Secretariat 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. (g) The Secretariat or delegate of the Secretariat will provide expedited processing of requests in cases where the requester demonstrates a compelling need for such processing. (1) * * * (2) Requesters for expedited processing must include in their requests, which may be submitted through any of the methods described in § 1015.3(a) of this part, a statement setting forth the basis for the claim that a ‘‘compelling need’’ exists for the requested information, certified by the requester to be true and correct to the best of his or her knowledge and belief. (3) The Secretariat or delegate of the Secretariat will determine whether to VerDate Sep<11>2014 22:13 Dec 30, 2016 Jkt 241001 grant a request for expedited processing and will notify the requester of such determination within ten (10) days of receipt of the request. (4) * * * (5) The Secretariat or delegate of the Secretariat will process as soon as practicable the documents responsive to a request for which expedited processing is granted. (h) The Secretariat may be unable to comply with the time limits set forth in this § 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 Secretariat or delegate of the Secretariat will notify requesters whose requests will be delayed for this reason. ■ 7. Revise § 1015.6 by: ■ a. Revising paragraph (a); ■ b. Removing the word ‘‘Secretary’’ from paragraphs (b), and (c) wherever it appears, and adding, in its place, the word ‘‘Secretariat;’’ ■ c. Removing the number ‘‘30’’ in paragraph (b)(4), and adding, in its place, the number ‘‘90’’; and ■ d. Adding paragraph (b)(5). The revisions read, as follows: § 1015.6 Responses: Form and content. (a) When a requested record has been identified and is available for disclosure, the requester shall be supplied with a copy or notified as to where and when the record will be made available for public inspection in an electronic format. If the payment of fees is required the requester shall be advised by the Secretariat in writing of any applicable fees under § 1015.9 hereof. The requester will be notified of the right to seek assistance from the Commission’s FOIA Public Liaison. (b) A response denying a written request for a record shall be in writing signed by the Secretariat or delegate of the Secretariat and shall include: * * * * * (4) A statement that the denial may be appealed to the Commissioners of the Consumer Product Safety Commission. Any such appeal must be made within 90 calendar days of receipt of the denial by the requester. (5) A statement that the requester has the right to seek dispute resolution services from the Commission’s FOIA Public Liaison or the Office of Government Information Services. (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 PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 65 relief in a United States District Court as specified in 5 U.S.C. 552(a)(4)(B). When it appears that no response can be made to the requester within the applicable time limit, the Secretariat or delegate of the Secretariat may ask the requester to forego judicial relief until a response can be made. The Secretariat or delegate of the Secretariat shall inform the requester of the reason for the delay, of the date on which a response may be expected and of his/her right to seek judicial review as specified in 5 U.S.C. 552(a)(4)(B). ■ 8. Amend § 1015.7 by: ■ a. Revising the section heading; ■ b. Revising paragraphs (a) and (b); ■ c. Removing the word ‘‘Secretary’’ in paragraphs (c) and (g) wherever it appears, and adding, in its place, the word ‘‘Secretariat’’; and ■ d. Revising paragraph (e). The revisions read, as follows: § 1015.7 Appeals from initial denials; reconsideration by the Secretariat. (a) When the Secretariat or delegate of the Secretariat has denied a request for records in whole or in part, the requester may, within 90 calendar days of its receipt, appeal the denial to the General Counsel of the Consumer Product Safety Commission, attention of the Secretariat. Appeals may be submitted through any of the following methods: The e-FOIA Public Access Link at https://www.cpsc.gov; email to cpsc-foia@cpsc.gov; mail to 4330 East West Highway, Room 820, Bethesda, MD 20814; or facsimile to 301–504– 0127. (b) The General Counsel, or the Secretariat upon reconsideration, will act upon an appeal within 20 working days of its receipt. The time limitations on an appeal submitted by mail shall begin to run at the time an appeal is received and date stamped by the Office of the Secretariat. The Office of the Secretariat will date stamp the request the same day that it receives the request. The time limitations on an appeal submitted electronically during working hours (8 a.m. to 4:30 p.m. EST) shall begin to run at the time the appeal was electronically received and the time limitations on responses electronically submitted during non-working hours will begin to run the next working day. (c) After reviewing the appeal, the Secretariat will reconsider his/her initial denial. If the Secretariat upon reconsideration decides to release any or all of the information requested on appeal, an appeal as to the information released will be considered moot; and the Secretariat will so inform the requester and submitter of the information in accordance with E:\FR\FM\03JAP1.SGM 03JAP1 66 Federal Register / Vol. 82, No. 1 / Tuesday, January 3, 2017 / Proposed Rules §§ 1015.6(a) and 1015.18(b). If the Secretariat decides to affirm the initial denial, in whole or in part, the General Counsel will decide the appeal within the 20-day time limit or any extension thereof in accordance with § 1015.5. * * * * * (e) The General Counsel’s action on appeal shall be in writing, shall be signed by the General Counsel, and shall constitute final agency action. A denial in whole or in part of a request on appeal shall set forth the exemption relied upon; a brief explanation, consistent with the purpose of the exemption, of how the exemption applies to the records withheld; and the reasons for asserting it. The decision will inform the requester of the right to seek dispute resolution services from the Commission’s FOIA Liaison or the Office of Government Information Services. A denial in whole or in part shall also inform the requester of his/her right to seek judicial review of the Commission’s final determination in a United States district court, as specified in 5 U.S.C. 552(a)(4)(B). * * * * * (g) Copies of all appeals and copies of all actions on appeal shall be furnished to and maintained in a public file by the Secretariat. ■ 9. Amend § 1015.9 by: ■ a. Removing the word ‘‘Secretary’’ in paragraphs (a), (e)(9), (f)(4), (5) and (7), and adding, in its place, the word ‘‘Secretariat’’; ■ b. Revising paragraph (b), (c)(2) and (3); ■ c. Adding a sentence at the end of paragraph (e)(1); ■ d. Adding paragraph (f)(6); ■ e. Redesignating paragraph (f)(6) as paragraph (f)(7). The revisions read, as follows: sradovich on DSK3GMQ082PROD with PROPOSALS § 1015. 9 Fees for production of records. (a) The Commission will provide, at no charge, certain routine information. For other Commission responses to information requests, the Secretariat shall determine and levy fees for duplication, search, review, and other services, in accordance with this section. (b) Fees shall be paid to the Treasury of the United States according to the directions provided by the Commission. * * * * * (c)(2) Search includes all time spent looking for material that is responsive to a request, including page-by-page or line-by-line identification of material within documents and the reasonable efforts expended to locate and retrieve information from electronic records. (3) Duplication refers to the process of making a copy of a document, including VerDate Sep<11>2014 22:13 Dec 30, 2016 Jkt 241001 electronically, necessary to respond to a FOIA request. The Commission will honor the requester’s preference for receiving a record in a particular format when it can readily reproduce it in the form or format requested. * * * * * (e)(1) * * * Where paper documents must be scanned in order to comply with a requester’s preference to receive records in an electronic format, the requester must also pay the direct costs associated with scanning those materials. (f)(6) Search fees shall be waived for all requests and duplication fees shall be waived for requests from educational institutions, non-commercial scientific institutions, and representatives of the news media if the Commission fails to comply with any time limit and notice under § 1015.5(b)–(d) and 5 U.S.C. 552(a)(6) other than those exceptions stated in 5 U.S.C. 552 (a)(4)(A)(viii)(ll). Those exceptions include: (i) if the Commission has determined that unusual circumstances as defined in § 1015.5(b) apply and the Commission provided timely written notice to the requester as required by § 1015.5(e), then failure to comply with the time limit in § 1015.5(b)–(d) is excused for 10 additional days; or (ii) if the Commission has determined that unusual circumstances as defined in § 1015.5(b) apply and more than 5,000 pages are necessary to respond to the request, and the Commission has provided timely written notice in accordance with § 1015.5(e) and the Commission has discussed with the requester via written mail, email, or telephone (or made not less than three good-faith efforts to do so) how the requester could effectively limit the scope of the request; or (iii) if a court has determined that exceptional circumstances exist as defined in 5 U.S.C. 552(6)(C), then failure to comply with § 1015.6(b)–(d) and 5 U.S.C. 552(a)(6) shall be excused for the length of time provided by the court order. (7) Any determination made by the Secretariat concerning fee waivers may be appealed by the requester to the Commission’s General Counsel in the manner described at § 1015.7. ■ 10. Revise § 1015.10 as follows: ■ a. Adding a phrase at the end of the undesignated introductory paragraph; ■ b. Add paragraph (h) and (i). The revisions read, as follows: § 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 PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 information requests during the preceding fiscal year to the Attorney General of the United States and to the Director of the Office of Government Information Services. This report shall include: * * * * * (h) The number of times the Commission denied a request for records under 5 U.S.C. 552(c). (i) The number of records that were made available for public inspection in an electronic format under 5 U.S.C. 552(a)(2). ■ 11. Amend § 1015.11 by revising paragraphs (a) and (b) to read, as follows: § 1015.11 Disclosure of trade secrets to consultants and contractors; nondisclosure to advisory committees and other government agencies. (a) In accordance with section 6(a)(2) of the CPSA, the Commission may disclose information which it has determined to be a trade secret or other matter referred to under 5 U.S.C. 552(b)(4) to Commission consultants and contractors for use only in their work for the Commission. Such persons are subject to the same restrictions with respect to disclosure of such information as any Commission employee. (b) In accordance with section 6(a)(2) of the CPSA, the Commission is prohibited from disclosing information which it has determined to be a trade secret or other matter referred to under 5 U.S.C. 552(b)(4) to advisory committees, except when required in the official conduct of their business, or to other Federal agencies and state and local governments except when permitted by the provisions of section 29(f) of the CPSA. ■ 12. Amend § 1015.15 by: ■ a. Removing the words ‘‘and the internal Commission procedure for withholding exempt records’’ from paragraph (a); and ■ b. Revising paragraph (b) and (c). The revisions read, as follows: § 1015.15 Purpose and scope. (a) The regulations of this subpart provide information concerning the types of records which may be withheld from production and disclosure by the Consumer Product Safety Commission. These regulations also provide information on the method whereby persons submitting information to the Commission may request that the information be considered exempt from disclosure, and information concerning the Commission’s treatment of documents submitted with a request that they be treated as exempt from disclosure. E:\FR\FM\03JAP1.SGM 03JAP1 sradovich on DSK3GMQ082PROD with PROPOSALS Federal Register / Vol. 82, No. 1 / Tuesday, January 3, 2017 / Proposed Rules (b) No identifiable record requested in accordance with the procedures contained in this part shall be withheld from disclosure unless it falls within one of the classes of records exempt under 5 U.S.C. 552(b). The Commission will make available, to the extent permitted by law, records authorized to be withheld under 5 U.S.C. 552(b) unless the Commission reasonably foresees that disclosure would harm an interest protected by the exemption or disclosure is prohibited by law or otherwise exempted from disclosure under 5 U.S.C. 552(b)(3). In this regard the Commission will not ordinarily release documents that provide legal advice to the Commission concerning pending or prospective litigation where the release of such documents would significantly interfere with the Commission’s regulatory or enforcement proceedings. (c) Draft documents that are agency records are subject to release upon request in accordance with this regulation. However, in order to avoid any misunderstanding of the preliminary nature of a draft document, each draft document released will be marked to indicate its tentative nature. Similarly, staff briefing packages, which have been completed but not yet transmitted to the Commission by the Office of the Secretariat are subject to release upon request in accordance with this regulation. Each briefing package or portion thereof released will be marked to indicate that it has not been transmitted to or acted upon by the Commission. In addition, briefing packages, or portions thereof, which the Secretariat upon the advice of the Office of the General Counsel has determined would be released upon request in accordance with this regulation, will be made available for public inspection in an electronic format through the Commission’s Web site at https:// www.cpsc.gov promptly after the briefing package has been transmitted to the Commissioners by the Office of the Secretariat. Such packages will be marked to indicate that they have not been acted upon by the Commission. * * * * * ■ 13. Amend § 1015.16 by: ■ a. Revising paragraph (e); and ■ b. Removing from paragraph (f) the misspelled word ‘‘consititute’’ and adding, in its place, the word ‘‘constitute’’. The revisions read, as follows: § 1015.16 Exemptions (5 U.S.C. 552(b)). * * * * * (e) Inter-agency or intra-agency memoranda or letters that would not be available by law to a party other than an VerDate Sep<11>2014 22:13 Dec 30, 2016 Jkt 241001 agency in litigation with the agency provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested. (f) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. * * * * * § 1015.17 ■ [Reserved] 14. Remove and reserve § 1015.17. § 1015.20 Public availability of accident or investigation reports. 15. Amend § 1015.20, by removing the period and the words ‘‘No portion of’’ from the first and second sentence of paragraph (a), and adding, in its place, ‘‘unless’’ and ‘‘s’’ to the word ‘‘report’’ to read as follows: (a) Accident or investigation reports made by an officer, employee, or agent of the Commission are available to the public under the procedures set forth in subpart A of this part 1015 unless such reports are subject to the investigatory file exemption contained in the Freedom of Information Act (as restated in § 1015.16) except that portions identifying any injured person or any person treating such injured person will be deleted in accordance with section 25(c)(1) of the CPSA. * * * ■ Dated: December 21, 2016. Todd A. Stevenson, Secretariat, Consumer Product Safety Commission. [FR Doc. 2016–31131 Filed 12–30–16; 8:45 am] BILLING CODE 6355–01–P DEPARTMENT OF THE TREASURY 31 CFR Part 40 RIN 1505–AC54 Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance From the Department of the Treasury Department of the Treasury. Notice of proposed rulemaking. AGENCY: ACTION: This proposed rule would set out the Department of the Treasury (Treasury) rules for implementing section 504 of the Rehabilitation Act of 1973, as amended (section 504), for Treasury’s programs offering Federal financial assistance. Section 504 prohibits discrimination on the basis of disability in programs or activities receiving Federal financial assistance. Section 504 and the section 504 SUMMARY: PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 67 coordination regulation (coordination regulation) require that all agencies that extend Federal financial assistance issue agency-specific regulations implementing section 504. Treasury recipients have been subject to section 504 since its effective date in 1973. Accordingly, today’s proposed rule would not substantially change the existing duty of recipients of financial assistance from Treasury to refrain from discrimination on the basis of disability. This proposed rule fulfills the obligation of Treasury to issue agency-specific rules under the law, clarifies the responsibilities of recipients of financial assistance from Treasury under section 504, and describes the Treasury investigation and enforcement procedures to ensure compliance. The proposed regulation is consistent with the ADA Amendments Act of 2008 (ADA Amendments Act), which amended section 504. Comments must be received on or before March 6, 2017. DATES: Members of the public are invited to submit comments on all aspects of this proposed rule. Comments on this proposed rule should be sent to Mariam G. Harvey, Director, Office of Civil Rights and Diversity (OCRD), Department of Treasury, 1500 Pennsylvania Avenue NW., Washington, DC 20220. Comments may be submitted through www.regulations.gov. The Department encourages electronic submission of comments via www.regulations.gov. Brief comments (maximum five pages) may be submitted by facsimile machine (FAX) to (202) 622–0367. Receipt of submissions, whether online, by mail or FAX transmittal, will not be acknowledged; however, the sender may request confirmation that a submission has been received by telephoning OCRD at (202) 622–1160 (VOICE) or (202) 622–7104 (TTY/TDD). In general, comments received will be posted to Regulations.gov without change, including any business or personal information provided. Please submit only information appropriate for public disclosure. Copies of this proposed rule in the alternative formats of large print and electronic file on computer disk are available upon request. To obtain the proposed rule in an alternative format, contact OCRD at the telephone and address listed above. ADDRESSES: FOR FURTHER INFORMATION CONTACT: Lydia E. Aponte, Civil Rights Program Manager, OCRD, (202) 622–8335 (VOICE) or (202) 622–7104 (TTY/TDD). SUPPLEMENTARY INFORMATION: E:\FR\FM\03JAP1.SGM 03JAP1

Agencies

[Federal Register Volume 82, Number 1 (Tuesday, January 3, 2017)]
[Proposed Rules]
[Pages 59-67]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31131]


=======================================================================
-----------------------------------------------------------------------

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: Notice of proposed rulemaking.

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

SUMMARY: The Consumer Product Safety Commission (Commission, CPSC, or 
we) is issuing this notice of proposed rulemaking (NPR) to update its 
Freedom of Information Act (FOIA) rule. We are proposing to revise the 
rule to conform to the amendments of the FOIA Improvement Act of 2016 
(the 2016 FOIA) to the FOIA. The Commission also proposes to update the 
rule to reflect changes in Commission procedures, update Commission 
contact information, including current methods of submitting requests 
for records to the Commission, revise employee titles, and make various 
technical changes and corrections. This NPR seeks comments on the 
proposed changes to the rule.

DATES: Submit comments by March 20, 2017.

ADDRESSES: You may submit comments, identified by Docket No. CPSC-2016-
0030, by any of the following methods:
    Electronic Submissions: Submit electronic comments to the Federal 
eRulemaking Portal at https://www.regulations.gov/. Follow the 
instructions for submitting comments. The Commission does not accept 
comments submitted by electronic mail (email), except through: https://www.regulations.gov/. The Commission encourages you to submit 
electronic comments by using the Federal eRulemaking Portal, as 
described above.
    Written Submissions: Submit written comments by mail/hand delivery/
courier to: Office of the Secretariat, Consumer Product Safety 
Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814; 
telephone (301) 504-7923.
    Instructions: All submissions received must include the agency name 
and docket number for this proposed rulemaking. All comments received 
may be posted without change, including any personal identifiers, 
contact information, or other personal information provided, to: 
https://www.regulations.gov/. Do not submit confidential business 
information, trade secret information, or other sensitive or protected 
information that you do not want to be available to the public. If 
furnished at all, such information should be submitted by mail/hand 
delivery/courier.
    Docket: For access to the docket to read background documents or 
comments received, go to: https://www.regulations.gov/, and insert the 
docket number, CPSC-2016-0030, into the ``Search'' box, and follow the 
prompts.

FOR FURTHER INFORMATION CONTACT: Renee McCune, Office of the General 
Counsel, Consumer Product Safety Commission, 4330 East West Highway, 
Bethesda, MD 20814, (301) 504-7673; or Todd A. Stevenson, Chief Freedom 
of Information Officer, Consumer Product Safety Commission, 4330 East 
West Highway, Bethesda, MD 20814, (301) 504-6836.

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

Table of Contents

I. Background Information
II. Section-by-Section Analysis of the Proposed Revisions of the 
Procedures for Disclosure or Production of Information Under the 
Freedom of Information Act
III. Environmental Issues
IV. Regulatory Flexibility
V. Paperwork Reduction
VI. Preemption
VII. Effective Date
VIII. Request for Comments

I. Background Information

    On June 30, 2016, the President signed into law the 2016 FOIA, 
Public Law 114-185 (2016). The 2016 FOIA amends the Freedom of 
Information Act, 5 U.S.C. 552, requiring an agency to review its FOIA 
regulations and issue regulations on procedures for the disclosure of 
records under the new amendments. Specifically, the 2016 FOIA requires: 
Certain records be available for public inspection in an electronic 
format; agencies to make available for public inspection in an 
electronic format records that have been requested three or more times; 
that an agency not withhold information under FOIA unless the agency 
reasonably foresees that disclosure would harm an interest protected by 
a FOIA Exemption or disclosure is prohibited by law; extending the 
number of days for an administrative appeal of an adverse determination 
from 30 to 90 days; limiting the FOIA Exemption for records created 25 
years or more before the date on which the records were requested; the 
assessment of fees be limited in certain circumstances; and requesters 
be notified of available dispute resolution services from the FOIA 
Public Liaison of the agency or the Office of Government Information 
Services.
    The Commission proposes amendments to its regulations implementing 
the 2016 FOIA, 16 CFR part 1015, to incorporate these new statutory 
requirements. The proposed amendments would revise the Commission's 
FOIA regulations to comply with the FOIA, as amended by the 2016 FOIA, 
and would update Commission procedures, contact information, and 
methods of submitting requests for records to the Commission, in 
addition to other conforming and technical revisions. Updating 
Commission procedures and Commission contact information would provide 
clarity for requesters seeking records from the Commission.

II. Section-by-Section Analysis of the Proposed Revision of the 
Procedures for Disclosure or Production of Information Under the 
Freedom of Information Act

Subpart A--Production or Disclosure Under 5 U.S.C. 552(a)

Proposed Changes to Sec.  1015.1 (Purpose and Scope)
    Initially, we would update Sec.  1015.1(a) to add the Children's 
Gasoline Burn Prevention Act, the Virginia Graeme Baker Pool and Spa 
Safety Act, and the Child Nicotine Poisoning Prevention Act to the 
scope of statutes for which records must be maintained in connection 
with the Commission's responsibilities and functions under those acts 
because they were enacted after the last revision to the regulation in 
1997.
    The proposal also would revise Sec.  1015.1(b) to reflect new FOIA 
5 U.S.C. 552(a)(8)(A), requiring agencies to analyze under a 
foreseeable harm standard the withholding of information permitted by 
the exemptions set forth in 5 U.S.C. 552(b). The proposal would allow 
information to be withheld pursuant to the exemptions, only if the 
Commission reasonably foresees that disclosure would harm an interest 
protected by a specific FOIA exemption, or if disclosure is otherwise 
prohibited by law. This proposal, consistent with the 2016 FOIA, would 
not require disclosure of information otherwise prohibited from 
disclosure by law, or otherwise exempted from disclosure

[[Page 60]]

under 5 U.S.C. 552(b)(3) (FOIA Exemption 3), which prohibits the 
disclosure of matters specifically exempted from disclosure by another 
statute. The proposal would specify that the Commission will consider 
the record's age, content, and character in assessing whether it 
reasonably foresees that disclosure of the document would harm an 
interest protected by an exemption. Additionally, consistent with the 
FOIA as amended by the 2016 FOIA, we also propose a revision that would 
require that we consider partial disclosure when full disclosure of a 
record is not possible and that we take reasonable steps to segregate 
and release nonexempt information.
    Under the proposed revision, for example, Commission records that 
currently fall within the parameters of 5 U.S.C. 552(b)(5) (FOIA 
Exemption 5) would be subject to the foreseeable harm standard. FOIA 
Exemption 5 incorporates, among other privileges, the deliberative 
process privilege, which is considered a discretionary exemption, 
meaning that withholding of records resides within the discretion of 
the agency, rather than mandated by law. As the Senate report on the 
FOIA amendment explains: ``[t]he foreseeable harm standard applies only 
to those FOIA Exemptions under which discretionary disclosures can be 
made. Several FOIA Exemptions, by their own existing terms, cover 
information that is prohibited from disclosure or exempt from 
disclosure under a law outside the four corners of the FOIA. Such 
information is not subject to discretionary disclosure and is therefore 
not subject to the foreseeable harm standard.'' Senate Report No. 114-
4, p 8 (February 23, 2015). Under this analysis and Department of 
Justice guidance, records protected by the deliberative process 
privilege under FOIA Exemption 5 shall be considered for release under 
the foreseeable harm standard, even if the records may otherwise be 
properly withheld under this exemption. In deciding whether to make a 
discretionary release of records protected by the deliberative process 
privilege, the Commission may consider, in addition to the record's 
age, content, and character, the nature of the decision at issue, the 
status of that decision, and the personnel involved.
    The foreseeable harm standard, however, would not be applied to 
disclosures prohibited by law or covered by FOIA Exemption 3, which 
pertains to matters specifically exempted from disclosure by another 
statute. Exemption 3 would include disclosures prohibited under section 
6 of the Consumer Product Safety Act (CPSA), 15 U.S.C. 2055(a)(2), and 
thus, the proposal to apply the foreseeable harm standard would not 
alter, or otherwise limit, the information disclosure restrictions set 
forth in section 6. Current Sec.  1015.1(b) already references 
disclosures prohibited by law under Section 6(a)(2) of the CPSA. The 
proposal, as revised, would preserve that prohibition, consistent with 
the statutory direction, and it would clarify that information covered 
by FOIA Exemption 3 is prohibited from disclosure and not subject to 
analysis under the foreseeable harm standard. Specifically, the 
proposed revision would state that Commission records subject to 
Section 6 and 25(c) of the CPSA, 15 U.S.C. 2055 and 2074(c), fall 
within the scope of FOIA Exemption 3.
    The proposal also would revise Sec.  1015.1(c) to remove the 
existing statement that the Attorney General's Memorandum on the 1974 
Amendments to the FOIA may be consulted in considering questions 
arising under the FOIA. That memorandum is outdated and should not be 
consulted in considering questions arising under the FOIA because the 
FOIA has been statutorily amended multiple times since 1974.
    In place of the current Sec.  1015.1(c), we propose a new Sec.  
1015.1(c) to reflect that the Commission Secretariat serves as the 
agency's Chief FOIA Officer. The 2016 FOIA amends the FOIA at 5 U.S.C. 
552(j) to require each agency to designate a Chief FOIA Officer, who 
shall be a senior official of the agency, and shall have, subject to 
the authority of the head of the agency, among other responsibilities, 
responsibility for compliance and implementation of section (j) of the 
FOIA. The revised Sec.  1015.1(c) would state that the Commission's 
Chief Freedom of Information Officer, a senior official at the 
Commission, would be the Secretariat. Therefore, for clarity and 
consistency with the provisions of Sec.  1015.4, which vests ultimate 
authority for responding to FOIA requests in the Commission's 
Secretariat, and in conformance with amendments made to the FOIA, we 
propose new language explaining that the Secretariat of the Commission 
is the Chief Freedom of Information Officer, who, subject to the 
authority of the Chairman, is responsible for compliance with, and 
implementation of, 5 U.S.C. 552(j).
    We additionally propose minor and non-substantive changes in 
grammar.
Proposed Changes to Sec.  1015.2 (Public Reference Facilities)
    To reflect amendments in the 2016 FOIA that focus on public 
inspection in an electronic format, we are proposing to revise the 
title of this section to ``Public inspection.'' Additionally, we 
propose removing ``and copying'' from Sec.  1015.2(a) and (b), and 
replacing that phrase with ``in an electronic format,'' to conform to 
the amendments to the FOIA at 5 U.S.C. 552(a).
    We also propose removing the statements in Sec.  1015.2(b) 
regarding additional Commission public reference facilities. With 
changes in technology, public inspection at the Commission headquarters 
is rare, and we do not anticipate a need for additional public 
reference facilities. To provide additional information to the public 
about the Commission's electronic reading room, we propose adding the 
Commission's Web site address to Sec.  1015.2(c) and a statement 
indicating that records that the Commission must make available for 
public inspection in an electronic format may be accessed through the 
e-FOIA Public Access Link at the Commission's Web site address.
    Additionally, to conform with amendments to the FOIA at 5 U.S.C. 
552(a)(2)(D), we are proposing a new Sec.  1015.2(d), which requires 
the agency, subject to any restrictions imposed by section 6 of the 
CPSA, to make available for public inspection in an electronic format, 
copies of certain records, regardless of form. Specifically, the 
Commission shall make available for public inspection, records that 
have been released under FOIA, records that, because of the nature of 
the subject matter, the agency determines are likely to become the 
subject of subsequent requests for substantially the same records, and 
records that have been requested three or more times.
    We additionally propose correcting ``Secretary'' to the current 
title of ``Secretariat'' throughout this paragraph and updating the 
room number of the Office of the Secretariat.
Proposed Changes to Sec.  1015.3 (Requests for Records and Copies)
    We propose a revision to the title of this section by removing 
``and copies'' to reflect amendments to the FOIA at 5 U.S.C. 552(a).
    To reflect current practice, we also propose updating Sec.  
1015.3(a) on the ways requesters may submit requests for records to the 
Commission, to include electronic methods. In addition to submitting 
requests by mail, requesters would be able to submit a request through 
the Commission's e-FOIA Public Access Link, email, or facsimile. We 
also propose a technical correction to reflect the Commission's 
address. To promote good FOIA customer service, we also propose to 
revise Sec.  1015.3(b) to

[[Page 61]]

state that, before submitting requests, requesters may contact the 
Commission's FOIA contact or FOIA Public Liaison to discuss the records 
the submitter seeks and to receive assistance in describing the 
records.
    Additionally, throughout this section we propose changing 
``Secretary'' to ``Secretariat'' to update the position to its current 
title.
Proposed Changes to Sec.  1015.4 (Responses To Requests for Records; 
Responsibility)
    We propose changing ``Secretary'' to ``Secretariat'' throughout 
this section to reflect the name of the position to its current title.
Proposed Changes to Rule Sec.  1015.5 (Time Limitations on Responses to 
Requests for Records and Requests for Expedited Processing)
    We propose updating Sec.  1015.5(a) to incorporate new procedural 
requirements and to reflect current Commission practices and advances 
in technology. We propose clarifying that time limitations on responses 
to requests submitted by postal mail would begin to run at the time the 
request is received and date-stamped by the Office of the Secretary 
(which we propose revising to the Office of the Secretariat). We would 
also update the regulation to reflect the current practice that the 
Office of the Secretariat will date-stamp requests the same day that it 
receives the requests. We also propose that time limitations on 
responses to requests submitted electronically would begin to run at 
the time the request is electronically received, if the request is 
submitted during ``working hours,'' which we define as 8 a.m. to 4:30 
p.m. EST. For responses submitted electronically during non-working 
hours, the proposed change would require that time limitations begin to 
run the next working day after the request is submitted.
    If the Commission is unable to respond to a request within this 
time frame, the current Sec.  1015.5(b) allows the Secretariat, at the 
initial stage, or the General Counsel, at the appellate stage, to 
extend the time for responding to requests up to 10 additional working 
days, if a request satisfies the criteria for ``unusual 
circumstances.'' Moreover, as explained in current Sec.  1015.5(d), if 
the Secretariat or General Counsel determines that an extension of more 
than 10 days is required, the Secretariat or General Counsel must give 
the requester an opportunity to limit the scope of the request or 
arrange for an alternative timeframe to process the request. Under the 
new FOIA amendments, in those circumstances, agencies are required to 
make available its FOIA Public Liaison to assist in the resolution of 
any disputes between the requester and the agency. The 2016 FOIA 
additionally requires agencies to notify requesters of the right to 
seek dispute resolution services from the Office of Government 
Information Services. Therefore, we propose adopting language stating 
that if an extension of time greater than 10 working days is necessary, 
the Commission will make available its FOIA Public Liaison for purposes 
of dispute resolution. Additionally, we propose providing information 
about where on the Commission's Web site, the Commission's designated 
FOIA Liaison(s) is listed and also stating that the Commission will 
notify requesters in writing of the availability of the Office of 
Government Information Services to provide dispute resolution services, 
as required by the 2016 FOIA. We propose inserting this language into a 
new Sec.  1015.5(e), and we propose re-designating the succeeding 
paragraphs in Sec.  1015.5 to conform to this change.
    We also propose adding a statement to the current Sec.  
1015.5(f)(2), clarifying that requests for expedited processing may be 
submitted through any of the methods described in the proposed Sec.  
1015.3(a), in which we propose updating the regulation to reflect new 
electronic methods of submission.
    We additionally propose revising Secretary'' to ``Secretariat'' 
throughout, to change the name of the position to its current title.
Proposed Changes to Sec.  1015.6 (Form and Content)
    To reflect the current organizational structure of the agency and 
to align with the 2016 FOIA amendments to the FOIA, indicating that 
documents for public inspection will be made available in electronic 
format, we propose revising Sec.  1015.6(a) to state that when a 
requested record has been identified, requesters shall be supplied with 
a copy or notified of where and when the document will be made 
available for public inspection in an electronic format. We also 
propose removing the reference to making records available at a 
requested regional office. This option is outdated and no longer 
applicable because the Commission does not have regional offices that 
the public can visit.
    We additionally propose amending Sec.  1015.6(a) to conform with 
the 2016 FOIA amendments to 5 U.S.C. 552(a)(6)(A)(i), which require the 
Commission, when responding to a records request, to notify requesters 
of their right to seek assistance from the Commission's FOIA Public 
Liaison.
    In the case of a denial, we propose revisions to conform with the 
2016 FOIA amendments to 5 U.S.C. 552(a)(6)(A)(i)(III)(aa), which 
requires that agencies notify requesters when there is an adverse 
determination that requesters have the right to appeal within a period 
determined by the head of the agency that is not less than 90 days 
after the date of such determination. Accordingly, we propose revising 
Sec.  1015.6(b)(4) to change ``30 calendar days'' to ``90 calendar 
days.'' We also propose adding a new Sec.  1015.6(b)(5), which would 
require the Commission, in the case of a denial, to notify requesters 
of their right to seek dispute resolution services from the Office of 
Government Information Services.
    We additionally propose revising ``Secretary'' to ``Secretariat'' 
throughout the section, to revise the title of the position to its 
current title.
Proposed Changes to Sec.  1015.7 (Appeals From Initial Denials; 
Reconsideration by the Secretary)
    We propose revising the deadline for appealing a denial of a 
records request from 30 days to 90 calendar days in Sec.  1015.7(a) to 
conform with the 2016 FOIA amendments described above regarding 
proposed changes to Sec.  1015.6.
    We additionally propose updating the regulation at Sec.  1015.7(a) 
to list the ways, including electronic methods, that a requester may 
appeal a denial to the General Counsel of the Commission.
    To reflect changes in Commission procedures due to advances in 
information technology, we propose updating Sec.  1015.7(b) to specify 
that time limitations on appeals submitted by postal mail would begin 
to run when the appeal is received and date-stamped by the Office of 
the Secretary (proposed to be changed to the Office of the 
Secretariat). We would also update the regulation to reflect the 
current practice that the Office of the Secretariat will date-stamp 
requests the same day that it receives the requests. We also propose 
that time limitations on appeals submitted electronically would begin 
to run at the time the appeal is electronically received, if the 
request is submitted during ``working hours,'' which we define as 8 
a.m. to 4:30 p.m. EST. For responses submitted electronically during 
non-working hours, the proposed change would require that time 
limitations begin to run the next working day.
    To conform with the 2016 FOIA amendments to 5 U.S.C. 
552(a)(6)(A)(i)(III)(bb), which require

[[Page 62]]

agencies to provide notification in an adverse determination of the 
right to seek dispute resolution services from the FOIA Public Liaison 
of the agency or the Office of Government Information Services, we 
propose including a statement in Sec.  1015.7(e) stating that the 
Commission will provide such a notification.
    We additionally propose revising ``Secretary'' to ``Secretariat'' 
throughout the section, including in the title, to correct the name of 
this position.
Proposed Changes to Sec.  1015.9 (Fees for Production of Records.)
    We propose to make technical changes throughout this section, 
including a revision to Sec.  1015.9(b) to reflect updated ways to 
effectuate fee payment. We also propose to account for efforts expended 
to locate and retrieve electronic information by revising the term 
``search'' in Sec.  1015.9(c)(2) and the definition of ``duplication'' 
in Sec.  1015.9(c)(3) and to account for new technology changes that 
are not reflected in the regulation. The proposal would also account 
for the efforts to scan documents through a revision of Sec.  
1015.9(e)(1), which would require a requester to pay the direct costs 
associated with scanning documents.
    We also propose to revise Sec.  1015.9(f)(6) to conform to the 2016 
FOIA amendments to 5 U.S.C. 552(a)(4)(A)(viii)(II). The changes would 
require the Commission to waive fees where the agency fails to comply 
with a time limit that it has extended because the agency has 
determined that unusual circumstances apply. However, if the extension 
for unusual circumstances involves more than 5,000 responsive pages, 
the Commission may continue to charge fees, provided it has given 
timely notice to the requester and has discussed with the requester how 
to effectively limit the scope of the request. Thus, the regulation 
would be revised to prevent the Commission from assessing search fees 
for any requester or duplication fees for an educational institution, 
non-commercial scientific instiution, or a representative of the news 
media requester, if the Commission fails to comply with an extended 
time limit, unless 5,000 pages are responsive to the request, and the 
Commission has made three good faith attempts to discuss with the FOIA 
requester limiting the scope of the request.
    We additionally propose revising ``Secretary'' to ``Secretariat'' 
throughout the section, including in the title, to correct the name of 
this position.
Proposed Changes to Sec.  1015.10 (Commission Report of Actions to 
Congress)
    We propose revisions to this section to conform to the 2016 FOIA 
amendments to 5 U.S.C. 552(e)(1). Specifically, we propose adding a 
statement that the Commission must submit the report to the Director of 
the Office of Government Information Services in addition to its 
current requirement to submit the report to the Attorney General of the 
United States. We also propose adding, in conformance with the statute, 
new Sec.  1015.10(h), stating that the report shall include the number 
of times the Commission denied a request for records under 5 U.S.C. 
552(c) and new Sec.  1015.10(i), stating that the report shall include 
the number of records that were made available for public inspection in 
an electronic format under 5 U.S.C. 552(a)(2).
Proposed Changes to Rule Sec.  1015.11 (Disclosure of Trade Secrets to 
Consultants and Contractors; Nondisclosure to Advisory Committees and 
Other Government Agencies)
    We propose to add language to Sec.  1015.11 to clarify that the 
reference in Sec.  1015.11(a) and (b) to 5 U.S.C. 552(b)(4) includes 
not only trade secrets, but also includes commercial or financial 
information.
    We also propose revising Sec.  1015.11(b) to incorporate an 
amendment to the CPSA, 15 U.S.C. 2078(f), by the Consumer Product 
Safety Improvement Act of 2008, Public Law 110-314 (2008), which 
permits the Commission to share information with federal, state, and 
local agencies, if certain requirements are satisfied.

Subpart B--Exemptions From Production and Disclosure Under 5 U.S.C. 
552(b)

Proposed Changes to Sec.  1015.15 (Purpose and Scope)
    We propose removing language in Sec.  1015.15(a) that references 
the internal Commission procedure for withholding exempt records 
because, as explained below in Proposed Changes to Rule Sec.  1015.17 
(Internal Commission procedure for withholding exempt records.), we 
propose removing Sec.  1015.17 entirely.
    We also propose revisions to Sec.  1015.15(b) to conform to the 
2016 FOIA amendment to 5 U.S.C. 552(a)(8)(A), which provides that 
agencies shall withhold information under 5 U.S.C. 552, only if the 
agency reasonably foresees that disclosure would harm an interest 
protected by an exemption described in 5 U.S.C. 552(b), or disclosure 
is otherwise prohibited by law. Currently, the rule states that the 
Commission will make available, to the extent permitted by law, records 
authorized to be withheld under 5 U.S.C. 552(b), unless the Commission 
determines that disclosure is contrary to the public interest. To align 
with the 2016 FOIA amendments, we propose revising this section to 
state that the Commission will make available records authorized to be 
withheld under one of the FOIA exemptions, ``unless the Commission 
reasonably foresees that disclosure would harm an interest protected by 
the exemption or disclosure is prohibited by law or otherwise exempted 
from disclosure under 5 U.S.C. 552(b)(3).''
    Additionally, we propose updating Sec.  1015.15(c) to reflect the 
focus of the 2016 FOIA on public inspection of documents in an 
electronic format, which is consistent with current practice. The 
proposal would require that briefing packages, or portions thereof, 
which the Secretary (which we propose revising to Secretariat), upon 
the advice of the Office of the General Counsel, has determined would 
be released, upon request, would be made available for public 
inspection in an electronic format through the Commission's Web site. 
Specifically, we propose removing the language stating that such 
briefing packages would be publicly available in the public reference 
facility established under Sec.  1015.2, and replacing it with proposed 
language indicating that the information will be available 
electronically on the Commission's Web site.
    We also propose revising ``Secretary'' to ``Secretariat'' in Sec.  
1015.15(c), to correct the name of this position and propose a non-
substantive grammatical revision in the first sentence of Sec.  
1015.15(b).
Proposed Changes to Sec.  1015.16 (Exemptions (5 U.S.C. 552(b)).)
    The 2016 FOIA amends 5 U.S.C. 552(b)(5) to include a sunset 
provision on the deliberative process privilege so that it does not 
apply to records created 25 years or more before the date on which the 
records were requested. We propose amending Sec.  1015.16(e) to add 
language reflecting this change.
    We also propose non-substantive technical corrections to Sec. Sec.  
1015.16(e) and (f) to track the statutory language.
Proposed Changes to Sec.  1015.17 (Internal Commission Procedure for 
Withholding Exempt Records)
    We propose removing all of Sec.  1015.17 and reserving this 
section. Section

[[Page 63]]

1015.17 describes an internal Commission procedure that allows a 
Commission bureau or office director who believes that it is against 
the public interest to disclose a Commission record prepared by his/her 
office that may be exempt from disclosure under the inter- intra-agency 
memorandum exemption at 5 U.S.C. 552(b)(5) or the investigatory file 
exemption at 5 U.S.C. 552(b)(7) to request that the Secretary withhold 
the document, and, if necessary, appeal that decision to the 
Commission. The current Sec.  1015.17(a)(1) states that if the 
Secretary agrees to withhold the document, the requester shall be 
notified in writing of the denial and of his/her right to appeal. 
Section 1015.17 is not necessary and should be removed because 
procedures for Commission responses to requests based on an analysis of 
harm to the public interest would now be described in detail in 
proposed Sec.  1015.1(b) and Sec.  1015.6 and include additional 
updated requirements not in Sec.  1015.17. Accordingly, we propose 
removing Sec.  1015.17 because it does not reflect current internal 
Commission procedures. Moreover, even if the provisions were not 
outdated, we would propose removing this provision because it describes 
an internal procedure that is more appropriate for including in a 
Commission Directive on staff procedure than in a regulatory scheme.

Subpart C--Disclosure of Commission Accident or Investigation Reports 
Under 15 U.S.C. 2074(c)

Proposed Changes to Sec.  1015.20 (Public Availability of Accident or 
Investigation Reports)
    We propose updating Sec.  1015.20(a) to reflect current Commission 
procedure. The rule currently states that accident or investigation 
reports are available to the public under the procedures set forth in 
subpart A and that no portion of such reports are subject to the 
investigatory file exemption. Current Commission procedure allows for 
the withholding of accident or investigation reports, if the 
requirements of the investigatory file exemption are met. Therefore, we 
propose revising this section to state that accident or investigation 
reports are available to the public under the procedures set forth in 
subpart A, unless such reports are subject to the investigatory file 
exemption.

III. Environmental Considerations

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

IV. Regulatory Flexibility Analysis

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

V. Paperwork Reduction Act

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

VI. Executive Order 12988 (Preemption)

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

VII. 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 Commission proposes that the effective date be 30 days after the 
date of publication of a final rule in the Federal Register. 5 U.S.C. 
553(d).

VIII. Request for Comments

    The Commission requests comments on all aspects of the proposed 
rule. Comments should be submitted in accordance with the instructions 
in the ADDRESSES section at the beginning of this document. Written 
comments must be received by March 20, 2017.

List of Subjects in 16 CFR 1015

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

    For the reasons set forth in the preamble, the Commission proposes 
to amend 16 CFR part 1015 to read, as follows:

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

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

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

0
2. Amend Sec.  1015.1 by revising the third sentence in paragraph (a) 
and revising paragraphs (b) and (c) to read, as follows:


Sec.  1015.1   Purpose and scope.

    (a) * * * These records include those maintained in connection with 
the Commission's responsibilities and functions under the Consumer 
Product Safety Act, as well as those responsibilities and functions 
transferred to the Commission under the Federal Hazardous Substances 
Act, the Poison Prevention Packaging Act of 1970, the Refrigerator 
Safety Act, the Flammable Fabrics Act, the Children's Gasoline Burn 
Prevention Act, the Virginia Graeme Baker Pool and Spa Safety Act, and 
the Child Nicotine Poisoning Prevention Act, and those maintained under 
any other authorized activity. * * *

[[Page 64]]

    (b) The Commission's policy with respect to requests for records is 
that disclosure is the rule and withholding is the exception. All 
records or portions of records not exempt from disclosure will be made 
available. Records which may be exempted from disclosure will be made 
available unless: (1) Disclosure is prohibited by law; (2) the 
Commission reasonably foresees that disclosure would harm an interest 
protected by an exemption described in 5 U.S.C. 552(b); or (3) 
disclosure is exempted under 5 U.S.C. 552(b)(3). See Sec.  1015.15(b). 
Section 6(a)(2) of the Consumer Product Safety Act, 15 U.S.C. 
2055(a)(2), prohibits the disclosure of trade secrets or other matters 
referred to in 18 U.S.C. 1905; Section 6(b) and Section 25(c) of the 
CPSA. The Commission will consider the record's age, content, and 
character in assessing whether it reasonably foresees that disclosure 
of the document would harm an interest protected by an exemption. 
Additionally, the Commission will consider whether partial disclosure 
of information is possible whenever the Commission determines that a 
full disclosure of a requested record is not possible and will take 
reasonable steps necessary to segregate and release nonexempt 
information.
    (c) The Secretariat of the Commission is the designated Chief 
Freedom of Information Officer who, subject to the authority of the 
Chairman, is responsible for compliance with and implementation of 5 
U.S.C. 552(j).
0
3. Amend Sec.  1015.2 by:
0
a. Revising the section heading;
0
b. Revising paragraphs (a), (b) and (c); and
0
c. Adding paragraph (d).
    The revisions read, as follows:


Sec.  1015.2   Public inspection.

    (a) The Consumer Product Safety Commission will maintain in a 
public reference room or area the materials relating to the Consumer 
Product Safety Commission that are required by 5 U.S.C. 552(a)(2) and 
552(a)(5) to be made available for public inspection in an electronic 
format. The principal location will be in the Office of the Secretariat 
of the Commission. The address of this office is: Office of the 
Secretariat, Consumer Product Safety Commission, Room 820, 4330 East 
West Highway, Bethesda, MD 20814.
    (b) This public reference facility will maintain and make available 
for public inspection in an electronic format a current index of the 
materials available at that facility which are required to be indexed 
by 5 U.S.C. 552(a)(2).
    (c) The Consumer Product Safety Commission will maintain an 
``electronic reading room'' on the World-Wide Web at https://www.cpsc.gov for those records that are required by 5 U.S.C. 552(a)(2) 
to be available by ``computer telecommunications.'' Records that the 
FOIA requires the Commission to make available for public inspection in 
an electronic format may be accessed through the e-FOIA Public Access 
Link at https://www.cpsc.gov.
    (d) Subject to the requirements of Section 6 of the CPSA, the 
Commission will make available for public inspection in an electronic 
format copies of all records, regardless of form or format, that (1) 
have been released to any person under 5 U.S.C. 552(a)(3) and (2) that 
because of the nature of their subject matter, the Commission 
determines have become or are likely to become the subject of 
subsequent requests for substantially the same records or that have 
been requested three or more times.
0
4. Amend Sec.  1015.3 by:
0
a. Revising the section heading;
0
b. Revising the first sentence of paragraph (a);
0
c. Adding a sentence at the end of paragraph (b); and
0
d. Removing the word ``Secretary'' from paragraphs (d) and (e), 
wherever it appears, and adding, in its place, the word 
``Secretariat''.
    The revisions read, as follows:


Sec.  1015.3   Requests for records.

    (a) A request for access to records of the Commission shall be in 
writing addressed to the Secretariat and shall be submitted through any 
of the following methods: The e-FOIA Public Access Link at https://www.cpsc.gov; email to cpsc-foia@cpsc.gov; mail to Consumer Product 
Safety Commission, 4330 East West Highway, Room 820, Bethesda, MD 
20814; or facsimile to 301-504-0127. * * *
    (b) * * * Before submitting their requests, requesters may contact 
the Commission's FOIA contact or FOIA Public Liaison to discuss the 
records they seek and to receive assistance in describing the records.
* * * * *
    (d) If a requested record cannot be located from the information 
supplied, or is known to have been destroyed or otherwise disposed of, 
the requester shall be so notified by the Secretariat or delegate of 
the Secretariat.
    (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 
Secretariat or delegate of the Secretariat will determine which track 
is appropriate for the request. The Secretariat or delegate of the 
Secretariat 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 Secretariat or 
delegate of the Secretariat disagrees may so indicate in the request 
and, where appropriate and feasible, will also be given an opportunity 
to limit their requests.


Sec.  1015.4   [Amended]

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


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

    (a) The Secretariat or delegate of the Secretariat shall respond to 
all written requests for records within twenty (20) working days 
(excepting Saturdays, Sundays, and legal public holidays). The time 
limitations on responses to requests for records submitted by mail 
shall begin to run at the time a request for records is received and 
date stamped by the Office of the Secretariat. The Office of the 
Secretariat shall date stamp the request the same day that it receives 
the request. The time limitations on responses to requests for records 
submitted electronically during working hours (8 a.m. to 4:30 p.m. EST) 
shall begin to run at the time the request was electronically received 
and the time limitations on responses submitted electronically during 
non-working hours will begin to run the next working day.
    (b) The time for responding to requests for records may be extended 
by

[[Page 65]]

the Secretariat at the initial stage or by the General Counsel of the 
Commission 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 facilities or other establishments that are separate from the 
Office of the Secretariat.
* * * * *
    (d) If the Secretariat 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 Secretariat or the General Counsel shall so notify 
the requester and give the requester the opportunity to:
    (1) * * *
    (2) Arrange with the Secretariat or the General Counsel an 
alternative time frame for processing the request or a modified 
request.
    (e) If an extension of time greater than ten (10) working days is 
necessary, the Commission shall make available its FOIA Public Liaison 
for this purpose. A list of the Commission FOIA Public Liaisons is 
available at https://www.cpsc.gov/Newsroom/FOIA. The Commission will 
also notify requesters in writing to the availability of the Office of 
Government Information Services of the National Archives and Records 
Administration to provide dispute resolution services.
    (f) The Secretariat or delegate of the Secretariat may aggregate 
and process as a single request requests by the same requester, or a 
group of requesters acting in concert, if the Secretariat 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.
    (g) The Secretariat or delegate of the Secretariat will provide 
expedited processing of requests in cases where the requester 
demonstrates a compelling need for such processing.
    (1) * * *
    (2) Requesters for expedited processing must include in their 
requests, which may be submitted through any of the methods described 
in Sec.  1015.3(a) of this part, a statement setting forth the basis 
for the claim that a ``compelling need'' exists for the requested 
information, certified by the requester to be true and correct to the 
best of his or her knowledge and belief.
    (3) The Secretariat or delegate of the Secretariat will determine 
whether to grant a request for expedited processing and will notify the 
requester of such determination within ten (10) days of receipt of the 
request.
    (4) * * *
    (5) The Secretariat or delegate of the Secretariat will process as 
soon as practicable the documents responsive to a request for which 
expedited processing is granted.
    (h) The Secretariat 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 
Secretariat or delegate of the Secretariat will notify requesters whose 
requests will be delayed for this reason.
0
7. Revise Sec.  1015.6 by:
0
a. Revising paragraph (a);
0
b. Removing the word ``Secretary'' from paragraphs (b), and (c) 
wherever it appears, and adding, in its place, the word 
``Secretariat;''
0
c. Removing the number ``30'' in paragraph (b)(4), and adding, in its 
place, the number ``90''; and
0
d. Adding paragraph (b)(5).
    The revisions read, as follows:


Sec.  1015.6   Responses: Form and content.

    (a) When a requested record has been identified and is available 
for disclosure, the requester shall be supplied with a copy or notified 
as to where and when the record will be made available for public 
inspection in an electronic format. If the payment of fees is required 
the requester shall be advised by the Secretariat in writing of any 
applicable fees under Sec.  1015.9 hereof. The requester will be 
notified of the right to seek assistance from the Commission's FOIA 
Public Liaison.
    (b) A response denying a written request for a record shall be in 
writing signed by the Secretariat or delegate of the Secretariat and 
shall include:
* * * * *
    (4) A statement that the denial may be appealed to the 
Commissioners of the Consumer Product Safety Commission. Any such 
appeal must be made within 90 calendar days of receipt of the denial by 
the requester.
    (5) A statement that the requester has the right to seek dispute 
resolution services from the Commission's FOIA Public Liaison or the 
Office of Government Information Services.
    (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). When it appears that no 
response can be made to the requester within the applicable time limit, 
the Secretariat or delegate of the Secretariat may ask the requester to 
forego judicial relief until a response can be made. The Secretariat or 
delegate of the Secretariat shall inform the requester of the reason 
for the delay, of the date on which a response may be expected and of 
his/her right to seek judicial review as specified in 5 U.S.C. 
552(a)(4)(B).
0
8. Amend Sec.  1015.7 by:
0
a. Revising the section heading;
0
b. Revising paragraphs (a) and (b);
0
c. Removing the word ``Secretary'' in paragraphs (c) and (g) wherever 
it appears, and adding, in its place, the word ``Secretariat''; and
0
d. Revising paragraph (e).
    The revisions read, as follows:


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

    (a) When the Secretariat or delegate of the Secretariat has denied 
a request for records in whole or in part, the requester may, within 90 
calendar days of its receipt, appeal the denial to the General Counsel 
of the Consumer Product Safety Commission, attention of the 
Secretariat. Appeals may be submitted through any of the following 
methods: The e-FOIA Public Access Link at https://www.cpsc.gov; email 
to cpsc-foia@cpsc.gov; mail to 4330 East West Highway, Room 820, 
Bethesda, MD 20814; or facsimile to 301-504-0127.
    (b) The General Counsel, or the Secretariat upon reconsideration, 
will act upon an appeal within 20 working days of its receipt. The time 
limitations on an appeal submitted by mail shall begin to run at the 
time an appeal is received and date stamped by the Office of the 
Secretariat. The Office of the Secretariat will date stamp the request 
the same day that it receives the request. The time limitations on an 
appeal submitted electronically during working hours (8 a.m. to 4:30 
p.m. EST) shall begin to run at the time the appeal was electronically 
received and the time limitations on responses electronically submitted 
during non-working hours will begin to run the next working day.
    (c) After reviewing the appeal, the Secretariat will reconsider 
his/her initial denial. If the Secretariat upon reconsideration decides 
to release any or all of the information requested on appeal, an appeal 
as to the information released will be considered moot; and the 
Secretariat will so inform the requester and submitter of the 
information in accordance with

[[Page 66]]

Sec. Sec.  1015.6(a) and 1015.18(b). If the Secretariat decides to 
affirm the initial denial, in whole or in part, the General Counsel 
will decide the appeal within the 20-day time limit or any extension 
thereof in accordance with Sec.  1015.5.
* * * * *
    (e) The General Counsel's action on appeal shall be in writing, 
shall be signed by the General Counsel, and shall constitute final 
agency action. A denial in whole or in part of a request on appeal 
shall set forth the exemption relied upon; a brief explanation, 
consistent with the purpose of the exemption, of how the exemption 
applies to the records withheld; and the reasons for asserting it. The 
decision will inform the requester of the right to seek dispute 
resolution services from the Commission's FOIA Liaison or the Office of 
Government Information Services. A denial in whole or in part shall 
also inform the requester of his/her right to seek judicial review of 
the Commission's final determination in a United States district court, 
as specified in 5 U.S.C. 552(a)(4)(B).
* * * * *
    (g) Copies of all appeals and copies of all actions on appeal shall 
be furnished to and maintained in a public file by the Secretariat.
0
9. Amend Sec.  1015.9 by:
0
a. Removing the word ``Secretary'' in paragraphs (a), (e)(9), (f)(4), 
(5) and (7), and adding, in its place, the word ``Secretariat'';
0
b. Revising paragraph (b), (c)(2) and (3);
0
c. Adding a sentence at the end of paragraph (e)(1);
0
d. Adding paragraph (f)(6);
0
e. Redesignating paragraph (f)(6) as paragraph (f)(7).
    The revisions read, as follows:


Sec.  1015. 9   Fees for production of records.

    (a) The Commission will provide, at no charge, certain routine 
information. For other Commission responses to information requests, 
the Secretariat shall determine and levy fees for duplication, search, 
review, and other services, in accordance with this section.
    (b) Fees shall be paid to the Treasury of the United States 
according to the directions provided by the Commission.
* * * * *
    (c)(2) Search includes all time spent looking for material that is 
responsive to a request, including page-by-page or line-by-line 
identification of material within documents and the reasonable efforts 
expended to locate and retrieve information from electronic records.
    (3) Duplication refers to the process of making a copy of a 
document, including electronically, necessary to respond to a FOIA 
request. The Commission will honor the requester's preference for 
receiving a record in a particular format when it can readily reproduce 
it in the form or format requested.
* * * * *
    (e)(1) * * * Where paper documents must be scanned in order to 
comply with a requester's preference to receive records in an 
electronic format, the requester must also pay the direct costs 
associated with scanning those materials.
    (f)(6) Search fees shall be waived for all requests and duplication 
fees shall be waived for requests from educational institutions, non-
commercial scientific institutions, and representatives of the news 
media if the Commission fails to comply with any time limit and notice 
under Sec.  1015.5(b)-(d) and 5 U.S.C. 552(a)(6) other than those 
exceptions stated in 5 U.S.C. 552 (a)(4)(A)(viii)(ll). Those exceptions 
include:
    (i) if the Commission has determined that unusual circumstances as 
defined in Sec.  1015.5(b) apply and the Commission provided timely 
written notice to the requester as required by Sec.  1015.5(e), then 
failure to comply with the time limit in Sec.  1015.5(b)-(d) is excused 
for 10 additional days; or
    (ii) if the Commission has determined that unusual circumstances as 
defined in Sec.  1015.5(b) apply and more than 5,000 pages are 
necessary to respond to the request, and the Commission has provided 
timely written notice in accordance with Sec.  1015.5(e) and the 
Commission has discussed with the requester via written mail, email, or 
telephone (or made not less than three good-faith efforts to do so) how 
the requester could effectively limit the scope of the request; or
    (iii) if a court has determined that exceptional circumstances 
exist as defined in 5 U.S.C. 552(6)(C), then failure to comply with 
Sec.  1015.6(b)-(d) and 5 U.S.C. 552(a)(6) shall be excused for the 
length of time provided by the court order.
    (7) Any determination made by the Secretariat concerning fee 
waivers may be appealed by the requester to the Commission's General 
Counsel in the manner described at Sec.  1015.7.
0
10. Revise Sec.  1015.10 as follows:
0
a. Adding a phrase at the end of the undesignated introductory 
paragraph;
0
b. Add paragraph (h) and (i).
    The revisions read, 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 and to the Director of the Office of Government Information 
Services. This report shall include:
* * * * *
    (h) The number of times the Commission denied a request for records 
under 5 U.S.C. 552(c).
    (i) The number of records that were made available for public 
inspection in an electronic format under 5 U.S.C. 552(a)(2).
0
11. Amend Sec.  1015.11 by revising paragraphs (a) and (b) to read, as 
follows:


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

    (a) In accordance with section 6(a)(2) of the CPSA, the Commission 
may disclose information which it has determined to be a trade secret 
or other matter referred to under 5 U.S.C. 552(b)(4) to Commission 
consultants and contractors for use only in their work for the 
Commission. Such persons are subject to the same restrictions with 
respect to disclosure of such information as any Commission employee.
    (b) In accordance with section 6(a)(2) of the CPSA, the Commission 
is prohibited from disclosing information which it has determined to be 
a trade secret or other matter referred to under 5 U.S.C. 552(b)(4) to 
advisory committees, except when required in the official conduct of 
their business, or to other Federal agencies and state and local 
governments except when permitted by the provisions of section 29(f) of 
the CPSA.
0
12. Amend Sec.  1015.15 by:
0
a. Removing the words ``and the internal Commission procedure for 
withholding exempt records'' from paragraph (a); and
0
b. Revising paragraph (b) and (c).
    The revisions read, as follows:


Sec.  1015.15   Purpose and scope.

    (a) The regulations of this subpart provide information concerning 
the types of records which may be withheld from production and 
disclosure by the Consumer Product Safety Commission. These regulations 
also provide information on the method whereby persons submitting 
information to the Commission may request that the information be 
considered exempt from disclosure, and information concerning the 
Commission's treatment of documents submitted with a request that they 
be treated as exempt from disclosure.

[[Page 67]]

    (b) No identifiable record requested in accordance with the 
procedures contained in this part shall be withheld from disclosure 
unless it falls within one of the classes of records exempt under 5 
U.S.C. 552(b). The Commission will make available, to the extent 
permitted by law, records authorized to be withheld under 5 U.S.C. 
552(b) unless the Commission reasonably foresees that disclosure would 
harm an interest protected by the exemption or disclosure is prohibited 
by law or otherwise exempted from disclosure under 5 U.S.C. 552(b)(3). 
In this regard the Commission will not ordinarily release documents 
that provide legal advice to the Commission concerning pending or 
prospective litigation where the release of such documents would 
significantly interfere with the Commission's regulatory or enforcement 
proceedings.
    (c) Draft documents that are agency records are subject to release 
upon request in accordance with this regulation. However, in order to 
avoid any misunderstanding of the preliminary nature of a draft 
document, each draft document released will be marked to indicate its 
tentative nature. Similarly, staff briefing packages, which have been 
completed but not yet transmitted to the Commission by the Office of 
the Secretariat are subject to release upon request in accordance with 
this regulation. Each briefing package or portion thereof released will 
be marked to indicate that it has not been transmitted to or acted upon 
by the Commission. In addition, briefing packages, or portions thereof, 
which the Secretariat upon the advice of the Office of the General 
Counsel has determined would be released upon request in accordance 
with this regulation, will be made available for public inspection in 
an electronic format through the Commission's Web site at https://www.cpsc.gov promptly after the briefing package has been transmitted 
to the Commissioners by the Office of the Secretariat. Such packages 
will be marked to indicate that they have not been acted upon by the 
Commission.
* * * * *
0
13. Amend Sec.  1015.16 by:
0
a. Revising paragraph (e); and
0
b. Removing from paragraph (f) the misspelled word ``consititute'' and 
adding, in its place, the word ``constitute''.
    The revisions read, as follows:


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

* * * * *
    (e) Inter-agency or intra-agency memoranda or letters that would 
not be available by law to a party other than an agency in litigation 
with the agency provided that the deliberative process privilege shall 
not apply to records created 25 years or more before the date on which 
the records were requested.
    (f) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy.
* * * * *


Sec.  1015.17   [Reserved]

0
14. Remove and reserve Sec.  1015.17.


Sec.  1015.20   Public availability of accident or investigation 
reports.

0
15. Amend Sec.  1015.20, by removing the period and the words ``No 
portion of'' from the first and second sentence of paragraph (a), and 
adding, in its place, ``unless'' and ``s'' to the word ``report'' to 
read as follows:
    (a) Accident or investigation reports made by an officer, employee, 
or agent of the Commission are available to the public under the 
procedures set forth in subpart A of this part 1015 unless such reports 
are subject to the investigatory file exemption contained in the 
Freedom of Information Act (as restated in Sec.  1015.16) except that 
portions identifying any injured person or any person treating such 
injured person will be deleted in accordance with section 25(c)(1) of 
the CPSA. * * *

    Dated: December 21, 2016.
Todd A. Stevenson,
Secretariat, Consumer Product Safety Commission.
[FR Doc. 2016-31131 Filed 12-30-16; 8:45 am]
 BILLING CODE 6355-01-P