[Federal Register Volume 85, Number 74 (Thursday, April 16, 2020)]
[Proposed Rules]
[Pages 21118-21126]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-07558]
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1015
[Docket No. CPSC-2020-0011]
Fees for Production of Records; Other Amendments to Procedures
for Disclosure of Information Under the Freedom of Information Act
AGENCY: Consumer Product Safety Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: Under the Freedom of Information Act (FOIA), the Consumer
Product Safety Commission (CPSC) may charge certain fees to recover the
direct costs of providing specific FOIA services, such as duplication
and searching for responsive records. The CPSC is proposing to amend
its FOIA fee regulations to reflect more accurately the CPSC's direct
costs of providing FOIA services, as well as to conform to the Office
of Management and Budget's (OMB's) Uniform Freedom of Information Act
Fee Schedule and Guidelines and to omit the fee category for the
production of records on microfiche, an obsolete format. The CPSC also
is proposing to amend other sections of its FOIA regulations to reflect
organizational changes in the agency's FOIA Office; to codify the
existing practice of the General Counsel remanding cases to the Chief
FOIA Officer; and to allow for any relevant FOIA exemptions to be
applied.
DATES: Submit comments by June 30, 2020.
ADDRESSES: Comments, identified by Docket No. CPSC-2020-0011, may be
submitted electronically or in writing:
Electronic Submissions: Submit electronic comments to the Federal
eRulemaking Portal at: http://www.regulations.gov. Follow the
instructions for submitting comments. CPSC does not accept comments
submitted by electronic mail (email), except through
www.regulations.gov. CPSC encourages you to submit electronic comments
by using the Federal eRulemaking Portal, described above.
Written Submissions: Submit written submissions by Mail/Hand
delivery/Courier (for paper, disk, or CD-ROM submissions) to: Division
of the Secretariat, Consumer Product Safety Commission, Room 820, 4330
East West Highway, Bethesda, MD 20814; telephone (800) 638-2772.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. All comments received will be
posted without change to: http://www.regulations.gov, including any
personal information provided. Do not submit electronically any
confidential business information, trade secret information, or other
sensitive or protected information that you do not want to be available
to the public. If you wish to provide such information, please submit
your comment it in writing following the instructions for Written
Submissions provided above.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov and insert the
docket number, CPSC-2020-0011, into the ``Search'' box, and follow the
prompts.
FOR FURTHER INFORMATION CONTACT: Abioye Ella Mosheim, Chief FOIA
Officer, U.S. Consumer Product Safety Commission, Room 820, 4330 East
West Highway, Bethesda, MD 20814; email: [email protected]; telephone:
(301) 504-7454.
SUPPLEMENTARY INFORMATION:
I. Background and Statutory Authority
On June 30, 2016, the President signed into law the FOIA
Improvement Act of 2016, Public Law 114-185 (2016). The FOIA
Improvement Act of 2016 amends the Freedom of Information Act, 5 U.S.C.
552, requiring, inter alia, the Chief FOIA Officer of every agency to
review its FOIA fee regulations annually. See 5 U.S.C. 552(j)(3)(C).
OMB's Uniform Freedom of Information Act Fee Schedule and
Guidelines (OMB Fee Guidelines) provides federal agencies with guidance
on reviewing and assessing FOIA fees. 52 FR 10012 (Mar. 27, 1987).
Following OMB's issuance of its Fee Guidelines in March 1987, CPSC
proposed amendments to its FOIA fee regulations. 52 FR 17767 (May 12,
1987). The CPSC finalized its amendments on fees to reflect the
agency's direct costs, and the amendments became effective on September
4, 1987. 52 FR 28979(Aug. 5, 1987). In 1997, CPSC updated one portion
of its FOIA fee regulations regarding computerized records and interest
to be charged on fees owed. 62 FR 46198 (Sept. 2, 1997). In 2017, CPSC
also updated portions of its FOIA fee regulations to revise the
definition of ``representative of the news media'' and to make other
clarifications and corrections. 82 FR 37004 (Aug. 8, 2017).
The CPSC is proposing additional amendments to its FOIA fee
regulations to ensure that the agency's fees accurately reflect its
direct costs of providing FOIA services, consistent with the OMB Fee
Guidelines. CPSC staff estimated the CPSC's direct costs of providing
FOIA services by reviewing and assessing certain known costs of
providing records under the FOIA in Fiscal Year 2019, as described in
detail below. CPSC staff also examined whether there were any
discrepancies between the OMB Fee Guidelines and CPSC's existing
regulations, as well as between CPSC's general FOIA regulations and
existing practices. The proposed amendments are summarized in five
categories below.
[[Page 21119]]
II. Proposed Amendments Concerning Fees
Direct Costs. The FOIA authorizes agencies to charge certain fees
to recover the direct costs of providing FOIA services. 5 U.S.C.
552(a)(4)(A). Fee schedules must provide for the recovery of only the
direct costs of search, duplication, or review. 5 U.S.C.
552(a)(4)(A)(iv). Under the FOIA, agencies must promulgate regulations,
pursuant to notice and public comment, specifying the schedule of fees
applicable to processing FOIA requests; must establish procedures and
guidelines for determining when such fees should be waived or reduced;
and must conform their fee schedules to the OMB Fee Guidelines. 5
U.S.C. 552(a)(4)(A)(i). Pursuant to the OMB Fee Guidelines, agencies
should charge fees that ``recoup the full allowable direct costs they
incur'' and ``shall use the most efficient and least costly methods to
comply with requests for documents made under the FOIA.'' 52 FR 10018.
Duplication Fees. Proposed Sec. 1015.9(e)(1) would amend the
current regulations on fees the agency charges for the reproduction of
documents to reflect CPSC staff's review and the assessment of certain
known costs of producing FOIA records for Fiscal Year 2019 and based on
current CPSC practices. The OMB Fee Guidelines require agencies to
``establish an average agency-wide, per-page charge for paper copy
reproduction of documents,'' which ``shall represent the reasonable
direct costs of making such copies, taking into account the salary of
the operator as well as the cost of the reproduction machinery.'' 52 FR
10018. For copies prepared by computer, the OMB Fee Guidelines require
agencies to charge the actual cost, including operator time, of
production of the printout. Id. For other methods of duplication, the
OMB Fee Guidelines require agencies to charge the actual direct costs
of producing the documents. Id.
Current 16 CFR 1015.9(e)(1) sets forth the amount charged for
reproducing documents on a standard photocopying machine at $0.10 per
page. Proposed Sec. 1015.9(e) would change the regulation to specify a
charge of $0.15 per page for manual photocopies and for computer
printouts that are sent from a computer to a printer or photocopier
machine. The proposed fee for manual photocopies and computer printouts
was calculated using the 2019 basic hourly pay rate of the average
grade and step of staff members from the Office of the General Counsel,
Division of the Secretariat (GCOS), who charged hours for FOIA projects
in Fiscal Year 2019 (GS 12/4, or $33.52/staff hour), plus 16 percent
for the allowable OMB benefit rate; multiplying that amount by the
total staff hours within the GCOS that are estimated to be attributable
to FOIA duplication in Fiscal Year 2019 (486.45 staff hours); adding
the estimated cost of paper and toner used by the GCOS staff for
computer printouts in Fiscal Year 2019 ($9,826); and dividing that
number by the corresponding number of pages printed (196,820 pages).
CPSC staff estimated the total hours spent by GCOS staff attributable
to FOIA duplication in Fiscal Year 2019, by taking a poll of the FOIA
specialists, whose most common response was that they spent 5 percent
of their time on duplication.
Proposed Sec. 1015.9(e) also would clarify that there is no
duplication fee for producing records provided to requesters in
electronic format. Because converting and sending an electronic file,
such as a file in portable document format (PDF), to requesters via
electronic mail or the FOIA online portal requires minimal operator
time and computer and software costs, the agency's actual costs of
duplicating these records are de minimis. The proposed rule also
clarifies how the fees for costs will be assessed where records are
available only in paper format and must be scanned to comply with a
requester's preference to receive records in an electronic format.
Search Fees. Proposed Sec. 1015.9(e)(2) would amend the current
regulations on fees the agency charges for searches. Pursuant to the
OMB Fee Guidelines, for manual searches, whenever feasible, agencies
should charge at the salary rate of the employee making the search,
consisting of basic pay, plus 16 percent for the allowable OMB benefit
rate; however, where a ``homogenous class of personnel'' is used
exclusively, agencies may establish an average rate for the range of
grades typically involved in searching for records. 52 FR 10018. For
computer searches, agencies should charge the actual direct cost of
providing the service, plus central processing unit (CPU) time that is
directly attributable to searching for responsive records to a FOIA
request. Alternatively, if agencies can do so, they may establish a
reasonable agency-wide rate for operator, programmer, and CPU costs
involved in FOIA searches and charge accordingly. Id.
Current Sec. Sec. 1015.9(e)(2)-(3) divide searches into two
categories: (1) Searches conducted by clerical staff; and (2) searches
conducted by non-clerical, professional, or managerial staff. The
current regulations charge $3.00 per quarter hour for clerical
searches, and $4.90 per quarter hour for non-clerical searches.
Proposed Sec. 1015.9(e)(2) would remove the set dollar figures for
search fees enumerated within the regulation itself, and in their
place, state that search fees are based on the average grade and step
of certain employees who charged hours in this category. CPSC staff
believes that this avoids the need continuously to update the CPSC's
FOIA fee regulations to be consistent with General Schedule pay
adjustments. This approach is similar to the FOIA fee regulations at
several other agencies.
Additionally, due to organizational changes in the CPSC's FOIA
Office and how requests are processed, clerical staff rarely performs
searches. Therefore, CPSC proposes to eliminate the category of
clerical search fees. Consistent with this recommendation, and
consistent with the OMB Fee Guidelines, the proposed regulations would
distinguish between manual and computer-based searches.
The proposed manual search fee would be charged on a per-quarter-
hour basis, and the exact rate would be calculated and published
annually, using the basic hourly pay rate of the average grade and step
of CPSC program staff who worked outside of the FOIA Office and who
charged hours for FOIA projects in Fiscal Year 2019 (GS 14/7), plus 16
percent for the allowable OMB benefit rate.
The proposed computer search fee would be charged on a per-quarter-
hour basis, and the exact rate would be calculated and published
annually, using the basic hourly pay rate of the average grade and step
of GCOS staff who charged hours for FOIA projects in Fiscal Year 2019
(GS 12/4), plus 16 percent for the allowable OMB benefit rate. CPSC
program staff who work outside of the FOIA Office often conduct FOIA
computer searches. However, CPSC staff has determined that the average
grade and step of GCOS staff who charged hours for FOIA projects
represents a reasonable agency-wide rate for operator costs in this
category. The proposed computer search fee would not include CPU costs
because any agency software or hardware costs directly attributable to
searching for responsive records would be difficult to quantify and
likely would be de minimis.
Review Fees. Proposed Sec. 1015.9(e)(3) would amend the current
regulations on fees the agency charges for the initial review of
documents to determine whether any portion of any document may be
withheld. The OMB Fee Guidelines permit agencies to establish a
reasonable agency-wide average for
[[Page 21120]]
such costs, where a single class of reviewers is typically involved in
the review process. 52 FR 10018.
Current Sec. 1015.9(4) sets forth the amount charged for review at
$4.90 per quarter hour. Similar to the proposed search fees, the
proposed regulation would remove the set dollar figure review fee
enumerated within the regulation itself. Instead, the review fee would
be charged on a per-quarter-hour basis, and the exact rate would be
calculated and published annually, using the basic hourly pay rate of
the average grade and step of GCOS staff who charged hours for FOIA
review in Fiscal Year 2019 (GS 12/9), plus 16 percent for the allowable
OMB benefit rate.
Obsolete Formats. The FOIA requires agencies to provide records in
any format requested, if the record is readily reproducible by the
agency in that form or format. 5 U.S.C. 552(a)(3)(B). Currently, CPSC
routinely produces records in one of three formats: (1) Computer
printout, if under 250 pages; (2) compact disc (CD), if more than 250
pages; and (3) electronic files, such as PDF. The proposed amendments
would clarify that requesters may request records in paper, CD, or
electronic format. The proposed amendments also would remove the fee
for producing records on microfiche because this format is obsolete and
not routinely produced by the CPSC.
Annual Publication of Fees. Under the proposed regulations, the
exact per-quarter-hour rates for searching and reviewing records would
be calculated and published annually, using the most recent General
Schedule table published by the Office of Personnel Management (OPM).
In addition, the actual cost of CDs, DVDs, and other similar media
would be calculated and published annually. These exact rates and costs
would be made available to the public on the CPSC's FOIA web page and
would be available by request from GCOS. The CPSC also would annually
publish on its FOIA web page the salaries of CPSC employees associated
with FOIA searches and reviews, consistent with the FOIA fee-posting
practice observed at several other agencies.
Fee Waivers. The FOIA requires agencies to provide a fee waiver for
search and duplication fees for certain categories of requesters in
increments of the first 100 pages of duplication and the first 2 hours
of search, rather than in dollar amounts. 5 U.S.C. 552(a)(4)(A)(iv).
This proposed rulemaking would incorporate more clearly this statutory
requirement into proposed Sec. 1015.9(g), consistent with the OMB Fee
Guidelines. 52 FR 10016. Proposed Sec. 1015.9(g)(2) would specify that
the first 100 pages of duplication will be waived for all non-
commercial requesters, consistent with the FOIA and the OMB Fee
Guidelines.
Proposed Sec. 1015.9(g)(3) would specify that the first 2 hours of
search time will be waived for all requesters to whom search fees
apply, except commercial requesters.
Notice of Anticipated Fees. The OMB Fee Guidelines require agencies
to implement procedures for notifying requesters when fees are
estimated or determined to exceed $25 and provide those requesters an
opportunity to confer with agency staff with the objective of
reformulating their request to meet their needs at a lower cost. 52 FR
10018. The CPSC's current FOIA fee regulations lack procedures for
providing requesters with notice of anticipated fees in excess of $25
and an opportunity to confer with agency staff. Proposed Sec.
1015.9(f) would provide for notice of anticipated fees greater than $25
and the opportunity to confer with staff on costs. The proposed
regulations also would provide that requesters must commit in writing
to pay the actual or estimated fees or designate in writing the amount
of fees the requester is willing to pay before the FOIA Office will do
further work on a FOIA request.
Restrictions on Assessing Fees. The FOIA and the OMB Fee Guidelines
prohibit agencies from charging a fee if the costs of collecting and
processing that fee are likely to equal or exceed the fee. 5 U.S.C.
552(a)(4)(A)(iv); 52 FR 10018-19. Current Sec. 1015.9(g)(5) states
that the CPSC will not request payment if the requester's total bill is
less than $9.00. CPSC staff estimates that the current cost to the
agency of collecting and processing a fee is $25. Accordingly, the
proposed amendments would delete Sec. 1015.9(g)(5), and add proposed
Sec. 1015.9(g)(7), which would provide that no fee will be charged
when the total fee is equal to or less than $25.
Advance Payment of Fees. The NPR proposes to add Sec. 1015.9(i),
which would set forth provisions for requiring advance payment before
the production of records in certain cases. The OMB Fee Guidelines
instruct agencies that they may not require a requester to make an
advance payment unless: (1) The agency estimates that the allowable
charges the requester may be required to pay are likely to exceed $250,
in which case they should notify the requester of the likely cost and
obtain satisfactory assurance of full payment where the requester has a
history of prompt payment of FOIA fees, or require payment ``of an
amount up [to] the full estimated charges in the case of requesters
with no history of payment''; or (2) a requester has previously failed
to pay a fee charged in a timely fashion, in which case the agency may
require the requester to pay the full amount owed, plus any applicable
interest, and to make an advance payment of the full amount of the
estimated fee before the agency begins to process a new or pending
request. 59 FR 10020. Current Sec. 1015.9(g)(3) states: ``Before the
Commission begins processing a request or discloses any information, it
will require advance payment if charges are estimated to exceed $250.00
and the requester has no history of payment and cannot provide
satisfactory assurance that payment will be made; or a requester failed
to pay the Commission for a previous Freedom of Information Act request
within 30 days of the billing date.'' The proposed amendments would
reflect the language used in the OMB Fee Guidelines. See 59 FR 10020.
The proposed amendments also would codify the CPSC's current practices
of tolling the processing of the request while notifying the requester
that advance payment is due, 5 U.S.C. 552(a)(6)(A)(ii)(II), and closing
the request if, after 30 days of receipt, the requester does not
respond to the fee notice.
III. Proposed Amendments To Reflect Organizational Changes at CPSC
FOIA Office. The organizational structure of the CPSC's FOIA Office
has changed since the FOIA regulations were last amended in 2017. See
82 FR 37010. The CPSC's FOIA Office is now housed within the Office of
the General Counsel, rather than the Office of the Secretary, and the
Commission's Assistant General Counsel for the Office of the General
Counsel, Division of the Secretariat, holds the position of Chief FOIA
Officer, rather than the Secretary of the Commission. The NPR proposes
to amend 16 CFR 1015.1, 1015.2, 1015.3, 1015.4, 1015.5, 1015.6, 1015.7,
and 1015.9 to replace the designations ``Secretary of the Commission,''
``Secretary,'' or ``Secretariat,'' with the title, ``Chief FOIA
Officer,'' and replace ``Office of the Secretary'' with ``Office of the
General Counsel, Division of the Secretariat'' or ``Division of the
Secretariat.''
IV. Proposed Amendment Concerning Appeals
Delegation of Authority. The current regulations are inconsistent
regarding the delegation of authority to review and respond to FOIA
appeals. This NPR proposes changes to Sec. Sec. 1015.1(d),
[[Page 21121]]
1015.4, and 1015.7(e), to clarify that the Chairman delegates to the
CPSC's General Counsel the responsibility of reviewing and responding
to FOIA appeals. Previously, the Commission issued this delegation by
final rule in 1985, 50 FR 7753 (February 26, 1985), but did not codify
the change in other relevant FOIA provisions.
Remands. Proposed Sec. 1015.7(c) codifies the existing practice of
the General Counsel remanding FOIA appeals to the Chief FOIA Officer,
if the General Counsel decides to grant the appeal in whole or in part,
and upon remand, the existing practice of the Chief FOIA Officer
providing the records to the requester in accordance with the General
Counsel's decision.
V. Broadening the Scope of FOIA Exemptions Under 16 CFR 1015.20.
Currently, 16 CFR 1015.5(h) states that the CPSC ``may be unable to
comply with the time limits set forth in Sec. 1015.5 when disclosure
of documents responsive to a request under this part is subject to the
requirements of section 6(b) of the Consumer Product Safety Act.''
However, the regulation does not take into account that, due to
statutory obligations, the CPSC also may be unable to comply with the
time limits set forth in 16 CFR 1015.5, when disclosure of documents
responsive to a request is subject to section 6(a) of the Consumer
Product Safety Act. As such, the CPSC proposes to amend 16 CFR
1015.5(h) to conform to the statute, by replacing the phrase, ``section
6(b) of the Consumer Product Safety Act, 15 U.S.C. 2055(b),'' with
``section 6 of the Consumer Product Safety Act, 15 U.S.C. 2055.''
Additionally, current 16 CFR 1015.20, which addresses the release
of accident or investigation reports, only allows for the application
of the investigatory file FOIA exemption, and the redaction of the
names of injured persons and the persons who treated the injured,
pursuant to CPSA Section 25(c). Current CPSC practice, however, is to
redact all personally identifiable information, including the names of
injured persons and the persons who treated them, as well as the names
of other persons incidental to a consumer complaint, pursuant to FOIA
exemption (b)(6). See 5 U.S.C. 552(b)(b)(6). Rather than limit the
applicable FOIA exemptions to the investigatory file exemption only,
this NPR proposes to amend Sec. 1015.20(a) to clarify that accident
and investigation reports are subject to all applicable FOIA
exemptions.
VI. Miscellaneous Amendments
To ensure proper routing of new FOIA requests and appeals, CPSC's
FOIA Office created a separate email address for the submission of new
FOIA requests and appeals. That address is [email protected].
Accordingly, the proposed rule would update Sec. Sec. 1015.3(a) and
1015.7(a) to specify the proper email addresses to submit new requests
and appeals.
VII. Environmental Considerations
The CPSC's regulations address whether the agency is required to
prepare an environmental assessment or an environmental impact
statement. 16 CFR part 1021. These regulations provide a categorical
exclusion for certain CPSC actions that normally have ``little or no
potential for affecting the human environment.'' 16 CFR 1021.5(c)(1).
This proposed rule falls within the categorical exclusion.
VIII. Regulatory Flexibility Act
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 APA
does not require a general notice of proposed rulemaking in this case
because the proposed rule is ``a rule of agency organization, procedure
or practice.'' 5 U.S.C. 553. Nor does CPSC believe that a general
notice of proposed rulemaking is required by the FOIA statute in this
case. The 1976 FOIA statute originally required each agency to
``promulgate regulations, pursuant to notice and receipt of comment,
specifying the schedule of fees applicable to the processing of
requests under [FOIA] and establishing procedures and guidelines for
determining when such fees should be waived or reduced.'' 5 U.S.C.
552(a)(4)(A)(i). However, the FOIA statute does not require that
subsequent amendments to the fee schedules or waiver rules be issued
pursuant to notice and comment. Therefore, the RFA does not appear to
be triggered, either under the APA or the FOIA law, even though CPSC is
voluntarily following notice-and-comment procedures in this instance.
Nevertheless, CPSC staff reviewed the potential impact of the proposed
changes in this rule on small entities. Staff's analysis compared the
number of fiscal year (FY) 2018 FOIA requesters to the number of small
entities in the relevant North American Industrial Classification
System (NAICS) sectors, and staff found there is unlikely to be a
substantial number of small entities impacted by the proposed rule.
Moreover, the impact on noncommercial entities would remain essentially
unchanged, unless noncommercial requesters opt to receive their
documents in paper format, rather than electronically. The costs for
commercial firms has increased more than for other entities. However,
requesters would be alerted if costs were expected to be greater than
$25, and commercial firms would be expected to proceed with the request
(in whole or in part), only if the perceived benefit at least balanced
the cost. Additionally, requesting firms can avoid duplication costs by
electing to receive the requested documents electronically. CPSC
solicits comments on any economic impact of the proposed rule and any
possible regulatory alternatives to reduce the economic impact, if any,
while fully implementing the FOIA and the CPSC's statutory mandate. The
CPSC will consider any such comments before promulgating the proposed
rule in final form.
IX. 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 CPSC's rule to make
additional changes to conform to the FOIA Improvement Act of 2016,
update certain CPSC's procedures by codifying them, 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, they explain CPSC's FOIA procedures. Thus, the PRA is not
implicated in this proposed rulemaking.
X. 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, the proposed rule would revise a rule of agency practice and
procedure by making revisions and corrections to the agency's FOIA fee
regulations.
[[Page 21122]]
Therefore, section 26 of the CPSA would not apply to this rulemaking.
XI. 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).
XII. Request for Comments
The Commission requests comments on all aspects of the proposed
rule. The Commission specifically solicits comments on the following
questions:
[cir] How would the proposed rule improve or impede the agency's
efficiency and transparency in providing information to the public?
[cir] How can the agency improve its FOIA fee practices and
procedures, consistent with the FOIA and the OMB Fee Guidelines?
[cir] Is the CPSC using the most efficient and least costly methods
to comply with requests for documents made under the FOIA?
[cir] Are there more accurate methods for calculating the CPSC's
direct costs of providing FOIA services, consistent with the FOIA and
the OMB Fee Guidelines? If so, what are they?
[cir] Does the proposed rule, including the proposed fee structure,
provide sufficient transparency to the public to understand the
procedures and costs associated with making FOIA requests?
[cir] Does the proposed rule sufficiently address the process that
will be used to determine, document, and notify a requester of a waiver
or reduction of fees, including, but not limited to, the public
interest waiver in Sec. Sec. 1015.9(g)(4)-(5)?
[cir] Is the proposed rule, including the proposed fee structure,
compliant with the FOIA, the OMB Fee Guidelines, and all other
applicable laws and regulations?
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 June 30, 2020.
List of Subjects in 16 CFR 1015
Administrative practice and procedure, Consumer protection,
Disclosure of information, Freedom of information.
In accordance with the provisions of 5 U.S.C. 553 and the authority
in the Consumer Product Safety Act, 15 U.S.C. 2051 et seq., CPSC
proposes to amend part 1015 of Title 16, Chapter II, of the Code of
Federal Regulations, as follows:
PART 1015--PROCEDURES FOR DISCLOSURE OR PRODUCTION OF INFORMATION
UNDER THE FREEDOM OF INFORMATION ACT
0
1. The authority citation for part 1015 continues to read as follows:
Authority: 15 U.S.C. 2051-2084; 15 U.S.C. 1261-1278; 15 U.S.C.
1471-1476; 15 U.S.C. 1211-1214; 15 U.S.C. 1191-1204; 15 U.S.C. 8001-
8008; Pub. L. 110-278, 122 Stat. 2602; 5 U.S.C. 552.
0
2. Amend Sec. 1015.1 by:
0
a. Removing the words ``Secretariat of the Commission'' and adding in
their place ``Assistant General Counsel, Office of the General Counsel,
Division of the Secretariat'' in paragraph (c); and
0
b. Adding paragraph (d) to read as follows:
Sec. 1051.1 Purpose and scope.
* * * * *
(d) The General Counsel is the designated head of the Commission's
FOIA Appeals Office who, subject to the authority of the Chairman, is
responsible for reviewing and responding to appeals from denials or
partial denials of requests for records under this chapter.
0
3. Revise Sec. 1015.2 to read as follows:
Sec. 1015.2 Public inspection.
(a) The Consumer Product Safety Commission (CPSC) will maintain in
a public reference room or area the materials relating to the CPSC that
are required by 5 U.S.C. 552(a)(2) and 552(a)(5) to be made available
for public inspection in an electronic format. The principal location
will be in the Office of the General Counsel, Division of the
Secretariat. The address of this office is: Office of the General
Counsel, Division of the Secretariat, Consumer Product Safety
Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814.
(b) The CPSC will maintain an electronic reading room on the
internet at https://www.cpsc.gov for records that are required by 5
U.S.C. 552(a)(2) to be available by computer telecommunications.
Records that the FOIA requires CPSC to make available for public
inspection in an electronic format may be accessed through the CPSC's
FOIA web page, which is accessible by visiting: https://www.cpsc.gov.
(c) Subject to the requirements of Section 6 of the CPSA, the CPSC
will make available for public inspection in an electronic format
copies of all records, regardless of form or format, which:
(1) Have been released to any person under 5 U.S.C. 552(a)(3);
(2) Because of the nature of their subject matter, the FOIA Office
determines have become or are likely to become the subject of
subsequent requests for substantially the same records; or
(3) That have been requested three or more times.
Sec. 1015.3 [Amended]
0
4. Amend Sec. 1015.3 by:
0
a. Removing the word ``Secretariat'' and adding in its place the words
``Chief FOIA Officer'' in paragraph (a);
0
b. Removing the designation ``[email protected]'' and adding in its
place the designation ``[email protected]'' in paragraph (a) ;
and
0
c. Removing the word ``Secretariat'' and adding in its place the words
``Chief FOIA Officer'' in paragraphs (d) and (e).
0
5. Revise Sec. 1015.4 to read as follows:
Sec. 1015.4 Responses to requests for records; responsibility.
The ultimate responsibility for responding to requests for records
is vested in the Chief FOIA Officer of the Consumer Product Safety
Commission. The Chief FOIA Officer, or delegate of the Chief FOIA
Officer, may respond directly, or forward the request to any other
office of the CPSC for response. The Chief FOIA Officer's response
shall be in the form set forth in Sec. 1015.7(d), for action on
appeal. If no response is made by the FOIA Office within 20 working
days, or any extension of the 20-day period, the requester and the
General Counsel or delegate of the General Counsel may take the action
specified in Sec. 1015.7(e).
0
6. Amend Sec. 1015.5 by revising paragraphs (a) through (d), (f), (g)
introductory text, (g)(1) introductory text, (g) (3) through (5), and
(h) to read as follows:
Sec. 1015.5 Time limitation on responses to requests for records and
requests for expedited processing.
(a) The Chief FOIA Officer, or delegate of the Chief FOIA Officer,
shall respond to all written requests for records within twenty (20)
working days (excepting Saturdays, Sundays, and legal public holidays).
The time limitations on responses to requests for records submitted by
mail shall begin to run at the time a request for records is received
and date-stamped by the Office of the General Counsel, Division of the
Secretariat. The Office of the General Counsel, Division of the
Secretariat shall date-stamp the request the same day that it receives
the request. The time limitations on responses to requests for records
submitted electronically during working hours (8 a.m. to 4:30 p.m. EST)
shall begin to run at the time the request
[[Page 21123]]
was electronically received, and the time limitations on responses to
requests for records submitted electronically during non-working hours
will begin to run when working hours resume.
(b) The time for responding to requests for records may be extended
by the Chief FOIA Officer at the initial stage, or by the General
Counsel, at the appellate stage, up to an additional ten (10) working
days under the following unusual circumstances:
(1) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
Office of the General Counsel, Division of the Secretariat;
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records that are demanded in
a single request; or
(3) The need to consult, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request, or among two or more components of
the CPSC having substantial subject matter interest.
(c) Any extension of time must be accompanied by written notice to
the person making the request, setting forth the reason(s) for such
extension, and the time within which a response is expected.
(d) If the Chief FOIA Officer at the initial stage, or the General
Counsel at the appellate stage, determines that an extension of time
greater than ten (10) working days is necessary to respond to a request
satisfying the ``unusual circumstances'' specified in paragraph (b) of
this section, the Chief FOIA Officer, or the General Counsel, shall
notify the requester and give the requester the opportunity to:
(1) Limit the scope of the request so that it may be processed
within the time limit prescribed in paragraph (b) of this section; or
(2) Arrange with the Chief FOIA Officer, or the General Counsel, an
alternative time frame for processing the request or a modified
request.
* * * * *
(f) The Chief FOIA Officer, or delegate of the Chief FOIA Officer,
may aggregate and process as a single request, requests by the same
requester, or a group of requesters acting in concert, if the Chief
FOIA Officer, or delegate, reasonably believes that the requests
actually constitute a single request that would otherwise satisfy the
``unusual circumstances'' specified in paragraph (b) of this section,
and the requests involve clearly related matters.
(g) The Chief FOIA Officer, or delegate of the Chief FOIA Officer,
will provide expedited processing of requests in cases where the
requester requests expedited processing and demonstrates a compelling
need for such processing.
(1) The term ``compelling need'' means:
* * * * *
(3) The Chief FOIA Officer or delegate of the Chief FOIA Officer
will determine whether to grant a request for expedited processing and
will notify the requester of such determination within ten (10)
calendar days of receipt of the request.
(4) Denials of requests for expedited processing may be appealed to
the Office of the General Counsel, as set forth in Sec. 1015.7 of this
part. The General Counsel will expeditiously determine any such appeal.
(5) The Chief FOIA Officer, or delegate of the Chief FOIA Officer,
will process, as soon as is practicable, the documents responsive to a
request for which expedited processing is granted.
(h) The Chief FOIA Officer may be unable to comply with the time
limits set forth in paragraphs (a) through (d) of this section when
disclosure of documents responsive to a request under this part is
subject to the requirements of section 6 of the Consumer Product Safety
Act, 15 U.S.C. 2055, and the regulations implementing that section, 16
CFR part 1101. The Chief FOIA Officer, or delegate of the Chief FOIA
Officer, will notify requesters whose requests will be delayed for this
reason.
0
7. Amend Sec. 1015.6 by:
0
a. Removing the word ``Secretariat'' and adding in its place the words
``Chief FOIA Officer'' in paragraphs (a) and (b) introductory text;
0
b. Revising paragraph (b)(4); and
0
c. Removing the word ``Secretariat'' and adding in its place the words
``Chief FOIA Officer'' in paragraph (c).
The revision reads as follows:
Sec. 1015.6 Responses: Form and content.
* * * * *
(b) * * *
(4) A statement that the denial may be appealed to the General
Counsel, as specified in Sec. 1015.1(d). Any such appeal must be made
within 90 calendar days after the date of the Chief FOIA Officer, or
delegate of the Chief FOIA Officer's, denial or partial denial.
* * * * *
0
8. Amend Sec. 1015.7 by revising the section heading, and paragraphs
(a) through (e) and (g), to read as follows:
Sec. 1015.7 Appeals from initial denials.
(a) When the Chief FOIA Officer, or delegate of the Chief FOIA
Officer, has denied a request for records in whole or in part, the
requester may, within 90 calendar days after the date of the denial or
partial denial, appeal the denial to the Office of the General Counsel
of the Consumer Product Safety Commission, attention: Division of the
Secretariat. Appeals may be submitted through any of the following
methods: the e-FOIA Public Access Link at https://www.cpsc.gov; email
to [email protected]; U.S. mail to 4330 East West Highway, Room
820, Bethesda, MD 20814; or by facsimile to 301-504-0127. To facilitate
handling, the requester should mark both the appeal letter and
envelope, or subject line of the electronic transmission, ``Freedom of
Information Act Appeal.''
(b) The General Counsel will act upon an appeal within 20 working
days of its receipt. The time limitations on an appeal submitted by
mail shall begin to run at the time an appeal is received and date-
stamped by the Division of the Secretariat. The Division of the
Secretariat will date-stamp the appeal the same day that it receives
the appeal. The time limitations on an appeal submitted electronically
during working hours (8 a.m. to 4:30 p.m. EST) shall begin to run at
the time the appeal is received electronically; and the time
limitations on appeals submitted electronically during non-working
hours will begin to run when working hours resume.
(c) After reviewing the appeal, the General Counsel will issue a
decision to either grant or deny the appeal, in whole or in part. If
the General Counsel decides to grant the appeal in whole or in part,
the General Counsel will inform the requester and submitter of the
information, in accordance with Sec. Sec. 1015.6(a) and 1015.18(b).
Thereafter, the Chief FOIA Officer will provide the records in
accordance with the General Counsel's decision.
(d) The General Counsel shall have the authority to grant or deny
all appeals and, as an exercise of discretion, to disclose records
exempt from mandatory disclosure under 5 U.S.C. 552(b). In unusual or
difficult cases, the General Counsel may, in his/her discretion, refer
an appeal to the Chairman for determination.
(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
[[Page 21124]]
exemption, of how the exemption applies to the records withheld; and
the reasons for asserting it. The decision will inform the requester of
the right to seek dispute resolution services from CPSC's FOIA Liaison
or the Office of Government Information Services. A denial in whole or
in part shall also inform the requester of his/her right to seek
judicial review of the General Counsel's final determination in a
United States district court, as specified in 5 U.S.C. 552(a)(4)(B).
(f) * * *
(g) Copies of all appeals and copies of all actions on appeal shall
be furnished to and maintained in a public file by the Office of the
General Counsel, Division of the Secretariat.
0
9. Amend Sec. 1015.9 by:
0
b. Revising paragraphs (a) and (e) through (g); and
0
c. Adding paragraphs (h) and (i).
The revisions and additions read as follows:
Sec. 1015.9 Fees for production of records.
(a) The CPSC will provide, at no charge, certain routine
information. For other CPSC responses to information requests, the
Chief FOIA Officer, or the delegate of the Chief FOIA Officer, shall
determine and levy fees for duplication, search, review, and other
services, in accordance with this section.
* * * * *
(e) The following fee schedule will apply:
(1) Duplication. (i) Manual photocopies: $0.15 per page.
(ii) Computer printouts that are sent from a computer to a printer
or photocopier machine: $0.15 per page.
(iii) Compact discs, DVDs, or other similar media duplications:
direct-cost basis. The exact fees for duplication of records on these
forms of media will be calculated and published annually and are
available to the public on the CPSC's FOIA web page at https://www.cpsc.gov and from the Office of the General Counsel, Division of
the Secretariat, Consumer Product Safety Commission, Room 820, 4330
East West Highway, Bethesda, MD 20814.
(iv) There is no duplication fee for producing records provided to
requesters in electronic format.
(v) Requesters may request and be provided records in any format
that is readily reproducible by the agency, including electronic
format.
(vi) When records available only in paper format must be scanned to
comply with a requester's preference to receive records in an
electronic format, the requester must pay the direct costs of scanning
those materials. The exact fees for scanning these materials will be
assessed on a quarter-hour basis, be calculated and published annually,
and are available to the public on the CPSC's FOIA web page at https://www.cpsc.gov and from the Office of the General Counsel, Division of
the Secretariat, Consumer Product Safety Commission, Room 820, 4330
East West Highway, Bethesda, MD 20814.
(2) Searches. Fees for searches are assessed on a quarter-hour
basis. The exact fees for searches are calculated and published
annually and are available to the public on the CPSC's FOIA web page at
https://www.cpsc.gov and from the Office of the General Counsel,
Division of the Secretariat, Consumer Product Safety Commission, Room
820, 4330 East West Highway, Bethesda, MD 20814.
(i) Manual file searches: Manual search fees are calculated using
the basic hourly pay rate of the average grade and step of employees
who charged hours in this category (GS 14/7), plus 16 percent to
account for the cost of benefits.
(ii) Computer searches. Computer search fees are calculated using
the basic hourly pay rate of the average grade and step of employees
who charged hours in this category (GS 12/4), plus 16 percent to
account for the cost of benefits,.
(3) Review. Fees for review are assessed on a quarter-hour basis.
The exact fee for review is calculated and published annually and is
available to the public on the CPSC's FOIA web page at https://www.cpsc.gov and from the Office of the General Counsel, Division of
the Secretariat, Consumer Product Safety Commission, Room 820, 4330
East West Highway, Bethesda, MD 20814. The review fee is calculated
using the basic hourly pay rate of the average grade and step of
employees who charged hours in this category (GS 12/9), plus 16 percent
to account for the cost of benefits. Fees for reviewing records will
only be charged to commercial requesters.
(4) Postage. If the requester wants special handling or if the
volume or dimensions of the materials requires special handling, the
FOIA Office will charge the direct cost of mailing such requested
materials.
(5) Other charges. (i) Materials requiring special reproducing or
handling, such as photographs, slides, blueprints, video and audio tape
recordings, or other similar media: direct-cost basis.
(ii) Any other service: direct-cost basis.
(f) Notice of anticipated fees in excess of $25. (1) When the FOIA
Office determines or estimates that the fees to be assessed will exceed
$25, the FOIA Office shall promptly notify the requester of the actual
or estimated amount of the fees, including a breakdown of the fees for
search, review, and duplication, if applicable, and any applicable fee
waivers that would apply to the request, unless the requester has
indicated a willingness to pay fees as high as those anticipated. The
notice shall specify that the requester may confer with agency staff
with the objective of reformulating the request to meet the requester's
needs at a lower cost. If only a portion of the fee can be estimated
readily, the FOIA Office will advise the requester accordingly. If the
request is not from a commercial use requester, the notice shall
specify that the requester is entitled to the statutory waivers of 100
pages of duplication at no charge and, if the requester is charged
search fees, two hours of search time at no charge.
(2) When a requester has been provided notice of anticipated fees
in excess of $25, the FOIA Office shall toll processing of the request
and further work will not be completed until the requester commits in
writing to pay the actual or estimated total fee, or designates the
amount of fees the requester is willing to pay. In the case of a
requester who is not a commercial requester, the requester may
designate that the requester seeks only those services that can be
provided in paragraphs (g)(2) and (3) of this section, without charge.
The CPSC is not required to accept payment in installments.
(3) If the requester has committed to pay a designated amount of
fees, but the FOIA Office determines or estimates that the total fee
will exceed that amount, the FOIA Office shall toll processing of the
request and notify the requester of the actual or estimated fees in
excess of the requester's commitment. The FOIA Office shall inquire
whether the requester wishes to revise the amount of fees the requester
is willing to pay or modify the request. Once the requester responds,
the administrative time limits in Sec. 1015.5 will resume.
(4) The Chief FOIA Officer shall make available the FOIA Public
Liaison to assist requesters in reformulating a request to meet the
requester's needs at a lower cost.
(5) If a requester does not commit in writing to pay the actual or
estimated total fee or designate in writing the amount of fees the
requester is willing to pay within 30 working days from the date of the
notification letter, the request shall be closed. The FOIA Office shall
notify the requester that the request has been closed.
[[Page 21125]]
(6) Any adverse determination made by the Chief FOIA Officer, or
the designee of the Chief FOIA Officer, concerning a dispute over
actual or estimated fees may be appealed by the requester to the
General Counsel, in the manner described at Sec. 1015.7.
(g) Fee waivers: There are three categories of requesters:
Commercial; educational institutions, noncommercial scientific
institutions, and representatives of the news media; and all other
requesters, including members of the general public.
----------------------------------------------------------------------------------------------------------------
Requester category Search Review Duplication
----------------------------------------------------------------------------------------------------------------
Commercial (including law firms)..... Fee.................... Fee.................... Fee.
Educational, noncommercial scientific No Fee................. No Fee................. Fee after first 100
institutions, or news media. pages.
All other requesters (including Fee After First 2 Hours No Fee................. Fee after first 100
members of the general public). pages.
----------------------------------------------------------------------------------------------------------------
Fees shall be waived as follows:
(1) No automatic fee waiver shall apply to commercial-use requests.
(2) The first 100 pages of duplication shall be waived for requests
from the categories of educational institutions, noncommercial
scientific institutions, representatives of the news media, and all
other requesters (including members of the general public).
(3) The first 2 hours of search time shall be waived for the
category of all other requesters (including members of the general
public).
(4) The Chief FOIA Officer, or a designee of the Chief FOIA
Officer, shall waive or reduce fees whenever disclosure of the
requested information is in the public interest because it is likely to
contribute significantly to public understanding of the operations or
activities of the government, and disclosure of the requested
information is not primarily in the commercial interest of the
requester.
(5) In making a determination under paragraph (g)(4) of this
section, the Chief FOIA Officer, or designee of the Chief FOIA Officer,
shall consider the following factors:
(i) The subject of the request: whether the subject of the
requested records concerns the operations or activities of the
government.
(ii) The informative value of the information to be disclosed:
whether the disclosure is likely to contribute to an understanding of
government operations or activities.
(iii) The contribution to an understanding of the subject by the
general public likely to result from disclosure: whether disclosure of
the requested information will contribute to public understanding.
(iv) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute significantly to public
understanding of government operations or activities.
(v) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure; and, if so
(vi) The primary interest in disclosure: Whether the magnitude of
the identified commercial interest of the requester is sufficiently
large, in comparison with the public interest in disclosure, that
disclosure is primarily in the commercial interest of the requester.
(6) Search fees shall be waived for all requests and duplication
fees shall be waived for requests from educational institutions,
noncommercial scientific institutions, and representatives of the news
media, if the FOIA Office fails to comply with any time limit under
Sec. Sec. 1015.5(a), (g)(3), 1015.7(b), and 5 U.S.C. 552(a)(6), other
than the exceptions stated in 5 U.S.C. 552(a)(4)(A)(viii)(ll). Those
exceptions include:
(i) If the FOIA Office has determined that unusual circumstances,
as defined in Sec. 1015.5(b) apply, and the FOIA Office provided
timely written notice to the requester, as required by Sec. 1015.5(c)
or Sec. 1015.7(f), then failure to comply with the time limit in
Sec. Sec. 1015.5(a), (g)(3), 1015.7(b), and 5 U.S.C. 552(a)(6) is
excused for 10 additional working days; or
(ii) If the FOIA Office has determined that ``unusual
circumstances,'' as defined in Sec. 1015.5(b) apply, and more than
5,000 pages are necessary to respond to the request, and the FOIA
Office has provided timely written notice in accordance with Sec. Sec.
1015.5(c) and (e), and the FOIA Office 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(a)(6)(C), then failure to comply with
Sec. Sec. 1015.5(a), (g)(3), 1015.7(b), and 5 U.S.C. 552(a)(6) shall
be excused for the length of time provided by the court order.
(7) No fee will be charged when the total fee is equal to or less
than $25.
(8) Any determination made by the Chief FOIA Officer, or the
designee of the Chief FOIA Officer, concerning fee waivers may be
appealed by the requester to the General Counsel, in the manner
described at Sec. 1015.7.
(h) Collection of fees. Collection of fees shall be in accordance
with the following:
(1) Interest will be charged on amounts billed, starting on the
31st day following the day on which the requester receives the bill.
Interest will be charged at the rate prescribed in 31 U.S.C. 3717.
(2) Search fees may be charged, even if no responsive documents are
located, or if the search leads to responsive documents that are
withheld under an exemption to the Freedom of Information Act.
(3) The FOIA Office may aggregate requests, for the purposes of
billing, whenever it reasonably believes that a requester, or, on rare
occasions, a group of requesters, is attempting to separate a request
into more than one request to evade fees. The FOIA Office shall not
aggregate multiple requests on unrelated subjects from one requester.
(i) Advance payment of fees. (1) For requests other than those
described in paragraphs (i)(2) and (3) of this section, the FOIA Office
shall not require a requester to make advance payment (i.e., payment
made before the FOIA Office commences or continues work on a request).
Payment owed for work already completed (i.e., payment before copies
are sent to a requester) does not constitute an advance payment for
purposes of this rule.
(2) When the FOIA Office determines or estimates that a total fee
to be charged under this section will exceed $250, and the requester
has no history of payment, the FOIA Office shall notify the requester
of the actual or estimated fee and may require the requester to make an
advance payment of the entire anticipated fee before beginning to
process the request. A notice under this paragraph shall offer the
requester an opportunity to discuss the matter with
[[Page 21126]]
FOIA Office staff to modify the request to meet the requester's needs
at a lower cost.
(3) When a requester has previously failed to pay a properly
charged FOIA fee to the CPSC within 30 calendar days of the date of
billing, the FOIA Office may notify the requester that the requester is
required to pay the full amount owed, plus any applicable interest, and
to make an advance payment of the full amount of any anticipated fee,
before the FOIA Office begins to process a new request or continues
processing a pending request from that requester.
(4) When the CPSC FOIA Office requires advance payment, the FOIA
Office will not further process the request until the required payment
is made. The FOIA Office will toll the processing of the request while
it notifies the requester of the advanced payment due, and the
administrative time limits in Sec. 1015.5 will begin only after the
agency has received the advance payments. If the requester does not pay
the advance payment within 30 calendar days from the date of the FOIA
Office's fee notice, the FOIA Office will presume that the requester is
no longer interested in the records and notify the requester that the
request has been closed.
Sec. 1015.20 [Amended]
0
10. Amend Sec. 1015.20 by removing the phrase ``the investigatory file
exemption'' and adding in its place the word ``exemptions'' in
paragraph (a).
Alberta E. Mills
Secretary, Consumer Product Safety Commission.
[FR Doc. 2020-07558 Filed 4-15-20; 8:45 am]
BILLING CODE 6355-01-P