Regulations Implementing the Freedom of Information Act, 86297-86302 [2016-28305]
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Federal Register / Vol. 81, No. 230 / Wednesday, November 30, 2016 / Proposed Rules
found in FAA Advisory Circular (AC)
21.17–2A, ‘‘Type Certification—FixedWing Gliders (Sailplanes), Including
Powered Gliders,’’ dated February 10,
1993. AC 21.17–2A has been the basis
for certification of gliders and powered
gliders in the United States for many
years. AC 21.17–2A states that
applicants may utilize the Joint Aviation
Requirements (JAR)–22, ‘‘Sailplanes and
Powered Sailplanes’’, or another
accepted airworthiness criteria, or a
combination of both, as the accepted
means for showing compliance for
glider type certification.
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Type Certification Basis
The applicant proposed a
Certification Basis based on EASA
Certification Specification (CS)–22,
‘‘Sailplanes and Powered Sailplanes’’,
initial issue, dated November 14, 2003.
In addition to CS–22 requirements, the
applicant proposed to comply with
other requirements from the
certification basis referenced in EASA
TCDS No. EASA.A.054, including
special conditions and equivalent safety
findings.
The Proposed Design Criteria
Applicable Airworthiness Criteria
under § 21.17(b).
Based on the Special Class provisions
of § 21.17(b), the following
airworthiness requirements form the
FAA Certification Basis for this design:
1. 14 CFR part 21, effective February
1, 1965, including amendments 21–1
through 21–93 as applicable.
2. EASA CS–22, initial issue, dated
November 14, 2003.
3. EASA Special Condition No. SC–
A.22.1.01, ‘‘Increase in maximum mass
for sailplanes and powered sailplanes.’’
4. ‘‘Preliminary Standard for the
Substantiation of Indirect Drive Shafts
in Power Plants of Powered Sailplanes
Certified to JAR–22’’ (with a
modification for the Stemme AG model
Stemme S 10), Luftfahrt-Bundesamt
(LBA) document number (no.) I231–87,
issued August 05, 1988.
5. Installation of a Dual-Axis
Autopilot System, including—
• EASA CS–VLA (Very Light
Aeroplanes) 1309, ‘‘Equipment, systems,
and installations’’; initial issue, dated
November 14, 2003; and
• EASA CS–23.1329, ‘‘Automatic
pilot system’’, amendment 3, dated July
20, 2012.
6. Drop Testing for Retractable
Landing Gear (EASA equivalent safety
findings) to include CS–VLA 725,
‘‘Limit drop tests’’; CS–VLA 726,
‘‘Ground load dynamic tests’’; and CS–
VLA 727, ‘‘Reserve energy absorption’’;
initial issue dated November 14, 2003.
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7. ‘‘Standards for Structural
Substantiation of Sailplane and
Powered Sailplane Parts Consisting of
Glass or Carbon Fiber Reinforced
Plastics’’, LBA document no. I4–FVK/
91, issued July 1991.
8. ‘‘Guideline for the analysis of the
electrical system for powered
sailplanes’’, LBA document no. I334–
MS 92, issued September 15, 1992.
9. The following kinds of operation
are allowed: VFR-Day.
10. Date of application for FAA Type
Certificate: January 08, 2016.
Issued in Kansas City, Missouri on
November 18, 2016.
Mel Johnson,
Acting Manager, Small Airplane Directorate,
Aircraft Certification Service.
[FR Doc. 2016–28575 Filed 11–29–16; 8:45 am]
BILLING CODE 4910–13–P
OCCUPATIONAL SAFETY AND
HEALTH REVIEW COMMISSION
29 CFR Part 2201
Regulations Implementing the
Freedom of Information Act
Occupational Safety and Health
Review Commission.
ACTION: Notice of proposed rulemaking.
AGENCY:
The Occupational Safety and
Health Review Commission (‘‘OSHRC’’)
is proposing revisions to its regulations
implementing the Freedom of
Information Act (‘‘FOIA’’). These
proposed revisions account for statutory
amendments included in the FOIA
Improvement Act of 2016 (‘‘FOIA
Improvement Act’’), as well as the
addition of procedures pertaining to
confidential commercial information
and preservation of records,
clarifications of existing procedures,
and updates to contact information.
DATES: Comments must be received by
OSHRC on or before December 20, 2016.
ADDRESSES: You may submit comments
by any of the following methods:
• Email: NChadwick@oshrc.gov.
Include ‘‘PROPOSED RULEMAKING,
PART 2201’’ in the subject line of the
message.
• Fax: (202) 606–5417.
• Mail: Occupational Safety and
Health Review Commission, ATTN:
FOIA Public Liaison, One Lafayette
Centre, 1120 20th Street NW., Ninth
Floor, Washington, DC 20036–3457.
• Hand Delivery/Courier: Same as
mailing address.
Instructions: All submissions must
include your name, return address, and
email address, if applicable. Please
SUMMARY:
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clearly label submissions as
‘‘PROPOSED RULEMAKING, PART
2201.’’
FOR FURTHER INFORMATION CONTACT:
OSHRC’s FOIA Public Liaison, by
telephone at (202) 606–5410, by email at
NChadwick@oshrc.gov, or by mail at the
address stated above.
SUPPLEMENTARY INFORMATION:
I. Background
OSHRC proposes several substantive
and procedural revisions to its
regulations implementing the FOIA that
fall within four general categories. First,
OSHRC proposes modifying its existing
FOIA regulations to reflect the
amendments to the FOIA contained in
the FOIA Improvement Act of 2016,
Public Law 114–185. The FOIA
Improvement Act amended various
practices under the FOIA, such as
requiring notification to requesters of
the right to seek dispute resolution at
various times throughout the FOIA
process from the National Archives and
Records Administration’s Office of
Government Information Services
(‘‘OGIS’’), a ninety-day minimum time
period to file administrative appeals,
and limitations on assessing certain fees
and exceptions to those limitations.
Second, OSHRC proposes revising its
regulations to further clarify and update
its procedures relating to the submission
and processing of FOIA requests.
Third, OSHRC proposes adding a new
section to its regulations establishing
procedures to notify submitters of
records containing confidential
commercial information when those
records are requested under the FOIA,
in compliance with Executive Order
12,600.
Fourth, OSHRC proposes adding a
new section to its regulations explaining
the procedure for the preservation of
records related to FOIA requests.
Accordingly, OSHRC proposes to
revise its regulations implementing the
FOIA and put them out for public
comment. The specific amendments that
OSHRC proposes to each section of 29
CFR part 2201 are discussed hereafter in
regulatory sequence.
In 29 CFR 2201.3, OSHRC proposes
revising paragraph (a) to direct
requestors to OSHRC’s FOIA Reference
Guide for further information. OSHRC
proposes a minor revision to paragraph
(c) explaining the role of the FOIA
Public Liaison. OSHRC also proposes
minor revisions to paragraph (d) to
update the contact information for the
FOIA Requester Service Center.
In 29 CFR 2201.4, OSHRC proposes a
minor revision to a reference to another
section of the regulations included in
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paragraph (a). OSHRC proposes
removing paragraph (b) regarding
examination of records in cases
appealed to courts as the provision is no
longer necessary. OSHRC additionally
proposes revising new paragraph (b),
previously paragraph (c), to update the
list of records available at the OSHRC eFOIA Reading Room. OSHRC proposes
revising new paragraph (c), previously
paragraph (d), to clarify the location of
records available onsite at the OSHRC
National Office. OSHRC proposes
changing paragraph (e) to paragraph (d)
due to the removal of paragraph (b) in
this section.
In 29 CFR 2201.5, OSHRC proposes
revising paragraph (a) to clarify the
procedure for how to make a FOIA
request regarding the ability to submit a
request in multiple ways, including by
email and OSHRC’s online FOIA request
form. OSHRC proposes changing
paragraph (b) to describe the procedures
for a requester making a request for
records about himself or herself. OSHRC
proposes adding paragraph (c) to
describe the procedure enabling a
requester to receive greater access when
a request for records pertains to another
individual. OSHRC also proposes
adding paragraph (d) to explain what
elements should be included in the
description of records in a FOIA
request. OSHRC proposes adding
paragraph (e), previously included in
part in another paragraph in this
section, to explain the procedure for
requests regarding the preferred form or
format of a response. OSHRC proposes
adding paragraph (f) to describe the
necessary contact information to be
provided by a requestor. OSHRC further
proposes adding paragraph (g),
previously included in another
paragraph of this section, to describe
how OSHRC determines the date of
receipt of a FOIA request and revising
the reference in this paragraph to reflect
the changes to paragraph designations
in a subsequent section.
In 29 CFR 2201.6, OSHRC proposes
revising paragraphs (c) and (f) to include
notification to the requestor of the
availability of assistance from the FOIA
Public Liaison and the right to seek
dispute resolution services from OGIS.
OSHRC also proposes revising the
references in paragraph (f) to reflect the
changes to paragraph designations in
subsequent sections. OSHRC proposes
revising paragraph (h) to reflect changes
to the procedure notifying a requester of
the tracking number assigned to the
FOIA request.
OSHRC proposes redesignating 29
CFR 2201.7 to 29 CFR 2201.10 as 29
CFR 2201.8 to 29 CFR 2201.11,
respectively, and then adding a new 29
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CFR 2201.7. This proposed new section
pertains to ‘‘confidential commercial
information,’’ and describes this type of
information and how it is designated as
such by a submitter, the circumstances
under which OSHRC must notify the
submitter of such information when it is
contained in records requested under
the FOIA, exceptions to this notice
requirement, and the process for the
submitter to object to the disclosure of
such information.
In redesignated 29 CFR 2201.8,
OSHRC proposes revising paragraph (a)
to explain that OSHRC shall charge fees
in accordance with the Uniform
Freedom of Information Fee Schedule
and Guidelines published by the Office
of Management and Budget. OSHRC
also proposes revising paragraph (b) to
explain the limitations on assessing
certain fees and exceptions to those
limitations, as well as a minor revision
to a reference to the Commission.
OSHRC proposes revising paragraphs
(h) and (i) to reflect the change in name
for the Commission’s Office of the
Executive Director. OSHRC proposes
revising the references in this entire
section to reflect the changes to
paragraph designations in previous and
subsequent sections.
In redesignated 29 CFR 2201.9,
OSHRC proposes revising the reference
in this section to reflect the changes to
paragraph designations in a previous
section.
In redesignated 29 CFR 2201.10,
OSHRC proposes adding paragraph (a)
to revise the time period to file an
appeal, as well as identify information
to be included with the appeal. OSHRC
proposes adding paragraph (b) to clarify
the procedure for adjudication of
appeals. OSHRC also proposes adding
paragraph (c) to explain the content of
and procedure for decisions on appeals.
OSHRC proposes adding paragraph (d)
to explain the process of mediation
provided by OGIS. OSHRC also
proposes adding paragraph (e) to
describe the requirements for seeking
review by a court of an adverse
determination by OSHRC.
In redesignated 29 CFR 2201.11,
OSHRC proposes a minor revision to a
reference to OSHRC’s Web site.
OSHRC proposes adding a new
section at 29 CFR 2201.12 on the
procedures for preserving records
pertaining to FOIA requests.
II. Statutory and Executive Order
Reviews
Executive Orders 12866 and 13132,
and the Unfunded Mandates Reform
Act of 1995: OSHRC is an independent
regulatory agency and, as such, is not
subject to the requirements of E.O.
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12866, E.O. 13132, or the Unfunded
Mandates Reform Act, 2 U.S.C. 1501 et
seq.
Regulatory Flexibility Act: The
Chairman of OSHRC certifies under the
Regulatory Flexibility Act, 5 U.S.C.
605(b), that these rules, if adopted,
would not have a significant economic
impact on a substantial number of small
entities. The only proposed revisions
that could economically impact a small
entity pertain to how OSHRC charges its
FOIA fees. OSHRC, however, receives
relatively few FOIA requests from
‘‘small entities’’ that result in fees being
assessed; when fees are assessed, the
amounts are generally minimal; and it is
not anticipated that the amendments
will have much affect (if any) on the
number of entities responsible for
paying FOIA fees or the amounts of
those fees. For these reasons, a
regulatory flexibility analysis is not
required.
Paperwork Reduction Act of 1995:
OSHRC has determined that the
Paperwork Reduction Act, 44 U.S.C.
3501 et seq., does not apply because
these rules do not contain any
information collection requirements that
require the approval of OMB.
Congressional Review Act: These
proposed revisions do not constitute a
‘‘rule,’’ as defined by the Congressional
Review Act, 5 U.S.C. 804(3)(C), because
they involve changes to agency
organization, procedure, or practice that
do not substantially affect the rights or
obligations of non-agency parties.
List of Subjects
Freedom of information.
Signed at Washington, DC, on the 17th day
of November, 2016.
Cynthia L. Attwood,
Chairman.
For the reasons set forth in the
preamble, OSHRC proposes to amend 29
CFR part 2201 as follows:
PART 2201—REGULATIONS
IMPLEMENTING THE FREEDOM OF
INFORMATION ACT
1. The authority citation for part 2201
continues to read as follows:
■
Authority: 29 U.S.C. 661(g); 5 U.S.C. 552.
§ 2201.3
[Amended]
2. Amend § 2201.3 by:
a. Removing the words ‘‘FOIA
handbook’’ and adding, in their place,
the words ‘‘FOIA Reference Guide’’ in
paragraph (a)(5).
■ b. Removing the word ‘‘supervisory’’
in paragraph (c).
■ c. Revising paragraph (d) to read as
follows:
■
■
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§ 2201.3 Delegation of authority and
responsibilities.
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(d) OSHRC establishes a FOIA
Requester Service Center that shall be
staffed by the FOIA Disclosure Officer(s)
and FOIA Public Liaison(s). The address
of the FOIA Requester Service Center is
1120 20th Street NW., 9th Floor,
Washington, DC 20036–3457. The
telephone number, fax number and
additional contact information for the
FOIA Requester Service Center is
located on the agency’s Web site at:
https://www.oshrc.gov/foia.html. The
FOIA Requester Service Center is
available to provide information about
the status of a request to the requester
using the assigned tracking number (as
described in § 2201.6(h)), including:
(1) The date on which the agency
originally received the request; and
(2) An estimated date on which the
agency will complete action on the
request.
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§ 2201.4
[Amended]
3. Amend § 2201.4 by:
a. Removing the citation ‘‘§ 2201.5(a)’’
and adding, in its place, the citation
‘‘§ 2201.5’’ in paragraph (a).
■ b. Removing paragraph (b) in its
entirety.
■ c. Redesignating paragraphs (c)
through (e) as paragraphs (b) through
(d), respectively.
■ d. Revising the opening of
redesignated paragraph (b), and
paragraphs (b)(1), (b)(5), (b)(6), and (c) to
read as follows:
■
■
§ 2201.4
General policy and definitions.
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(b) Record availability at the OSHRC
e-FOIA Reading Room. The records of
Commission activities are publicly
available for inspection and copying,
and may be accessed electronically on
the Commission’s Web site at https://
www.oshrc.gov/foia/foia_reading_
room.html. These records include:
(1) Final decisions, including
concurring and dissenting opinions,
remand orders, as well as
Administrative Law Judge decisions
pending OSHRC review, briefing
notices, and other significant orders;
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(5) Copies of records that have been
released to a person under the FOIA
that, because of the subject matter, the
Commission determines have become or
are likely to become the subject of
subsequent requests for substantially the
same records, as well as records the
Commission determines absent a FOIA
request could be of significant public
interest; and
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(6) A general index of records referred
to under paragraph (b)(5) of this section.
(c) Record availability onsite at
OSHRC National Office. Any member of
the public may, upon request, access
OSHRC’s e-FOIA Reading Room via a
computer terminal at the OSHRC
National Office, located at 1120 20th St.
NW., 9th Floor, Washington, DC 20036–
3457. Such a request must be made in
writing to the FOIA Requester Service
Center, and indicate a preferred date
and time for the requested access.
OSHRC reserves the right to arrange a
different date and time with the
requester, if necessary.
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§ 2201.5
■
[Amended]
4. Revise § 2201.5 to read as follows:
§ 2201.5
Procedure for requesting records.
(a) General information. All requests
for information must be made in writing
to the FOIA Disclosure Officer and may
be: (1) Mailed or delivered; (2) faxed; or
(3) emailed. Requests may also be made
using the Commission’s online FOIA
request form (which is a downloadable
PDF file found at https://www.oshrc.gov/
foia/foia_request_form.html) and the
completed form can be submitted by
mail, fax, or email. Contact information
for the FOIA Disclosure Officer is
described in § 2201.3(d). For mailed or
delivered requests, the words ‘‘Freedom
of Information Act Request’’ must be
printed on the face of the request’s
envelope or covering as well as the
request itself.
(b) A requester who is making a
request for records about himself or
herself must comply with verification of
identity requirements as required by 29
CFR 2400.6 in OSHRC’s Privacy Act
regulations.
(c) Where a request for records
pertains to another individual, a
requester may receive greater access by
submitting either a notarized
authorization signed by that individual
or a declaration made in compliance
with the requirements set forth in 28
U.S.C. 1746 by that individual
authorizing disclosure of the records to
the requester, or by submitting proof
that the individual is deceased (e.g., a
copy of a death certificate or an
obituary).
(d) Description of records sought. A
request must describe the records
sought in sufficient detail to enable the
Commission to locate them with a
reasonable amount of effort. To the
extent possible, the request should
include specific information to identify
the requested records, such as the
docket number(s) or case name(s).
Before submitting a request, the
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requester may contact the FOIA
Disclosure Officer, as described in
§ 2201.3(d), to discuss the records being
sought and receive assistance in
describing them. If a determination is
made after receiving a request that it
does not reasonably describe the records
sought, the FOIA Disclosure Officer will
contact the requester to explain what
additional information is needed or why
the request is otherwise insufficient. A
requester attempting to reformulate or
modify such a request is encouraged to
discuss the request with the FOIA
Disclosure Officer. If a request does not
reasonably describe the records sought,
the agency’s response may be delayed.
(e) Requests may specify the preferred
form or format (including electronic
formats) of the response. The FOIA
Disclosure Officer shall honor a
requester’s specified preference of form
or format of disclosure if the record is
readily reproducible with reasonable
efforts in the requested form or format.
When a requester does not specify the
preferred form or format of the response,
the FOIA Disclosure Officer shall
respond in the form or format in which
the record is most accessible to the
Commission.
(f) The requester must provide contact
information, such as a phone number,
email address, and/or mailing address,
to facilitate the agency’s communication
with the requester.
(g) Date of receipt. A request that
complies with paragraph (a) of this
section is deemed received on the actual
date it is received by the Commission.
A request that does not comply with
paragraph (a) of this section is deemed
received when it is actually received by
the FOIA Disclosure Officer. For
requests that are expected to result in
fees exceeding $250, the request shall
not be deemed to have been received
until the requester is advised of the
anticipated costs and the Commission
has received full payment or satisfactory
assurance of full payment as provided
under § 2201.8(f).
§ 2201.6
[Amended]
5. Amend § 2201.6 by revising
paragraphs (c), (f), and (h) to read as
follows:
■
§ 2201.6
Responses to requests.
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(c) Additional extension. The FOIA
Disclosure Officer shall notify the
requester in writing when it appears
that a request cannot be completed
within the allowable time (20 working
days plus a 10-working-day extension).
In such instances, the requester will be
provided an opportunity to limit the
scope of the request so that it may be
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processed in the time limit, or to agree
to a reasonable alternative time frame
for processing. The FOIA Disclosure
Officer or FOIA Public Liaison shall be
available to assist the requester for this
purpose and shall notify the requester of
the right to seek dispute resolution
services from the National Archives and
Records Administration’s Office of
Government Information Services
(OGIS).
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(f) Content of denial. When the FOIA
Disclosure Officer denies a request for
records, either in whole or in part, a
request for expedited processing, and/or
a request for fee waivers (see § 2201.9),
the written notice of the denial shall
state the reason for denial, give a
reasonable estimate of the volume of
matter denied (unless doing so would
harm an interest protected by the
exemption(s) under which the request
was denied), set forth the name and title
or position of the person responsible for
the denial of the request, notify the
requester of the right to appeal the
determination as specified in § 2201.10,
and notify the requester of the
assistance available from the FOIA
Public Liaison and the dispute
resolution services offered by OGIS. A
refusal by the FOIA Disclosure Officer
to process the request because the
requester has not made advance
payment or given a satisfactory
assurance of full payment required
under § 2201.8(f) may be treated as a
denial of the request and appealed
under § 2201.10.
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(h) Tracking numbers. The FOIA
Disclosure Officer shall assign an
individualized tracking number to each
request received for processing and
provide the requester with the tracking
number.
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§§ 2201.7 through 2201.10 [Redesignated
as §§ 2201.8 through 2201.11 and Amended]
6. Redesignate §§ 2201.7 through
2201.10 as §§ 2201.8 through 2201.11,
respectively.
■ 7. Add new § 2201.7 to read as
follows:
■
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§ 2201.7 Confidential commercial
information.
(a) Definitions.
(1) Confidential commercial
information means commercial or
financial information obtained by
OSHRC from a submitter that may be
protected from disclosure under
Exemption 4 of the FOIA, 5 U.S.C.
552(b)(4).
(2) Submitter means any person or
entity, including a corporation, State, or
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foreign government, but not including
another Federal Government entity, that
provides confidential commercial
information, either directly or indirectly
to OSHRC.
(b) Designation of confidential
commercial information. A submitter of
confidential commercial information
must use good faith efforts to designate
by appropriate markings, at the time of
submission, any portion of its
submission that it considers to be
protected from disclosure under
Exemption 4. These designations expire
10 years after the date of the submission
unless the submitter requests and
provides justification for a longer
designation period.
(c) When notice to submitters is
required. OSHRC shall promptly
provide written notice to the submitter
of confidential commercial information
whenever records containing such
information are requested under the
FOIA if OSHRC determines that it may
be required to disclose the records,
provided the submitter has complied
with paragraph (b) of this section or
OSHRC has a reason to believe that the
requested information may be protected
from disclosure under Exemption 4, but
has not yet determined whether the
information is protected from
disclosure. The notice must either
describe the commercial information
requested or include a copy of the
requested records or portions of records
containing the information.
(d) Exceptions to submitter notice
requirements. The notice requirements
of this section do not apply if:
(1) OSHRC determines that the
information is exempt under the FOIA,
and therefore will not be disclosed;
(2) The information has been lawfully
published or has been officially made
available to the public;
(3) Disclosure of the information is
required by a statute other than the
FOIA or by a regulation issued in
accordance with the requirements of
Executive Order 12,600 of June 23,
1987; or
(4) The designation made by the
submitter under paragraph (b) of this
section appears obviously frivolous. In
such case, OSHRC shall give the
submitter written notice of any final
decision to disclose the information
within a reasonable number of days
prior to a specified disclosure date.
(e) Opportunity to object to disclosure.
OSHRC shall specify a reasonable time
period within which the submitter must
provide a response to the notice
referenced above. If a submitter has any
objections to disclosure, it should
provide a detailed written statement
that specifies all grounds for
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withholding the particular information
under any exemption of the FOIA. In
order to rely on Exemption 4 as basis for
nondisclosure, the submitter must
explain why the information constitutes
a trade secret or commercial or financial
information that is confidential. A
submitter who fails to respond within
the time period specified in the notice
will be considered to have no objection
to disclosure of the information. OSHRC
is not required to consider any
information received after the date of
any disclosure decision. Any
information provided by a submitter
under this subpart may itself be subject
to disclosure under the FOIA.
(f) Analysis of objections. OSHRC
shall consider a submitter’s objections
and specific grounds for nondisclosure
in deciding whether to disclose the
requested information.
(g) Notice of decision. OSHRC shall
provide the submitter with written
notice once a decision is made as to
whether or not to disclose information
over the submitter’s objection. When a
decision is made to disclose information
over the submitter’s objection, this
notice shall include a statement of the
reasons why each of the submitter’s
disclosure objections was not sustained,
a description of the information to be
disclosed or copies of the records as the
agency intends to release them, and a
specified disclosure date (which must
be a reasonable time after the notice).
(h) Notice of FOIA lawsuit. OSHRC
shall promptly notify the submitter
when a requester files a lawsuit seeking
to compel the disclosure of confidential
commercial information.
(i) Requester notification. OSHRC
shall notify the requester whenever it
provides the submitter with notice and
an opportunity to object to disclosure;
whenever it notifies the submitter of its
intent to disclose the requested
information; and whenever a submitter
files a lawsuit to prevent the disclosure
of the information.
■ 8. Amend redesignated § 2201.8 by:
■ a. Redesignating paragraph (b)(3) as
paragraph (b)(5).
■ b. Revising paragraphs (a), the
opening of paragraph (b), and
paragraphs (b)(1) and (b)(2)(v); adding
new paragraphs (b)(3) and (b)(4); and
revising redesignated paragraph (b)(5),
and paragraphs (h) and (i), to read as
follows:
§ 2201.8
review.
Fees for copying, searching, and
(a) Fees required unless waived. The
FOIA Disclosure Officer shall charge
fees in accordance with the Uniform
Freedom of Information Fee Schedule
and Guidelines published by the Office
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of Management and Budget and in
accordance with paragraph (b) of this
section. See Appendix A. If the fees for
a request are less than the threshold
amount as provided in OSHRC’s fee
schedule, no fees shall be charged. The
FOIA Disclosure Officer shall, however,
waive the fees in the circumstances
stated in § 2201.9.
(b) Calculation of fees. Fees for
copying, searching and reviewing will
be based on the direct costs of these
services, including the average hourly
salary (base plus DC locality payment),
plus 16 percent for benefits, of the
following three categories of employees
involved in responding to FOIA
requests: Clerical—based on an average
of all employees at GS–9 and below;
professional—based on an average of all
employees at GS–10 through GS–14;
and managerial—based on an average of
all employees at GS–15 and above.
OSHRC will calculate a schedule of fees
based on these direct costs. The
schedule of fees under this section
appears in Appendix A to this part. A
copy of the schedule of fees may also be
obtained at no charge from the FOIA
Disclosure Officer. See § 2201.3(d).
(1) Copying fee. The fee per copy of
each page shall be calculated in
accordance with the per-page amount
established in OSHRC’s fee schedule.
See Appendix A to this part. For other
forms of duplication, direct costs of
producing the copy, including operator
time, shall be calculated and assessed.
Copying fees shall not be charged for the
first 100 pages of copies unless the
copies are requested for a commercial
use. No copying fee shall be charged for
educational, scientific, or news media
requests if the agency fails to comply
with any time limit in § 2201.6,
provided that no unusual or exceptional
circumstances (as those terms are
defined in § 2201.6(b) and § 2201.4(d),
respectively) apply to the processing of
the request.
(2) * * *
(v) Failure to comply with time limits.
No search fee shall be charged if the
Commission fails to comply with any
time limit in § 2201.6, provided that no
unusual or exceptional circumstances
(as those terms are defined in
§ 2201.6(b) and § 2201.4(d),
respectively) apply to the processing of
the request.
(3) Unusual circumstances. (i) If the
Commission has determined that
unusual circumstances, as defined in
§ 2201.6(b), apply and has provided
timely written notice to the requester, a
failure to comply with the time limit
shall be excused for an additional 10
days and the Commission shall assess
fees as usual.
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(ii) If the Commission has determined
that unusual circumstances, as defined
in § 2201.6(b), apply and more than
5,000 pages are necessary to respond to
the request, the Commission may charge
search fees, or, in the case of requesters
described in § 2201.8(b)(2)(ii), may
charge duplication fees, if the
Commission provided timely written
notice of unusual circumstances to the
requester in accordance with § 2201.6(b)
and the Commission discussed with the
requester via written mail, email, or
telephone (or made not less than three
good-faith attempts to do so) how the
requester could effectively limit the
scope of the request in accordance with
the FOIA. If this exception is satisfied,
the Commission may charge all
applicable fees incurred in the
processing of the request even if such
processing extends beyond an
additional 10 days.
(4) If a court has determined that
exceptional circumstances exist, as
defined in § 2201.4(d), a failure to
comply with the time limits shall be
excused for the length of time provided
by the court order.
(5) Review fee. A review fee shall be
charged only for commercial requests.
Review fees shall be calculated in
accordance with the amounts
established in OSHRC’s schedule of
fees. See Appendix A. A review fee
shall be charged for the initial
examination of documents located in
response to a request to determine if it
may be withheld from disclosure, and
for the excision of withholdable
portions. However, a review fee shall
not be charged for review by the
Chairman under § 2201.10 (Appeal of
denials).
*
*
*
*
*
(h) Interest on unpaid bills. The
Commission’s Office of the Executive
Director shall begin assessing interest
charges on unpaid bills starting on the
thirty-first day after the date the bill was
sent. Interest will accrue from the date
of billing until the Commission receives
full payment. Interest will be at the rate
described in 31 U.S.C. 3717.
(i) Debt collection procedures. If bills
are unpaid 60 days after the mailing of
a written notice to the requester, the
Commission’s Office of the Executive
Director may resort to the debt
collection procedures set out in the Debt
Collection Act of 1982 (Pub. L. 97–365,
96 Stat. 1749), as amended, and its
administrative procedures, including
the use of consumer reporting agencies,
collection agencies, and offset.
■ 9. Amend redesignated § 2201.9 by
removing the citation ‘‘§ 2201.7(b)’’ in
paragraph (a) and adding, in its place,
the citation ‘‘§ 2201.8(b)’’.
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Frm 00012
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Sfmt 4702
86301
10. Revise redesignated § 2201.10 to
read as follows:
■
§ 2201.10
Appeal of denials.
(a) Requirements for making an
appeal. A denial of a request for
records, either in whole or in part, a
request for expedited processing, or a
request for fee waivers, may be appealed
in writing to the Chairman of the
Commission. To be considered timely,
the appeal must be postmarked, or in
the case of electronic submissions,
transmitted, within 90 calendar days of
the date of the agency’s written notice
of denial. The appeal should clearly
identify the agency determination that is
being appealed and the assigned FOIA
tracking number. To facilitate handling,
the requester should mark both the
appeal and its envelope, or state in the
subject line of an electronic
transmission, ‘‘Freedom of Information
Act Appeal.’’
(b) Adjudication of appeals. The
Chairman shall act on the appeal under
5 U.S.C. 552(a)(6)(A)(ii) within 20
working days after the receipt of the
appeal. An appeal ordinarily will not be
adjudicated if the request becomes a
matter of FOIA litigation. On receipt of
any appeal involving classified
information, the Chairman shall take
appropriate action to ensure compliance
with applicable classification rules.
(c) Decisions on appeals. The
Chairman shall provide the decision on
an appeal in writing. If the Chairman
wholly or partially upholds the denial
of the request, the decision shall contain
a statement that identifies the reasons
for the affirmance, including any FOIA
exemptions applied. The decision must
include notification that the requester
may obtain judicial review of the
decision under 5 U.S.C. 552(a)(4)(B)–
(G). The decision shall also inform the
requester of the mediation services
offered by OGIS as a non-exclusive
alternative to litigation. If the
Chairman’s decision is remanded or
modified on appeal to the court, the
requester will be notified by the agency
of that determination in writing. The
Commission shall then further process
the request in accordance with the
appeal determination and shall respond
directly to the requester.
(d) Engaging in dispute services
provided by OGIS. Mediation is a
voluntary process. If the Commission
agrees to participate in the mediation
services provided by OGIS, it will
actively engage as a partner in the
process in an attempt to resolve the
dispute.
(e) When appeal is required. Before
seeking review by a court of the
Commission’s adverse determination, a
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requester generally must first submit a
timely administrative appeal.
■ 11. Amend redesignated § 2201.11 by
removing the words ‘‘through OSHRC’s
Web site’’ and adding, in their place, the
words ‘‘on OSHRC’s Web site’’ in
paragraph (b).
§ 2201.12
■
[Added]
12. Add § 2201.12 to read as follows:
§ 2201.12
Preservation of Records.
OSHRC shall preserve all
correspondence pertaining to FOIA
requests, as well as copies of all
requested records, until disposition or
destruction is authorized pursuant to
title 44 of the United States Code or the
General Records Schedule 14 of the
National Archives and Records
Administration. OSHRC shall not
dispose of or destroy records while they
are the subject of a pending request,
appeal or lawsuit under the FOIA.
[FR Doc. 2016–28305 Filed 11–29–16; 8:45 am]
BILLING CODE 7600–01–P
DEPARTMENT OF THE TREASURY
Fiscal Service
31 CFR Part 210
RIN 1510–AB32
Federal Government Participation in
the Automated Clearing House
Bureau of the Fiscal Service,
Treasury.
ACTION: Notice of proposed rulemaking
with request for comment.
AGENCY:
The Department of the
Treasury, Bureau of the Fiscal Service
(Fiscal Service) is proposing to amend
its regulation governing the use of the
Automated Clearing House (ACH)
Network by Federal agencies. Our
regulation adopts, with some
exceptions, the NACHA Operating Rules
developed by NACHA—The Electronic
Payments Association (NACHA) as the
rules governing the use of the ACH
Network by Federal agencies. We are
issuing this proposed rule to address
changes that NACHA has made to the
NACHA Operating Rules since the
publication of the 2013 NACHA
Operating Rules & Guidelines book.
These changes include amendments set
forth in the 2014, 2015, and 2016
NACHA Operating Rules & Guidelines
books.
sradovich on DSK3GMQ082PROD with PROPOSALS
SUMMARY:
Comments on the proposed rule
must be received by January 30, 2017.
ADDRESSES: Comments on this rule,
identified by docket FISCAL–2016–
DATES:
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16:37 Nov 29, 2016
Jkt 241001
0001, should only be submitted using
the following methods:
• Federal eRulemaking Portal:
www.regulations.gov. Follow the
instructions on the Web site for
submitting comments.
• Mail: Ian Macoy, Bureau of the
Fiscal Service, 401 14th Street SW.,
Room 400B, Washington, DC 20227.
The fax and email methods of
submitting comments on rules to Fiscal
Service have been decommissioned.
Instructions: All submissions received
must include the agency name (Bureau
of the Fiscal Service) and docket
number FISCAL–2016–0001 for this
rulemaking. In general, comments
received will be published on
Regulations.gov without change,
including any business or personal
information provided. Comments
received, including attachments and
other supporting materials, are part of
the public record and subject to public
disclosure. Do not disclose any
information in your comment or
supporting materials that you consider
confidential or inappropriate for public
disclosure.
You can download this proposed rule
at the following Web site: https://
www.fiscal.treasury.gov/fsservices/
instit/pmt/ach/ach_home.htm. You may
also inspect and copy this proposed rule
at: Treasury Department Library,
Freedom of Information Act (FOIA)
Collection, Room 1428, Main Treasury
Building, 1500 Pennsylvania Avenue
NW., Washington, DC 20220. Before
visiting, you must call (202) 622–0990
for an appointment.
In accordance with the U.S.
government’s eRulemaking Initiative,
Fiscal Service publishes rulemaking
information on www.regulations.gov.
Regulations.gov offers the public the
ability to comment on, search, and view
publicly available rulemaking materials,
including comments received on rules.
FOR FURTHER INFORMATION CONTACT: Ian
Macoy, Director of Settlement Services,
at (202) 874–6835 or ian.macoy@
fiscal.treasury.gov; or Natalie H. Diana,
Senior Counsel, at (202) 874–6680 or
natalie.diana@fiscal.treasury.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Title 31 CFR part 210 (Part 210)
governs the use of the ACH Network by
Federal agencies. The ACH Network is
a nationwide electronic fund transfer
(EFT) system that provides for the interbank clearing of electronic credit and
debit transactions and for the exchange
of payment-related information among
participating financial institutions. Part
210 incorporates the NACHA Operating
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Fmt 4702
Sfmt 4702
Rules, with certain exceptions. From
time to time the Fiscal Service amends
Part 210 in order to address changes that
NACHA periodically makes to the
NACHA Operating Rules or to revise the
regulation as otherwise appropriate.
Currently, Part 210 incorporates the
NACHA Operating Rules as set forth in
the 2013 NACHA Operating Rules &
Guidelines book. NACHA has adopted a
number of changes to the NACHA
Operating Rules since the publication of
the 2013 NACHA Operating Rules &
Guidelines book. We are proposing to
incorporate in Part 210 most, but not all,
of these changes. We are also proposing
two changes to Part 210, related to
reversals and prepaid cards, that do not
stem from a change to the NACHA
Operating Rules.
We are requesting public comment on
all the proposed amendments to Part
210.
II. Summary of Proposed Rule Changes
A. 2014 NACHA Operating Rules &
Guidelines Book Changes
The 2014 edition of the NACHA
Operating Rules & Guidelines contains
changes related to the following
amendments:
• Person-to-Person Payments via
ACH;
• IAT Modifications; Proof of
Authorization for Non-Consumer
Entries;
• Dishonored Returns and Contested
Dishonored Returns Related to an
Unintended Credit to a Receiver;
• Reclamation Entries—Corrections
to Rules Governing Authorizations;
• Incomplete Transaction
Clarification;
• Use of Tilde as Data Segment
Terminator;
• Editorial Clarification—NonConsumer Receiver’s Obligation to
Credit Originator’s Account;
• Prenotification Entries—Reduction
in Waiting Period for Live Entries;
• Notification of Change (NOC)—
Removal of Change Code C04 (Incorrect
Individual Name/Receiving Company
Name); and
• ACH Operator Edit for Returns.
We are proposing to incorporate in
Part 210 all of the foregoing
amendments, which are summarized
below, except the amendment relating
to reclamation entries.
1. Person-to-Person Payments via ACH
This amendment standardized the use
of the ACH Network for Person-toPerson (P2P) Entries by expanding the
Internet-Initiated/Mobile (WEB) SEC
Code to accommodate credit Entries
transmitted between consumers (P2P
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]]>Agencies
[Federal Register Volume 81, Number 230 (Wednesday, November 30, 2016)]
[Proposed Rules]
[Pages 86297-86302]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28305]
=======================================================================
-----------------------------------------------------------------------
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
29 CFR Part 2201
Regulations Implementing the Freedom of Information Act
AGENCY: Occupational Safety and Health Review Commission.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Occupational Safety and Health Review Commission
(``OSHRC'') is proposing revisions to its regulations implementing the
Freedom of Information Act (``FOIA''). These proposed revisions account
for statutory amendments included in the FOIA Improvement Act of 2016
(``FOIA Improvement Act''), as well as the addition of procedures
pertaining to confidential commercial information and preservation of
records, clarifications of existing procedures, and updates to contact
information.
DATES: Comments must be received by OSHRC on or before December 20,
2016.
ADDRESSES: You may submit comments by any of the following methods:
Email: NChadwick@oshrc.gov. Include ``PROPOSED RULEMAKING,
PART 2201'' in the subject line of the message.
Fax: (202) 606-5417.
Mail: Occupational Safety and Health Review Commission,
ATTN: FOIA Public Liaison, One Lafayette Centre, 1120 20th Street NW.,
Ninth Floor, Washington, DC 20036-3457.
Hand Delivery/Courier: Same as mailing address.
Instructions: All submissions must include your name, return
address, and email address, if applicable. Please clearly label
submissions as ``PROPOSED RULEMAKING, PART 2201.''
FOR FURTHER INFORMATION CONTACT: OSHRC's FOIA Public Liaison, by
telephone at (202) 606-5410, by email at NChadwick@oshrc.gov, or by
mail at the address stated above.
SUPPLEMENTARY INFORMATION:
I. Background
OSHRC proposes several substantive and procedural revisions to its
regulations implementing the FOIA that fall within four general
categories. First, OSHRC proposes modifying its existing FOIA
regulations to reflect the amendments to the FOIA contained in the FOIA
Improvement Act of 2016, Public Law 114-185. The FOIA Improvement Act
amended various practices under the FOIA, such as requiring
notification to requesters of the right to seek dispute resolution at
various times throughout the FOIA process from the National Archives
and Records Administration's Office of Government Information Services
(``OGIS''), a ninety-day minimum time period to file administrative
appeals, and limitations on assessing certain fees and exceptions to
those limitations.
Second, OSHRC proposes revising its regulations to further clarify
and update its procedures relating to the submission and processing of
FOIA requests.
Third, OSHRC proposes adding a new section to its regulations
establishing procedures to notify submitters of records containing
confidential commercial information when those records are requested
under the FOIA, in compliance with Executive Order 12,600.
Fourth, OSHRC proposes adding a new section to its regulations
explaining the procedure for the preservation of records related to
FOIA requests.
Accordingly, OSHRC proposes to revise its regulations implementing
the FOIA and put them out for public comment. The specific amendments
that OSHRC proposes to each section of 29 CFR part 2201 are discussed
hereafter in regulatory sequence.
In 29 CFR 2201.3, OSHRC proposes revising paragraph (a) to direct
requestors to OSHRC's FOIA Reference Guide for further information.
OSHRC proposes a minor revision to paragraph (c) explaining the role of
the FOIA Public Liaison. OSHRC also proposes minor revisions to
paragraph (d) to update the contact information for the FOIA Requester
Service Center.
In 29 CFR 2201.4, OSHRC proposes a minor revision to a reference to
another section of the regulations included in
[[Page 86298]]
paragraph (a). OSHRC proposes removing paragraph (b) regarding
examination of records in cases appealed to courts as the provision is
no longer necessary. OSHRC additionally proposes revising new paragraph
(b), previously paragraph (c), to update the list of records available
at the OSHRC e-FOIA Reading Room. OSHRC proposes revising new paragraph
(c), previously paragraph (d), to clarify the location of records
available onsite at the OSHRC National Office. OSHRC proposes changing
paragraph (e) to paragraph (d) due to the removal of paragraph (b) in
this section.
In 29 CFR 2201.5, OSHRC proposes revising paragraph (a) to clarify
the procedure for how to make a FOIA request regarding the ability to
submit a request in multiple ways, including by email and OSHRC's
online FOIA request form. OSHRC proposes changing paragraph (b) to
describe the procedures for a requester making a request for records
about himself or herself. OSHRC proposes adding paragraph (c) to
describe the procedure enabling a requester to receive greater access
when a request for records pertains to another individual. OSHRC also
proposes adding paragraph (d) to explain what elements should be
included in the description of records in a FOIA request. OSHRC
proposes adding paragraph (e), previously included in part in another
paragraph in this section, to explain the procedure for requests
regarding the preferred form or format of a response. OSHRC proposes
adding paragraph (f) to describe the necessary contact information to
be provided by a requestor. OSHRC further proposes adding paragraph
(g), previously included in another paragraph of this section, to
describe how OSHRC determines the date of receipt of a FOIA request and
revising the reference in this paragraph to reflect the changes to
paragraph designations in a subsequent section.
In 29 CFR 2201.6, OSHRC proposes revising paragraphs (c) and (f) to
include notification to the requestor of the availability of assistance
from the FOIA Public Liaison and the right to seek dispute resolution
services from OGIS. OSHRC also proposes revising the references in
paragraph (f) to reflect the changes to paragraph designations in
subsequent sections. OSHRC proposes revising paragraph (h) to reflect
changes to the procedure notifying a requester of the tracking number
assigned to the FOIA request.
OSHRC proposes redesignating 29 CFR 2201.7 to 29 CFR 2201.10 as 29
CFR 2201.8 to 29 CFR 2201.11, respectively, and then adding a new 29
CFR 2201.7. This proposed new section pertains to ``confidential
commercial information,'' and describes this type of information and
how it is designated as such by a submitter, the circumstances under
which OSHRC must notify the submitter of such information when it is
contained in records requested under the FOIA, exceptions to this
notice requirement, and the process for the submitter to object to the
disclosure of such information.
In redesignated 29 CFR 2201.8, OSHRC proposes revising paragraph
(a) to explain that OSHRC shall charge fees in accordance with the
Uniform Freedom of Information Fee Schedule and Guidelines published by
the Office of Management and Budget. OSHRC also proposes revising
paragraph (b) to explain the limitations on assessing certain fees and
exceptions to those limitations, as well as a minor revision to a
reference to the Commission. OSHRC proposes revising paragraphs (h) and
(i) to reflect the change in name for the Commission's Office of the
Executive Director. OSHRC proposes revising the references in this
entire section to reflect the changes to paragraph designations in
previous and subsequent sections.
In redesignated 29 CFR 2201.9, OSHRC proposes revising the
reference in this section to reflect the changes to paragraph
designations in a previous section.
In redesignated 29 CFR 2201.10, OSHRC proposes adding paragraph (a)
to revise the time period to file an appeal, as well as identify
information to be included with the appeal. OSHRC proposes adding
paragraph (b) to clarify the procedure for adjudication of appeals.
OSHRC also proposes adding paragraph (c) to explain the content of and
procedure for decisions on appeals. OSHRC proposes adding paragraph (d)
to explain the process of mediation provided by OGIS. OSHRC also
proposes adding paragraph (e) to describe the requirements for seeking
review by a court of an adverse determination by OSHRC.
In redesignated 29 CFR 2201.11, OSHRC proposes a minor revision to
a reference to OSHRC's Web site.
OSHRC proposes adding a new section at 29 CFR 2201.12 on the
procedures for preserving records pertaining to FOIA requests.
II. Statutory and Executive Order Reviews
Executive Orders 12866 and 13132, and the Unfunded Mandates Reform
Act of 1995: OSHRC is an independent regulatory agency and, as such, is
not subject to the requirements of E.O. 12866, E.O. 13132, or the
Unfunded Mandates Reform Act, 2 U.S.C. 1501 et seq.
Regulatory Flexibility Act: The Chairman of OSHRC certifies under
the Regulatory Flexibility Act, 5 U.S.C. 605(b), that these rules, if
adopted, would not have a significant economic impact on a substantial
number of small entities. The only proposed revisions that could
economically impact a small entity pertain to how OSHRC charges its
FOIA fees. OSHRC, however, receives relatively few FOIA requests from
``small entities'' that result in fees being assessed; when fees are
assessed, the amounts are generally minimal; and it is not anticipated
that the amendments will have much affect (if any) on the number of
entities responsible for paying FOIA fees or the amounts of those fees.
For these reasons, a regulatory flexibility analysis is not required.
Paperwork Reduction Act of 1995: OSHRC has determined that the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., does not apply because
these rules do not contain any information collection requirements that
require the approval of OMB.
Congressional Review Act: These proposed revisions do not
constitute a ``rule,'' as defined by the Congressional Review Act, 5
U.S.C. 804(3)(C), because they involve changes to agency organization,
procedure, or practice that do not substantially affect the rights or
obligations of non-agency parties.
List of Subjects
Freedom of information.
Signed at Washington, DC, on the 17th day of November, 2016.
Cynthia L. Attwood,
Chairman.
For the reasons set forth in the preamble, OSHRC proposes to amend
29 CFR part 2201 as follows:
PART 2201--REGULATIONS IMPLEMENTING THE FREEDOM OF INFORMATION ACT
0
1. The authority citation for part 2201 continues to read as follows:
Authority: 29 U.S.C. 661(g); 5 U.S.C. 552.
Sec. 2201.3 [Amended]
0
2. Amend Sec. 2201.3 by:
0
a. Removing the words ``FOIA handbook'' and adding, in their place, the
words ``FOIA Reference Guide'' in paragraph (a)(5).
0
b. Removing the word ``supervisory'' in paragraph (c).
0
c. Revising paragraph (d) to read as follows:
[[Page 86299]]
Sec. 2201.3 Delegation of authority and responsibilities.
* * * * *
(d) OSHRC establishes a FOIA Requester Service Center that shall be
staffed by the FOIA Disclosure Officer(s) and FOIA Public Liaison(s).
The address of the FOIA Requester Service Center is 1120 20th Street
NW., 9th Floor, Washington, DC 20036-3457. The telephone number, fax
number and additional contact information for the FOIA Requester
Service Center is located on the agency's Web site at: https://www.oshrc.gov/foia.html. The FOIA Requester Service Center is available
to provide information about the status of a request to the requester
using the assigned tracking number (as described in Sec. 2201.6(h)),
including:
(1) The date on which the agency originally received the request;
and
(2) An estimated date on which the agency will complete action on
the request.
* * * * *
Sec. 2201.4 [Amended]
0
3. Amend Sec. 2201.4 by:
0
a. Removing the citation ``Sec. 2201.5(a)'' and adding, in its place,
the citation ``Sec. 2201.5'' in paragraph (a).
0
b. Removing paragraph (b) in its entirety.
0
c. Redesignating paragraphs (c) through (e) as paragraphs (b) through
(d), respectively.
0
d. Revising the opening of redesignated paragraph (b), and paragraphs
(b)(1), (b)(5), (b)(6), and (c) to read as follows:
Sec. 2201.4 General policy and definitions.
* * * * *
(b) Record availability at the OSHRC e-FOIA Reading Room. The
records of Commission activities are publicly available for inspection
and copying, and may be accessed electronically on the Commission's Web
site at https://www.oshrc.gov/foia/foia_reading_room.html. These records
include:
(1) Final decisions, including concurring and dissenting opinions,
remand orders, as well as Administrative Law Judge decisions pending
OSHRC review, briefing notices, and other significant orders;
* * * * *
(5) Copies of records that have been released to a person under the
FOIA that, because of the subject matter, the Commission determines
have become or are likely to become the subject of subsequent requests
for substantially the same records, as well as records the Commission
determines absent a FOIA request could be of significant public
interest; and
(6) A general index of records referred to under paragraph (b)(5)
of this section.
(c) Record availability onsite at OSHRC National Office. Any member
of the public may, upon request, access OSHRC's e-FOIA Reading Room via
a computer terminal at the OSHRC National Office, located at 1120 20th
St. NW., 9th Floor, Washington, DC 20036-3457. Such a request must be
made in writing to the FOIA Requester Service Center, and indicate a
preferred date and time for the requested access. OSHRC reserves the
right to arrange a different date and time with the requester, if
necessary.
* * * * *
Sec. 2201.5 [Amended]
0
4. Revise Sec. 2201.5 to read as follows:
Sec. 2201.5 Procedure for requesting records.
(a) General information. All requests for information must be made
in writing to the FOIA Disclosure Officer and may be: (1) Mailed or
delivered; (2) faxed; or (3) emailed. Requests may also be made using
the Commission's online FOIA request form (which is a downloadable PDF
file found at https://www.oshrc.gov/foia/foia_request_form.html) and the
completed form can be submitted by mail, fax, or email. Contact
information for the FOIA Disclosure Officer is described in Sec.
2201.3(d). For mailed or delivered requests, the words ``Freedom of
Information Act Request'' must be printed on the face of the request's
envelope or covering as well as the request itself.
(b) A requester who is making a request for records about himself
or herself must comply with verification of identity requirements as
required by 29 CFR 2400.6 in OSHRC's Privacy Act regulations.
(c) Where a request for records pertains to another individual, a
requester may receive greater access by submitting either a notarized
authorization signed by that individual or a declaration made in
compliance with the requirements set forth in 28 U.S.C. 1746 by that
individual authorizing disclosure of the records to the requester, or
by submitting proof that the individual is deceased (e.g., a copy of a
death certificate or an obituary).
(d) Description of records sought. A request must describe the
records sought in sufficient detail to enable the Commission to locate
them with a reasonable amount of effort. To the extent possible, the
request should include specific information to identify the requested
records, such as the docket number(s) or case name(s). Before
submitting a request, the requester may contact the FOIA Disclosure
Officer, as described in Sec. 2201.3(d), to discuss the records being
sought and receive assistance in describing them. If a determination is
made after receiving a request that it does not reasonably describe the
records sought, the FOIA Disclosure Officer will contact the requester
to explain what additional information is needed or why the request is
otherwise insufficient. A requester attempting to reformulate or modify
such a request is encouraged to discuss the request with the FOIA
Disclosure Officer. If a request does not reasonably describe the
records sought, the agency's response may be delayed.
(e) Requests may specify the preferred form or format (including
electronic formats) of the response. The FOIA Disclosure Officer shall
honor a requester's specified preference of form or format of
disclosure if the record is readily reproducible with reasonable
efforts in the requested form or format. When a requester does not
specify the preferred form or format of the response, the FOIA
Disclosure Officer shall respond in the form or format in which the
record is most accessible to the Commission.
(f) The requester must provide contact information, such as a phone
number, email address, and/or mailing address, to facilitate the
agency's communication with the requester.
(g) Date of receipt. A request that complies with paragraph (a) of
this section is deemed received on the actual date it is received by
the Commission. A request that does not comply with paragraph (a) of
this section is deemed received when it is actually received by the
FOIA Disclosure Officer. For requests that are expected to result in
fees exceeding $250, the request shall not be deemed to have been
received until the requester is advised of the anticipated costs and
the Commission has received full payment or satisfactory assurance of
full payment as provided under Sec. 2201.8(f).
Sec. 2201.6 [Amended]
0
5. Amend Sec. 2201.6 by revising paragraphs (c), (f), and (h) to read
as follows:
Sec. 2201.6 Responses to requests.
* * * * *
(c) Additional extension. The FOIA Disclosure Officer shall notify
the requester in writing when it appears that a request cannot be
completed within the allowable time (20 working days plus a 10-working-
day extension). In such instances, the requester will be provided an
opportunity to limit the scope of the request so that it may be
[[Page 86300]]
processed in the time limit, or to agree to a reasonable alternative
time frame for processing. The FOIA Disclosure Officer or FOIA Public
Liaison shall be available to assist the requester for this purpose and
shall notify the requester of the right to seek dispute resolution
services from the National Archives and Records Administration's Office
of Government Information Services (OGIS).
* * * * *
(f) Content of denial. When the FOIA Disclosure Officer denies a
request for records, either in whole or in part, a request for
expedited processing, and/or a request for fee waivers (see Sec.
2201.9), the written notice of the denial shall state the reason for
denial, give a reasonable estimate of the volume of matter denied
(unless doing so would harm an interest protected by the exemption(s)
under which the request was denied), set forth the name and title or
position of the person responsible for the denial of the request,
notify the requester of the right to appeal the determination as
specified in Sec. 2201.10, and notify the requester of the assistance
available from the FOIA Public Liaison and the dispute resolution
services offered by OGIS. A refusal by the FOIA Disclosure Officer to
process the request because the requester has not made advance payment
or given a satisfactory assurance of full payment required under Sec.
2201.8(f) may be treated as a denial of the request and appealed under
Sec. 2201.10.
* * * * *
(h) Tracking numbers. The FOIA Disclosure Officer shall assign an
individualized tracking number to each request received for processing
and provide the requester with the tracking number.
* * * * *
Sec. Sec. 2201.7 through 2201.10 [Redesignated as Sec. Sec. 2201.8
through 2201.11 and Amended]
0
6. Redesignate Sec. Sec. 2201.7 through 2201.10 as Sec. Sec. 2201.8
through 2201.11, respectively.
0
7. Add new Sec. 2201.7 to read as follows:
Sec. 2201.7 Confidential commercial information.
(a) Definitions.
(1) Confidential commercial information means commercial or
financial information obtained by OSHRC from a submitter that may be
protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C.
552(b)(4).
(2) Submitter means any person or entity, including a corporation,
State, or foreign government, but not including another Federal
Government entity, that provides confidential commercial information,
either directly or indirectly to OSHRC.
(b) Designation of confidential commercial information. A submitter
of confidential commercial information must use good faith efforts to
designate by appropriate markings, at the time of submission, any
portion of its submission that it considers to be protected from
disclosure under Exemption 4. These designations expire 10 years after
the date of the submission unless the submitter requests and provides
justification for a longer designation period.
(c) When notice to submitters is required. OSHRC shall promptly
provide written notice to the submitter of confidential commercial
information whenever records containing such information are requested
under the FOIA if OSHRC determines that it may be required to disclose
the records, provided the submitter has complied with paragraph (b) of
this section or OSHRC has a reason to believe that the requested
information may be protected from disclosure under Exemption 4, but has
not yet determined whether the information is protected from
disclosure. The notice must either describe the commercial information
requested or include a copy of the requested records or portions of
records containing the information.
(d) Exceptions to submitter notice requirements. The notice
requirements of this section do not apply if:
(1) OSHRC determines that the information is exempt under the FOIA,
and therefore will not be disclosed;
(2) The information has been lawfully published or has been
officially made available to the public;
(3) Disclosure of the information is required by a statute other
than the FOIA or by a regulation issued in accordance with the
requirements of Executive Order 12,600 of June 23, 1987; or
(4) The designation made by the submitter under paragraph (b) of
this section appears obviously frivolous. In such case, OSHRC shall
give the submitter written notice of any final decision to disclose the
information within a reasonable number of days prior to a specified
disclosure date.
(e) Opportunity to object to disclosure. OSHRC shall specify a
reasonable time period within which the submitter must provide a
response to the notice referenced above. If a submitter has any
objections to disclosure, it should provide a detailed written
statement that specifies all grounds for withholding the particular
information under any exemption of the FOIA. In order to rely on
Exemption 4 as basis for nondisclosure, the submitter must explain why
the information constitutes a trade secret or commercial or financial
information that is confidential. A submitter who fails to respond
within the time period specified in the notice will be considered to
have no objection to disclosure of the information. OSHRC is not
required to consider any information received after the date of any
disclosure decision. Any information provided by a submitter under this
subpart may itself be subject to disclosure under the FOIA.
(f) Analysis of objections. OSHRC shall consider a submitter's
objections and specific grounds for nondisclosure in deciding whether
to disclose the requested information.
(g) Notice of decision. OSHRC shall provide the submitter with
written notice once a decision is made as to whether or not to disclose
information over the submitter's objection. When a decision is made to
disclose information over the submitter's objection, this notice shall
include a statement of the reasons why each of the submitter's
disclosure objections was not sustained, a description of the
information to be disclosed or copies of the records as the agency
intends to release them, and a specified disclosure date (which must be
a reasonable time after the notice).
(h) Notice of FOIA lawsuit. OSHRC shall promptly notify the
submitter when a requester files a lawsuit seeking to compel the
disclosure of confidential commercial information.
(i) Requester notification. OSHRC shall notify the requester
whenever it provides the submitter with notice and an opportunity to
object to disclosure; whenever it notifies the submitter of its intent
to disclose the requested information; and whenever a submitter files a
lawsuit to prevent the disclosure of the information.
0
8. Amend redesignated Sec. 2201.8 by:
0
a. Redesignating paragraph (b)(3) as paragraph (b)(5).
0
b. Revising paragraphs (a), the opening of paragraph (b), and
paragraphs (b)(1) and (b)(2)(v); adding new paragraphs (b)(3) and
(b)(4); and revising redesignated paragraph (b)(5), and paragraphs (h)
and (i), to read as follows:
Sec. 2201.8 Fees for copying, searching, and review.
(a) Fees required unless waived. The FOIA Disclosure Officer shall
charge fees in accordance with the Uniform Freedom of Information Fee
Schedule and Guidelines published by the Office
[[Page 86301]]
of Management and Budget and in accordance with paragraph (b) of this
section. See Appendix A. If the fees for a request are less than the
threshold amount as provided in OSHRC's fee schedule, no fees shall be
charged. The FOIA Disclosure Officer shall, however, waive the fees in
the circumstances stated in Sec. 2201.9.
(b) Calculation of fees. Fees for copying, searching and reviewing
will be based on the direct costs of these services, including the
average hourly salary (base plus DC locality payment), plus 16 percent
for benefits, of the following three categories of employees involved
in responding to FOIA requests: Clerical--based on an average of all
employees at GS-9 and below; professional--based on an average of all
employees at GS-10 through GS-14; and managerial--based on an average
of all employees at GS-15 and above. OSHRC will calculate a schedule of
fees based on these direct costs. The schedule of fees under this
section appears in Appendix A to this part. A copy of the schedule of
fees may also be obtained at no charge from the FOIA Disclosure
Officer. See Sec. 2201.3(d).
(1) Copying fee. The fee per copy of each page shall be calculated
in accordance with the per-page amount established in OSHRC's fee
schedule. See Appendix A to this part. For other forms of duplication,
direct costs of producing the copy, including operator time, shall be
calculated and assessed. Copying fees shall not be charged for the
first 100 pages of copies unless the copies are requested for a
commercial use. No copying fee shall be charged for educational,
scientific, or news media requests if the agency fails to comply with
any time limit in Sec. 2201.6, provided that no unusual or exceptional
circumstances (as those terms are defined in Sec. 2201.6(b) and Sec.
2201.4(d), respectively) apply to the processing of the request.
(2) * * *
(v) Failure to comply with time limits. No search fee shall be
charged if the Commission fails to comply with any time limit in Sec.
2201.6, provided that no unusual or exceptional circumstances (as those
terms are defined in Sec. 2201.6(b) and Sec. 2201.4(d), respectively)
apply to the processing of the request.
(3) Unusual circumstances. (i) If the Commission has determined
that unusual circumstances, as defined in Sec. 2201.6(b), apply and
has provided timely written notice to the requester, a failure to
comply with the time limit shall be excused for an additional 10 days
and the Commission shall assess fees as usual.
(ii) If the Commission has determined that unusual circumstances,
as defined in Sec. 2201.6(b), apply and more than 5,000 pages are
necessary to respond to the request, the Commission may charge search
fees, or, in the case of requesters described in Sec.
2201.8(b)(2)(ii), may charge duplication fees, if the Commission
provided timely written notice of unusual circumstances to the
requester in accordance with Sec. 2201.6(b) and the Commission
discussed with the requester via written mail, email, or telephone (or
made not less than three good-faith attempts to do so) how the
requester could effectively limit the scope of the request in
accordance with the FOIA. If this exception is satisfied, the
Commission may charge all applicable fees incurred in the processing of
the request even if such processing extends beyond an additional 10
days.
(4) If a court has determined that exceptional circumstances exist,
as defined in Sec. 2201.4(d), a failure to comply with the time limits
shall be excused for the length of time provided by the court order.
(5) Review fee. A review fee shall be charged only for commercial
requests. Review fees shall be calculated in accordance with the
amounts established in OSHRC's schedule of fees. See Appendix A. A
review fee shall be charged for the initial examination of documents
located in response to a request to determine if it may be withheld
from disclosure, and for the excision of withholdable portions.
However, a review fee shall not be charged for review by the Chairman
under Sec. 2201.10 (Appeal of denials).
* * * * *
(h) Interest on unpaid bills. The Commission's Office of the
Executive Director shall begin assessing interest charges on unpaid
bills starting on the thirty-first day after the date the bill was
sent. Interest will accrue from the date of billing until the
Commission receives full payment. Interest will be at the rate
described in 31 U.S.C. 3717.
(i) Debt collection procedures. If bills are unpaid 60 days after
the mailing of a written notice to the requester, the Commission's
Office of the Executive Director may resort to the debt collection
procedures set out in the Debt Collection Act of 1982 (Pub. L. 97-365,
96 Stat. 1749), as amended, and its administrative procedures,
including the use of consumer reporting agencies, collection agencies,
and offset.
0
9. Amend redesignated Sec. 2201.9 by removing the citation ``Sec.
2201.7(b)'' in paragraph (a) and adding, in its place, the citation
``Sec. 2201.8(b)''.
0
10. Revise redesignated Sec. 2201.10 to read as follows:
Sec. 2201.10 Appeal of denials.
(a) Requirements for making an appeal. A denial of a request for
records, either in whole or in part, a request for expedited
processing, or a request for fee waivers, may be appealed in writing to
the Chairman of the Commission. To be considered timely, the appeal
must be postmarked, or in the case of electronic submissions,
transmitted, within 90 calendar days of the date of the agency's
written notice of denial. The appeal should clearly identify the agency
determination that is being appealed and the assigned FOIA tracking
number. To facilitate handling, the requester should mark both the
appeal and its envelope, or state in the subject line of an electronic
transmission, ``Freedom of Information Act Appeal.''
(b) Adjudication of appeals. The Chairman shall act on the appeal
under 5 U.S.C. 552(a)(6)(A)(ii) within 20 working days after the
receipt of the appeal. An appeal ordinarily will not be adjudicated if
the request becomes a matter of FOIA litigation. On receipt of any
appeal involving classified information, the Chairman shall take
appropriate action to ensure compliance with applicable classification
rules.
(c) Decisions on appeals. The Chairman shall provide the decision
on an appeal in writing. If the Chairman wholly or partially upholds
the denial of the request, the decision shall contain a statement that
identifies the reasons for the affirmance, including any FOIA
exemptions applied. The decision must include notification that the
requester may obtain judicial review of the decision under 5 U.S.C.
552(a)(4)(B)-(G). The decision shall also inform the requester of the
mediation services offered by OGIS as a non-exclusive alternative to
litigation. If the Chairman's decision is remanded or modified on
appeal to the court, the requester will be notified by the agency of
that determination in writing. The Commission shall then further
process the request in accordance with the appeal determination and
shall respond directly to the requester.
(d) Engaging in dispute services provided by OGIS. Mediation is a
voluntary process. If the Commission agrees to participate in the
mediation services provided by OGIS, it will actively engage as a
partner in the process in an attempt to resolve the dispute.
(e) When appeal is required. Before seeking review by a court of
the Commission's adverse determination, a
[[Page 86302]]
requester generally must first submit a timely administrative appeal.
0
11. Amend redesignated Sec. 2201.11 by removing the words ``through
OSHRC's Web site'' and adding, in their place, the words ``on OSHRC's
Web site'' in paragraph (b).
Sec. 2201.12 [Added]
0
12. Add Sec. 2201.12 to read as follows:
Sec. 2201.12 Preservation of Records.
OSHRC shall preserve all correspondence pertaining to FOIA
requests, as well as copies of all requested records, until disposition
or destruction is authorized pursuant to title 44 of the United States
Code or the General Records Schedule 14 of the National Archives and
Records Administration. OSHRC shall not dispose of or destroy records
while they are the subject of a pending request, appeal or lawsuit
under the FOIA.
[FR Doc. 2016-28305 Filed 11-29-16; 8:45 am]
BILLING CODE 7600-01-P
