Regulations Implementing the Freedom of Information Act, 95035-95040 [2016-31133]
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Federal Register / Vol. 81, No. 248 / Tuesday, December 27, 2016 / Rules and Regulations
Subpart F—Discharge of Indebtedness
and Reporting Requirements
§ 1506.42 Under what circumstances will
USADF discharge a delinquent debt?
Before discharging a delinquent debt,
USADF will make a determination that
collection action is no longer warranted
and request that litigation counsel
release any liens of record securing the
debt. Discharge of indebtedness is
distinct from termination or suspension
of collection activity and is governed by
the Internal Revenue Code. When
collection action on a debt is suspended
or terminated, the debt remains
delinquent and further collection action
may be pursued at a later date in
accordance with the standards set forth
in this part. When a debt is discharged
in full or in part, further collection
action is prohibited and USADF must
terminate all debt collection activities.
§ 1506.43 Will USADF report a discharge
of debt to the IRS?
Upon discharge of a debt, USADF will
report the discharge to the IRS in
accordance with the requirements of 26
U.S.C. 6050P and 26 CFR 1.6050P–1.
USADF may request the Bureau of
Fiscal Services of the Department of
Treasury to file such a discharge report
to the IRS on the agency’s behalf.
Subpart G—Referrals to the
Department of Justice
Unless otherwise provided by DOJ
regulations or procedures, USADF will
refer for litigation debts of more than
$2,500 but less than $1,000,000 to the
Department of Justice’s Nationwide
Central Intake Facility as required by
the Claims Collection Litigation Report
(CCLR) instructions. Debts of over
$1,000,000 shall be referred to the Civil
Division at the Department of Justice.
Any debt involving fraud, false claim,
and misrepresentation will be referred
to the Department of Justice.
Subpart H—Mandatory Transfer of
Delinquent Debt to the Bureau of
Fiscal Services (BFS) of the
Department of Treasury
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§ 1506.45 When is it mandatory for USADF
to transfer debts to BFS?
(a) USADF will transfer legally
enforceable debt to BFS 90 days after
the Bill for Collection or demand letter
is issued. A debt is legally enforceable
if there has been a final agency
determination that the debt is due and
there are no legal bars to collection
action. A debt is not legally enforceable
for purposes of mandatory transfer to
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§ 1506.46 When is USADF not required to
transfer a debt to BFS?
USADF is not required to transfer a
debt to BFS pursuant to § 1506.37(b)
during the period of time that the debt:
(a) Is in litigation or foreclosure;
(b) Is scheduled for sale;
(c) Is at a private collection contractor;
(d) Is at a debt collection center if the
debt has been referred to a Treasurydesignated debt collection center;
(e) Is being collected by internal
offset; or
(f) Is covered by an exemption granted
by Treasury.
[FR Doc. 2016–31125 Filed 12–23–16; 8:45 am]
BILLING CODE 6117–01–P
OCCUPATIONAL SAFETY AND
HEALTH REVIEW COMMISSION
29 CFR Part 2201
§ 1506.44 When will USADF refer claims to
the Department of Justice for litigation?
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BFS if it is the subject of a pending
administrative review process required
by statute or regulation and collection
action during the review process is
prohibited.
(b) Except as set forth in paragraph (a)
of this section, USADF will transfer any
debt covered by this part that is more
than 180 days delinquent to BFS for
debt collection services. A debt is 180
days delinquent for purposes of this
section if it is 180 days past due and is
legally enforceable.
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Regulations Implementing the
Freedom of Information Act
Occupational Safety and Health
Review Commission.
ACTION: Final rule.
AGENCY:
The Occupational Safety and
Health Review Commission (‘‘OSHRC’’)
revises its regulations implementing the
Freedom of Information Act (‘‘FOIA’’).
These 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: Effective December 27, 2016.
FOR FURTHER INFORMATION CONTACT:
Noelle Chadwick, OSHRC’s FOIA Public
Liaison, by telephone at (202) 606–5410
or email at NChadwick@oshrc.gov.
SUPPLEMENTARY INFORMATION: OSHRC is
publishing a final rule revising its
regulations implementing the FOIA. On
November 30, 2016, OSHRC published
for comment a notice of proposed
rulemaking (‘‘NPRM’’), at 81 FR 86297,
SUMMARY:
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that proposed revisions to OSHRC’s
regulations at 29 CFR part 2201,
implementing the FOIA, 5 U.S.C. 552.
Interested persons were afforded an
opportunity to participate in the
rulemaking process through the
submission of written comments on the
NPRM. OSHRC received comments from
the National Archives and Records
Administration (‘‘NARA’’) suggesting
two minor changes: (1) Changing the
word ‘‘mediation’’ to ‘‘dispute
resolution’’ in two places to reflect an
anticipated new regulation from
NARA’s Office of Government
Information Services (‘‘OGIS’’) that
clarifies for requesters the difference
between formal mediation and the
broader services OGIS provides; and (2)
changing the reference to a General
Records Schedule pertaining to the
preservation of records, as General
Records Schedule 4.2 recently replaced
(in part) General Records Schedule 14.
OSHRC received no other public
comments suggesting changes to the
proposed regulations. OSHRC updated
the Web site address containing
information for the FOIA Requester
Service Center, modified the proposed
regulations in light of NARA’s
comments, reviewed the proposed
regulations and adopts them in this final
rule.
I. Background
OSHRC makes several substantive and
procedural revisions to its regulations
implementing the FOIA that fall within
four general categories. First, OSHRC
modifies 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 OGIS, a ninety-day
minimum time period to file
administrative appeals, and limitations
on assessing certain fees and exceptions
to those limitations.
Second, OSHRC revises its regulations
to further clarify and update its
procedures relating to the submission
and processing of FOIA requests.
Third, OSHRC adds 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 adds a new section to
its regulations explaining the procedure
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Federal Register / Vol. 81, No. 248 / Tuesday, December 27, 2016 / Rules and Regulations
for the preservation of records related to
FOIA requests.
Accordingly, OSHRC revises its
regulations implementing the FOIA. The
specific amendments to each section of
29 CFR part 2201 are discussed
hereafter in regulatory sequence.
In 29 CFR 2201.3, OSHRC revises
paragraph (a) to direct requestors to
OSHRC’s FOIA Reference Guide for
further information. OSHRC revises
paragraph (c) explaining the role of the
FOIA Public Liaison. OSHRC also
revises paragraph (d) to update the
contact information for the FOIA
Requester Service Center, including the
web address previously identified in the
proposed rule.
In 29 CFR 2201.4, OSHRC revises a
reference to another section of the
regulations included in paragraph (a).
OSHRC removes paragraph (b) regarding
examination of records in cases
appealed to courts as the provision is no
longer necessary. OSHRC revises new
paragraph (b), previously paragraph (c),
to update the list of records available at
the OSHRC e-FOIA Reading Room. In
response to the codification of the ‘‘Rule
of 3’’ in the FOIA Improvement Act,
OSHRC also adds to new paragraph (b)
that it will make publicly available
copies of records that have been
released to a person under the FOIA and
have been requested three or more
times. OSHRC revises new paragraph
(c), previously paragraph (d), to clarify
the location of records available onsite
at the OSHRC National Office. OSHRC
changes paragraph (e) to paragraph (d)
due to the removal of paragraph (b) in
this section.
In 29 CFR 2201.5, OSHRC revises
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 changes paragraph (b) to
describe the procedures for a requester
making a request for records about
himself or herself. OSHRC adds
paragraph (c) to describe the procedure
enabling a requester to receive greater
access when a request for records
pertains to another individual. OSHRC
also adds paragraph (d) to explain what
elements should be included in the
description of records in a FOIA
request. OSHRC adds 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 adds paragraph (f) to describe
the necessary contact information to be
provided by a requestor. OSHRC further
adds paragraph (g), previously included
in another paragraph of this section, to
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describe how OSHRC determines the
date of receipt of a FOIA request and
revises the reference in this paragraph to
reflect the changes to paragraph
designations in a subsequent section.
In 29 CFR 2201.6, OSHRC revises
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 revises the references in
paragraph (f) to reflect the changes to
paragraph designations in subsequent
sections. OSHRC revises paragraph (h)
to reflect changes to the procedure
notifying a requester of the tracking
number assigned to the FOIA request.
OSHRC redesignates 29 CFR 2201.7 to
29 CFR 2201.10 as 29 CFR 2201.8 to 29
CFR 2201.11, respectively, and then
adds a new 29 CFR 2201.7. This 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 revises 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
revises paragraph (b) to explain the
limitations on assessing certain fees and
exceptions to those limitations, as well
as revises a reference to the
Commission. OSHRC revises paragraphs
(h) and (i) to reflect the change in name
for the Commission’s Office of the
Executive Director. OSHRC revises 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 revises the reference in this
section to reflect the changes to
paragraph designations in a previous
section.
In redesignated 29 CFR 2201.10,
OSHRC adds paragraph (a) to revise the
time period to file an appeal, as well as
identify information to be included with
the appeal. OSHRC adds paragraph (b)
to clarify the procedure for adjudication
of appeals. OSHRC also adds paragraph
(c) to explain the content of and
procedure for decisions on appeals.
OSHRC adds paragraph (d) to explain
the process of dispute resolution
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provided by OGIS. In response to
comments from NARA, OSHRC changes
the word ‘‘mediation’’ to ‘‘dispute
resolution’’ in paragraphs (c) and (d) of
the proposed rule. OSHRC also adds
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 revises a reference to OSHRC’s
Web site.
OSHRC adds a new section at 29 CFR
2201.12 on the procedures for
preserving records pertaining to FOIA
requests. In response to comments from
NARA, OSHRC revises a reference in
this section of the proposed rule from
‘‘the General Records Schedule 14’’ to
‘‘the applicable General Records
Schedule.’’
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 will not have a
significant economic impact on a
substantial number of small entities.
The only 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
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.
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§ 2201.4
List of Subjects in 29 CFR Part 2201
Freedom of information.
Cynthia L. Attwood,
Chairman.
For the reasons set forth in the
preamble, OSHRC amends 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/.
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).
■ c. Redesignating paragraphs (c)
through (e) as paragraphs (b) through
(d), respectively.
■ d. Revising the introductory text of
redesignated paragraph (b), and
paragraphs (b)(1), (b)(5), (b)(6), and (c) to
read as follows:
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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, or that have been
requested three or more times, 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.
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■ 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: Mailed or delivered; faxed; or
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
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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
§ 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
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individualized tracking number to each
request received for processing and
provide the requester with the tracking
number.
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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).
■ 5. Amend § 2201.6 by revising
paragraphs (c), (f), and (h) to read as
follows:
§§ 2201.7 through 2201.10 [Redesignated
as §§ 2201.8 through 2201.11]
§ 2201.6
§ 2201.7 Confidential commercial
information.
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
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
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6. Redesignate §§ 2201.7 through
2201.10 as §§ 2201.8 through 2201.11,
respectively.
■ 7. Add new § 2201.7 to read as
follows:
■
(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;
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(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 12600 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
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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 paragraph (a), the
introductory text of paragraph (b), and
paragraphs (b)(1) and (b)(2)(v);
■ c. Adding new paragraphs (b)(3) and
(b)(4); and
■ d. Revising redesignated paragraph
(b)(5), and paragraphs (h) and (i), to read
as follows:
asabaliauskas on DSK3SPTVN1PROD with RULES
§ 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
of Management and Budget and in
accordance with paragraph (b) of this
section. See Appendix A to this part. 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
VerDate Sep<11>2014
19:06 Dec 23, 2016
Jkt 241001
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.
(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 to this part. 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
PO 00000
Frm 00131
Fmt 4700
Sfmt 4700
95039
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.
§ 2201.9
[Amended]
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)’’.
■ 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
E:\FR\FM\27DER1.SGM
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Federal Register / Vol. 81, No. 248 / Tuesday, December 27, 2016 / Rules and Regulations
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 dispute resolution
services offered by OGIS as a nonexclusive 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. Dispute resolution is
a voluntary process. If the Commission
agrees to participate in the dispute
resolution 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
requester generally must first submit a
timely administrative appeal.
§ 2201.11
[Amended]
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).
■ 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
applicable General Records Schedule 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. 2016–31133 Filed 12–23–16; 8:45 am]
BILLING CODE 7600–01–P
asabaliauskas on DSK3SPTVN1PROD with RULES
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG–2016–0280]
Drawbridge Operation Regulation;
Chambers Creek, Steilacoom, WA
AGENCY:
Coast Guard, DHS.
VerDate Sep<11>2014
19:06 Dec 23, 2016
Jkt 241001
Notice of temporary deviation
from regulations; request for comments.
ACTION:
The Coast Guard has issued a
temporary deviation from the operating
schedule that governs the Chambers
Creek Burlington Northern Santa Fe
Railroad vertical lift railroad bridge
across Chambers Creek, mile 0.01, near
Steilacoom in Pierce County, WA. This
deviation will test a change to the
drawbridge operation schedule to
determine whether a permanent change
to the schedule is appropriate. This test
deviation will change the requirement
for a bridge operator, and modify the
existing regulation to add an advance
notification requirement for obtaining
bridge openings during designated
evening hours.
DATES: This deviation is effective from
Midnight (12:01) on December 28, 2016
to Midnight (11:59) on June 23, 2017.
Comments and related material must
reach the Coast Guard on or before June
15, 2017.
ADDRESSES: You may submit comments
identified by docket number USCG–
2016–0280 using Federal eRulemaking
Portal at https://www.regulations.gov.
See the ‘‘Public Participation and
Request for Comments’’ portion of the
SUPPLEMENTARY INFORMATION section
below for instructions on submitting
comments.
SUMMARY:
If
you have questions on this temporary
deviation, call or email Mr. Steven
Fischer, Bridge Administrator,
Thirteenth Coast Guard District;
telephone 206–220–7282, email
Steven.M.Fischer3@uscg.mil.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
I. Background, Purpose and Legal Basis
The Chambers Creek Burlington
Northern Santa Fe Railroad vertical lift
railroad bridge across Chambers Creek,
mile 0.01, near Steilacoom in Pierce
County, WA, has a vertical clearance of
10ft in the closed-to-navigation position,
and 50ft of vertical clearance in the
open-to-navigation position (reference
plane is MHW elevation of 12.2 feet).
The bridge currently operates under 33
CFR 117.5.
The bridge owner, Burlington
Northern Santa Fe Railroad, has
observed minimal to no usage of the
drawbridge between 10 p.m. and 6 a.m.,
and has requested to test this schedule
to see if it better balances the needs of
marine and rail traffic. The USCG
conducted a test deviation from July 1,
2016 to December 27, 2016. However,
only one bridge opening request was
received during that time, and a
quantitative ruling could not be made
PO 00000
Frm 00132
Fmt 4700
Sfmt 4700
from the lack of data. The following
facts support BNSF’s proposal: (1) over
the last 6 years only 2% of the subject
bridge lifts have occurred between the
hours of 10 p.m. and 6 a.m., which
equates to approximately 5 openings a
year, (2) from February 2009 to June
2015 there were 1932 total openings of
which only 40 occurred between the
hours of 10 p.m. and 6 a.m., and (3) the
navigation traffic consists primarily of
the tenants of Chambers Bay marina
(recreational users) that are members of
the Chambers Bay Boating Association.
The Coast Guard is publishing this
temporary deviation to test the proposed
schedule change to determine whether a
permanent change to the schedule is
appropriate to better balance the needs
of marine and rail traffic. Under this
temporary deviation, in effect from
Midnight (12:01) on December 28, 2016
to Midnight (11:59) on June 23, 2017,
the subject bridge shall open on signal,
except from 10 p.m. to 6 a.m. the draw
shall open on signal if at least 4 hours
notice is given. The bridge will be
required to open as soon a possible, no
later than 1 hour after notification, for
vessels engaged in emergency response.
The Coast Guard will inform the users
of the waterways of this temporary
deviation through our Local and
Broadcast Notices to Mariners and
through direct outreach with the
Chambers Creek Boating Association so
that vessel operators can arrange their
transits to minimize any impact caused
by the temporary deviation. Vessels able
to pass underneath the bridge in the
closed-to-navigation position may do so
at any time. In accordance with 33 CFR
117.35(e), the drawbridge must return to
its regular operating schedule
immediately at the end of the effective
period of this temporary deviation. This
deviation from the operating regulations
is authorized under 33 CFR 117.35.
II. Public Participation and Request for
Comments
We view public participation as
essential to effective rulemaking, and
will consider all comments and material
received during the comment period.
Your comment can help shape the
outcome of this rulemaking. If you
submit a comment, please include the
docket number for this rulemaking,
indicate the specific section of this
document to which each comment
applies, and provide a reason for each
suggestion or recommendation.
We encourage you to submit
comments through the Federal
eRulemaking Portal at https://
www.regulations.gov. If your material
cannot be submitted using https://
www.regulations.gov, contact the person
E:\FR\FM\27DER1.SGM
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]]>Agencies
[Federal Register Volume 81, Number 248 (Tuesday, December 27, 2016)]
[Rules and Regulations]
[Pages 95035-95040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31133]
=======================================================================
-----------------------------------------------------------------------
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Occupational Safety and Health Review Commission
(``OSHRC'') revises its regulations implementing the Freedom of
Information Act (``FOIA''). These 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: Effective December 27, 2016.
FOR FURTHER INFORMATION CONTACT: Noelle Chadwick, OSHRC's FOIA Public
Liaison, by telephone at (202) 606-5410 or email at
NChadwick@oshrc.gov.
SUPPLEMENTARY INFORMATION: OSHRC is publishing a final rule revising
its regulations implementing the FOIA. On November 30, 2016, OSHRC
published for comment a notice of proposed rulemaking (``NPRM''), at 81
FR 86297, that proposed revisions to OSHRC's regulations at 29 CFR part
2201, implementing the FOIA, 5 U.S.C. 552. Interested persons were
afforded an opportunity to participate in the rulemaking process
through the submission of written comments on the NPRM. OSHRC received
comments from the National Archives and Records Administration
(``NARA'') suggesting two minor changes: (1) Changing the word
``mediation'' to ``dispute resolution'' in two places to reflect an
anticipated new regulation from NARA's Office of Government Information
Services (``OGIS'') that clarifies for requesters the difference
between formal mediation and the broader services OGIS provides; and
(2) changing the reference to a General Records Schedule pertaining to
the preservation of records, as General Records Schedule 4.2 recently
replaced (in part) General Records Schedule 14. OSHRC received no other
public comments suggesting changes to the proposed regulations. OSHRC
updated the Web site address containing information for the FOIA
Requester Service Center, modified the proposed regulations in light of
NARA's comments, reviewed the proposed regulations and adopts them in
this final rule.
I. Background
OSHRC makes several substantive and procedural revisions to its
regulations implementing the FOIA that fall within four general
categories. First, OSHRC modifies 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 OGIS, a ninety-day minimum time period
to file administrative appeals, and limitations on assessing certain
fees and exceptions to those limitations.
Second, OSHRC revises its regulations to further clarify and update
its procedures relating to the submission and processing of FOIA
requests.
Third, OSHRC adds 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 adds a new section to its regulations explaining the
procedure
[[Page 95036]]
for the preservation of records related to FOIA requests.
Accordingly, OSHRC revises its regulations implementing the FOIA.
The specific amendments to each section of 29 CFR part 2201 are
discussed hereafter in regulatory sequence.
In 29 CFR 2201.3, OSHRC revises paragraph (a) to direct requestors
to OSHRC's FOIA Reference Guide for further information. OSHRC revises
paragraph (c) explaining the role of the FOIA Public Liaison. OSHRC
also revises paragraph (d) to update the contact information for the
FOIA Requester Service Center, including the web address previously
identified in the proposed rule.
In 29 CFR 2201.4, OSHRC revises a reference to another section of
the regulations included in paragraph (a). OSHRC removes paragraph (b)
regarding examination of records in cases appealed to courts as the
provision is no longer necessary. OSHRC revises new paragraph (b),
previously paragraph (c), to update the list of records available at
the OSHRC e-FOIA Reading Room. In response to the codification of the
``Rule of 3'' in the FOIA Improvement Act, OSHRC also adds to new
paragraph (b) that it will make publicly available copies of records
that have been released to a person under the FOIA and have been
requested three or more times. OSHRC revises new paragraph (c),
previously paragraph (d), to clarify the location of records available
onsite at the OSHRC National Office. OSHRC changes paragraph (e) to
paragraph (d) due to the removal of paragraph (b) in this section.
In 29 CFR 2201.5, OSHRC revises 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 changes paragraph (b) to describe the
procedures for a requester making a request for records about himself
or herself. OSHRC adds paragraph (c) to describe the procedure enabling
a requester to receive greater access when a request for records
pertains to another individual. OSHRC also adds paragraph (d) to
explain what elements should be included in the description of records
in a FOIA request. OSHRC adds 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
adds paragraph (f) to describe the necessary contact information to be
provided by a requestor. OSHRC further adds paragraph (g), previously
included in another paragraph of this section, to describe how OSHRC
determines the date of receipt of a FOIA request and revises the
reference in this paragraph to reflect the changes to paragraph
designations in a subsequent section.
In 29 CFR 2201.6, OSHRC revises 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 revises the references in paragraph (f)
to reflect the changes to paragraph designations in subsequent
sections. OSHRC revises paragraph (h) to reflect changes to the
procedure notifying a requester of the tracking number assigned to the
FOIA request.
OSHRC redesignates 29 CFR 2201.7 to 29 CFR 2201.10 as 29 CFR 2201.8
to 29 CFR 2201.11, respectively, and then adds a new 29 CFR 2201.7.
This 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 revises 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 revises paragraph (b) to
explain the limitations on assessing certain fees and exceptions to
those limitations, as well as revises a reference to the Commission.
OSHRC revises paragraphs (h) and (i) to reflect the change in name for
the Commission's Office of the Executive Director. OSHRC revises 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 revises the reference in this
section to reflect the changes to paragraph designations in a previous
section.
In redesignated 29 CFR 2201.10, OSHRC adds paragraph (a) to revise
the time period to file an appeal, as well as identify information to
be included with the appeal. OSHRC adds paragraph (b) to clarify the
procedure for adjudication of appeals. OSHRC also adds paragraph (c) to
explain the content of and procedure for decisions on appeals. OSHRC
adds paragraph (d) to explain the process of dispute resolution
provided by OGIS. In response to comments from NARA, OSHRC changes the
word ``mediation'' to ``dispute resolution'' in paragraphs (c) and (d)
of the proposed rule. OSHRC also adds 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 revises a reference to
OSHRC's Web site.
OSHRC adds a new section at 29 CFR 2201.12 on the procedures for
preserving records pertaining to FOIA requests. In response to comments
from NARA, OSHRC revises a reference in this section of the proposed
rule from ``the General Records Schedule 14'' to ``the applicable
General Records Schedule.''
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 will
not have a significant economic impact on a substantial number of small
entities. The only 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 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.
[[Page 95037]]
List of Subjects in 29 CFR Part 2201
Freedom of information.
Cynthia L. Attwood,
Chairman.
For the reasons set forth in the preamble, OSHRC amends 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:
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/. 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).
0
c. Redesignating paragraphs (c) through (e) as paragraphs (b) through
(d), respectively.
0
d. Revising the introductory text 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, or that have been requested three
or more times, 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.
* * * * *
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: Mailed or
delivered; faxed; or 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
[[Page 95038]]
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).
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
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]
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 12600 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
[[Page 95039]]
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 paragraph (a), the introductory text of paragraph (b), and
paragraphs (b)(1) and (b)(2)(v);
0
c. Adding new paragraphs (b)(3) and (b)(4); and
0
d. 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 of Management and
Budget and in accordance with paragraph (b) of this section. See
Appendix A to this part. 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 to this
part. 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.
Sec. 2201.9 [Amended]
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
[[Page 95040]]
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 dispute resolution 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. Dispute
resolution is a voluntary process. If the Commission agrees to
participate in the dispute resolution 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 requester generally must
first submit a timely administrative appeal.
Sec. 2201.11 [Amended]
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).
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 applicable General Records Schedule 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. 2016-31133 Filed 12-23-16; 8:45 am]
BILLING CODE 7600-01-P
