Freedom of Information Act Program, 45500-45511 [2017-20853]

Agencies

• Chemical Safety and Hazard Investigation Board

[Federal Register Volume 82, Number 188 (Friday, September 29, 2017)]
[Rules and Regulations]
[Pages 45500-45511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-20853]


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CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD

40 CFR Part 1601

[Agency Docket Number CSB 17-1]


Freedom of Information Act Program

AGENCY: Chemical Safety and Hazard Investigation Board.

ACTION: Interim final rule.

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SUMMARY: This interim final rule revises the Chemical Safety and Hazard 
Investigation Board's (CSB) Freedom of Information Act (FOIA) rule. The 
purpose of this revision is to ensure consistency with the FOIA 
Improvement Act of 2016 and to update certain other provisions of the 
CSB's current rule. This interim final rule supersedes all previous CSB 
rules and guidance that supplement and implement the CSB FOIA Program.

DATES: 
    Effective date: This rule is effective September 29, 2017.
    Comment date: Comments must be received by October 30, 2017.

ADDRESSES: You may send comments by any of the following methods:
    (a) Email to: kara.wenzel@csb.gov. In the subject line of the 
message include ``Comment--Interim Final FOIA Rule.''
    (b) Fax: 202-261-7650, attention: Kara Wenzel, Acting General 
Counsel, Chemical Safety and Hazard Investigation Board.
    (c) Mail to: Kara Wenzel, Acting General Counsel, Chemical Safety 
and Hazard Investigation Board, 1750 Pennsylvania Ave. NW., Suite 910, 
Washington, DC 20006.
    (d) Hand Delivery/Courier: Kara Wenzel, Acting General Counsel, 
Chemical Safety and Hazard Investigation Board, 1750 Pennsylvania Ave. 
NW., Suite 910, Washington, DC 20006.
    Instructions: All submissions must include the title ``Interim 
Final FOIA Rule'' and the agency docket number for this rulemaking, CSB 
17-1. The CSB will post all comments received by the due date to the 
CSB's Web site, https://www.csb.gov/, including any personal information 
provided. For additional details on submitting comments, see ``Public 
Participation'' in the SUPPLEMENTARY INFORMATION section of this 
document.
    Docket information: For access to the docket to read a compilation 
of all comments submitted, please visit https://www.csb.gov/ after the 
final date for submission of comments.

FOR FURTHER INFORMATION CONTACT: Kara Wenzel, Acting General Counsel, 
202-261-7600, or kara.wenzel@csb.gov.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    The FOIA, 5 U.S.C. 552, establishes basic procedures for public 
access to agency records. The FOIA requires federal agencies to issue 
regulations to establish procedures to implement the FOIA. The CSB's 
current FOIA rule is codified at 40 CFR part 1601.
    This interim rule revises 40 CFR part 1601 to implement provisions 
of the FOIA Improvement Act of 2016 and to make additional legal 
updates. Specifically, this interim rule implements changes to conform 
to the requirements of the following amendments to the FOIA since the 
adoption of the CSB's current FOIA rule: The OPEN Government Act of 
2007, Public Law 110-175, the OPEN FOIA Act of 2009, Public Law 111-83, 
and the FOIA Improvement Act of 2016, Public Law 114-185.
    For example, the FOIA Improvement Act of 2016 introduced several 
changes to current law, including, but not

[[Page 45501]]

limited to the following: An increase in the minimum time for an 
administrative appeal to ninety (90) day; increased opportunities for 
dispute resolution services at various times throughout the FOIA 
process; waiver of fees if agencies do not meet mandated time limits; 
proactive disclosure of records of general interest to the public that 
are appropriate for such disclosure; and application of the Department 
of Justice's ``foreseeable harm'' standard as the basis for withholding 
information pursuant to a FOIA exemption, 5 U.S.C. 552(a)(8)(A)(i)(I).

Public Participation

    The CSB is issuing an interim final rule to revise its current FOIA 
regulation because these changes are required by statutory amendments 
to FOIA since the adoption of the CSB's original FOIA rule in 2000. By 
issuing an interim final rule, these regulatory changes will take 
effect sooner than would be possible with the publication of a Notice 
of Proposed Rulemaking. Even though the CSB has issued an interim final 
rule, the CSB welcomes public comments from interested persons 
regarding any aspect of the changes made by this interim final rule. 
Please refer to the ADDRESSES section above for guidance on submitting 
comments. The CSB will consider all public comments in drafting the 
final rule.
    All comments must be submitted in English, or if not, accompanied 
by an English translation.
    Please note that all comments received are considered part of the 
public record and will be made available for public inspection online 
at https://www.csb.gov/disclaimers/legal-affairs-foia. Posted 
information made available on the CSB Web site will include personal 
identifying information (such as name and address) voluntarily 
submitted by the commenter, unless the CSB receives a specific request 
as described below to withhold such information.
    If you want to submit personal identifying information (such as 
your name and address) as part of your comment, but do not want it to 
be posted online, you must include the phrase ``PERSONAL IDENTIFYING 
INFORMATION'' in the first paragraph of your comment. You also must 
locate all the personal identifying information you do not want posted 
online in the first paragraph of your comment and identify what 
information you want redacted. If you want to submit confidential 
business information as part of your comment, but do not want it to be 
posted online, you must include the phrase ``CONFIDENTIAL BUSINESS 
INFORMATION'' in the first paragraph of your comment. You also must 
prominently identify any confidential business information to be 
redacted within the comment. If a comment has so much confidential 
business information that it cannot be effectively redacted, all or 
part of that comment may not be posted on https://www.csb.gov/.
    Personal identifying information and confidential business 
information identified and located as set forth above will be placed in 
the agency's records, but not posted online.
    The CSB reserves the right, but has no obligation, to review, pre-
screen, filter, redact, refuse or remove any or all of your submission 
from https://www.csb.gov/ that it may deem to be inappropriate for 
publication, such as obscene language. All submissions that have been 
redacted or removed that contain comments on the merits of the 
rulemaking will be retained in the rulemaking record and will be 
considered as required under the Administrative Procedure Act and other 
applicable laws, and may be accessible under the FOIA.

Regulatory Procedures

Administrative Procedure Act (5 U.S.C. Ch. 5)

    The CSB's implementation of this rule as an interim final rule, 
with provision for post-promulgation public comment, is based on 
section 553(b) of the Administrative Procedure Act. 5 U.S.C. 553(b). 
Under section 553(b), an agency may issue a rule without notice of 
proposed rulemaking and the pre-promulgation opportunity for public 
comment, with regard to ``interpretative rules, general statements of 
policy, or rules of agency organization, procedure, or practice.'' The 
CSB has determined that many of the revisions are to interpretive rules 
issued by the CSB, as they merely advise the public of the CSB's 
implementation of recent amendments to the FOIA. Moreover, the CSB has 
determined that the remaining revisions are rules of agency procedure 
or practice, as they do not change the substantive standards the agency 
applies in implementing the FOIA. The CSB has also concluded that there 
is good cause to find that a pre-publication public comment period is 
unnecessary. These revisions to the existing regulations in 40 CFR part 
1601 merely implement statutory changes, align the CSB's regulations 
with controlling judicial decisions, and clarify agency procedures.

Unfunded Mandates Reform Act (2 U.S.C. Ch. 25)

    This interim final rule is not subject to the Unfunded Mandates 
Reform Act because it does not contain a Federal mandate that may 
result in the expenditure by state, local, and tribal governments, in 
the aggregate, or by the private sector, of $100,000,000.00 or more in 
any one year. Nor will it have a significant or unique effect on small 
governments.

Regulatory Flexibility Act (5 U.S.C. Ch. 6)

    This interim final rule is not subject to the Regulatory 
Flexibility Act. The CSB has reviewed this regulation and by approving 
it certifies that this regulation will not have a significant economic 
impact on a substantial number of small entities. The rule implements 
the procedures for processing FOIA requests within the CSB. Under the 
FOIA, agencies may recover only the direct costs of searching for, 
reviewing, and duplicating the records processed for the requesters. 
Thus, fees accessed by CSB will be nominal. Further, the ``small 
entities'' that make FOIA requests, as compared with individual and 
other requesters, are relatively few in number.

Paperwork Reduction Act (44 U.S.C. Ch. 35)

    This interim final rule does not impose reporting or recordkeeping 
requirements under the Paperwork Reduction Act of 1995. The Paperwork 
Reduction Act imposes certain requirements on Federal agencies in 
connection with the conducting or sponsoring of any collection of 
information. This interim rule does not contain any new collection of 
information requirement within the meaning of the Act.

Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 
Ch. 6)

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (as 
amended), 5 U.S.C. 804. This rule will not result in an annual effect 
on the economy of $100,000,000.00 or more; a major increase in costs or 
prices; or significant adverse effects on competition, employment, 
investment, productivity, innovation, or on the ability of United 
States-based enterprises to compete with foreign-based enterprises in 
domestic and export markets.

[[Page 45502]]

National Environmental Policy Act of 1969 (5 U.S.C. 804)

    This interim final rule will not have significant effect on the 
human environment. Accordingly, this rule is categorically excluded 
from environmental analysis under 43 CFR 46.210(i).

E-Government Act of 2002 (44 U.S.C. 3504)

    Section 206 of the E-Government Act requires agencies, to the 
extent practicable, to ensure that all information about that agency 
required to be published in the Federal Register is also published on a 
publicly accessible Web site. All information about the CSB required to 
be published in the Federal Register may be accessed at https://www.csb.gov/. This Act also requires agencies to accept public comments 
``by electronic means.'' See the ``Public Participation'' heading of 
the SUPPLEMENTARY INFORMATION section of this document, for directions 
on the electronic submission of public comments on this interim final 
rule.
    Finally, the E-Government Act requires, to the extent practicable, 
that agencies ensure that a publicly accessible Federal Government Web 
site contains electronic dockets for rulemakings under the 
Administrative Procedure Act of 1946 (5 U.S.C. 551 et seq.). Under this 
Act, an electronic docket consists of all submissions under section 
553(c) of title 5, United States Code; and all other materials that by 
agency rule or practice are included in the rulemaking docket under 
section 553(c) of title 5, United States Code, whether or not submitted 
electronically. The Web site https://www.csb.gov/ will contain an 
electronic dockets for this rulemaking.

Plain Writing Act of 2010 (5 U.S.C. 301)

    Under this Act, the term ``plain writing'' means writing that is 
clear, concise, well-organized, and follows other best practices 
appropriate to the subject or field and intended audience. To ensure 
that this rulemaking has been written in plain and clear language so 
that it can be used and understood by the public, the CSB has modeled 
the language of this interim final rule on the Federal Plain Language 
Guidelines.

List of Subjects in 40 CFR Part 1601

    Administrative practice and procedure, Archives and records, 
Confidential business information, Freedom of information, Privacy.

    For the reasons stated in the preamble, the CSB revises 40 CFR part 
1601 to read as follows:

PART 1601--PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM 
OF INFORMATION ACT

Subpart A--Purpose, Scope, and Applicability
Sec.
1601.1 Purpose and scope.
1601.2 Applicability.
Subpart B--Procedures for Requesting and Disclosing Records
1601.10 Proactive disclosures.
1601.11 Requirements for making requests.
1601.12 Responsibility for responding to requests.
1601.13 Timing of responses to requests.
1601.14 Responses to requests.
1601.15 Special procedures for confidential commercial information.
Subpart C--Appeals
1601.20 Processing of appeals.
Subpart D--Administration
1601.30 Protection of records.
1601.31 Preservation of records pertaining to requests under this 
part.
1601.32 Other rights and services.
Subpart E--Fees
1601.40 Procedures for fees.

    Authority: 5 U.S.C. 552.

Subpart A--Purpose, Scope, and Applicability


Sec.  1601.1  Purpose and scope.

    (a) In general. This part contains the Chemical Safety and Hazard 
Investigation Board (``CSB'' or ``agency'') regulations implementing 
the Freedom of Information Act (``FOIA''), 5 U.S.C. 552. These 
regulations provide the procedures by which members of the public may 
obtain access to records compiled, created, and maintained by the CSB, 
along with the CSB procedures for responding to such requests. The 
rules in this subpart are to be read in conjunction with the FOIA and 
the Uniform Freedom of Information Fee Schedule and Guidelines 
published by the White House Office of Management and Budget (OMB 
Guidelines).
    (b) Definitions.
    (1) Chairperson means the Chairperson of the CSB.
    (2) Chief FOIA Officer means the person designated by Chairperson 
who has overall responsibility for the CSB's compliance with the FOIA.
    (3) FOIA Officer means a person designated by the Chief FOIA 
Officer to process requests for the CSB documents under the FOIA.
    (4) Record means information regardless of its physical form or 
characteristics including information created, stored, and retrievable 
by electronic means that is created or obtained by the CSB and under 
the control of the CSB at the time of the request, including 
information maintained for the CSB by an entity under Government 
contract for records management purposes. Record includes any writing, 
drawing, map, recording, tape, film, photo, or other documentary 
material by which information is preserved.
    (5) Requester means any person, including an individual, Indian 
tribe, partnership, corporation, association, or public or private 
organization other than a Federal agency that requests access to 
records in the possession of the CSB pursuant to 5 U.S.C. 552.


Sec.  1601.2  Applicability.

    (a) In general. The FOIA and the regulations in this part apply to 
all CSB documents and information. However, if another law sets 
specific procedures for disclosure that supersede the FOIA, then CSB 
must process a request in accordance with the procedures that apply to 
those specific documents. If a request is received for disclosure of a 
document to the public that is not required to be released under the 
provisions of law other than the FOIA, then the CSB must consider the 
request under the FOIA and the regulations in this part. Requests made 
by individuals for records about themselves under the Privacy Act of 
1974, 5 U.S.C. 552a, are processed in accordance with CSB's Privacy Act 
regulations (part 1602 of this chapter), as well as under this subpart.
    (b) Disclosure of requested records. The CSB will only withhold 
information under the FOIA if the agency reasonably foresees that 
disclosure would harm an interest protected by an exemption or 
disclosure is prohibited by law. The FOIA Officer will make requested 
records available to the public to the greatest extent possible in 
keeping with the FOIA, except for the following types of records, which 
are exempt from the disclosure requirements:
    (1) Records specifically authorized under criteria established by 
an Executive Order (E.O.) to be kept secret in the interest of national 
defense or foreign policy and which are, in fact, properly classified 
pursuant to such E.O.;
    (2) Records related solely to the internal personnel rules and 
practices of the CSB;
    (3) Records specifically exempted from disclosure by statute (other 
than 5 U.S.C. 552(b)) provided that such statute requires that the 
matters be withheld from the public in such a manner as to leave no 
discretion on the issue or that the statute establishes particular 
criteria for withholding information or refers to

[[Page 45503]]

particular types of matters to be withheld; and if enacted after the 
date of enactment of the OPEN FOIA Act of 2009, specifically cites to 5 
U.S.C. 552(b)(3);
    (4) Records containing trade secrets and commercial or financial 
information obtained from a person and privileged or confidential;
    (5) Interagency or intra-agency memoranda or letters which would 
not be available by law to a party other than an agency in litigation 
with the CSB, provided that the deliberative process privilege shall 
not apply to records created twenty-five (25) years or more before the 
date on which the records were requested;
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information:
    (i) Could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) Would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local or foreign agency or 
authority or any private institution which furnished information on a 
confidential basis, and in the case of a record or information compiled 
by criminal law enforcement authority in the course of a criminal 
investigation or by an agency conducting a lawful national security 
intelligence investigation, information furnished by a confidential 
source;
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (8) Records contained in or related to examination, operating, or 
condition reports prepared by, or on behalf of, or for the use of an 
agency responsible for the regulation or supervision of financial 
institutions;
    (9) Geological or geophysical information and data, including maps, 
concerning wells.
    (c) Disclosure of segregable nonexempt material. The CSB will 
consider whether partial disclosure of information is possible whenever 
the agency determines that a full disclosure of a requested record is 
not possible. If a requested record contains exempted material along 
with nonexempted material, all reasonably segregable nonexempt material 
must be disclosed.
    (d) Records available through routine distribution procedures. If 
the record requested includes material published and offered for sale, 
e.g., by the Superintendent of Documents of the Government Printing 
Office, or by an authorized private distributor, then the CSB will 
refer the requester to those sources. Nevertheless, if the requester is 
not satisfied with the alternative sources, then the CSB will process 
the request under its usual FOIA procedures, noting that the CSB will 
likely withhold copyrighted records under Exemption 4.

Subpart B--Procedures for Requesting and Disclosing Records


Sec.  1601.10  Proactive disclosures.

    (a) In general. Records that the FOIA requires the CSB to make 
available for public inspection in an electronic format may be accessed 
through the CSB's Web site (which can be found at https://www.csb.gov/disclaimers/legal-affairs-foia/). The CSB is responsible for 
determining which of its records must be made publicly available, for 
identifying additional records of interest to the public that are 
appropriate for public disclosure, and for posting and indexing such 
records. The CSB must ensure that its Web site of posted records and 
indices is reviewed and updated on an ongoing basis. The CSB has a FOIA 
Contact and FOIA Public Liaison who can assist individuals in locating 
records particular to the CSB. The most up to date contact information 
for the CSB's FOIA Contact and the CSB's FOIA Public Liaison is 
available at https://www.foia.gov/report-makerequest.html.
    (b) Definitions.
    (1) Disclose or disclosure means making records available for 
examination or copying, or furnishing a copy of nonexempt responsive 
records.
    (2) FOIA Contact means the name, address and phone number at the 
CSB where a requester can make a FOIA request.
    (3) FOIA Public Liaison means the official who supervises the FOIA 
Requester Service Center.


Sec.  1601.11  Requirements for making requests.

    (a) General information. (1) To make a request for records, a 
requester should write directly to the FOIA office of the agency that 
maintains the records sought. A request will receive the quickest 
possible response if the request is addressed to the FOIA office of the 
agency that maintains the records sought. If the CSB is the agency that 
maintains the records sought, then the contact information for the 
CSB's FOIA office is listed at https://www.foia.gov/report-makerequest.html, and any additional requirements for submitting a 
request can be found herein. Additionally, requesters who have 
questions or concerns about making a request, and those who have made a 
request who have questions or concerns, may discuss their request(s) 
with the CSB's FOIA Contact or FOIA Public Liaison.
    (2) A requester who is making a request for records about himself 
or herself must comply with the verification of identity requirements 
described in this section. Requesters must provide either a notarized 
statement or a statement signed under penalty of perjury stating that 
the requester is the person they claim to be. This certification is 
required in order to protect the requester's privacy and to ensure that 
private information about the requester is not disclosed 
inappropriately to another individual.
    (3) Where a request for records pertains to a third party, 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). As an exercise of administrative 
discretion, the CSB can require a requester to supply additional 
information, if necessary, in order to verify that a particular 
individual has consented to disclosure.
    (b) Addressing requests. (1) All requests for records to the CSB 
must be made in writing.
    (2) For hard copy requests: The envelope and the request both 
should be clearly marked ``FOIA Request'' and addressed to: Chief FOIA 
Officer--FOIA Request, Chemical Safety and Hazard Investigation Board, 
1750 Pennsylvania Ave. NW., Suite 910, Washington, DC 20006.
    (3) For electronic requests: The subject line of the request should 
be marked ``FOIA Request'' and the request may be submitted by email to 
foia@csb.gov.
    (4) A request that is improperly addressed will be deemed to have 
been

[[Page 45504]]

received by the CSB on the date that it is actually received by the 
CSB, or would have been received with the exercise of due diligence, by 
the FOIA Officer.
    (c) Description of records sought. (1) Requesters must describe the 
records sought in sufficient detail to enable the CSB's personnel to 
locate them with a reasonable amount of effort.
    (2) To the extent possible, requesters should include specific 
information that may help the CSB identify the requested records, such 
as the date, title or name, author, recipient, subject matter of the 
record, case number, file designation, or reference number. In general, 
requesters should include as much detail as possible about the specific 
records or the types of records that they are seeking. Before 
submitting their requests, requesters may contact the CSB's FOIA 
Contact or FOIA Public Liaison to discuss the records they seek and to 
receive assistance in describing the records.
    (3) If, after receiving a request, the CSB determines that the 
request does not reasonably describe the records sought, then the CSB 
must inform the requester what additional information is needed or why 
the request is otherwise insufficient. Requesters who are attempting to 
reformulate or modify such a request may discuss their request with the 
CSB's FOIA Contact or with the CSB's FOIA Public Liaison. If a request 
does not reasonably describe the records sought, the CSB's response to 
the request may be delayed.
    (d) Form of records. Requests may specify the preferred form or 
format (including electronic formats) for the records that the 
requester seeks. The CSB must accommodate requests if the record is 
readily reproducible in that form or format. If a person seeks 
information from the CSB in a format that does not currently exist, 
then the CSB must make reasonable efforts to provide the information in 
the format requested. The CSB will not create a new record of 
information to satisfy a request.
    (e) Contact information. Requesters must provide their first and 
last name along with their contact information, such as their phone 
number, email address, and/or mailing address, to assist the CSB in 
communicating with them and providing released records.
    (f) Agreement to pay fees. The CSB considers a FOIA request an 
agreement by the requester to pay all applicable fees charged unless 
the requester seeks a waiver of fees. The CSB ordinarily will confirm 
this agreement in an acknowledgement letter. The CSB will not charge 
any fee if the total cost of the response is less than $25.00. See 
Sec.  1601.40 [discussing fees in more detail]. If the fee will be 
greater than $25.00, then the CSB must contact the requester to discuss 
how the requester wants to proceed.
    (g) Types of records not available. The FOIA does not require the 
CSB to:
    (1) Compile or create records solely for the purpose of satisfying 
a request for records;
    (2) Provide records not yet in existence, even if such records may 
be expected to come into existence at some future time; or
    (3) Restore records destroyed or otherwise disposed of, except that 
the FOIA Officer must notify the requester that the requested records 
have been destroyed or otherwise disposed of.


Sec.  1601.12  Responsibility for responding to requests.

    (a) In general. The agency that first receives a request for a 
record and maintains that record is the agency responsible for 
responding to the request. In determining which records are responsive 
to a request, the CSB ordinarily will include only records in its 
possession as of the date that it begins its search. If any other date 
is used, the CSB must inform the requester of that date. A record that 
is excluded from the requirements of the FOIA pursuant to 5 U.S.C. 
552(c), is not considered responsive to a request.
    (b) Authority to grant or deny requests. The Chief FOIA Officer or 
a designee is authorized to grant or to deny any initial request for 
records that are maintained by the CSB and to determine any appropriate 
fees.
    (c) Consultation, referral, and coordination. When reviewing 
records, the CSB must determine whether another agency of the Federal 
Government is better able to determine whether the record is exempt 
from disclosure under the FOIA. As to any such record, the CSB must 
proceed in one of the following ways:
    (1) Consultation. When records originated with the CSB, but contain 
within them information of interest to another agency or other Federal 
Government office, the CSB should consult with that other entity prior 
to making a release determination.
    (2) Referral. (i) When the CSB believes that a different agency or 
component of a different agency is best able to determine whether to 
disclose the record, the CSB should refer the responsibility for 
responding to the request regarding that record to that agency or 
component. Ordinarily, the agency that originated the record is 
presumed to be the best agency to make the disclosure determination. 
However, if the CSB and the originating agency jointly agree that the 
CSB is in the best position to respond regarding the record, then the 
record may be handled as a consultation.
    (ii) Whenever the CSB refers any part of the responsibility for 
responding to a request to another agency, it must document the 
referral, maintain a copy of the record that it refers, and notify the 
requester of the referral, informing the requester of the name(s) of 
the agency to which the record was referred, including that agency's 
FOIA contact information.
    (3) Coordination. The standard referral procedure is not 
appropriate where disclosure of the identity of the agency to which the 
referral would be made could harm an interest protected by an 
applicable exemption, such as the exemptions that protect personal 
privacy or national security interests. For example, if a non-law 
enforcement agency responding to a request for records on a living 
third party locates within its files records originating with a law 
enforcement agency, and if the existence of that law enforcement 
interest in the third party was not publicly known, then to disclose 
that law enforcement interest could cause an unwarranted invasion of 
the personal privacy of the third party. Similarly, if an agency 
locates within its files material originating with an Intelligence 
Community agency, and the involvement of that agency in the matter is 
classified and not publicly acknowledged, then to disclose or give 
attribution to the involvement of that Intelligence Community agency 
could cause national security harms. In such instances, in order to 
avoid harm to an interest protected by an applicable exemption, the CSB 
must coordinate with the originating agency to seek its views on 
whether the record can be disclosed. The release determination for the 
record that is the subject of the coordination will then be conveyed to 
the requester by the CSB.
    (d) Classified information. Upon receipt of any request involving 
classified information, the CSB must determine whether the information 
is currently and properly classified in accordance with applicable 
classification rules. Whenever a request involves a record containing 
information that has been classified or may be appropriate for 
classification by another agency under any applicable E.O. concerning 
the classification of records, the CSB must refer the responsibility 
for responding to the request regarding that information to the agency 
that classified the information,

[[Page 45505]]

or to the agency that should consider the information for 
classification. Whenever the CSB's record contains information that has 
been derivatively classified (for example, when it contains information 
classified by another agency), the CSB must refer the responsibility 
for responding to that portion of the request to the agency that 
classified the underlying information.
    (e) Timing of responses to consultations and referrals. All 
consultations and referrals received by the CSB must be handled 
according to the date that the first agency received the perfected FOIA 
request.
    (f) Agreements regarding consultations and referrals. The CSB may 
establish agreements with other agencies to eliminate the need for 
consultations or referrals with respect to particular types of records.
    (g) No responsive record. If no records are responsive to the 
request, the FOIA Officer will so notify the requester in writing.


Sec.  1601.13  Timing of responses to requests.

    (a) In general. The CSB ordinarily will respond to requests 
according to their order of receipt.
    (b) Definitions.
    (1) Working day means a Federal workday; Saturdays, Sundays, and 
Federal holidays are excluded in computing the response time for 
processing FOIA requests.
    (2) [Reserved]
    (c) Multitrack processing. The CSB has a specific track for 
requests that are granted expedited processing, in accordance with the 
standards set forth in paragraph (f) of this section. In addition, the 
CSB uses two standard processing tracks- one for simple requests and a 
separate track for complex requests. The CSB will assign requests to 
the simple or complex track based on the estimated amount of work or 
time needed to process the request. Among the factors the CSB may 
consider are the number of records requested, the number of pages 
involved in processing the request and the need for consultations or 
referrals. The CSB must advise each requester of the track into which 
their request falls and, when appropriate, will offer a requester an 
opportunity to narrow or modify their request so that it can be placed 
in the simple processing track.
    (d) Unusual circumstances. Whenever the CSB cannot meet the 
statutory time limit for processing a request because of ``unusual 
circumstances,'' as defined in the FOIA, and the CSB extends the time 
limit on that basis, the CSB must, before expiration of the twenty (20) 
day period to respond, notify the requester in writing of the unusual 
circumstances involved and of the date by which the CSB estimates 
processing of the request will be completed. Where the extension 
exceeds ten (10) working days, the CSB must, as described by the FOIA, 
provide the requester with an opportunity to modify the request or 
arrange an alternative time period for processing the original or 
modified request. The CSB must make available its designated FOIA 
Contact or its FOIA Public Liaison for this purpose. A list of agency 
FOIA Public Liaisons is available at https://www.foia.gov/report-makerequest.html. The CSB must also alert requesters to the 
availability of the Office of Government Information Services (OGIS) to 
provide dispute resolution services.
    (e) Aggregating requests. To satisfy unusual circumstances under 
the FOIA, the CSB may aggregate requests in cases where it reasonably 
appears that multiple requests, submitted either by a requester, or by 
a group of requesters acting in concert, constitute a single request 
that would otherwise involve unusual circumstances. The CSB must not 
aggregate multiple requests that involve unrelated matters.
    (f) Expedited processing. (1) The CSB must process requests and 
appeals on an expedited basis whenever it is determined that they 
involve:
    (i) Circumstances in which the lack of expedited processing could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged 
Federal Government activity, if made by a person who is primarily 
engaged in disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest in which 
there exists possible questions about the government's integrity that 
affect public confidence.
    (2) A request for expedited processing may be made at any time. 
Requests based on paragraphs (f)(1)(i) through (iv) of this section 
must be submitted to the CSB. When making a request for expedited 
processing of an administrative appeal, the request must be submitted 
to the CSB's FOIA Appeals Officer in accordance with Sec.  1601.20.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, explaining in detail the 
basis for making the request for expedited processing. For example, 
under paragraph (f)(1)(ii) of this section, a requester who is not a 
full-time member of the news media must establish that the requester is 
a person whose primary professional activity or occupation is 
information dissemination, though it need not be the requester's sole 
occupation. Such a requester also must establish a particular urgency 
to inform the public about the government activity involved in the 
request--one that extends beyond the public's right to know about 
government activity generally. The existence of numerous articles 
published on a given subject can be helpful in establishing the 
requirement that there be an ``urgency to inform'' the public on the 
topic. As a matter of administrative discretion, the CSB may waive the 
formal certification requirement.
    (4) The CSB must notify the requester within ten (10) calendar days 
of the receipt of a request for expedited processing of its decision 
whether to grant or deny expedited processing. If expedited processing 
is granted, then the request must be given priority, placed in the 
processing track for expedited requests, and must be processed as soon 
as practicable. If a request for expedited processing is denied, then 
the CSB must act on any appeal of that decision expeditiously.


Sec.  1601.14  Responses to requests.

    (a) In general. The CSB, to the extent practicable, will 
communicate electronically with requesters having access to the 
Internet, such as by email or web portal.
    (b) Acknowledgments of requests. The CSB must acknowledge the 
request in writing and assign it an individualized tracking number if 
it will take longer than ten (10) working days to process. The CSB must 
include in the acknowledgment a brief description of the records sought 
to allow requesters to more easily keep track of their requests.
    (c) Estimated dates of completion and interim responses. Upon 
request, the CSB must provide an estimated date by which the CSB 
expects to provide a response to the requester. If a request involves a 
voluminous amount of material, or searches in multiple locations, the 
CSB may provide interim responses, releasing the records on a rolling 
basis.
    (d) Grants of requests. Once the CSB determines it will grant a 
request in full or in part, it must notify the requester in writing. 
The notice must describe the manner in which the record or records will 
be disclosed, whether by providing a copy of the record or records with 
the response, or providing them at a later date, or by making a copy of 
the record available to the requester for inspection

[[Page 45506]]

at a reasonable time and place. The procedure for such an inspection 
must not unreasonably disrupt the operation of the CSB. The CSB must 
also inform the requester of any fees charged under Sec.  1601.40 and 
must disclose the requested records to the requester promptly upon 
payment of any applicable fees. The CSB must inform the requester of 
the availability of its FOIA Public Liaison to offer assistance.
    (e) Adverse determinations of requests. If the CSB makes an adverse 
determination denying a request in any respect, it must notify the 
requester of that determination in writing. Adverse determinations, or 
denials of requests, include decisions that: The requested record is 
exempt, in whole or in part; the request does not reasonably describe 
the records sought; the information requested is not a record subject 
to the FOIA; the requested record does not exist, cannot be located, or 
has been destroyed; or the requested record is not readily reproducible 
in the form or format sought by the requester. Adverse determinations 
also include denials involving fees or fee waiver matters or denials of 
requests for expedited processing.
    (f) Content of denial. The denial must be signed by the Chairperson 
or the FOIA Officer and must include:
    (1) The name and title or position of the person responsible for 
the denial;
    (2) A brief statement of the reasons for the denial, including any 
FOIA exemption(s) applied by the CSB in denying the request;
    (3) An estimate of the volume of any records or information 
withheld, such as the number of pages or some other reasonable form of 
estimation, although such an estimate is not required if the volume is 
otherwise indicated by deletions marked on records that are disclosed 
in part or if providing an estimate would harm an interest protected by 
an applicable exemption; and
    (4) A statement that the denial may be appealed under Sec.  
1601.20, and a description of the appeal requirements.
    (5) A statement notifying the requester of the assistance available 
from the CSB's FOIA Public Liaison and the dispute resolution services 
offered by the OGIS.
    (g) Markings on released documents. Records disclosed in part must 
be marked clearly to show the amount of information deleted and the 
exemption under which the deletion was made unless doing so would harm 
an interest protected by an applicable exemption. The location of the 
information deleted must also be indicated on the record, if 
technically feasible.
    (h) Use of record exclusions. (1) In the event that the CSB 
identifies records that may be subject to exclusion from the 
requirements of the FOIA pursuant to 5 U.S.C. 552(c), the CSB must 
confer with Department of Justice, Office of Information Policy (OIP), 
to obtain approval to apply the exclusion.
    (2) When invoking an exclusion, the CSB must maintain an 
administrative record of the process of invocation and approval of the 
exclusion by OIP.


Sec.  1601.15  Special procedures for confidential commercial 
information.

    (a) In general. Confidential commercial information provided to the 
CSB by a submitter must not be disclosed pursuant to a FOIA request 
except in accordance with this section.
    (b) Definitions.
    (1) Confidential commercial information means commercial or 
financial information obtained by the CSB 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, Indian tribal governments but not 
including another Federal Government entity, that provides confidential 
commercial information, either directly or indirectly to the Federal 
Government.
    (c) Designation of confidential commercial information. A submitter 
of confidential commercial information must make 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 of the FOIA, 5 U.S.C. 552(b)(4). These 
designations expire ten (10) years after the date of the submission 
unless the submitter requests and provides justification for a longer 
designation period.
    (d) When notice to submitters is required. (1) The CSB must 
promptly provide written notice to the submitter of confidential 
commercial information whenever records containing such information are 
requested under the FOIA if the CSB determines that it may be required 
to disclose the records, provided:
    (i) The requested information has been designated in good faith by 
the submitter as information considered protected from disclosure under 
Exemption 4; or
    (ii) The CSB 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.
    (2) The notice must either describe the commercial information 
requested or include a copy of the requested records or portions of 
records containing the information. In cases involving a voluminous 
number of submitters, the CSB may post or publish a notice in a place 
or manner reasonably likely to inform the submitters of the proposed 
disclosure, instead of sending individual notifications.
    (e) Exceptions to submitter notice requirements. The notice 
requirements of this section do not apply if:
    (1) The CSB 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 E.O. 12600 of June 23, 1987; or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous. In such case, the CSB must 
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.
    (f) Opportunity to object to disclosure. (1) The CSB must specify a 
reasonable time period within which the submitter must respond to the 
notice referenced above.
    (2) If a submitter has any objections to disclosure, it should 
provide the CSB 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 privileged or 
confidential. Whenever possible, the business submitter's claim of 
confidentiality should be supported by a statement or certification by 
an officer or authorized representative of the business submitter. 
Information provided by a submitter pursuant to this paragraph may 
itself be subject to disclosure under the FOIA.
    (3) 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. The CSB is not required to consider any 
information received after the date of any disclosure decision. Any 
information provided by a submitter

[[Page 45507]]

under this subpart may itself be subject to disclosure under the FOIA.
    (g) Analysis of objections. The CSB must consider a submitter's 
objections and specific grounds for nondisclosure in deciding whether 
to disclose the requested information.
    (h) Notice of intent to disclose. Whenever the CSB decides to 
disclose information over the objection of a submitter, the CSB must 
provide the submitter written notice, which must include:
    (1) A statement of the reasons why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the information to be disclosed or copies of 
the records as the CSB intends to release them; and
    (3) A specified disclosure date, which must be a reasonable time 
after the notice.
    (i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of confidential commercial 
information, the CSB must promptly notify the submitter.
    (j) Requester notification. The CSB must notify the requester 
whenever it provides the submitter with notice and an opportunity to 
object to disclosure because the request includes information that may 
arguably be exempt from disclosure under Exemption 4 of the FOIA; 
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.

Subpart C--Appeals


Sec.  1601.20  Processing of appeals.

    (a) Right of appeal. If a request has been denied in whole or in 
part, the requester may appeal the denial to the CSB's FOIA Appeals 
Officer.
    (b) Definitions.
    (1) FOIA Appeal means an independent review of an adverse 
determination initial determination made in response to a FOIA request.
    (2) FOIA Appeals Officer means the person designated by the 
Chairperson to process and to decide a FOIA appeal.
    (c) Requirements for making an appeal. (1) A requester may appeal 
any adverse determinations to the FOIA Appeals Officer. Examples of 
adverse determinations are provided in Sec.  1601.14(e).
    (2) The requester must make the appeal in writing. Requesters can 
submit appeals by mail or email in accordance with the following 
requirements herein, which are also listed on the CSB's Web site. To 
facilitate handling, the requester should mark both the appeal letter 
and envelope, or subject line of the electronic transmission, ``Freedom 
of Information Act Appeal'' or ``FOIA Appeal.''
    (i) For hard copy requests: The envelope and the request both 
should addressed to: FOIA Appeals Officer--FOIA Appeal, Chemical Safety 
and Hazard Investigation Board, 1750 Pennsylvania Ave. NW., Suite 910, 
Washington, DC 20006.
    (ii) For electronic requests: The appeal should addressed to the 
FOIA Appeals Officer and may be submitted by email to 
foiaappeals@csb.gov.
    (3) To be considered timely, an appeal must be postmarked, or in 
the case of electronic submissions, transmitted, within ninety (90) 
calendar days after the date of the adverse determination that is the 
subject of the appeal. For purposes of apply the ninety (90) calendar 
day deadline, the CSB will treat an appeal that is improperly addressed 
as being received on the date on the date that it is actually received 
by the CSB, or would have been received with the exercise of due 
diligence, by the FOIA Appeals Officer.
    (4) The appeal should clearly identify the adverse determination 
that is being appealed and the assigned request number.
    (5) An appeal should also include a copy of the initial request, a 
copy of the letter denying the request in whole or in part, and a 
statement of the circumstances, reasons, or arguments advanced in 
support of disclosure of the requested record.
    (d) Adjudication of appeals. (1) The CSB FOIA Appeals Officer or 
designee will act on behalf of the CSB's Chief FOIA Officer on all 
appeals under this section.
    (2) An appeal ordinarily will not be adjudicated if the request 
becomes a matter of FOIA litigation.
    (3) On receipt of any appeal involving classified information, the 
FOIA Appeals Officer must take appropriate action to ensure compliance 
with applicable classification rules.
    (e) Decisions on appeals. The CSB must provide its decision on an 
appeal in writing. The disposition of an appeal will be in writing and 
will constitute the final action of the CSB on a request. A decision 
that upholds the CSB's determination in whole or in part will contain a 
statement that identifies the reasons for the affirmance, including any 
FOIA exemptions applied. The decision will provide the requester with 
notification of the statutory right to file a lawsuit and will also 
inform the requester of the mediation services offered by the OGIS of 
the National Archives and Records Administration as a non-exclusive 
alternative to litigation. If the CSB's decision is remanded or 
modified on appeal, the CSB must notify the requester of that 
determination in writing. The CSB must then further process the request 
in accordance with that appeal determination and will respond directly 
to the requester.
    (f) Engaging in dispute resolution services provided by OGIS. 
Dispute resolution is a voluntary process. If the CSB agrees to 
participate in the dispute resolution services provided by OGIS, it 
will actively engage as a partner to the process in an attempt to 
resolve the dispute.
    (g) When appeal is required. Before seeking review by a court of 
the CSB's adverse determination, a requester generally must first 
submit a timely administrative appeal.

Subpart D--Administration


Sec.  1601.30  Protection of records.

    (a) In general. (1) Except as authorized by this part or as 
otherwise necessary in performing official duties, CSB employees must 
not disclose or permit disclosure of any document or information in the 
possession of the CSB that is confidential or otherwise of a nonpublic 
nature, including that regarding the CSB, the Environmental Protection 
Agency or the Occupational Safety and Health Administration.
    (2) No person may, without permission, remove from the place where 
it is made available any record made available to him for inspection or 
copying. Stealing, altering, mutilating, obliterating, or destroying a 
Federal record, in whole or in part, is a violation of Federal law.
    (b) [Reserved]


Sec.  1601.31  Preservation of records pertaining to requests under 
this part.

    The CSB must preserve all correspondence pertaining to the requests 
that it receives under this subpart, as well as copies of all requested 
records, until disposition or destruction is authorized pursuant to 
title 44 of the United States Code and the General Records Schedule 4.2 
of the National Archives and Records Administration. The CSB must not 
dispose of or destroy records while they are the subject of a pending 
request, appeal, or lawsuit under the FOIA.


Sec.  1601.32  Other rights and services.

    Nothing in this subpart will be construed to entitle any person, as 
of right, to any service or to the disclosure of any record to which 
such person is not entitled under the FOIA.

[[Page 45508]]

Subpart E--Fees


Sec.  1601.40  Procedures for fees.

    (a) In general. The CSB must charge for processing requests under 
the FOIA in accordance with the provisions of this section and with the 
OMB Guidelines. For purposes of assessing fees, the FOIA establishes 
three categories of requesters: Commercial use requesters, non-
commercial scientific or educational institutions or news media 
requesters, and all other requesters. Different fees are assessed 
depending on the category. Requesters may seek a fee waiver. The CSB 
must consider requests for fee waivers in accordance with the 
requirements in paragraph (k) of this section. To resolve any fee 
issues that arise under this section, the CSB may contact a requester 
for additional information. The CSB must ensure that searches, review, 
and duplication are conducted in the most efficient and the least 
expensive manner. The CSB ordinarily will collect all applicable fees 
before sending copies of records to a requester. Requesters must pay 
fees by check or money order made payable to the Treasury of the United 
States, or by another method as determined by the CSB.
    (b) Definitions.
    (1) Commercial use request is a request that asks for information 
for a use or a purpose that furthers a commercial, trade, or profit 
interest, which can include furthering those interests through 
litigation. The CSB's decision to place a requester in the commercial 
use category will be made on a case-by-case basis based on the 
requester's intended use of the information. The CSB must notify 
requesters of their placement in this category.
    (2) Direct costs are those expenses that the CSB incurs in 
searching for and duplicating (and, in the case of commercial use 
requests, reviewing) records in order to respond to a FOIA request. For 
example, direct costs include the salary of the employee performing the 
work (i.e., the basic rate of pay for the employee, plus sixteen 
percent (16%) of that rate to cover benefits) and the cost of operating 
computers and other electronic equipment, such as photocopiers and 
scanners. Direct costs do not include overhead expenses such as the 
costs of space, and of heating or lighting a facility.
    (3) Duplication is reproducing a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, audiovisual materials, or electronic 
records, among others. The copies provided must be in a form that is 
reasonably usable by requesters.
    (4) Educational institution is any school that operates a program 
of scholarly research. A requester in this fee category must show that 
the request is made in connection with the requester's role at the 
educational institution. The CSB may seek verification from the 
requester that the request is in furtherance of scholarly research and 
the CSB must advise requesters of their placement in this category.
    (i) Example 1. A request from a professor of geology at a 
university for records relating to soil erosion, written on letterhead 
of the Department of Geology, would be presumed to be from an 
educational institution.
    (ii) Example 2. A request from the same professor of geology 
seeking drug information from the Food and Drug Administration in 
furtherance of a murder mystery he is writing would not be presumed to 
be an institutional request, regardless of whether it was written on 
institutional stationery.
    (iii) Example 3. A student who makes a request in furtherance of 
the student's coursework or other school-sponsored activities and 
provides a copy of a course syllabus or other reasonable documentation 
to indicate the research purpose for the request, would qualify as part 
of this fee category.
    (5) Noncommercial scientific institution is an institution that is 
not operated on a ``commercial'' basis, as defined in paragraph (b)(1) 
of this section and that is operated solely for the purpose of 
conducting scientific research the results of which are not intended to 
promote any particular product or industry. A requester in this 
category must show that the request is authorized by and is made under 
the auspices of a qualifying institution and that the records are 
sought to further scientific research and are not for a commercial use. 
The CSB must advise requesters of their placement in this category.
    (6) Representative of the news media is any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn the raw materials into a distinct 
work, and distributes that work to an audience. Accordingly, the term 
includes any person actively gathering news for an entity that is 
organized and operated to publish or broadcast news to the public. The 
term news means information that is about current events or that would 
be of current interest to the public. Examples of news media entities 
include television or radio stations that broadcast news to the public 
at large, and publishers of periodicals that disseminate news and make 
their products available through a variety of means to the general 
public, including news organizations that make their products available 
for purchase by or subscription by or free distribution to the general 
public, including those solely on the Internet. These examples are not 
all-inclusive. Moreover, as methods of news delivery evolve (for 
example, the adoption of the electronic dissemination of newspapers 
through telecommunications services), such alternative media shall be 
considered to be news-media entities. A request for records supporting 
the news-dissemination function of the requester will not be considered 
to be for a commercial use. Freelance journalists who demonstrate a 
solid basis for expecting publication through a news media entity will 
be considered as a representative of the news media. A publishing 
contract would provide the clearest evidence that publication is 
expected; however, the CSB can also consider a requester's past 
publication record in making this determination. The CSB will advise 
requesters of their placement in this category.
    (7) Review is the examination of a record located in response to a 
FOIA request in order to determine whether any portion of it is exempt 
from disclosure under one or more of the FOIA exemptions. Review time 
includes processing any record for disclosure, such as doing all that 
is necessary to prepare the record for disclosure, including the 
process of redacting the record and marking the appropriate exemptions. 
Review costs are properly charged even if a record ultimately is not 
disclosed. Review time also includes time spent both obtaining and 
considering any formal objection to disclosure made by a confidential 
commercial information submitter under Sec.  1601.15, but it does not 
include time spent resolving general legal or policy issues regarding 
the application of exemptions.
    (8) Search is the process of looking for and retrieving records or 
information responsive to a request. Search time includes page-by-page 
or line-by-line identification of information within records and the 
reasonable efforts expended to locate and retrieve information from 
electronic records.
    (c) Charging fees. In responding to FOIA requests, the CSB will 
charge the following fees unless a waiver or reduction of fees has been 
granted under paragraph (k) of this section. Because the fee amounts 
provided below already account for the direct costs associated with a 
given fee type, the CSB should

[[Page 45509]]

not add any additional costs to charges calculated under this section.
    (1) Search. (i) Requests made by educational institutions, 
noncommercial scientific institutions, or representatives of the news 
media are not subject to search fees. The CSB must charge search fees 
for all other requesters, subject to the restrictions of paragraph (d) 
of this section. The CSB may properly charge for time spent searching 
even if they do not locate any responsive records or if they determine 
that the records are entirely exempt from disclosure.
    (ii) For each quarter hour spent by personnel searching for 
requested records, including electronic searches that do not require 
new programming, the fees will be charged as follows: $6.00 for 
clerical personnel; $11.00 for professional personnel; and $15.00 for 
managerial personnel.
    (iii) The CSB must charge the direct costs associated with 
conducting any search that requires the creation of a new computer 
program to locate the requested records. The CSB must notify the 
requester of the costs associated with creating such a program, and the 
requester must agree to pay the associated costs before the costs may 
be incurred.
    (iv) For requests that require the retrieval of records stored by 
the CSB at a Federal records center operated by the National Archives 
and Records Administration (NARA), the CSB must charge additional costs 
in accordance with the Transactional Billing Rate Schedule established 
by NARA.
    (2) Duplication. The CSB will charge duplication fees to all 
requesters, subject to the restrictions of paragraph (d) of this 
section. The CSB must honor a requester's preference for receiving a 
record in a particular form or format where the CSB can readily 
reproduce it in the form or format requested. Where photocopies are 
supplied, the CSB must provide one copy per request at the cost of 
$0.17 per page. For copies of records produced on tapes, disks, or 
other media, the CSB must charge the direct costs of producing the 
copy, including operator time. Where paper documents must be scanned in 
order to comply with a requester's preference to receive the records in 
an electronic format, the requester must also pay the direct costs 
associated with scanning those materials. For other forms of 
duplication, the CSB must charge the direct costs.
    (3) Review. The CSB must charge review fees to requesters who make 
commercial use requests. Review fees will be assessed in connection 
with the initial review of the record, i.e., the review conducted by 
the CSB to determine whether an exemption applies to a particular 
record or portion of a record. No charge will be made for review at the 
administrative appeal stage of exemptions applied at the initial review 
stage. However, if a particular exemption is deemed to no longer apply, 
any costs associated with the CSB's re-review of the records in order 
to consider the use of other exemptions may be assessed as review fees. 
Review fees will be charged at the same rates as those charged for a 
search under paragraph (c)(1)(ii) of this section.
    (d) Restrictions on charging fees. (1) When the CSB determines that 
a requester is an educational institution, non-commercial scientific 
institution, or representative of the news media, and the records are 
not sought for commercial use, it will not charge search fees.
    (2)(i) If the CSB fails to comply with the FOIA's time limits in 
which to respond to a request, it may not charge search fees, or, in 
the instances of requests from requesters described in paragraph (d)(1) 
of this section, may not charge duplication fees, except as described 
in paragraphs (d)(2)(ii)-(iv).
    (ii) If the CSB has determined that unusual circumstances as 
defined by the FOIA apply and the CSB provided timely written notice to 
the requester in accordance with the FOIA, a failure to comply with the 
time limit must be excused for an additional ten (10) days.
    (iii) If the CSB has determined that unusual circumstances as 
defined by the FOIA apply, and more than 5,000 pages are necessary to 
respond to the request, the CSB may charge search fees, or, in the case 
of requesters described in paragraph (d)(1) of this section, may charge 
duplication fees, if the following steps are taken. The CSB must have 
provided timely written notice of unusual circumstances to the 
requester in accordance with the FOIA and the CSB must have 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 5 U.S.C. 
552(a)(6)(B)(ii). If this exception is satisfied, the CSB may charge 
all applicable fees incurred in the processing of the request.
    (iv) If a court has determined that exceptional circumstances exist 
as defined by the FOIA, a failure to comply with the time limits shall 
be excused for the length of time provided by the court order.
    (3) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (4) Except for requesters seeking records for a commercial use, the 
CSB must provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (ii) The first two hours of search.
    (5) No fee will be charged when the total fee, after deducting the 
100 free pages (or its cost equivalent) and the first two hours of 
search, is equal to or less than $25.00.
    (e) Notice of anticipated fees in excess of $25.00. (1) When the 
CSB determines or estimates that the fees to be assessed in accordance 
with this section will exceed $25.00, the CSB must notify the requester 
of the actual or estimated amount of the fees, including a breakdown of 
the fees for search, review or duplication, unless the requester has 
indicated a willingness to pay fees as high as those anticipated. If 
only a portion of the fee can be estimated readily, the CSB must advise 
the requester accordingly. If the request is for non-commercial use, 
the notice will specify that the requester is entitled to the statutory 
entitlements of 100 pages of duplication at no charge and, if the 
requester is charged search fees, two hours of search time at no 
charge, and will advise the requester whether those entitlements have 
been provided.
    (2) If the CSB notifies the requester that the actual or estimated 
fees are in excess of $25.00, the request will not be considered 
received and further work will not be completed until the requester 
commits in writing to pay the actual or estimated total fee, or 
designates some amount of fees the requester is willing to pay, or in 
the case of a non-commercial use requester who has not yet been 
provided with the requester's statutory entitlements, designates that 
the requester seeks only that which can be provided by the statutory 
entitlements. The requester must provide the commitment or designation 
in writing, and must, when applicable, designate an exact dollar amount 
the requester is willing to pay. The CSB is not required to accept 
payments in installments. Requesters must respond to their fee estimate 
within thirty (30) working days, or the CSB will assume that the 
requester is no longer interested in their FOIA request(s), and the 
case will be administratively closed.
    (3) If the requester has indicated a willingness to pay some 
designated amount of fees, but the CSB estimates that the total fee 
will exceed that amount, the CSB will toll the processing of the 
request when it notifies the requester of the estimated fees in excess 
of the amount the requester has

[[Page 45510]]

indicated a willingness to pay. The CSB will inquire whether the 
requester wishes to revise the amount of fees the requester is willing 
to pay or modify the request. Once the requester responds, the time to 
respond will resume from where it was at the date of the notification.
    (4) The CSB must make available its FOIA Public Liaison or anther 
FOIA professional to assist any requester in reformulating a request to 
meet the requester's needs at a lower cost.
    (f) Charges for other services. Although not required to provide 
special services, if the CSB chooses to do so as a matter of 
administrative discretion, the direct costs of providing the service 
will be charged. Examples of such services include certifying that 
records are true copies, providing multiple copies of the same 
document, or sending records by means other than first class mail.
    (g) Charging interest. The CSB may charge interest on any unpaid 
bill starting on the thirty-first (31) day following the date of 
billing the requester. Interest charges will be assessed at the rate 
provided in 31 U.S.C. 3717 and will accrue from the billing date until 
payment is received by the CSB. The CSB must follow the provisions of 
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.
    (h) Aggregating requests. When the CSB reasonably believes that a 
requester or a group of requesters acting in concert is attempting to 
divide a single request into a series of requests for the purpose of 
avoiding fees, the CSB may aggregate those requests and charge 
accordingly. The CSB may presume that multiple requests of this type 
made within a thirty (30) day period have been made in order to avoid 
fees. For requests separated by a longer period, the CSB must aggregate 
them only where there is a reasonable basis for determining that 
aggregation is warranted in view of all the circumstances involved. 
Multiple requests involving unrelated matters cannot be aggregated.
    (i) Advance payments. (1) For requests other than those described 
in paragraphs (i)(2) or (i)(3) of this section, the CSB must not 
require the requester to make an advance payment before work is 
commenced or continued on a request. Payment owed for work already 
completed (i.e., payment before copies are sent to a requester) is not 
an advance payment.
    (2) When the CSB determines or estimates that a total fee to be 
charged under this section will exceed $250.00, it may require that the 
requester make an advance payment up to the amount of the entire 
anticipated fee before beginning to process the request. The CSB may 
elect to process the request prior to collecting fees when it receives 
a satisfactory assurance of full payment from a requester with a 
history of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to the CSB within thirty (30) calendar days of the 
billing date, the CSB may require that the requester pay the full 
amount due, plus any applicable interest on that prior request, and the 
CSB may require that the requester make an advance payment of the full 
amount of any anticipated fee before the CSB begins to process a new 
request or continues to process a pending request or any pending 
appeal. Where the CSB has a reasonable basis to believe that a 
requester has misrepresented the requester's identity in order to avoid 
paying outstanding fees, it may require that the requester provide 
proof of identity.
    (4) In cases in which the CSB requires advance payment, the request 
will not be considered received and further work will not be completed 
until the required payment is received. If the requester does not pay 
the advance payment within thirty (30) calendar days after the date of 
the CSB's fee determination, the request will be closed.
    (j) Other statutes specifically providing for fees. The fee 
schedule of this section does not apply to fees charged under any 
statute that specifically requires the CSB to set and collect fees for 
particular types of records. In instances where records responsive to a 
request are subject to a statutorily-based fee schedule program, the 
CSB must inform the requester of the contact information for that 
program.
    (k) Requirements for waiver or reduction of fees. (1) Requesters 
may seek a waiver of fees by submitting a written application 
demonstrating how disclosure of the requested information is in the 
public interest because it is likely to contribute significantly to 
public understanding of the operations or activities of the government 
and is not primarily in the commercial interest of the requester.
    (2) The CSB must furnish records responsive to a request without 
charge or at a reduced rate when it determines, based on all available 
information, that disclosure of the requested information is in the 
public interest because it is likely to contribute significantly to 
public understanding of the operations or activities of the government 
and is not primarily in the commercial interest of the requester. In 
deciding whether this standard is satisfied the CSB must consider the 
factors described in paragraphs (k)(2)(i) through (iii) of this 
section:
    (i) Disclosure of the requested information would shed light on the 
operations or activities of the government. The subject of the request 
must concern identifiable operations or activities of the Federal 
Government with a connection that is direct and clear, not remote or 
attenuated.
    (ii) Disclosure of the requested information is likely to 
contribute significantly to public understanding of those operations or 
activities. This factor is satisfied when the following criteria are 
met:
    (A) Disclosure of the requested records must be meaningfully 
informative about government operations or activities. The disclosure 
of information that already is in the public domain, in either the same 
or a substantially identical form, would not be meaningfully 
informative if nothing new would be added to the public's 
understanding.
    (B) The disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area as well as the requester's ability and 
intention to effectively convey information to the public must be 
considered. The CSB will presume that a representative of the news 
media will satisfy this consideration.
    (iii) The disclosure must not be primarily in the commercial 
interest of the requester. To determine whether disclosure of the 
requested information is primarily in the commercial interest of the 
requester, the CSB must consider the following criteria:
    (A) The CSB must identify whether the requester has any commercial 
interest that would be furthered by the requested disclosure. A 
commercial interest includes any commercial, trade, or profit interest. 
Requesters must be given an opportunity to provide explanatory 
information regarding this consideration.
    (B) If there is an identified commercial interest, the CSB must 
determine whether that is the primary interest furthered by the 
request. A waiver or reduction of fees is justified when the 
requirements of paragraphs (k)(2)(i) and (ii) are satisfied and any 
commercial interest is not the primary

[[Page 45511]]

interest furthered by the request. The CSB ordinarily will presume that 
when a news media requester has satisfied the factors in paragraphs 
(k)(2)(i) and (ii) of this section, the request is not primarily in the 
commercial interest of the requester. Disclosure to data brokers or 
others who merely compile and market government information for direct 
economic return will not be presumed to primarily serve the public 
interest.
    (3) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver must be granted for those 
records.
    (4) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to the CSB and should address the 
criteria referenced above. A requester may submit a fee waiver request 
at a later time so long as the underlying record request is pending or 
on administrative appeal. When a requester who has committed to pay 
fees subsequently asks for a waiver of those fees and that waiver is 
denied, the requester must pay any costs incurred up to the date the 
fee waiver request was received.

    Dated: September 25, 2017
Kara Wenzel,
Acting General Counsel, Chemical Safety and Hazard Investigation Board.
[FR Doc. 2017-20853 Filed 9-28-17; 8:45 am]
 BILLING CODE 6350-01-P