81 FR 86297 - Regulations Implementing the Freedom of Information Act

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Federal Register Volume 81, Issue 230 (November 30, 2016)

Page Range		86297-86302
FR Document		2016-28305
The Occupational Safety and Health Review Commission (``OSHRC'') is proposing revisions to its regulations implementing the Freedom of Information Act (``FOIA''). These proposed revisions account for statutory amendments included in the FOIA Improvement Act of 2016 (``FOIA Improvement Act''), as well as the addition of procedures pertaining to confidential commercial information and preservation of records, clarifications of existing procedures, and updates to contact information.
Federal Register, Volume 81 Issue 230 (Wednesday, November 30, 2016)
[Federal Register Volume 81, Number 230 (Wednesday, November 30, 2016)]
[Proposed Rules]
[Pages 86297-86302]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-28305]


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OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

29 CFR Part 2201


Regulations Implementing the Freedom of Information Act

AGENCY: Occupational Safety and Health Review Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Occupational Safety and Health Review Commission 
(``OSHRC'') is proposing revisions to its regulations implementing the 
Freedom of Information Act (``FOIA''). These proposed revisions account 
for statutory amendments included in the FOIA Improvement Act of 2016 
(``FOIA Improvement Act''), as well as the addition of procedures 
pertaining to confidential commercial information and preservation of 
records, clarifications of existing procedures, and updates to contact 
information.

DATES: Comments must be received by OSHRC on or before December 20, 
2016.

ADDRESSES: You may submit comments by any of the following methods:
     Email: [email protected]. Include ``PROPOSED RULEMAKING, 
PART 2201'' in the subject line of the message.
     Fax: (202) 606-5417.
     Mail: Occupational Safety and Health Review Commission, 
ATTN: FOIA Public Liaison, One Lafayette Centre, 1120 20th Street NW., 
Ninth Floor, Washington, DC 20036-3457.
     Hand Delivery/Courier: Same as mailing address.
    Instructions: All submissions must include your name, return 
address, and email address, if applicable. Please clearly label 
submissions as ``PROPOSED RULEMAKING, PART 2201.''

FOR FURTHER INFORMATION CONTACT: OSHRC's FOIA Public Liaison, by 
telephone at (202) 606-5410, by email at [email protected], or by 
mail at the address stated above.

SUPPLEMENTARY INFORMATION: 

I. Background

    OSHRC proposes several substantive and procedural revisions to its 
regulations implementing the FOIA that fall within four general 
categories. First, OSHRC proposes modifying its existing FOIA 
regulations to reflect the amendments to the FOIA contained in the FOIA 
Improvement Act of 2016, Public Law 114-185. The FOIA Improvement Act 
amended various practices under the FOIA, such as requiring 
notification to requesters of the right to seek dispute resolution at 
various times throughout the FOIA process from the National Archives 
and Records Administration's Office of Government Information Services 
(``OGIS''), a ninety-day minimum time period to file administrative 
appeals, and limitations on assessing certain fees and exceptions to 
those limitations.
    Second, OSHRC proposes revising its regulations to further clarify 
and update its procedures relating to the submission and processing of 
FOIA requests.
    Third, OSHRC proposes adding a new section to its regulations 
establishing procedures to notify submitters of records containing 
confidential commercial information when those records are requested 
under the FOIA, in compliance with Executive Order 12,600.
    Fourth, OSHRC proposes adding a new section to its regulations 
explaining the procedure for the preservation of records related to 
FOIA requests.
    Accordingly, OSHRC proposes to revise its regulations implementing 
the FOIA and put them out for public comment. The specific amendments 
that OSHRC proposes to each section of 29 CFR part 2201 are discussed 
hereafter in regulatory sequence.
    In 29 CFR 2201.3, OSHRC proposes revising paragraph (a) to direct 
requestors to OSHRC's FOIA Reference Guide for further information. 
OSHRC proposes a minor revision to paragraph (c) explaining the role of 
the FOIA Public Liaison. OSHRC also proposes minor revisions to 
paragraph (d) to update the contact information for the FOIA Requester 
Service Center.
    In 29 CFR 2201.4, OSHRC proposes a minor revision to a reference to 
another section of the regulations included in

[[Page 86298]]

paragraph (a). OSHRC proposes removing paragraph (b) regarding 
examination of records in cases appealed to courts as the provision is 
no longer necessary. OSHRC additionally proposes revising new paragraph 
(b), previously paragraph (c), to update the list of records available 
at the OSHRC e-FOIA Reading Room. OSHRC proposes revising new paragraph 
(c), previously paragraph (d), to clarify the location of records 
available onsite at the OSHRC National Office. OSHRC proposes changing 
paragraph (e) to paragraph (d) due to the removal of paragraph (b) in 
this section.
    In 29 CFR 2201.5, OSHRC proposes revising paragraph (a) to clarify 
the procedure for how to make a FOIA request regarding the ability to 
submit a request in multiple ways, including by email and OSHRC's 
online FOIA request form. OSHRC proposes changing paragraph (b) to 
describe the procedures for a requester making a request for records 
about himself or herself. OSHRC proposes adding paragraph (c) to 
describe the procedure enabling a requester to receive greater access 
when a request for records pertains to another individual. OSHRC also 
proposes adding paragraph (d) to explain what elements should be 
included in the description of records in a FOIA request. OSHRC 
proposes adding paragraph (e), previously included in part in another 
paragraph in this section, to explain the procedure for requests 
regarding the preferred form or format of a response. OSHRC proposes 
adding paragraph (f) to describe the necessary contact information to 
be provided by a requestor. OSHRC further proposes adding paragraph 
(g), previously included in another paragraph of this section, to 
describe how OSHRC determines the date of receipt of a FOIA request and 
revising the reference in this paragraph to reflect the changes to 
paragraph designations in a subsequent section.
    In 29 CFR 2201.6, OSHRC proposes revising paragraphs (c) and (f) to 
include notification to the requestor of the availability of assistance 
from the FOIA Public Liaison and the right to seek dispute resolution 
services from OGIS. OSHRC also proposes revising the references in 
paragraph (f) to reflect the changes to paragraph designations in 
subsequent sections. OSHRC proposes revising paragraph (h) to reflect 
changes to the procedure notifying a requester of the tracking number 
assigned to the FOIA request.
    OSHRC proposes redesignating 29 CFR 2201.7 to 29 CFR 2201.10 as 29 
CFR 2201.8 to 29 CFR 2201.11, respectively, and then adding a new 29 
CFR 2201.7. This proposed new section pertains to ``confidential 
commercial information,'' and describes this type of information and 
how it is designated as such by a submitter, the circumstances under 
which OSHRC must notify the submitter of such information when it is 
contained in records requested under the FOIA, exceptions to this 
notice requirement, and the process for the submitter to object to the 
disclosure of such information.
    In redesignated 29 CFR 2201.8, OSHRC proposes revising paragraph 
(a) to explain that OSHRC shall charge fees in accordance with the 
Uniform Freedom of Information Fee Schedule and Guidelines published by 
the Office of Management and Budget. OSHRC also proposes revising 
paragraph (b) to explain the limitations on assessing certain fees and 
exceptions to those limitations, as well as a minor revision to a 
reference to the Commission. OSHRC proposes revising paragraphs (h) and 
(i) to reflect the change in name for the Commission's Office of the 
Executive Director. OSHRC proposes revising the references in this 
entire section to reflect the changes to paragraph designations in 
previous and subsequent sections.
    In redesignated 29 CFR 2201.9, OSHRC proposes revising the 
reference in this section to reflect the changes to paragraph 
designations in a previous section.
    In redesignated 29 CFR 2201.10, OSHRC proposes adding paragraph (a) 
to revise the time period to file an appeal, as well as identify 
information to be included with the appeal. OSHRC proposes adding 
paragraph (b) to clarify the procedure for adjudication of appeals. 
OSHRC also proposes adding paragraph (c) to explain the content of and 
procedure for decisions on appeals. OSHRC proposes adding paragraph (d) 
to explain the process of mediation provided by OGIS. OSHRC also 
proposes adding paragraph (e) to describe the requirements for seeking 
review by a court of an adverse determination by OSHRC.
    In redesignated 29 CFR 2201.11, OSHRC proposes a minor revision to 
a reference to OSHRC's Web site.
    OSHRC proposes adding a new section at 29 CFR 2201.12 on the 
procedures for preserving records pertaining to FOIA requests.

II. Statutory and Executive Order Reviews

    Executive Orders 12866 and 13132, and the Unfunded Mandates Reform 
Act of 1995: OSHRC is an independent regulatory agency and, as such, is 
not subject to the requirements of E.O. 12866, E.O. 13132, or the 
Unfunded Mandates Reform Act, 2 U.S.C. 1501 et seq.
    Regulatory Flexibility Act: The Chairman of OSHRC certifies under 
the Regulatory Flexibility Act, 5 U.S.C. 605(b), that these rules, if 
adopted, would not have a significant economic impact on a substantial 
number of small entities. The only proposed revisions that could 
economically impact a small entity pertain to how OSHRC charges its 
FOIA fees. OSHRC, however, receives relatively few FOIA requests from 
``small entities'' that result in fees being assessed; when fees are 
assessed, the amounts are generally minimal; and it is not anticipated 
that the amendments will have much affect (if any) on the number of 
entities responsible for paying FOIA fees or the amounts of those fees. 
For these reasons, a regulatory flexibility analysis is not required.
    Paperwork Reduction Act of 1995: OSHRC has determined that the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., does not apply because 
these rules do not contain any information collection requirements that 
require the approval of OMB.
    Congressional Review Act: These proposed revisions do not 
constitute a ``rule,'' as defined by the Congressional Review Act, 5 
U.S.C. 804(3)(C), because they involve changes to agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties.

List of Subjects

    Freedom of information.

    Signed at Washington, DC, on the 17th day of November, 2016.
Cynthia L. Attwood,
Chairman.

    For the reasons set forth in the preamble, OSHRC proposes to amend 
29 CFR part 2201 as follows:

PART 2201--REGULATIONS IMPLEMENTING THE FREEDOM OF INFORMATION ACT

0
1. The authority citation for part 2201 continues to read as follows:

    Authority:  29 U.S.C. 661(g); 5 U.S.C. 552.


Sec.  2201.3   [Amended]

0
2. Amend Sec.  2201.3 by:
0
a. Removing the words ``FOIA handbook'' and adding, in their place, the 
words ``FOIA Reference Guide'' in paragraph (a)(5).
0
b. Removing the word ``supervisory'' in paragraph (c).
0
c. Revising paragraph (d) to read as follows:

[[Page 86299]]

Sec.  2201.3   Delegation of authority and responsibilities.

* * * * *
    (d) OSHRC establishes a FOIA Requester Service Center that shall be 
staffed by the FOIA Disclosure Officer(s) and FOIA Public Liaison(s). 
The address of the FOIA Requester Service Center is 1120 20th Street 
NW., 9th Floor, Washington, DC 20036-3457. The telephone number, fax 
number and additional contact information for the FOIA Requester 
Service Center is located on the agency's Web site at: http://www.oshrc.gov/foia.html. The FOIA Requester Service Center is available 
to provide information about the status of a request to the requester 
using the assigned tracking number (as described in Sec.  2201.6(h)), 
including:
    (1) The date on which the agency originally received the request; 
and
    (2) An estimated date on which the agency will complete action on 
the request.
* * * * *


Sec.  2201.4   [Amended]

0
3. Amend Sec.  2201.4 by:
0
a. Removing the citation ``Sec.  2201.5(a)'' and adding, in its place, 
the citation ``Sec.  2201.5'' in paragraph (a).
0
b. Removing paragraph (b) in its entirety.
0
c. Redesignating paragraphs (c) through (e) as paragraphs (b) through 
(d), respectively.
0
d. Revising the opening of redesignated paragraph (b), and paragraphs 
(b)(1), (b)(5), (b)(6), and (c) to read as follows:


Sec.  2201.4  General policy and definitions.

* * * * *
    (b) Record availability at the OSHRC e-FOIA Reading Room. The 
records of Commission activities are publicly available for inspection 
and copying, and may be accessed electronically on the Commission's Web 
site at http://www.oshrc.gov/foia/foia_reading_room.html. These records 
include:
    (1) Final decisions, including concurring and dissenting opinions, 
remand orders, as well as Administrative Law Judge decisions pending 
OSHRC review, briefing notices, and other significant orders;
* * * * *
    (5) Copies of records that have been released to a person under the 
FOIA that, because of the subject matter, the Commission determines 
have become or are likely to become the subject of subsequent requests 
for substantially the same records, as well as records the Commission 
determines absent a FOIA request could be of significant public 
interest; and
    (6) A general index of records referred to under paragraph (b)(5) 
of this section.
    (c) Record availability onsite at OSHRC National Office. Any member 
of the public may, upon request, access OSHRC's e-FOIA Reading Room via 
a computer terminal at the OSHRC National Office, located at 1120 20th 
St. NW., 9th Floor, Washington, DC 20036-3457. Such a request must be 
made in writing to the FOIA Requester Service Center, and indicate a 
preferred date and time for the requested access. OSHRC reserves the 
right to arrange a different date and time with the requester, if 
necessary.
* * * * *


Sec.  2201.5   [Amended]

0
4. Revise Sec.  2201.5 to read as follows:


Sec.  2201.5   Procedure for requesting records.

    (a) General information. All requests for information must be made 
in writing to the FOIA Disclosure Officer and may be: (1) Mailed or 
delivered; (2) faxed; or (3) emailed. Requests may also be made using 
the Commission's online FOIA request form (which is a downloadable PDF 
file found at http://www.oshrc.gov/foia/foia_request_form.html) and the 
completed form can be submitted by mail, fax, or email. Contact 
information for the FOIA Disclosure Officer is described in Sec.  
2201.3(d). For mailed or delivered requests, the words ``Freedom of 
Information Act Request'' must be printed on the face of the request's 
envelope or covering as well as the request itself.
    (b) A requester who is making a request for records about himself 
or herself must comply with verification of identity requirements as 
required by 29 CFR 2400.6 in OSHRC's Privacy Act regulations.
    (c) Where a request for records pertains to another individual, a 
requester may receive greater access by submitting either a notarized 
authorization signed by that individual or a declaration made in 
compliance with the requirements set forth in 28 U.S.C. 1746 by that 
individual authorizing disclosure of the records to the requester, or 
by submitting proof that the individual is deceased (e.g., a copy of a 
death certificate or an obituary).
    (d) Description of records sought. A request must describe the 
records sought in sufficient detail to enable the Commission to locate 
them with a reasonable amount of effort. To the extent possible, the 
request should include specific information to identify the requested 
records, such as the docket number(s) or case name(s). Before 
submitting a request, the requester may contact the FOIA Disclosure 
Officer, as described in Sec.  2201.3(d), to discuss the records being 
sought and receive assistance in describing them. If a determination is 
made after receiving a request that it does not reasonably describe the 
records sought, the FOIA Disclosure Officer will contact the requester 
to explain what additional information is needed or why the request is 
otherwise insufficient. A requester attempting to reformulate or modify 
such a request is encouraged to discuss the request with the FOIA 
Disclosure Officer. If a request does not reasonably describe the 
records sought, the agency's response may be delayed.
    (e) Requests may specify the preferred form or format (including 
electronic formats) of the response. The FOIA Disclosure Officer shall 
honor a requester's specified preference of form or format of 
disclosure if the record is readily reproducible with reasonable 
efforts in the requested form or format. When a requester does not 
specify the preferred form or format of the response, the FOIA 
Disclosure Officer shall respond in the form or format in which the 
record is most accessible to the Commission.
    (f) The requester must provide contact information, such as a phone 
number, email address, and/or mailing address, to facilitate the 
agency's communication with the requester.
    (g) Date of receipt. A request that complies with paragraph (a) of 
this section is deemed received on the actual date it is received by 
the Commission. A request that does not comply with paragraph (a) of 
this section is deemed received when it is actually received by the 
FOIA Disclosure Officer. For requests that are expected to result in 
fees exceeding $250, the request shall not be deemed to have been 
received until the requester is advised of the anticipated costs and 
the Commission has received full payment or satisfactory assurance of 
full payment as provided under Sec.  2201.8(f).


Sec.  2201.6  [Amended]

0
5. Amend Sec.  2201.6 by revising paragraphs (c), (f), and (h) to read 
as follows:


Sec.  2201.6  Responses to requests.

* * * * *
    (c) Additional extension. The FOIA Disclosure Officer shall notify 
the requester in writing when it appears that a request cannot be 
completed within the allowable time (20 working days plus a 10-working-
day extension). In such instances, the requester will be provided an 
opportunity to limit the scope of the request so that it may be

[[Page 86300]]

processed in the time limit, or to agree to a reasonable alternative 
time frame for processing. The FOIA Disclosure Officer or FOIA Public 
Liaison shall be available to assist the requester for this purpose and 
shall notify the requester of the right to seek dispute resolution 
services from the National Archives and Records Administration's Office 
of Government Information Services (OGIS).
* * * * *
    (f) Content of denial. When the FOIA Disclosure Officer denies a 
request for records, either in whole or in part, a request for 
expedited processing, and/or a request for fee waivers (see Sec.  
2201.9), the written notice of the denial shall state the reason for 
denial, give a reasonable estimate of the volume of matter denied 
(unless doing so would harm an interest protected by the exemption(s) 
under which the request was denied), set forth the name and title or 
position of the person responsible for the denial of the request, 
notify the requester of the right to appeal the determination as 
specified in Sec.  2201.10, and notify the requester of the assistance 
available from the FOIA Public Liaison and the dispute resolution 
services offered by OGIS. A refusal by the FOIA Disclosure Officer to 
process the request because the requester has not made advance payment 
or given a satisfactory assurance of full payment required under Sec.  
2201.8(f) may be treated as a denial of the request and appealed under 
Sec.  2201.10.
* * * * *
    (h) Tracking numbers. The FOIA Disclosure Officer shall assign an 
individualized tracking number to each request received for processing 
and provide the requester with the tracking number.
* * * * *


Sec. Sec.  2201.7 through 2201.10  [Redesignated as Sec. Sec.  2201.8 
through 2201.11 and Amended]

0
6. Redesignate Sec. Sec.  2201.7 through 2201.10 as Sec. Sec.  2201.8 
through 2201.11, respectively.
0
7. Add new Sec.  2201.7 to read as follows:


Sec.  2201.7  Confidential commercial information.

    (a) Definitions.
    (1) Confidential commercial information means commercial or 
financial information obtained by OSHRC from a submitter that may be 
protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 
552(b)(4).
    (2) Submitter means any person or entity, including a corporation, 
State, or foreign government, but not including another Federal 
Government entity, that provides confidential commercial information, 
either directly or indirectly to OSHRC.
    (b) Designation of confidential commercial information. A submitter 
of confidential commercial information must use good faith efforts to 
designate by appropriate markings, at the time of submission, any 
portion of its submission that it considers to be protected from 
disclosure under Exemption 4. These designations expire 10 years after 
the date of the submission unless the submitter requests and provides 
justification for a longer designation period.
    (c) When notice to submitters is required. OSHRC shall promptly 
provide written notice to the submitter of confidential commercial 
information whenever records containing such information are requested 
under the FOIA if OSHRC determines that it may be required to disclose 
the records, provided the submitter has complied with paragraph (b) of 
this section or OSHRC has a reason to believe that the requested 
information may be protected from disclosure under Exemption 4, but has 
not yet determined whether the information is protected from 
disclosure. The notice must either describe the commercial information 
requested or include a copy of the requested records or portions of 
records containing the information.
    (d) Exceptions to submitter notice requirements. The notice 
requirements of this section do not apply if:
    (1) OSHRC determines that the information is exempt under the FOIA, 
and therefore will not be disclosed;
    (2) The information has been lawfully published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by a statute other 
than the FOIA or by a regulation issued in accordance with the 
requirements of Executive Order 12,600 of June 23, 1987; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous. In such case, OSHRC shall 
give the submitter written notice of any final decision to disclose the 
information within a reasonable number of days prior to a specified 
disclosure date.
    (e) Opportunity to object to disclosure. OSHRC shall specify a 
reasonable time period within which the submitter must provide a 
response to the notice referenced above. If a submitter has any 
objections to disclosure, it should provide a detailed written 
statement that specifies all grounds for withholding the particular 
information under any exemption of the FOIA. In order to rely on 
Exemption 4 as basis for nondisclosure, the submitter must explain why 
the information constitutes a trade secret or commercial or financial 
information that is confidential. A submitter who fails to respond 
within the time period specified in the notice will be considered to 
have no objection to disclosure of the information. OSHRC is not 
required to consider any information received after the date of any 
disclosure decision. Any information provided by a submitter under this 
subpart may itself be subject to disclosure under the FOIA.
    (f) Analysis of objections. OSHRC shall consider a submitter's 
objections and specific grounds for nondisclosure in deciding whether 
to disclose the requested information.
    (g) Notice of decision. OSHRC shall provide the submitter with 
written notice once a decision is made as to whether or not to disclose 
information over the submitter's objection. When a decision is made to 
disclose information over the submitter's objection, this notice shall 
include a statement of the reasons why each of the submitter's 
disclosure objections was not sustained, a description of the 
information to be disclosed or copies of the records as the agency 
intends to release them, and a specified disclosure date (which must be 
a reasonable time after the notice).
    (h) Notice of FOIA lawsuit. OSHRC shall promptly notify the 
submitter when a requester files a lawsuit seeking to compel the 
disclosure of confidential commercial information.
    (i) Requester notification. OSHRC shall notify the requester 
whenever it provides the submitter with notice and an opportunity to 
object to disclosure; whenever it notifies the submitter of its intent 
to disclose the requested information; and whenever a submitter files a 
lawsuit to prevent the disclosure of the information.
0
8. Amend redesignated Sec.  2201.8 by:
0
a. Redesignating paragraph (b)(3) as paragraph (b)(5).
0
b. Revising paragraphs (a), the opening of paragraph (b), and 
paragraphs (b)(1) and (b)(2)(v); adding new paragraphs (b)(3) and 
(b)(4); and revising redesignated paragraph (b)(5), and paragraphs (h) 
and (i), to read as follows:


Sec.  2201.8  Fees for copying, searching, and review.

    (a) Fees required unless waived. The FOIA Disclosure Officer shall 
charge fees in accordance with the Uniform Freedom of Information Fee 
Schedule and Guidelines published by the Office

[[Page 86301]]

of Management and Budget and in accordance with paragraph (b) of this 
section. See Appendix A. If the fees for a request are less than the 
threshold amount as provided in OSHRC's fee schedule, no fees shall be 
charged. The FOIA Disclosure Officer shall, however, waive the fees in 
the circumstances stated in Sec.  2201.9.
    (b) Calculation of fees. Fees for copying, searching and reviewing 
will be based on the direct costs of these services, including the 
average hourly salary (base plus DC locality payment), plus 16 percent 
for benefits, of the following three categories of employees involved 
in responding to FOIA requests: Clerical--based on an average of all 
employees at GS-9 and below; professional--based on an average of all 
employees at GS-10 through GS-14; and managerial--based on an average 
of all employees at GS-15 and above. OSHRC will calculate a schedule of 
fees based on these direct costs. The schedule of fees under this 
section appears in Appendix A to this part. A copy of the schedule of 
fees may also be obtained at no charge from the FOIA Disclosure 
Officer. See Sec.  2201.3(d).
    (1) Copying fee. The fee per copy of each page shall be calculated 
in accordance with the per-page amount established in OSHRC's fee 
schedule. See Appendix A to this part. For other forms of duplication, 
direct costs of producing the copy, including operator time, shall be 
calculated and assessed. Copying fees shall not be charged for the 
first 100 pages of copies unless the copies are requested for a 
commercial use. No copying fee shall be charged for educational, 
scientific, or news media requests if the agency fails to comply with 
any time limit in Sec.  2201.6, provided that no unusual or exceptional 
circumstances (as those terms are defined in Sec.  2201.6(b) and Sec.  
2201.4(d), respectively) apply to the processing of the request.
    (2) * * *
    (v) Failure to comply with time limits. No search fee shall be 
charged if the Commission fails to comply with any time limit in Sec.  
2201.6, provided that no unusual or exceptional circumstances (as those 
terms are defined in Sec.  2201.6(b) and Sec.  2201.4(d), respectively) 
apply to the processing of the request.
    (3) Unusual circumstances. (i) If the Commission has determined 
that unusual circumstances, as defined in Sec.  2201.6(b), apply and 
has provided timely written notice to the requester, a failure to 
comply with the time limit shall be excused for an additional 10 days 
and the Commission shall assess fees as usual.
    (ii) If the Commission has determined that unusual circumstances, 
as defined in Sec.  2201.6(b), apply and more than 5,000 pages are 
necessary to respond to the request, the Commission may charge search 
fees, or, in the case of requesters described in Sec.  
2201.8(b)(2)(ii), may charge duplication fees, if the Commission 
provided timely written notice of unusual circumstances to the 
requester in accordance with Sec.  2201.6(b) and the Commission 
discussed with the requester via written mail, email, or telephone (or 
made not less than three good-faith attempts to do so) how the 
requester could effectively limit the scope of the request in 
accordance with the FOIA. If this exception is satisfied, the 
Commission may charge all applicable fees incurred in the processing of 
the request even if such processing extends beyond an additional 10 
days.
    (4) If a court has determined that exceptional circumstances exist, 
as defined in Sec.  2201.4(d), a failure to comply with the time limits 
shall be excused for the length of time provided by the court order.
    (5) Review fee. A review fee shall be charged only for commercial 
requests. Review fees shall be calculated in accordance with the 
amounts established in OSHRC's schedule of fees. See Appendix A. A 
review fee shall be charged for the initial examination of documents 
located in response to a request to determine if it may be withheld 
from disclosure, and for the excision of withholdable portions. 
However, a review fee shall not be charged for review by the Chairman 
under Sec.  2201.10 (Appeal of denials).
* * * * *
    (h) Interest on unpaid bills. The Commission's Office of the 
Executive Director shall begin assessing interest charges on unpaid 
bills starting on the thirty-first day after the date the bill was 
sent. Interest will accrue from the date of billing until the 
Commission receives full payment. Interest will be at the rate 
described in 31 U.S.C. 3717.
    (i) Debt collection procedures. If bills are unpaid 60 days after 
the mailing of a written notice to the requester, the Commission's 
Office of the Executive Director may resort to the debt collection 
procedures set out in the Debt Collection Act of 1982 (Pub. L. 97-365, 
96 Stat. 1749), as amended, and its administrative procedures, 
including the use of consumer reporting agencies, collection agencies, 
and offset.
0
9. Amend redesignated Sec.  2201.9 by removing the citation ``Sec.  
2201.7(b)'' in paragraph (a) and adding, in its place, the citation 
``Sec.  2201.8(b)''.
0
10. Revise redesignated Sec.  2201.10 to read as follows:


Sec.  2201.10  Appeal of denials.

    (a) Requirements for making an appeal. A denial of a request for 
records, either in whole or in part, a request for expedited 
processing, or a request for fee waivers, may be appealed in writing to 
the Chairman of the Commission. To be considered timely, the appeal 
must be postmarked, or in the case of electronic submissions, 
transmitted, within 90 calendar days of the date of the agency's 
written notice of denial. The appeal should clearly identify the agency 
determination that is being appealed and the assigned FOIA tracking 
number. To facilitate handling, the requester should mark both the 
appeal and its envelope, or state in the subject line of an electronic 
transmission, ``Freedom of Information Act Appeal.''
    (b) Adjudication of appeals. The Chairman shall act on the appeal 
under 5 U.S.C. 552(a)(6)(A)(ii) within 20 working days after the 
receipt of the appeal. An appeal ordinarily will not be adjudicated if 
the request becomes a matter of FOIA litigation. On receipt of any 
appeal involving classified information, the Chairman shall take 
appropriate action to ensure compliance with applicable classification 
rules.
    (c) Decisions on appeals. The Chairman shall provide the decision 
on an appeal in writing. If the Chairman wholly or partially upholds 
the denial of the request, the decision shall contain a statement that 
identifies the reasons for the affirmance, including any FOIA 
exemptions applied. The decision must include notification that the 
requester may obtain judicial review of the decision under 5 U.S.C. 
552(a)(4)(B)-(G). The decision shall also inform the requester of the 
mediation services offered by OGIS as a non-exclusive alternative to 
litigation. If the Chairman's decision is remanded or modified on 
appeal to the court, the requester will be notified by the agency of 
that determination in writing. The Commission shall then further 
process the request in accordance with the appeal determination and 
shall respond directly to the requester.
    (d) Engaging in dispute services provided by OGIS. Mediation is a 
voluntary process. If the Commission agrees to participate in the 
mediation services provided by OGIS, it will actively engage as a 
partner in the process in an attempt to resolve the dispute.
    (e) When appeal is required. Before seeking review by a court of 
the Commission's adverse determination, a

[[Page 86302]]

requester generally must first submit a timely administrative appeal.
0
11. Amend redesignated Sec.  2201.11 by removing the words ``through 
OSHRC's Web site'' and adding, in their place, the words ``on OSHRC's 
Web site'' in paragraph (b).


Sec.  2201.12  [Added]

0
12. Add Sec.  2201.12 to read as follows:


Sec.  2201.12  Preservation of Records.

    OSHRC shall preserve all correspondence pertaining to FOIA 
requests, as well as copies of all requested records, until disposition 
or destruction is authorized pursuant to title 44 of the United States 
Code or the General Records Schedule 14 of the National Archives and 
Records Administration. OSHRC shall not dispose of or destroy records 
while they are the subject of a pending request, appeal or lawsuit 
under the FOIA.

[FR Doc. 2016-28305 Filed 11-29-16; 8:45 am]
BILLING CODE 7600-01-P
Federal Register / Vol. 81, No. 230 / Wednesday, November 30, 2016 / Proposed Rules 86297

found in FAA Advisory Circular (AC) 7. ‘‘Standards for Structural clearly label submissions as
21.17–2A, ‘‘Type Certification—Fixed- Substantiation of Sailplane and ‘‘PROPOSED RULEMAKING, PART
Wing Gliders (Sailplanes), Including Powered Sailplane Parts Consisting of 2201.’’
Powered Gliders,’’ dated February 10, Glass or Carbon Fiber Reinforced FOR FURTHER INFORMATION CONTACT:
1993. AC 21.17–2A has been the basis Plastics’’, LBA document no. I4–FVK/ OSHRC’s FOIA Public Liaison, by
for certification of gliders and powered 91, issued July 1991. telephone at (202) 606–5410, by email at
gliders in the United States for many 8. ‘‘Guideline for the analysis of the NChadwick@oshrc.gov, or by mail at the
years. AC 21.17–2A states that electrical system for powered address stated above.
applicants may utilize the Joint Aviation sailplanes’’, LBA document no. I334–
SUPPLEMENTARY INFORMATION:
Requirements (JAR)–22, ‘‘Sailplanes and MS 92, issued September 15, 1992.
Powered Sailplanes’’, or another 9. The following kinds of operation I. Background
accepted airworthiness criteria, or a are allowed: VFR-Day. OSHRC proposes several substantive
combination of both, as the accepted 10. Date of application for FAA Type and procedural revisions to its
means for showing compliance for Certificate: January 08, 2016. regulations implementing the FOIA that
glider type certification. Issued in Kansas City, Missouri on fall within four general categories. First,
Type Certification Basis November 18, 2016. OSHRC proposes modifying its existing
Mel Johnson, FOIA regulations to reflect the
The applicant proposed a
Acting Manager, Small Airplane Directorate, amendments to the FOIA contained in
Certification Basis based on EASA
Aircraft Certification Service. the FOIA Improvement Act of 2016,
Certification Specification (CS)–22,
[FR Doc. 2016–28575 Filed 11–29–16; 8:45 am] Public Law 114–185. The FOIA
‘‘Sailplanes and Powered Sailplanes’’,
BILLING CODE 4910–13–P Improvement Act amended various
initial issue, dated November 14, 2003.
practices under the FOIA, such as
In addition to CS–22 requirements, the
requiring notification to requesters of
applicant proposed to comply with
OCCUPATIONAL SAFETY AND the right to seek dispute resolution at
other requirements from the
HEALTH REVIEW COMMISSION various times throughout the FOIA
certification basis referenced in EASA
process from the National Archives and
TCDS No. EASA.A.054, including
29 CFR Part 2201 Records Administration’s Office of
special conditions and equivalent safety
Government Information Services
findings. Regulations Implementing the (‘‘OGIS’’), a ninety-day minimum time
The Proposed Design Criteria Freedom of Information Act period to file administrative appeals,
Applicable Airworthiness Criteria and limitations on assessing certain fees
AGENCY: Occupational Safety and Health
under § 21.17(b). and exceptions to those limitations.
Review Commission.
Based on the Special Class provisions Second, OSHRC proposes revising its
ACTION: Notice of proposed rulemaking. regulations to further clarify and update
of § 21.17(b), the following
airworthiness requirements form the its procedures relating to the submission
SUMMARY: The Occupational Safety and
FAA Certification Basis for this design: and processing of FOIA requests.
Health Review Commission (‘‘OSHRC’’)
1. 14 CFR part 21, effective February Third, OSHRC proposes adding a new
is proposing revisions to its regulations
1, 1965, including amendments 21–1 section to its regulations establishing
implementing the Freedom of
through 21–93 as applicable. procedures to notify submitters of
Information Act (‘‘FOIA’’). These
2. EASA CS–22, initial issue, dated records containing confidential
proposed revisions account for statutory
November 14, 2003. commercial information when those
amendments included in the FOIA
3. EASA Special Condition No. SC– records are requested under the FOIA,
Improvement Act of 2016 (‘‘FOIA
A.22.1.01, ‘‘Increase in maximum mass in compliance with Executive Order
Improvement Act’’), as well as the
for sailplanes and powered sailplanes.’’ 12,600.
addition of procedures pertaining to
4. ‘‘Preliminary Standard for the Fourth, OSHRC proposes adding a
confidential commercial information
Substantiation of Indirect Drive Shafts new section to its regulations explaining
and preservation of records,
in Power Plants of Powered Sailplanes the procedure for the preservation of
clarifications of existing procedures,
Certified to JAR–22’’ (with a records related to FOIA requests.
and updates to contact information.
modification for the Stemme AG model Accordingly, OSHRC proposes to
DATES: Comments must be received by revise its regulations implementing the
Stemme S 10), Luftfahrt-Bundesamt
(LBA) document number (no.) I231–87, OSHRC on or before December 20, 2016. FOIA and put them out for public
issued August 05, 1988. ADDRESSES: You may submit comments comment. The specific amendments that
5. Installation of a Dual-Axis by any of the following methods: OSHRC proposes to each section of 29
Autopilot System, including— • Email: NChadwick@oshrc.gov. CFR part 2201 are discussed hereafter in
• EASA CS–VLA (Very Light Include ‘‘PROPOSED RULEMAKING, regulatory sequence.
Aeroplanes) 1309, ‘‘Equipment, systems, PART 2201’’ in the subject line of the In 29 CFR 2201.3, OSHRC proposes
and installations’’; initial issue, dated message. revising paragraph (a) to direct
November 14, 2003; and • Fax: (202) 606–5417. requestors to OSHRC’s FOIA Reference
• EASA CS–23.1329, ‘‘Automatic • Mail: Occupational Safety and Guide for further information. OSHRC
pilot system’’, amendment 3, dated July Health Review Commission, ATTN: proposes a minor revision to paragraph
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20, 2012. FOIA Public Liaison, One Lafayette (c) explaining the role of the FOIA
6. Drop Testing for Retractable Centre, 1120 20th Street NW., Ninth Public Liaison. OSHRC also proposes
Landing Gear (EASA equivalent safety Floor, Washington, DC 20036–3457. minor revisions to paragraph (d) to
findings) to include CS–VLA 725, • Hand Delivery/Courier: Same as update the contact information for the
‘‘Limit drop tests’’; CS–VLA 726, mailing address. FOIA Requester Service Center.
‘‘Ground load dynamic tests’’; and CS– Instructions: All submissions must In 29 CFR 2201.4, OSHRC proposes a
VLA 727, ‘‘Reserve energy absorption’’; include your name, return address, and minor revision to a reference to another
initial issue dated November 14, 2003. email address, if applicable. Please section of the regulations included in

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paragraph (a). OSHRC proposes CFR 2201.7. This proposed new section 12866, E.O. 13132, or the Unfunded
removing paragraph (b) regarding pertains to ‘‘confidential commercial Mandates Reform Act, 2 U.S.C. 1501 et
examination of records in cases information,’’ and describes this type of seq.
appealed to courts as the provision is no information and how it is designated as Regulatory Flexibility Act: The
longer necessary. OSHRC additionally such by a submitter, the circumstances Chairman of OSHRC certifies under the
proposes revising new paragraph (b), under which OSHRC must notify the Regulatory Flexibility Act, 5 U.S.C.
previously paragraph (c), to update the submitter of such information when it is 605(b), that these rules, if adopted,
list of records available at the OSHRC e- contained in records requested under would not have a significant economic
FOIA Reading Room. OSHRC proposes the FOIA, exceptions to this notice impact on a substantial number of small
revising new paragraph (c), previously requirement, and the process for the entities. The only proposed revisions
paragraph (d), to clarify the location of submitter to object to the disclosure of that could economically impact a small
records available onsite at the OSHRC such information. entity pertain to how OSHRC charges its
National Office. OSHRC proposes In redesignated 29 CFR 2201.8, FOIA fees. OSHRC, however, receives
changing paragraph (e) to paragraph (d) OSHRC proposes revising paragraph (a) relatively few FOIA requests from
due to the removal of paragraph (b) in to explain that OSHRC shall charge fees ‘‘small entities’’ that result in fees being
this section. in accordance with the Uniform assessed; when fees are assessed, the
In 29 CFR 2201.5, OSHRC proposes Freedom of Information Fee Schedule amounts are generally minimal; and it is
revising paragraph (a) to clarify the and Guidelines published by the Office not anticipated that the amendments
procedure for how to make a FOIA of Management and Budget. OSHRC will have much affect (if any) on the
request regarding the ability to submit a also proposes revising paragraph (b) to number of entities responsible for
request in multiple ways, including by explain the limitations on assessing paying FOIA fees or the amounts of
email and OSHRC’s online FOIA request certain fees and exceptions to those those fees. For these reasons, a
form. OSHRC proposes changing limitations, as well as a minor revision regulatory flexibility analysis is not
paragraph (b) to describe the procedures to a reference to the Commission. required.
for a requester making a request for OSHRC proposes revising paragraphs Paperwork Reduction Act of 1995:
records about himself or herself. OSHRC (h) and (i) to reflect the change in name OSHRC has determined that the
proposes adding paragraph (c) to for the Commission’s Office of the Paperwork Reduction Act, 44 U.S.C.
describe the procedure enabling a Executive Director. OSHRC proposes 3501 et seq., does not apply because
requester to receive greater access when revising the references in this entire these rules do not contain any
a request for records pertains to another section to reflect the changes to information collection requirements that
individual. OSHRC also proposes paragraph designations in previous and require the approval of OMB.
adding paragraph (d) to explain what subsequent sections. Congressional Review Act: These
elements should be included in the In redesignated 29 CFR 2201.9, proposed revisions do not constitute a
description of records in a FOIA OSHRC proposes revising the reference ‘‘rule,’’ as defined by the Congressional
request. OSHRC proposes adding in this section to reflect the changes to Review Act, 5 U.S.C. 804(3)(C), because
paragraph (e), previously included in paragraph designations in a previous they involve changes to agency
part in another paragraph in this section. organization, procedure, or practice that
section, to explain the procedure for In redesignated 29 CFR 2201.10, do not substantially affect the rights or
requests regarding the preferred form or OSHRC proposes adding paragraph (a) obligations of non-agency parties.
format of a response. OSHRC proposes to revise the time period to file an
adding paragraph (f) to describe the appeal, as well as identify information List of Subjects
necessary contact information to be to be included with the appeal. OSHRC Freedom of information.
provided by a requestor. OSHRC further proposes adding paragraph (b) to clarify
proposes adding paragraph (g), the procedure for adjudication of Signed at Washington, DC, on the 17th day
of November, 2016.
previously included in another appeals. OSHRC also proposes adding
paragraph of this section, to describe paragraph (c) to explain the content of Cynthia L. Attwood,
how OSHRC determines the date of and procedure for decisions on appeals. Chairman.
receipt of a FOIA request and revising OSHRC proposes adding paragraph (d) For the reasons set forth in the
the reference in this paragraph to reflect to explain the process of mediation preamble, OSHRC proposes to amend 29
the changes to paragraph designations provided by OGIS. OSHRC also CFR part 2201 as follows:
in a subsequent section. proposes adding paragraph (e) to
In 29 CFR 2201.6, OSHRC proposes describe the requirements for seeking PART 2201—REGULATIONS
revising paragraphs (c) and (f) to include review by a court of an adverse IMPLEMENTING THE FREEDOM OF
notification to the requestor of the determination by OSHRC. INFORMATION ACT
availability of assistance from the FOIA In redesignated 29 CFR 2201.11,
Public Liaison and the right to seek OSHRC proposes a minor revision to a ■ 1. The authority citation for part 2201
dispute resolution services from OGIS. reference to OSHRC’s Web site. continues to read as follows:
OSHRC also proposes revising the OSHRC proposes adding a new Authority: 29 U.S.C. 661(g); 5 U.S.C. 552.
references in paragraph (f) to reflect the section at 29 CFR 2201.12 on the
changes to paragraph designations in procedures for preserving records § 2201.3 [Amended]
subsequent sections. OSHRC proposes ■ 2. Amend § 2201.3 by:
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pertaining to FOIA requests.
revising paragraph (h) to reflect changes ■ a. Removing the words ‘‘FOIA
to the procedure notifying a requester of II. Statutory and Executive Order handbook’’ and adding, in their place,
the tracking number assigned to the Reviews the words ‘‘FOIA Reference Guide’’ in
FOIA request. Executive Orders 12866 and 13132, paragraph (a)(5).
OSHRC proposes redesignating 29 and the Unfunded Mandates Reform ■ b. Removing the word ‘‘supervisory’’
CFR 2201.7 to 29 CFR 2201.10 as 29 Act of 1995: OSHRC is an independent in paragraph (c).
CFR 2201.8 to 29 CFR 2201.11, regulatory agency and, as such, is not ■ c. Revising paragraph (d) to read as
respectively, and then adding a new 29 subject to the requirements of E.O. follows:

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§ 2201.3 Delegation of authority and (6) A general index of records referred requester may contact the FOIA
responsibilities. to under paragraph (b)(5) of this section. Disclosure Officer, as described in
* * * * * (c) Record availability onsite at § 2201.3(d), to discuss the records being
(d) OSHRC establishes a FOIA OSHRC National Office. Any member of sought and receive assistance in
Requester Service Center that shall be the public may, upon request, access describing them. If a determination is
staffed by the FOIA Disclosure Officer(s) OSHRC’s e-FOIA Reading Room via a made after receiving a request that it
and FOIA Public Liaison(s). The address computer terminal at the OSHRC does not reasonably describe the records
of the FOIA Requester Service Center is National Office, located at 1120 20th St. sought, the FOIA Disclosure Officer will
1120 20th Street NW., 9th Floor, NW., 9th Floor, Washington, DC 20036– contact the requester to explain what
Washington, DC 20036–3457. The 3457. Such a request must be made in additional information is needed or why
telephone number, fax number and writing to the FOIA Requester Service the request is otherwise insufficient. A
additional contact information for the Center, and indicate a preferred date requester attempting to reformulate or
FOIA Requester Service Center is and time for the requested access. modify such a request is encouraged to
located on the agency’s Web site at: OSHRC reserves the right to arrange a discuss the request with the FOIA
http://www.oshrc.gov/foia.html. The different date and time with the Disclosure Officer. If a request does not
FOIA Requester Service Center is requester, if necessary. reasonably describe the records sought,
available to provide information about * * * * * the agency’s response may be delayed.
the status of a request to the requester (e) Requests may specify the preferred
using the assigned tracking number (as § 2201.5 [Amended] form or format (including electronic
described in § 2201.6(h)), including: ■ 4. Revise § 2201.5 to read as follows: formats) of the response. The FOIA
(1) The date on which the agency Disclosure Officer shall honor a
§ 2201.5 Procedure for requesting records.
originally received the request; and requester’s specified preference of form
(2) An estimated date on which the (a) General information. All requests
or format of disclosure if the record is
agency will complete action on the for information must be made in writing
readily reproducible with reasonable
request. to the FOIA Disclosure Officer and may
efforts in the requested form or format.
be: (1) Mailed or delivered; (2) faxed; or
* * * * * When a requester does not specify the
(3) emailed. Requests may also be made
preferred form or format of the response,
§ 2201.4 [Amended] using the Commission’s online FOIA
the FOIA Disclosure Officer shall
■ 3. Amend § 2201.4 by: request form (which is a downloadable
respond in the form or format in which
■ a. Removing the citation ‘‘§ 2201.5(a)’’ PDF file found at http://www.oshrc.gov/
the record is most accessible to the
and adding, in its place, the citation foia/foia_request_form.html) and the
Commission.
‘‘§ 2201.5’’ in paragraph (a). completed form can be submitted by (f) The requester must provide contact
■ b. Removing paragraph (b) in its mail, fax, or email. Contact information information, such as a phone number,
entirety. for the FOIA Disclosure Officer is email address, and/or mailing address,
■ c. Redesignating paragraphs (c) described in § 2201.3(d). For mailed or to facilitate the agency’s communication
through (e) as paragraphs (b) through delivered requests, the words ‘‘Freedom with the requester.
(d), respectively. of Information Act Request’’ must be (g) Date of receipt. A request that
■ d. Revising the opening of printed on the face of the request’s complies with paragraph (a) of this
redesignated paragraph (b), and envelope or covering as well as the section is deemed received on the actual
paragraphs (b)(1), (b)(5), (b)(6), and (c) to request itself. date it is received by the Commission.
read as follows: (b) A requester who is making a A request that does not comply with
request for records about himself or paragraph (a) of this section is deemed
§ 2201.4 General policy and definitions. herself must comply with verification of received when it is actually received by
* * * * * identity requirements as required by 29
(b) Record availability at the OSHRC the FOIA Disclosure Officer. For
CFR 2400.6 in OSHRC’s Privacy Act requests that are expected to result in
e-FOIA Reading Room. The records of regulations.
Commission activities are publicly fees exceeding $250, the request shall
(c) Where a request for records
available for inspection and copying, not be deemed to have been received
pertains to another individual, a
and may be accessed electronically on until the requester is advised of the
requester may receive greater access by
the Commission’s Web site at http:// anticipated costs and the Commission
submitting either a notarized
www.oshrc.gov/foia/foia_reading_ has received full payment or satisfactory
authorization signed by that individual
room.html. These records include: assurance of full payment as provided
or a declaration made in compliance
(1) Final decisions, including under § 2201.8(f).
with the requirements set forth in 28
concurring and dissenting opinions, U.S.C. 1746 by that individual § 2201.6 [Amended]
remand orders, as well as authorizing disclosure of the records to ■ 5. Amend § 2201.6 by revising
Administrative Law Judge decisions the requester, or by submitting proof paragraphs (c), (f), and (h) to read as
pending OSHRC review, briefing that the individual is deceased (e.g., a follows:
notices, and other significant orders; copy of a death certificate or an
* * * * * obituary). § 2201.6 Responses to requests.
(5) Copies of records that have been (d) Description of records sought. A * * * * *
released to a person under the FOIA request must describe the records (c) Additional extension. The FOIA
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that, because of the subject matter, the sought in sufficient detail to enable the Disclosure Officer shall notify the
Commission determines have become or Commission to locate them with a requester in writing when it appears
are likely to become the subject of reasonable amount of effort. To the that a request cannot be completed
subsequent requests for substantially the extent possible, the request should within the allowable time (20 working
same records, as well as records the include specific information to identify days plus a 10-working-day extension).
Commission determines absent a FOIA the requested records, such as the In such instances, the requester will be
request could be of significant public docket number(s) or case name(s). provided an opportunity to limit the
interest; and Before submitting a request, the scope of the request so that it may be

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processed in the time limit, or to agree foreign government, but not including withholding the particular information
to a reasonable alternative time frame another Federal Government entity, that under any exemption of the FOIA. In
for processing. The FOIA Disclosure provides confidential commercial order to rely on Exemption 4 as basis for
Officer or FOIA Public Liaison shall be information, either directly or indirectly nondisclosure, the submitter must
available to assist the requester for this to OSHRC. explain why the information constitutes
purpose and shall notify the requester of (b) Designation of confidential a trade secret or commercial or financial
the right to seek dispute resolution commercial information. A submitter of information that is confidential. A
services from the National Archives and confidential commercial information submitter who fails to respond within
Records Administration’s Office of must use good faith efforts to designate the time period specified in the notice
Government Information Services by appropriate markings, at the time of will be considered to have no objection
(OGIS). submission, any portion of its to disclosure of the information. OSHRC
* * * * * submission that it considers to be is not required to consider any
(f) Content of denial. When the FOIA protected from disclosure under information received after the date of
Disclosure Officer denies a request for Exemption 4. These designations expire any disclosure decision. Any
records, either in whole or in part, a 10 years after the date of the submission information provided by a submitter
request for expedited processing, and/or unless the submitter requests and under this subpart may itself be subject
a request for fee waivers (see § 2201.9), provides justification for a longer to disclosure under the FOIA.
the written notice of the denial shall designation period. (f) Analysis of objections. OSHRC
state the reason for denial, give a (c) When notice to submitters is shall consider a submitter’s objections
reasonable estimate of the volume of required. OSHRC shall promptly and specific grounds for nondisclosure
matter denied (unless doing so would provide written notice to the submitter in deciding whether to disclose the
harm an interest protected by the of confidential commercial information requested information.
exemption(s) under which the request whenever records containing such (g) Notice of decision. OSHRC shall
was denied), set forth the name and title information are requested under the provide the submitter with written
or position of the person responsible for FOIA if OSHRC determines that it may notice once a decision is made as to
the denial of the request, notify the be required to disclose the records, whether or not to disclose information
requester of the right to appeal the provided the submitter has complied over the submitter’s objection. When a
determination as specified in § 2201.10, with paragraph (b) of this section or decision is made to disclose information
and notify the requester of the OSHRC has a reason to believe that the over the submitter’s objection, this
assistance available from the FOIA requested information may be protected notice shall include a statement of the
Public Liaison and the dispute from disclosure under Exemption 4, but reasons why each of the submitter’s
resolution services offered by OGIS. A has not yet determined whether the disclosure objections was not sustained,
refusal by the FOIA Disclosure Officer information is protected from a description of the information to be
to process the request because the disclosure. The notice must either disclosed or copies of the records as the
requester has not made advance describe the commercial information agency intends to release them, and a
payment or given a satisfactory requested or include a copy of the specified disclosure date (which must
assurance of full payment required requested records or portions of records be a reasonable time after the notice).
under § 2201.8(f) may be treated as a containing the information. (h) Notice of FOIA lawsuit. OSHRC
denial of the request and appealed (d) Exceptions to submitter notice shall promptly notify the submitter
under § 2201.10. requirements. The notice requirements when a requester files a lawsuit seeking
of this section do not apply if: to compel the disclosure of confidential
* * * * * (1) OSHRC determines that the
(h) Tracking numbers. The FOIA commercial information.
information is exempt under the FOIA, (i) Requester notification. OSHRC
Disclosure Officer shall assign an
and therefore will not be disclosed; shall notify the requester whenever it
individualized tracking number to each (2) The information has been lawfully
request received for processing and provides the submitter with notice and
published or has been officially made an opportunity to object to disclosure;
provide the requester with the tracking available to the public;
number. whenever it notifies the submitter of its
(3) Disclosure of the information is intent to disclose the requested
* * * * * required by a statute other than the information; and whenever a submitter
FOIA or by a regulation issued in files a lawsuit to prevent the disclosure
§§ 2201.7 through 2201.10 [Redesignated
as §§ 2201.8 through 2201.11 and Amended] accordance with the requirements of of the information.
Executive Order 12,600 of June 23, ■ 8. Amend redesignated § 2201.8 by:
■ 6. Redesignate §§ 2201.7 through
1987; or ■ a. Redesignating paragraph (b)(3) as
2201.10 as §§ 2201.8 through 2201.11, (4) The designation made by the
respectively. paragraph (b)(5).
submitter under paragraph (b) of this ■ b. Revising paragraphs (a), the
■ 7. Add new § 2201.7 to read as
section appears obviously frivolous. In opening of paragraph (b), and
follows:
such case, OSHRC shall give the paragraphs (b)(1) and (b)(2)(v); adding
§ 2201.7 Confidential commercial submitter written notice of any final new paragraphs (b)(3) and (b)(4); and
information. decision to disclose the information revising redesignated paragraph (b)(5),
(a) Definitions. within a reasonable number of days and paragraphs (h) and (i), to read as
(1) Confidential commercial prior to a specified disclosure date.
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follows:
information means commercial or (e) Opportunity to object to disclosure.
financial information obtained by OSHRC shall specify a reasonable time § 2201.8 Fees for copying, searching, and
OSHRC from a submitter that may be period within which the submitter must review.
protected from disclosure under provide a response to the notice (a) Fees required unless waived. The
Exemption 4 of the FOIA, 5 U.S.C. referenced above. If a submitter has any FOIA Disclosure Officer shall charge
552(b)(4). objections to disclosure, it should fees in accordance with the Uniform
(2) Submitter means any person or provide a detailed written statement Freedom of Information Fee Schedule
entity, including a corporation, State, or that specifies all grounds for and Guidelines published by the Office

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Document Created: 2016-11-30 02:17:52
Document Modified: 2016-11-30 02:17:52
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Notice of proposed rulemaking.
Dates		Comments must be received by OSHRC on or before December 20, 2016.
Contact		OSHRC's FOIA Public Liaison, by telephone at (202) 606-5410, by email at [email protected], or by
FR Citation		81 FR 86297