81 FR 95035 - Regulations Implementing the Freedom of Information Act
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION Federal Register Volume 81, Issue 248 (December 27, 2016)
Federal Register Volume 81, Issue 248 (December 27, 2016)
| Page Range | 95035-95040 | |
| FR Document | 2016-31133 |
[Federal Register Volume 81, Number 248 (Tuesday, December 27, 2016)] [Rules and Regulations] [Pages 95035-95040] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-31133] ======================================================================= ----------------------------------------------------------------------- OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 29 CFR Part 2201 Regulations Implementing the Freedom of Information Act AGENCY: Occupational Safety and Health Review Commission. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Occupational Safety and Health Review Commission (``OSHRC'') revises its regulations implementing the Freedom of Information Act (``FOIA''). These revisions account for statutory amendments included in the FOIA Improvement Act of 2016 (``FOIA Improvement Act''), as well as the addition of procedures pertaining to confidential commercial information and preservation of records, clarifications of existing procedures, and updates to contact information. DATES: Effective December 27, 2016. FOR FURTHER INFORMATION CONTACT: Noelle Chadwick, OSHRC's FOIA Public Liaison, by telephone at (202) 606-5410 or email at [email protected]. SUPPLEMENTARY INFORMATION: OSHRC is publishing a final rule revising its regulations implementing the FOIA. On November 30, 2016, OSHRC published for comment a notice of proposed rulemaking (``NPRM''), at 81 FR 86297, that proposed revisions to OSHRC's regulations at 29 CFR part 2201, implementing the FOIA, 5 U.S.C. 552. Interested persons were afforded an opportunity to participate in the rulemaking process through the submission of written comments on the NPRM. OSHRC received comments from the National Archives and Records Administration (``NARA'') suggesting two minor changes: (1) Changing the word ``mediation'' to ``dispute resolution'' in two places to reflect an anticipated new regulation from NARA's Office of Government Information Services (``OGIS'') that clarifies for requesters the difference between formal mediation and the broader services OGIS provides; and (2) changing the reference to a General Records Schedule pertaining to the preservation of records, as General Records Schedule 4.2 recently replaced (in part) General Records Schedule 14. OSHRC received no other public comments suggesting changes to the proposed regulations. OSHRC updated the Web site address containing information for the FOIA Requester Service Center, modified the proposed regulations in light of NARA's comments, reviewed the proposed regulations and adopts them in this final rule. I. Background OSHRC makes several substantive and procedural revisions to its regulations implementing the FOIA that fall within four general categories. First, OSHRC modifies its existing FOIA regulations to reflect the amendments to the FOIA contained in the FOIA Improvement Act of 2016, Public Law 114-185. The FOIA Improvement Act amended various practices under the FOIA, such as requiring notification to requesters of the right to seek dispute resolution at various times throughout the FOIA process from OGIS, a ninety-day minimum time period to file administrative appeals, and limitations on assessing certain fees and exceptions to those limitations. Second, OSHRC revises its regulations to further clarify and update its procedures relating to the submission and processing of FOIA requests. Third, OSHRC adds a new section to its regulations establishing procedures to notify submitters of records containing confidential commercial information when those records are requested under the FOIA, in compliance with Executive Order 12,600. Fourth, OSHRC adds a new section to its regulations explaining the procedure [[Page 95036]] for the preservation of records related to FOIA requests. Accordingly, OSHRC revises its regulations implementing the FOIA. The specific amendments to each section of 29 CFR part 2201 are discussed hereafter in regulatory sequence. In 29 CFR 2201.3, OSHRC revises paragraph (a) to direct requestors to OSHRC's FOIA Reference Guide for further information. OSHRC revises paragraph (c) explaining the role of the FOIA Public Liaison. OSHRC also revises paragraph (d) to update the contact information for the FOIA Requester Service Center, including the web address previously identified in the proposed rule. In 29 CFR 2201.4, OSHRC revises a reference to another section of the regulations included in paragraph (a). OSHRC removes paragraph (b) regarding examination of records in cases appealed to courts as the provision is no longer necessary. OSHRC revises new paragraph (b), previously paragraph (c), to update the list of records available at the OSHRC e-FOIA Reading Room. In response to the codification of the ``Rule of 3'' in the FOIA Improvement Act, OSHRC also adds to new paragraph (b) that it will make publicly available copies of records that have been released to a person under the FOIA and have been requested three or more times. OSHRC revises new paragraph (c), previously paragraph (d), to clarify the location of records available onsite at the OSHRC National Office. OSHRC changes paragraph (e) to paragraph (d) due to the removal of paragraph (b) in this section. In 29 CFR 2201.5, OSHRC revises paragraph (a) to clarify the procedure for how to make a FOIA request regarding the ability to submit a request in multiple ways, including by email and OSHRC's online FOIA request form. OSHRC changes paragraph (b) to describe the procedures for a requester making a request for records about himself or herself. OSHRC adds paragraph (c) to describe the procedure enabling a requester to receive greater access when a request for records pertains to another individual. OSHRC also adds paragraph (d) to explain what elements should be included in the description of records in a FOIA request. OSHRC adds paragraph (e), previously included in part in another paragraph in this section, to explain the procedure for requests regarding the preferred form or format of a response. OSHRC adds paragraph (f) to describe the necessary contact information to be provided by a requestor. OSHRC further adds paragraph (g), previously included in another paragraph of this section, to describe how OSHRC determines the date of receipt of a FOIA request and revises the reference in this paragraph to reflect the changes to paragraph designations in a subsequent section. In 29 CFR 2201.6, OSHRC revises paragraphs (c) and (f) to include notification to the requestor of the availability of assistance from the FOIA Public Liaison and the right to seek dispute resolution services from OGIS. OSHRC also revises the references in paragraph (f) to reflect the changes to paragraph designations in subsequent sections. OSHRC revises paragraph (h) to reflect changes to the procedure notifying a requester of the tracking number assigned to the FOIA request. OSHRC redesignates 29 CFR 2201.7 to 29 CFR 2201.10 as 29 CFR 2201.8 to 29 CFR 2201.11, respectively, and then adds a new 29 CFR 2201.7. This new section pertains to ``confidential commercial information,'' and describes this type of information and how it is designated as such by a submitter, the circumstances under which OSHRC must notify the submitter of such information when it is contained in records requested under the FOIA, exceptions to this notice requirement, and the process for the submitter to object to the disclosure of such information. In redesignated 29 CFR 2201.8, OSHRC revises paragraph (a) to explain that OSHRC shall charge fees in accordance with the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget. OSHRC also revises paragraph (b) to explain the limitations on assessing certain fees and exceptions to those limitations, as well as revises a reference to the Commission. OSHRC revises paragraphs (h) and (i) to reflect the change in name for the Commission's Office of the Executive Director. OSHRC revises the references in this entire section to reflect the changes to paragraph designations in previous and subsequent sections. In redesignated 29 CFR 2201.9, OSHRC revises the reference in this section to reflect the changes to paragraph designations in a previous section. In redesignated 29 CFR 2201.10, OSHRC adds paragraph (a) to revise the time period to file an appeal, as well as identify information to be included with the appeal. OSHRC adds paragraph (b) to clarify the procedure for adjudication of appeals. OSHRC also adds paragraph (c) to explain the content of and procedure for decisions on appeals. OSHRC adds paragraph (d) to explain the process of dispute resolution provided by OGIS. In response to comments from NARA, OSHRC changes the word ``mediation'' to ``dispute resolution'' in paragraphs (c) and (d) of the proposed rule. OSHRC also adds paragraph (e) to describe the requirements for seeking review by a court of an adverse determination by OSHRC. In redesignated 29 CFR 2201.11, OSHRC revises a reference to OSHRC's Web site. OSHRC adds a new section at 29 CFR 2201.12 on the procedures for preserving records pertaining to FOIA requests. In response to comments from NARA, OSHRC revises a reference in this section of the proposed rule from ``the General Records Schedule 14'' to ``the applicable General Records Schedule.'' II. Statutory and Executive Order Reviews Executive Orders 12866 and 13132, and the Unfunded Mandates Reform Act of 1995: OSHRC is an independent regulatory agency and, as such, is not subject to the requirements of E.O. 12866, E.O. 13132, or the Unfunded Mandates Reform Act, 2 U.S.C. 1501 et seq. Regulatory Flexibility Act: The Chairman of OSHRC certifies under the Regulatory Flexibility Act, 5 U.S.C. 605(b), that these rules will not have a significant economic impact on a substantial number of small entities. The only revisions that could economically impact a small entity pertain to how OSHRC charges its FOIA fees. OSHRC, however, receives relatively few FOIA requests from ``small entities'' that result in fees being assessed; when fees are assessed, the amounts are generally minimal; and it is not anticipated that the amendments will have much affect (if any) on the number of entities responsible for paying FOIA fees or the amounts of those fees. For these reasons, a regulatory flexibility analysis is not required. Paperwork Reduction Act of 1995: OSHRC has determined that the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., does not apply because these rules do not contain any information collection requirements that require the approval of OMB. Congressional Review Act: These revisions do not constitute a ``rule,'' as defined by the Congressional Review Act, 5 U.S.C. 804(3)(C), because they involve changes to agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. [[Page 95037]] List of Subjects in 29 CFR Part 2201 Freedom of information. Cynthia L. Attwood, Chairman. For the reasons set forth in the preamble, OSHRC amends 29 CFR part 2201 as follows: PART 2201--REGULATIONS IMPLEMENTING THE FREEDOM OF INFORMATION ACT 0 1. The authority citation for part 2201 continues to read as follows: Authority: 29 U.S.C. 661(g); 5 U.S.C. 552. Sec. 2201.3 [Amended] 0 2. Amend Sec. 2201.3 by: 0 a. Removing the words ``FOIA handbook'' and adding, in their place, the words ``FOIA Reference Guide'' in paragraph (a)(5). 0 b. Removing the word ``supervisory'' in paragraph (c). 0 c. Revising paragraph (d) to read as follows: Sec. 2201.3 Delegation of authority and responsibilities. * * * * * (d) OSHRC establishes a FOIA Requester Service Center that shall be staffed by the FOIA Disclosure Officer(s) and FOIA Public Liaison(s). The address of the FOIA Requester Service Center is 1120 20th Street NW., 9th Floor, Washington, DC 20036-3457. The telephone number, fax number and additional contact information for the FOIA Requester Service Center is located on the agency's Web site at: http://www.oshrc.gov/foia/index.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). 0 c. Redesignating paragraphs (c) through (e) as paragraphs (b) through (d), respectively. 0 d. Revising the introductory text of redesignated paragraph (b), and paragraphs (b)(1), (b)(5), (b)(6), and (c) to read as follows: Sec. 2201.4 General policy and definitions. * * * * * (b) Record availability at the OSHRC e-FOIA Reading Room. The records of Commission activities are publicly available for inspection and copying, and may be accessed electronically on the Commission's Web site at 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, or that have been requested three or more times, as well as records the Commission determines absent a FOIA request could be of significant public interest; and (6) A general index of records referred to under paragraph (b)(5) of this section. (c) Record availability onsite at OSHRC National Office. Any member of the public may, upon request, access OSHRC's e-FOIA Reading Room via a computer terminal at the OSHRC National Office, located at 1120 20th St. NW., 9th Floor, Washington, DC 20036-3457. Such a request must be made in writing to the FOIA Requester Service Center, and indicate a preferred date and time for the requested access. OSHRC reserves the right to arrange a different date and time with the requester, if necessary. * * * * * 0 4. Revise Sec. 2201.5 to read as follows: Sec. 2201.5 Procedure for requesting records. (a) General information. All requests for information must be made in writing to the FOIA Disclosure Officer and may be: Mailed or delivered; faxed; or emailed. Requests may also be made using the Commission's online FOIA request form (which is a downloadable PDF file found at 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 [[Page 95038]] received when it is actually received by the FOIA Disclosure Officer. For requests that are expected to result in fees exceeding $250, the request shall not be deemed to have been received until the requester is advised of the anticipated costs and the Commission has received full payment or satisfactory assurance of full payment as provided under Sec. 2201.8(f). 0 5. Amend Sec. 2201.6 by revising paragraphs (c), (f), and (h) to read as follows: Sec. 2201.6 Responses to requests. * * * * * (c) Additional extension. The FOIA Disclosure Officer shall notify the requester in writing when it appears that a request cannot be completed within the allowable time (20 working days plus a 10-working- day extension). In such instances, the requester will be provided an opportunity to limit the scope of the request so that it may be processed in the time limit, or to agree to a reasonable alternative time frame for processing. The FOIA Disclosure Officer or FOIA Public Liaison shall be available to assist the requester for this purpose and shall notify the requester of the right to seek dispute resolution services from the National Archives and Records Administration's Office of Government Information Services (OGIS). * * * * * (f) Content of denial. When the FOIA Disclosure Officer denies a request for records, either in whole or in part, a request for expedited processing, and/or a request for fee waivers (see Sec. 2201.9), the written notice of the denial shall state the reason for denial, give a reasonable estimate of the volume of matter denied (unless doing so would harm an interest protected by the exemption(s) under which the request was denied), set forth the name and title or position of the person responsible for the denial of the request, notify the requester of the right to appeal the determination as specified in Sec. 2201.10, and notify the requester of the assistance available from the FOIA Public Liaison and the dispute resolution services offered by OGIS. A refusal by the FOIA Disclosure Officer to process the request because the requester has not made advance payment or given a satisfactory assurance of full payment required under Sec. 2201.8(f) may be treated as a denial of the request and appealed under Sec. 2201.10. * * * * * (h) Tracking numbers. The FOIA Disclosure Officer shall assign an individualized tracking number to each request received for processing and provide the requester with the tracking number. * * * * * Sec. Sec. 2201.7 through 2201.10 [Redesignated as Sec. Sec. 2201.8 through 2201.11] 0 6. Redesignate Sec. Sec. 2201.7 through 2201.10 as Sec. Sec. 2201.8 through 2201.11, respectively. 0 7. Add new Sec. 2201.7 to read as follows: Sec. 2201.7 Confidential commercial information. (a) Definitions. (1) Confidential commercial information means commercial or financial information obtained by OSHRC from a submitter that may be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). (2) Submitter means any person or entity, including a corporation, State, or foreign government, but not including another Federal Government entity, that provides confidential commercial information, either directly or indirectly to OSHRC. (b) Designation of confidential commercial information. A submitter of confidential commercial information must use good faith efforts to designate by appropriate markings, at the time of submission, any portion of its submission that it considers to be protected from disclosure under Exemption 4. These designations expire 10 years after the date of the submission unless the submitter requests and provides justification for a longer designation period. (c) When notice to submitters is required. OSHRC shall promptly provide written notice to the submitter of confidential commercial information whenever records containing such information are requested under the FOIA if OSHRC determines that it may be required to disclose the records, provided the submitter has complied with paragraph (b) of this section or OSHRC has a reason to believe that the requested information may be protected from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure. The notice must either describe the commercial information requested or include a copy of the requested records or portions of records containing the information. (d) Exceptions to submitter notice requirements. The notice requirements of this section do not apply if: (1) OSHRC determines that the information is exempt under the FOIA, and therefore will not be disclosed; (2) The information has been lawfully published or has been officially made available to the public; (3) Disclosure of the information is required by a statute other than the FOIA or by a regulation issued in accordance with the requirements of Executive Order 12600 of June 23, 1987; or (4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous. In such case, OSHRC shall give the submitter written notice of any final decision to disclose the information within a reasonable number of days prior to a specified disclosure date. (e) Opportunity to object to disclosure. OSHRC shall specify a reasonable time period within which the submitter must provide a response to the notice referenced above. If a submitter has any objections to disclosure, it should provide a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as basis for nondisclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is confidential. A submitter who fails to respond within the time period specified in the notice will be considered to have no objection to disclosure of the information. OSHRC is not required to consider any information received after the date of any disclosure decision. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA. (f) Analysis of objections. OSHRC shall consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose the requested information. (g) Notice of decision. OSHRC shall provide the submitter with written notice once a decision is made as to whether or not to disclose information over the submitter's objection. When a decision is made to disclose information over the submitter's objection, this notice shall include a statement of the reasons why each of the submitter's disclosure objections was not sustained, a description of the information to be disclosed or copies of the records as the agency intends to release them, and a specified disclosure date (which must be a reasonable time after the notice). (h) Notice of FOIA lawsuit. OSHRC shall promptly notify the submitter when a requester files a lawsuit seeking to compel the disclosure of confidential commercial information. (i) Requester notification. OSHRC shall notify the requester whenever it [[Page 95039]] provides the submitter with notice and an opportunity to object to disclosure; whenever it notifies the submitter of its intent to disclose the requested information; and whenever a submitter files a lawsuit to prevent the disclosure of the information. 0 8. Amend redesignated Sec. 2201.8 by: 0 a. Redesignating paragraph (b)(3) as paragraph (b)(5). 0 b. Revising paragraph (a), the introductory text of paragraph (b), and paragraphs (b)(1) and (b)(2)(v); 0 c. Adding new paragraphs (b)(3) and (b)(4); and 0 d. Revising redesignated paragraph (b)(5), and paragraphs (h) and (i), to read as follows: Sec. 2201.8 Fees for copying, searching, and review. (a) Fees required unless waived. The FOIA Disclosure Officer shall charge fees in accordance with the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget and in accordance with paragraph (b) of this section. See Appendix A to this part. If the fees for a request are less than the threshold amount as provided in OSHRC's fee schedule, no fees shall be charged. The FOIA Disclosure Officer shall, however, waive the fees in the circumstances stated in Sec. 2201.9. (b) Calculation of fees. Fees for copying, searching and reviewing will be based on the direct costs of these services, including the average hourly salary (base plus DC locality payment), plus 16 percent for benefits, of the following three categories of employees involved in responding to FOIA requests: Clerical--based on an average of all employees at GS-9 and below; professional--based on an average of all employees at GS-10 through GS-14; and managerial--based on an average of all employees at GS-15 and above. OSHRC will calculate a schedule of fees based on these direct costs. The schedule of fees under this section appears in Appendix A to this part. A copy of the schedule of fees may also be obtained at no charge from the FOIA Disclosure Officer. See Sec. 2201.3(d). (1) Copying fee. The fee per copy of each page shall be calculated in accordance with the per-page amount established in OSHRC's fee schedule. See Appendix A to this part. For other forms of duplication, direct costs of producing the copy, including operator time, shall be calculated and assessed. Copying fees shall not be charged for the first 100 pages of copies unless the copies are requested for a commercial use. No copying fee shall be charged for educational, scientific, or news media requests if the agency fails to comply with any time limit in Sec. 2201.6, provided that no unusual or exceptional circumstances (as those terms are defined in Sec. 2201.6(b) and Sec. 2201.4(d), respectively) apply to the processing of the request. (2) * * * (v) Failure to comply with time limits. No search fee shall be charged if the Commission fails to comply with any time limit in Sec. 2201.6, provided that no unusual or exceptional circumstances (as those terms are defined in Sec. 2201.6(b) and Sec. 2201.4(d), respectively) apply to the processing of the request. (3) Unusual circumstances. (i) If the Commission has determined that unusual circumstances, as defined in Sec. 2201.6(b), apply and has provided timely written notice to the requester, a failure to comply with the time limit shall be excused for an additional 10 days and the Commission shall assess fees as usual. (ii) If the Commission has determined that unusual circumstances, as defined in Sec. 2201.6(b), apply and more than 5,000 pages are necessary to respond to the request, the Commission may charge search fees, or, in the case of requesters described in Sec. 2201.8(b)(2)(ii), may charge duplication fees, if the Commission provided timely written notice of unusual circumstances to the requester in accordance with Sec. 2201.6(b) and the Commission discussed with the requester via written mail, email, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with the FOIA. If this exception is satisfied, the Commission may charge all applicable fees incurred in the processing of the request even if such processing extends beyond an additional 10 days. (4) If a court has determined that exceptional circumstances exist, as defined in Sec. 2201.4(d), a failure to comply with the time limits shall be excused for the length of time provided by the court order. (5) Review fee. A review fee shall be charged only for commercial requests. Review fees shall be calculated in accordance with the amounts established in OSHRC's schedule of fees. See Appendix A to this part. A review fee shall be charged for the initial examination of documents located in response to a request to determine if it may be withheld from disclosure, and for the excision of withholdable portions. However, a review fee shall not be charged for review by the Chairman under Sec. 2201.10 (Appeal of denials). * * * * * (h) Interest on unpaid bills. The Commission's Office of the Executive Director shall begin assessing interest charges on unpaid bills starting on the thirty-first day after the date the bill was sent. Interest will accrue from the date of billing until the Commission receives full payment. Interest will be at the rate described in 31 U.S.C. 3717. (i) Debt collection procedures. If bills are unpaid 60 days after the mailing of a written notice to the requester, the Commission's Office of the Executive Director may resort to the debt collection procedures set out in the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset. Sec. 2201.9 [Amended] 0 9. Amend redesignated Sec. 2201.9 by removing the citation ``Sec. 2201.7(b)'' in paragraph (a) and adding, in its place, the citation ``Sec. 2201.8(b)''. 0 10. Revise redesignated Sec. 2201.10 to read as follows: Sec. 2201.10 Appeal of denials. (a) Requirements for making an appeal. A denial of a request for records, either in whole or in part, a request for expedited processing, or a request for fee waivers, may be appealed in writing to the Chairman of the Commission. To be considered timely, the appeal must be postmarked, or in the case of electronic submissions, transmitted, within 90 calendar days of the date of the agency's written notice of denial. The appeal should clearly identify the agency determination that is being appealed and the assigned FOIA tracking number. To facilitate handling, the requester should mark both the appeal and its envelope, or state in the subject line of an electronic transmission, ``Freedom of Information Act Appeal.'' (b) Adjudication of appeals. The Chairman shall act on the appeal under 5 U.S.C. 552(a)(6)(A)(ii) within 20 working days after the receipt of the appeal. An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation. On receipt of any appeal involving classified information, the Chairman shall take appropriate action to ensure compliance with applicable classification rules. (c) Decisions on appeals. The Chairman shall provide the decision on an appeal in writing. If the Chairman wholly or partially upholds the denial of the request, the decision shall contain [[Page 95040]] a statement that identifies the reasons for the affirmance, including any FOIA exemptions applied. The decision must include notification that the requester may obtain judicial review of the decision under 5 U.S.C. 552(a)(4)(B)-(G). The decision shall also inform the requester of the dispute resolution services offered by OGIS as a non-exclusive alternative to litigation. If the Chairman's decision is remanded or modified on appeal to the court, the requester will be notified by the agency of that determination in writing. The Commission shall then further process the request in accordance with the appeal determination and shall respond directly to the requester. (d) Engaging in dispute services provided by OGIS. Dispute resolution is a voluntary process. If the Commission agrees to participate in the dispute resolution services provided by OGIS, it will actively engage as a partner in the process in an attempt to resolve the dispute. (e) When appeal is required. Before seeking review by a court of the Commission's adverse determination, a requester generally must first submit a timely administrative appeal. Sec. 2201.11 [Amended] 0 11. Amend redesignated Sec. 2201.11 by removing the words ``through OSHRC's Web site'' and adding, in their place, the words ``on OSHRC's Web site'' in paragraph (b). 0 12. Add Sec. 2201.12 to read as follows: Sec. 2201.12 Preservation of records. OSHRC shall preserve all correspondence pertaining to FOIA requests, as well as copies of all requested records, until disposition or destruction is authorized pursuant to title 44 of the United States Code or the applicable General Records Schedule of the National Archives and Records Administration. OSHRC shall not dispose of or destroy records while they are the subject of a pending request, appeal or lawsuit under the FOIA. [FR Doc. 2016-31133 Filed 12-23-16; 8:45 am] BILLING CODE 7600-01-P
![Federal Register / Vol. 81, No. 248 / Tuesday, December 27, 2016 / Rules and Regulations 95035
Subpart F—Discharge of Indebtedness BFS if it is the subject of a pending that proposed revisions to OSHRC’s
and Reporting Requirements administrative review process required regulations at 29 CFR part 2201,
by statute or regulation and collection implementing the FOIA, 5 U.S.C. 552.
§ 1506.42 Under what circumstances will action during the review process is Interested persons were afforded an
USADF discharge a delinquent debt? prohibited. opportunity to participate in the
Before discharging a delinquent debt, (b) Except as set forth in paragraph (a) rulemaking process through the
USADF will make a determination that of this section, USADF will transfer any submission of written comments on the
collection action is no longer warranted debt covered by this part that is more NPRM. OSHRC received comments from
and request that litigation counsel than 180 days delinquent to BFS for the National Archives and Records
release any liens of record securing the debt collection services. A debt is 180 Administration (‘‘NARA’’) suggesting
debt. Discharge of indebtedness is days delinquent for purposes of this two minor changes: (1) Changing the
distinct from termination or suspension section if it is 180 days past due and is word ‘‘mediation’’ to ‘‘dispute
of collection activity and is governed by legally enforceable. resolution’’ in two places to reflect an
the Internal Revenue Code. When anticipated new regulation from
collection action on a debt is suspended § 1506.46 When is USADF not required to
NARA’s Office of Government
or terminated, the debt remains transfer a debt to BFS?
Information Services (‘‘OGIS’’) that
delinquent and further collection action USADF is not required to transfer a clarifies for requesters the difference
may be pursued at a later date in debt to BFS pursuant to § 1506.37(b) between formal mediation and the
accordance with the standards set forth during the period of time that the debt: broader services OGIS provides; and (2)
in this part. When a debt is discharged (a) Is in litigation or foreclosure; changing the reference to a General
in full or in part, further collection (b) Is scheduled for sale;
Records Schedule pertaining to the
action is prohibited and USADF must (c) Is at a private collection contractor;
(d) Is at a debt collection center if the preservation of records, as General
terminate all debt collection activities. Records Schedule 4.2 recently replaced
debt has been referred to a Treasury-
§ 1506.43 Will USADF report a discharge designated debt collection center; (in part) General Records Schedule 14.
of debt to the IRS? (e) Is being collected by internal OSHRC received no other public
Upon discharge of a debt, USADF will offset; or comments suggesting changes to the
report the discharge to the IRS in (f) Is covered by an exemption granted proposed regulations. OSHRC updated
accordance with the requirements of 26 by Treasury. the Web site address containing
U.S.C. 6050P and 26 CFR 1.6050P–1. information for the FOIA Requester
[FR Doc. 2016–31125 Filed 12–23–16; 8:45 am]
USADF may request the Bureau of Service Center, modified the proposed
BILLING CODE 6117–01–P
Fiscal Services of the Department of regulations in light of NARA’s
Treasury to file such a discharge report comments, reviewed the proposed
to the IRS on the agency’s behalf. regulations and adopts them in this final
OCCUPATIONAL SAFETY AND rule.
Subpart G—Referrals to the HEALTH REVIEW COMMISSION
I. Background
Department of Justice 29 CFR Part 2201
OSHRC makes several substantive and
§ 1506.44 When will USADF refer claims to procedural revisions to its regulations
the Department of Justice for litigation? Regulations Implementing the
Freedom of Information Act implementing the FOIA that fall within
Unless otherwise provided by DOJ four general categories. First, OSHRC
regulations or procedures, USADF will AGENCY: Occupational Safety and Health modifies its existing FOIA regulations to
refer for litigation debts of more than Review Commission. reflect the amendments to the FOIA
$2,500 but less than $1,000,000 to the ACTION: Final rule. contained in the FOIA Improvement Act
Department of Justice’s Nationwide of 2016, Public Law 114–185. The FOIA
Central Intake Facility as required by SUMMARY: The Occupational Safety and Improvement Act amended various
the Claims Collection Litigation Report Health Review Commission (‘‘OSHRC’’) practices under the FOIA, such as
(CCLR) instructions. Debts of over revises its regulations implementing the requiring notification to requesters of
$1,000,000 shall be referred to the Civil Freedom of Information Act (‘‘FOIA’’). the right to seek dispute resolution at
Division at the Department of Justice. These revisions account for statutory various times throughout the FOIA
Any debt involving fraud, false claim, amendments included in the FOIA process from OGIS, a ninety-day
and misrepresentation will be referred Improvement Act of 2016 (‘‘FOIA minimum time period to file
to the Department of Justice. Improvement Act’’), as well as the administrative appeals, and limitations
addition of procedures pertaining to on assessing certain fees and exceptions
Subpart H—Mandatory Transfer of confidential commercial information to those limitations.
Delinquent Debt to the Bureau of and preservation of records, Second, OSHRC revises its regulations
Fiscal Services (BFS) of the clarifications of existing procedures, to further clarify and update its
Department of Treasury and updates to contact information. procedures relating to the submission
§ 1506.45 When is it mandatory for USADF DATES: Effective December 27, 2016. and processing of FOIA requests.
to transfer debts to BFS? FOR FURTHER INFORMATION CONTACT: Third, OSHRC adds a new section to
(a) USADF will transfer legally Noelle Chadwick, OSHRC’s FOIA Public its regulations establishing procedures
asabaliauskas on DSK3SPTVN1PROD with RULES
enforceable debt to BFS 90 days after Liaison, by telephone at (202) 606–5410 to notify submitters of records
the Bill for Collection or demand letter or email at NChadwick@oshrc.gov. containing confidential commercial
is issued. A debt is legally enforceable SUPPLEMENTARY INFORMATION: OSHRC is information when those records are
if there has been a final agency publishing a final rule revising its requested under the FOIA, in
determination that the debt is due and regulations implementing the FOIA. On compliance with Executive Order
there are no legal bars to collection November 30, 2016, OSHRC published 12,600.
action. A debt is not legally enforceable for comment a notice of proposed Fourth, OSHRC adds a new section to
for purposes of mandatory transfer to rulemaking (‘‘NPRM’’), at 81 FR 86297, its regulations explaining the procedure
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List of Subjects in 29 CFR Part 2201 § 2201.4 General policy and definitions. herself must comply with verification of
* * * * * identity requirements as required by 29
Freedom of information.
(b) Record availability at the OSHRC CFR 2400.6 in OSHRC’s Privacy Act
Cynthia L. Attwood, e-FOIA Reading Room. The records of regulations.
Chairman. Commission activities are publicly (c) Where a request for records
For the reasons set forth in the available for inspection and copying, pertains to another individual, a
preamble, OSHRC amends 29 CFR part and may be accessed electronically on requester may receive greater access by
2201 as follows: the Commission’s Web site at http:// submitting either a notarized
www.oshrc.gov/foia/foia_reading_ authorization signed by that individual
PART 2201—REGULATIONS room.html. These records include: or a declaration made in compliance
IMPLEMENTING THE FREEDOM OF (1) Final decisions, including with the requirements set forth in 28
INFORMATION ACT concurring and dissenting opinions, U.S.C. 1746 by that individual
remand orders, as well as authorizing disclosure of the records to
■ 1. The authority citation for part 2201 Administrative Law Judge decisions the requester, or by submitting proof
continues to read as follows: pending OSHRC review, briefing that the individual is deceased (e.g., a
Authority: 29 U.S.C. 661(g); 5 U.S.C. 552. notices, and other significant orders; copy of a death certificate or an
obituary).
* * * * * (d) Description of records sought. A
§ 2201.3 [Amended]
(5) Copies of records that have been request must describe the records
■ 2. Amend § 2201.3 by: released to a person under the FOIA sought in sufficient detail to enable the
■ a. Removing the words ‘‘FOIA that, because of the subject matter, the Commission to locate them with a
handbook’’ and adding, in their place, Commission determines have become or reasonable amount of effort. To the
the words ‘‘FOIA Reference Guide’’ in are likely to become the subject of extent possible, the request should
paragraph (a)(5). subsequent requests for substantially the include specific information to identify
■ b. Removing the word ‘‘supervisory’’ same records, or that have been the requested records, such as the
in paragraph (c). requested three or more times, as well docket number(s) or case name(s).
■ c. Revising paragraph (d) to read as as records the Commission determines Before submitting a request, the
follows: absent a FOIA request could be of requester may contact the FOIA
significant public interest; and Disclosure Officer, as described in
§ 2201.3 Delegation of authority and (6) A general index of records referred
responsibilities. § 2201.3(d), to discuss the records being
to under paragraph (b)(5) of this section. sought and receive assistance in
* * * * * (c) Record availability onsite at
(d) OSHRC establishes a FOIA describing them. If a determination is
OSHRC National Office. Any member of made after receiving a request that it
Requester Service Center that shall be the public may, upon request, access does not reasonably describe the records
staffed by the FOIA Disclosure Officer(s) OSHRC’s e-FOIA Reading Room via a sought, the FOIA Disclosure Officer will
and FOIA Public Liaison(s). The address computer terminal at the OSHRC contact the requester to explain what
of the FOIA Requester Service Center is National Office, located at 1120 20th St. additional information is needed or why
1120 20th Street NW., 9th Floor, NW., 9th Floor, Washington, DC 20036– the request is otherwise insufficient. A
Washington, DC 20036–3457. The 3457. Such a request must be made in requester attempting to reformulate or
telephone number, fax number and writing to the FOIA Requester Service modify such a request is encouraged to
additional contact information for the Center, and indicate a preferred date discuss the request with the FOIA
FOIA Requester Service Center is and time for the requested access. Disclosure Officer. If a request does not
located on the agency’s Web site at: OSHRC reserves the right to arrange a reasonably describe the records sought,
http://www.oshrc.gov/foia/index.html. different date and time with the the agency’s response may be delayed.
The FOIA Requester Service Center is requester, if necessary. (e) Requests may specify the preferred
available to provide information about * * * * * form or format (including electronic
the status of a request to the requester ■ 4. Revise § 2201.5 to read as follows: formats) of the response. The FOIA
using the assigned tracking number (as Disclosure Officer shall honor a
described in § 2201.6(h)), including: § 2201.5 Procedure for requesting records. requester’s specified preference of form
(1) The date on which the agency (a) General information. All requests or format of disclosure if the record is
originally received the request; and for information must be made in writing readily reproducible with reasonable
(2) An estimated date on which the to the FOIA Disclosure Officer and may efforts in the requested form or format.
agency will complete action on the be: Mailed or delivered; faxed; or When a requester does not specify the
request. emailed. Requests may also be made preferred form or format of the response,
* * * * * using the Commission’s online FOIA the FOIA Disclosure Officer shall
request form (which is a downloadable respond in the form or format in which
§ 2201.4 [Amended] PDF file found at http://www.oshrc.gov/ the record is most accessible to the
■ 3. Amend § 2201.4 by: foia/foia_request_form.html) and the Commission.
■ a. Removing the citation ‘‘§ 2201.5(a)’’ completed form can be submitted by (f) The requester must provide contact
and adding, in its place, the citation mail, fax, or email. Contact information information, such as a phone number,
‘‘§ 2201.5’’ in paragraph (a). for the FOIA Disclosure Officer is email address, and/or mailing address,
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■ b. Removing paragraph (b). described in § 2201.3(d). For mailed or to facilitate the agency’s communication
■ c. Redesignating paragraphs (c) delivered requests, the words ‘‘Freedom with the requester.
through (e) as paragraphs (b) through of Information Act Request’’ must be (g) Date of receipt. A request that
(d), respectively. printed on the face of the request’s complies with paragraph (a) of this
■ d. Revising the introductory text of envelope or covering as well as the section is deemed received on the actual
redesignated paragraph (b), and request itself. date it is received by the Commission.
paragraphs (b)(1), (b)(5), (b)(6), and (c) to (b) A requester who is making a A request that does not comply with
read as follows: request for records about himself or paragraph (a) of this section is deemed
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received when it is actually received by individualized tracking number to each (2) The information has been lawfully
the FOIA Disclosure Officer. For request received for processing and published or has been officially made
requests that are expected to result in provide the requester with the tracking available to the public;
fees exceeding $250, the request shall number. (3) Disclosure of the information is
not be deemed to have been received * * * * * required by a statute other than the
until the requester is advised of the FOIA or by a regulation issued in
anticipated costs and the Commission §§ 2201.7 through 2201.10 [Redesignated accordance with the requirements of
has received full payment or satisfactory as §§ 2201.8 through 2201.11] Executive Order 12600 of June 23, 1987;
assurance of full payment as provided ■ 6. Redesignate §§ 2201.7 through or
under § 2201.8(f). 2201.10 as §§ 2201.8 through 2201.11, (4) The designation made by the
■ 5. Amend § 2201.6 by revising respectively. submitter under paragraph (b) of this
paragraphs (c), (f), and (h) to read as ■ 7. Add new § 2201.7 to read as section appears obviously frivolous. In
follows: follows: such case, OSHRC shall give the
submitter written notice of any final
§ 2201.6 Responses to requests. § 2201.7 Confidential commercial decision to disclose the information
information.
* * * * * within a reasonable number of days
(c) Additional extension. The FOIA (a) Definitions. (1) Confidential prior to a specified disclosure date.
Disclosure Officer shall notify the commercial information means (e) Opportunity to object to disclosure.
requester in writing when it appears commercial or financial information OSHRC shall specify a reasonable time
that a request cannot be completed obtained by OSHRC from a submitter period within which the submitter must
within the allowable time (20 working that may be protected from disclosure provide a response to the notice
days plus a 10-working-day extension). under Exemption 4 of the FOIA, 5 referenced above. If a submitter has any
In such instances, the requester will be U.S.C. 552(b)(4). objections to disclosure, it should
provided an opportunity to limit the (2) Submitter means any person or provide a detailed written statement
scope of the request so that it may be entity, including a corporation, State, or that specifies all grounds for
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
* * * * * protected from disclosure under information received after the date of
(f) Content of denial. When the FOIA Exemption 4. These designations expire any disclosure decision. Any
Disclosure Officer denies a request for 10 years after the date of the submission information provided by a submitter
records, either in whole or in part, a unless the submitter requests and under this subpart may itself be subject
request for expedited processing, and/or provides justification for a longer to disclosure under the FOIA.
a request for fee waivers (see § 2201.9), designation period. (f) Analysis of objections. OSHRC
the written notice of the denial shall (c) When notice to submitters is shall consider a submitter’s objections
state the reason for denial, give a required. OSHRC shall promptly and specific grounds for nondisclosure
reasonable estimate of the volume of provide written notice to the submitter in deciding whether to disclose the
matter denied (unless doing so would of confidential commercial information requested information.
harm an interest protected by the whenever records containing such (g) Notice of decision. OSHRC shall
exemption(s) under which the request information are requested under the provide the submitter with written
was denied), set forth the name and title FOIA if OSHRC determines that it may notice once a decision is made as to
or position of the person responsible for be required to disclose the records, whether or not to disclose information
the denial of the request, notify the provided the submitter has complied over the submitter’s objection. When a
requester of the right to appeal the with paragraph (b) of this section or decision is made to disclose information
determination as specified in § 2201.10, OSHRC has a reason to believe that the over the submitter’s objection, this
and notify the requester of the requested information may be protected notice shall include a statement of the
assistance available from the FOIA from disclosure under Exemption 4, but reasons why each of the submitter’s
Public Liaison and the dispute has not yet determined whether the disclosure objections was not sustained,
resolution services offered by OGIS. A information is protected from a description of the information to be
refusal by the FOIA Disclosure Officer disclosure. The notice must either disclosed or copies of the records as the
to process the request because the describe the commercial information agency intends to release them, and a
requester has not made advance requested or include a copy of the specified disclosure date (which must
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payment or given a satisfactory requested records or portions of records be a reasonable time after the notice).
assurance of full payment required containing the information. (h) Notice of FOIA lawsuit. OSHRC
under § 2201.8(f) may be treated as a (d) Exceptions to submitter notice shall promptly notify the submitter
denial of the request and appealed requirements. The notice requirements when a requester files a lawsuit seeking
under § 2201.10. of this section do not apply if: to compel the disclosure of confidential
* * * * * (1) OSHRC determines that the commercial information.
(h) Tracking numbers. The FOIA 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
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provides the submitter with notice and requests if the agency fails to comply review by the Chairman under § 2201.10
an opportunity to object to disclosure; with any time limit in § 2201.6, (Appeal of denials).
whenever it notifies the submitter of its provided that no unusual or exceptional * * * * *
intent to disclose the requested circumstances (as those terms are (h) Interest on unpaid bills. The
information; and whenever a submitter defined in § 2201.6(b) and § 2201.4(d), Commission’s Office of the Executive
files a lawsuit to prevent the disclosure respectively) apply to the processing of Director shall begin assessing interest
of the information. the request. charges on unpaid bills starting on the
■ 8. Amend redesignated § 2201.8 by: (2) * * * thirty-first day after the date the bill was
■ a. Redesignating paragraph (b)(3) as (v) Failure to comply with time limits. sent. Interest will accrue from the date
paragraph (b)(5). No search fee shall be charged if the of billing until the Commission receives
■ b. Revising paragraph (a), the Commission fails to comply with any full payment. Interest will be at the rate
introductory text of paragraph (b), and time limit in § 2201.6, provided that no described in 31 U.S.C. 3717.
paragraphs (b)(1) and (b)(2)(v); unusual or exceptional circumstances (i) Debt collection procedures. If bills
■ c. Adding new paragraphs (b)(3) and (as those terms are defined in are unpaid 60 days after the mailing of
(b)(4); and § 2201.6(b) and § 2201.4(d), a written notice to the requester, the
■ d. Revising redesignated paragraph Commission’s Office of the Executive
respectively) apply to the processing of
(b)(5), and paragraphs (h) and (i), to read the request. Director may resort to the debt
as follows: (3) Unusual circumstances. (i) If the collection procedures set out in the Debt
§ 2201.8 Fees for copying, searching, and Commission has determined that Collection Act of 1982 (Pub. L. 97–365,
review. unusual circumstances, as defined in 96 Stat. 1749), as amended, and its
(a) Fees required unless waived. The § 2201.6(b), apply and has provided administrative procedures, including
FOIA Disclosure Officer shall charge timely written notice to the requester, a the use of consumer reporting agencies,
fees in accordance with the Uniform failure to comply with the time limit collection agencies, and offset.
Freedom of Information Fee Schedule shall be excused for an additional 10
§ 2201.9 [Amended]
and Guidelines published by the Office days and the Commission shall assess
fees as usual. ■ 9. Amend redesignated § 2201.9 by
of Management and Budget and in removing the citation ‘‘§ 2201.7(b)’’ in
accordance with paragraph (b) of this (ii) If the Commission has determined
that unusual circumstances, as defined paragraph (a) and adding, in its place,
section. See Appendix A to this part. If the citation ‘‘§ 2201.8(b)’’.
the fees for a request are less than the in § 2201.6(b), apply and more than
■ 10. Revise redesignated § 2201.10 to
threshold amount as provided in 5,000 pages are necessary to respond to
read as follows:
OSHRC’s fee schedule, no fees shall be the request, the Commission may charge
charged. The FOIA Disclosure Officer search fees, or, in the case of requesters § 2201.10 Appeal of denials.
shall, however, waive the fees in the described in § 2201.8(b)(2)(ii), may (a) Requirements for making an
circumstances stated in § 2201.9. charge duplication fees, if the appeal. A denial of a request for
(b) Calculation of fees. Fees for Commission provided timely written records, either in whole or in part, a
copying, searching and reviewing will notice of unusual circumstances to the request for expedited processing, or a
be based on the direct costs of these requester in accordance with § 2201.6(b) request for fee waivers, may be appealed
services, including the average hourly and the Commission discussed with the in writing to the Chairman of the
salary (base plus DC locality payment), requester via written mail, email, or Commission. To be considered timely,
plus 16 percent for benefits, of the telephone (or made not less than three the appeal must be postmarked, or in
following three categories of employees good-faith attempts to do so) how the the case of electronic submissions,
involved in responding to FOIA requester could effectively limit the transmitted, within 90 calendar days of
requests: Clerical—based on an average scope of the request in accordance with the date of the agency’s written notice
of all employees at GS–9 and below; the FOIA. If this exception is satisfied, of denial. The appeal should clearly
professional—based on an average of all the Commission may charge all identify the agency determination that is
employees at GS–10 through GS–14; applicable fees incurred in the being appealed and the assigned FOIA
and managerial—based on an average of processing of the request even if such tracking number. To facilitate handling,
all employees at GS–15 and above. processing extends beyond an the requester should mark both the
OSHRC will calculate a schedule of fees additional 10 days. appeal and its envelope, or state in the
based on these direct costs. The (4) If a court has determined that subject line of an electronic
schedule of fees under this section exceptional circumstances exist, as transmission, ‘‘Freedom of Information
appears in Appendix A to this part. A defined in § 2201.4(d), a failure to Act Appeal.’’
copy of the schedule of fees may also be comply with the time limits shall be (b) Adjudication of appeals. The
obtained at no charge from the FOIA excused for the length of time provided Chairman shall act on the appeal under
Disclosure Officer. See § 2201.3(d). by the court order. 5 U.S.C. 552(a)(6)(A)(ii) within 20
(1) Copying fee. The fee per copy of (5) Review fee. A review fee shall be working days after the receipt of the
each page shall be calculated in charged only for commercial requests. appeal. An appeal ordinarily will not be
accordance with the per-page amount Review fees shall be calculated in adjudicated if the request becomes a
established in OSHRC’s fee schedule. accordance with the amounts matter of FOIA litigation. On receipt of
See Appendix A to this part. For other established in OSHRC’s schedule of any appeal involving classified
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forms of duplication, direct costs of fees. See Appendix A to this part. A information, the Chairman shall take
producing the copy, including operator review fee shall be charged for the appropriate action to ensure compliance
time, shall be calculated and assessed. initial examination of documents with applicable classification rules.
Copying fees shall not be charged for the located in response to a request to (c) Decisions on appeals. The
first 100 pages of copies unless the determine if it may be withheld from Chairman shall provide the decision on
copies are requested for a commercial disclosure, and for the excision of an appeal in writing. If the Chairman
use. No copying fee shall be charged for withholdable portions. However, a wholly or partially upholds the denial
educational, scientific, or news media review fee shall not be charged for of the request, the decision shall contain
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a statement that identifies the reasons ACTION: Notice of temporary deviation from the lack of data. The following
for the affirmance, including any FOIA from regulations; request for comments. facts support BNSF’s proposal: (1) over
exemptions applied. The decision must the last 6 years only 2% of the subject
include notification that the requester SUMMARY: The Coast Guard has issued a bridge lifts have occurred between the
may obtain judicial review of the temporary deviation from the operating hours of 10 p.m. and 6 a.m., which
decision under 5 U.S.C. 552(a)(4)(B)– schedule that governs the Chambers equates to approximately 5 openings a
(G). The decision shall also inform the Creek Burlington Northern Santa Fe year, (2) from February 2009 to June
requester of the dispute resolution Railroad vertical lift railroad bridge 2015 there were 1932 total openings of
services offered by OGIS as a non- across Chambers Creek, mile 0.01, near which only 40 occurred between the
exclusive alternative to litigation. If the Steilacoom in Pierce County, WA. This hours of 10 p.m. and 6 a.m., and (3) the
Chairman’s decision is remanded or deviation will test a change to the navigation traffic consists primarily of
modified on appeal to the court, the drawbridge operation schedule to the tenants of Chambers Bay marina
requester will be notified by the agency determine whether a permanent change (recreational users) that are members of
of that determination in writing. The to the schedule is appropriate. This test the Chambers Bay Boating Association.
Commission shall then further process deviation will change the requirement The Coast Guard is publishing this
the request in accordance with the for a bridge operator, and modify the temporary deviation to test the proposed
appeal determination and shall respond existing regulation to add an advance schedule change to determine whether a
directly to the requester. notification requirement for obtaining permanent change to the schedule is
(d) Engaging in dispute services bridge openings during designated appropriate to better balance the needs
provided by OGIS. Dispute resolution is evening hours. of marine and rail traffic. Under this
a voluntary process. If the Commission DATES: This deviation is effective from temporary deviation, in effect from
agrees to participate in the dispute Midnight (12:01) on December 28, 2016 Midnight (12:01) on December 28, 2016
resolution services provided by OGIS, it to Midnight (11:59) on June 23, 2017. to Midnight (11:59) on June 23, 2017,
will actively engage as a partner in the Comments and related material must the subject bridge shall open on signal,
process in an attempt to resolve the reach the Coast Guard on or before June except from 10 p.m. to 6 a.m. the draw
dispute. 15, 2017. shall open on signal if at least 4 hours
(e) When appeal is required. Before ADDRESSES: You may submit comments notice is given. The bridge will be
seeking review by a court of the identified by docket number USCG– required to open as soon a possible, no
Commission’s adverse determination, a 2016–0280 using Federal eRulemaking later than 1 hour after notification, for
requester generally must first submit a Portal at http://www.regulations.gov. vessels engaged in emergency response.
timely administrative appeal. See the ‘‘Public Participation and The Coast Guard will inform the users
Request for Comments’’ portion of the of the waterways of this temporary
§ 2201.11 [Amended]
SUPPLEMENTARY INFORMATION section deviation through our Local and
■ 11. Amend redesignated § 2201.11 by below for instructions on submitting Broadcast Notices to Mariners and
removing the words ‘‘through OSHRC’s comments. through direct outreach with the
Web site’’ and adding, in their place, the Chambers Creek Boating Association so
words ‘‘on OSHRC’s Web site’’ in FOR FURTHER INFORMATION CONTACT: If that vessel operators can arrange their
paragraph (b). you have questions on this temporary transits to minimize any impact caused
■ 12. Add § 2201.12 to read as follows: deviation, call or email Mr. Steven by the temporary deviation. Vessels able
Fischer, Bridge Administrator, to pass underneath the bridge in the
§ 2201.12 Preservation of records. Thirteenth Coast Guard District; closed-to-navigation position may do so
OSHRC shall preserve all telephone 206–220–7282, email at any time. In accordance with 33 CFR
correspondence pertaining to FOIA Steven.M.Fischer3@uscg.mil. 117.35(e), the drawbridge must return to
requests, as well as copies of all SUPPLEMENTARY INFORMATION: its regular operating schedule
requested records, until disposition or immediately at the end of the effective
destruction is authorized pursuant to I. Background, Purpose and Legal Basis
period of this temporary deviation. This
title 44 of the United States Code or the The Chambers Creek Burlington deviation from the operating regulations
applicable General Records Schedule of Northern Santa Fe Railroad vertical lift is authorized under 33 CFR 117.35.
the National Archives and Records railroad bridge across Chambers Creek,
Administration. OSHRC shall not mile 0.01, near Steilacoom in Pierce II. Public Participation and Request for
dispose of or destroy records while they County, WA, has a vertical clearance of Comments
are the subject of a pending request, 10ft in the closed-to-navigation position, We view public participation as
appeal or lawsuit under the FOIA. and 50ft of vertical clearance in the essential to effective rulemaking, and
[FR Doc. 2016–31133 Filed 12–23–16; 8:45 am] open-to-navigation position (reference will consider all comments and material
BILLING CODE 7600–01–P
plane is MHW elevation of 12.2 feet). received during the comment period.
The bridge currently operates under 33 Your comment can help shape the
CFR 117.5. outcome of this rulemaking. If you
DEPARTMENT OF HOMELAND The bridge owner, Burlington submit a comment, please include the
SECURITY Northern Santa Fe Railroad, has docket number for this rulemaking,
observed minimal to no usage of the indicate the specific section of this
Coast Guard drawbridge between 10 p.m. and 6 a.m., document to which each comment
asabaliauskas on DSK3SPTVN1PROD with RULES
and has requested to test this schedule applies, and provide a reason for each
33 CFR Part 117 to see if it better balances the needs of suggestion or recommendation.
marine and rail traffic. The USCG We encourage you to submit
[Docket No. USCG–2016–0280] conducted a test deviation from July 1, comments through the Federal
2016 to December 27, 2016. However, eRulemaking Portal at http://
Drawbridge Operation Regulation;
only one bridge opening request was www.regulations.gov. If your material
Chambers Creek, Steilacoom, WA
received during that time, and a cannot be submitted using http://
AGENCY: Coast Guard, DHS. quantitative ruling could not be made www.regulations.gov, contact the person
VerDate Sep<11>2014 19:06 Dec 23, 2016 Jkt 241001 PO 00000 Frm 00132 Fmt 4700 Sfmt 4700 E:\FR\FM\27DER1.SGM 27DER1](https://thefederalregister.org/doc/81_FR_95283/page/6.svg)
Document Created: 2018-02-14 09:13:14
Document Modified: 2018-02-14 09:13:14
| 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 | Rules and Regulations | |
| Action | Final rule. | |
| Dates | Effective December 27, 2016. | |
| Contact | Noelle Chadwick, OSHRC's FOIA Public Liaison, by telephone at (202) 606-5410 or email at [email protected] | |
| FR Citation | 81 FR 95035 |
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