[Federal Register Volume 81, Number 248 (Tuesday, December 27, 2016)]
[Rules and Regulations]
[Pages 95035-95040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31133]


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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: Final rule.

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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