Federal Register / Vol. 81, No. 248 / Tuesday, December 27, 2016 / Rules and Regulations 95035 

Subpart F—Discharge of Indebtedness 

and Reporting Requirements 

§ 1506.42 Under what circumstances will 

USADF discharge a delinquent debt? 

Before discharging a delinquent debt, 

USADF will make a determination that 

collection action is no longer warranted 

and request that litigation counsel 

release any liens of record securing the 

debt. Discharge of indebtedness is 

distinct from termination or suspension 

of collection activity and is governed by 

the Internal Revenue Code. When 

collection action on a debt is suspended 

or terminated, the debt remains 

delinquent and further collection action 

may be pursued at a later date in 

accordance with the standards set forth 

in this part. When a debt is discharged 

in full or in part, further collection 

action is prohibited and USADF must 

terminate all debt collection activities. 

§ 1506.43 Will USADF report a discharge 

of debt to the IRS? 

Upon discharge of a debt, USADF will 

report the discharge to the IRS in 

accordance with the requirements of 26 

U.S.C. 6050P and 26 CFR 1.6050P–1. 

USADF may request the Bureau of 

Fiscal Services of the Department of 

Treasury to file such a discharge report 

to the IRS on the agency’s behalf. 

Subpart G—Referrals to the 

Department of Justice 

§ 1506.44 When will USADF refer claims to 

the Department of Justice for litigation? 

Unless otherwise provided by DOJ 

regulations or procedures, USADF will 

refer for litigation debts of more than 

$2,500 but less than $1,000,000 to the 

Department of Justice’s Nationwide 

Central Intake Facility as required by 

the Claims Collection Litigation Report 

(CCLR) instructions. Debts of over 

$1,000,000 shall be referred to the Civil 

Division at the Department of Justice. 

Any debt involving fraud, false claim, 

and misrepresentation will be referred 

to the Department of Justice. 

Subpart H—Mandatory Transfer of 

Delinquent Debt to the Bureau of 

Fiscal Services (BFS) of the 

Department of Treasury 

§ 1506.45 When is it mandatory for USADF 

to transfer debts to BFS? 

(a) USADF will transfer legally 

enforceable debt to BFS 90 days after 

the Bill for Collection or demand letter 

is issued. A debt is legally enforceable 

if there has been a final agency 

determination that the debt is due and 

there are no legal bars to collection 

action. A debt is not legally enforceable 

for purposes of mandatory transfer to 

BFS if it is the subject of a pending 

administrative review process required 

by statute or regulation and collection 

action during the review process is 

prohibited. 

(b) Except as set forth in paragraph (a) 

of this section, USADF will transfer any 

debt covered by this part that is more 

than 180 days delinquent to BFS for 

debt collection services. A debt is 180 

days delinquent for purposes of this 

section if it is 180 days past due and is 

legally enforceable. 

§ 1506.46 When is USADF not required to 

transfer a debt to BFS? 

USADF is not required to transfer a 

debt to BFS pursuant to § 1506.37(b) 

during the period of time that the debt: 

(a) Is in litigation or foreclosure; 

(b) Is scheduled for sale; 

(c) Is at a private collection contractor; 

(d) Is at a debt collection center if the 

debt has been referred to a Treasurydesignated debt collection center; 

(e) Is being collected by internal 

offset; or 

(f) Is covered by an exemption granted 

by Treasury. 

[FR Doc. 2016–31125 Filed 12–23–16; 8:45 am] 

BILLING CODE 6117–01–P 

OCCUPATIONAL SAFETY AND 

HEALTH REVIEW COMMISSION 

29 CFR Part 2201 

Regulations Implementing the 

Freedom of Information Act 

AGENCY: Occupational Safety and Health 

Review Commission. 

ACTION: Final rule. 

SUMMARY: The Occupational Safety and 

Health Review Commission (‘‘OSHRC’’) 

revises its regulations implementing the 

Freedom of Information Act (‘‘FOIA’’). 

These revisions account for statutory 

amendments included in the FOIA 

Improvement Act of 2016 (‘‘FOIA 

Improvement Act’’), as well as the 

addition of procedures pertaining to 

confidential commercial information 

and preservation of records, 

clarifications of existing procedures, 

and updates to contact information. 

DATES: Effective December 27, 2016. 

FOR FURTHER INFORMATION CONTACT: 

Noelle Chadwick, OSHRC’s FOIA Public 

Liaison, by telephone at (202) 606–5410 

or email at NChadwick@oshrc.gov. 

SUPPLEMENTARY INFORMATION: OSHRC is 

publishing a final rule revising its 

regulations implementing the FOIA. On 

November 30, 2016, OSHRC published 

for comment a notice of proposed 

rulemaking (‘‘NPRM’’), at 81 FR 86297, 

that proposed revisions to OSHRC’s 

regulations at 29 CFR part 2201, 

implementing the FOIA, 5 U.S.C. 552. 

Interested persons were afforded an 

opportunity to participate in the 

rulemaking process through the 

submission of written comments on the 

NPRM. OSHRC received comments from 

the National Archives and Records 

Administration (‘‘NARA’’) suggesting 

two minor changes: (1) Changing the 

word ‘‘mediation’’ to ‘‘dispute 

resolution’’ in two places to reflect an 

anticipated new regulation from 

NARA’s Office of Government 

Information Services (‘‘OGIS’’) that 

clarifies for requesters the difference 

between formal mediation and the 

broader services OGIS provides; and (2) 

changing the reference to a General 

Records Schedule pertaining to the 

preservation of records, as General 

Records Schedule 4.2 recently replaced 

(in part) General Records Schedule 14. 

OSHRC received no other public 

comments suggesting changes to the 

proposed regulations. OSHRC updated 

the Web site address containing 

information for the FOIA Requester 

Service Center, modified the proposed 

regulations in light of NARA’s 

comments, reviewed the proposed 

regulations and adopts them in this final 

rule. 

I. Background 

OSHRC makes several substantive and 

procedural revisions to its regulations 

implementing the FOIA that fall within 

four general categories. First, OSHRC 

modifies its existing FOIA regulations to 

reflect the amendments to the FOIA 

contained in the FOIA Improvement Act 

of 2016, Public Law 114–185. The FOIA 

Improvement Act amended various 

practices under the FOIA, such as 

requiring notification to requesters of 

the right to seek dispute resolution at 

various times throughout the FOIA 

process from OGIS, a ninety-day 

minimum time period to file 

administrative appeals, and limitations 

on assessing certain fees and exceptions 

to those limitations. 

Second, OSHRC revises its regulations 

to further clarify and update its 

procedures relating to the submission 

and processing of FOIA requests. 

Third, OSHRC adds a new section to 

its regulations establishing procedures 

to notify submitters of records 

containing confidential commercial 

information when those records are 

requested under the FOIA, in 

compliance with Executive Order 

12,600. 

Fourth, OSHRC adds a new section to 

its regulations explaining the procedure 


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95036 Federal Register / Vol. 81, No. 248 / Tuesday, December 27, 2016 / Rules and Regulations 

for the preservation of records related to 

FOIA requests. 

Accordingly, OSHRC revises its 

regulations implementing the FOIA. The 

specific amendments to each section of 

29 CFR part 2201 are discussed 

hereafter in regulatory sequence. 

In 29 CFR 2201.3, OSHRC revises 

paragraph (a) to direct requestors to 

OSHRC’s FOIA Reference Guide for 

further information. OSHRC revises 

paragraph (c) explaining the role of the 

FOIA Public Liaison. OSHRC also 

revises paragraph (d) to update the 

contact information for the FOIA 

Requester Service Center, including the 

web address previously identified in the 

proposed rule. 

In 29 CFR 2201.4, OSHRC revises a 

reference to another section of the 

regulations included in paragraph (a). 

OSHRC removes paragraph (b) regarding 

examination of records in cases 

appealed to courts as the provision is no 

longer necessary. OSHRC revises new 

paragraph (b), previously paragraph (c), 

to update the list of records available at 

the OSHRC e-FOIA Reading Room. In 

response to the codification of the ‘‘Rule 

of 3’’ in the FOIA Improvement Act, 

OSHRC also adds to new paragraph (b) 

that it will make publicly available 

copies of records that have been 

released to a person under the FOIA and 

have been requested three or more 

times. OSHRC revises new paragraph 

(c), previously paragraph (d), to clarify 

the location of records available onsite 

at the OSHRC National Office. OSHRC 

changes paragraph (e) to paragraph (d) 

due to the removal of paragraph (b) in 

this section. 

In 29 CFR 2201.5, OSHRC revises 

paragraph (a) to clarify the procedure for 

how to make a FOIA request regarding 

the ability to submit a request in 

multiple ways, including by email and 

OSHRC’s online FOIA request form. 

OSHRC changes paragraph (b) to 

describe the procedures for a requester 

making a request for records about 

himself or herself. OSHRC adds 

paragraph (c) to describe the procedure 

enabling a requester to receive greater 

access when a request for records 

pertains to another individual. OSHRC 

also adds paragraph (d) to explain what 

elements should be included in the 

description of records in a FOIA 

request. OSHRC adds paragraph (e), 

previously included in part in another 

paragraph in this section, to explain the 

procedure for requests regarding the 

preferred form or format of a response. 

OSHRC adds paragraph (f) to describe 

the necessary contact information to be 

provided by a requestor. OSHRC further 

adds paragraph (g), previously included 

in another paragraph of this section, to 

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. 


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Federal Register / Vol. 81, No. 248 / Tuesday, December 27, 2016 / Rules and Regulations 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 

■ 1. The authority citation for part 2201 

continues to read as follows: 

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

§ 2201.3 [Amended] 

■ 2. Amend § 2201.3 by: 

■ a. Removing the words ‘‘FOIA 

handbook’’ and adding, in their place, 

the words ‘‘FOIA Reference Guide’’ in 

paragraph (a)(5). 

■ b. Removing the word ‘‘supervisory’’ 

in paragraph (c). 

■ c. Revising paragraph (d) to read as 

follows: 

§ 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 § 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. 

* * * * * 

§ 2201.4 [Amended] 

■ 3. Amend § 2201.4 by: 

■ a. Removing the citation ‘‘§ 2201.5(a)’’ 

and adding, in its place, the citation 

‘‘§ 2201.5’’ in paragraph (a). 

■ b. Removing paragraph (b). 

■ c. Redesignating paragraphs (c) 

through (e) as paragraphs (b) through 

(d), respectively. 

■ d. Revising the introductory text of 

redesignated paragraph (b), and 

paragraphs (b)(1), (b)(5), (b)(6), and (c) to 

read as follows: 

§ 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. 

* * * * * 

■ 4. Revise § 2201.5 to read as follows: 

§ 2201.5 Procedure for requesting records. 

(a) General information. All requests 

for information must be made in writing 

to the FOIA Disclosure Officer and may 

be: Mailed or delivered; faxed; or 

emailed. Requests may also be made 

using the Commission’s online FOIA 

request form (which is a downloadable 

PDF file found at 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 § 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 

§ 2201.3(d), to discuss the records being 

sought and receive assistance in 

describing them. If a determination is 

made after receiving a request that it 

does not reasonably describe the records 

sought, the FOIA Disclosure Officer will 

contact the requester to explain what 

additional information is needed or why 

the request is otherwise insufficient. A 

requester attempting to reformulate or 

modify such a request is encouraged to 

discuss the request with the FOIA 

Disclosure Officer. If a request does not 

reasonably describe the records sought, 

the agency’s response may be delayed. 

(e) Requests may specify the preferred 

form or format (including electronic 

formats) of the response. The FOIA 

Disclosure Officer shall honor a 

requester’s specified preference of form 

or format of disclosure if the record is 

readily reproducible with reasonable 

efforts in the requested form or format. 

When a requester does not specify the 

preferred form or format of the response, 

the FOIA Disclosure Officer shall 

respond in the form or format in which 

the record is most accessible to the 

Commission. 

(f) The requester must provide contact 

information, such as a phone number, 

email address, and/or mailing address, 

to facilitate the agency’s communication 

with the requester. 

(g) Date of receipt. A request that 

complies with paragraph (a) of this 

section is deemed received on the actual 

date it is received by the Commission. 

A request that does not comply with 

paragraph (a) of this section is deemed 


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95038 Federal Register / Vol. 81, No. 248 / Tuesday, December 27, 2016 / Rules and Regulations 

received when it is actually received by 

the FOIA Disclosure Officer. For 

requests that are expected to result in 

fees exceeding $250, the request shall 

not be deemed to have been received 

until the requester is advised of the 

anticipated costs and the Commission 

has received full payment or satisfactory 

assurance of full payment as provided 

under § 2201.8(f). 

■ 5. Amend § 2201.6 by revising 

paragraphs (c), (f), and (h) to read as 

follows: 

§ 2201.6 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 § 2201.9), 

the written notice of the denial shall 

state the reason for denial, give a 

reasonable estimate of the volume of 

matter denied (unless doing so would 

harm an interest protected by the 

exemption(s) under which the request 

was denied), set forth the name and title 

or position of the person responsible for 

the denial of the request, notify the 

requester of the right to appeal the 

determination as specified in § 2201.10, 

and notify the requester of the 

assistance available from the FOIA 

Public Liaison and the dispute 

resolution services offered by OGIS. A 

refusal by the FOIA Disclosure Officer 

to process the request because the 

requester has not made advance 

payment or given a satisfactory 

assurance of full payment required 

under § 2201.8(f) may be treated as a 

denial of the request and appealed 

under § 2201.10. 

* * * * * 

(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. 

* * * * * 

§§ 2201.7 through 2201.10 [Redesignated 

as §§ 2201.8 through 2201.11] 

■ 6. Redesignate §§ 2201.7 through 

2201.10 as §§ 2201.8 through 2201.11, 

respectively. 

■ 7. Add new § 2201.7 to read as 

follows: 

§ 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 


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Federal Register / Vol. 81, No. 248 / Tuesday, December 27, 2016 / Rules and Regulations 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. 

■ 8. Amend redesignated § 2201.8 by: 

■ a. Redesignating paragraph (b)(3) as 

paragraph (b)(5). 

■ b. Revising paragraph (a), the 

introductory text of paragraph (b), and 

paragraphs (b)(1) and (b)(2)(v); 

■ c. Adding new paragraphs (b)(3) and 

(b)(4); and 

■ d. Revising redesignated paragraph 

(b)(5), and paragraphs (h) and (i), to read 

as follows: 

§ 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 § 2201.9. 

(b) Calculation of fees. Fees for 

copying, searching and reviewing will 

be based on the direct costs of these 

services, including the average hourly 

salary (base plus DC locality payment), 

plus 16 percent for benefits, of the 

following three categories of employees 

involved in responding to FOIA 

requests: Clerical—based on an average 

of all employees at GS–9 and below; 

professional—based on an average of all 

employees at GS–10 through GS–14; 

and managerial—based on an average of 

all employees at GS–15 and above. 

OSHRC will calculate a schedule of fees 

based on these direct costs. The 

schedule of fees under this section 

appears in Appendix A to this part. A 

copy of the schedule of fees may also be 

obtained at no charge from the FOIA 

Disclosure Officer. See § 2201.3(d). 

(1) Copying fee. The fee per copy of 

each page shall be calculated in 

accordance with the per-page amount 

established in OSHRC’s fee schedule. 

See Appendix A to this part. For other 

forms of duplication, direct costs of 

producing the copy, including operator 

time, shall be calculated and assessed. 

Copying fees shall not be charged for the 

first 100 pages of copies unless the 

copies are requested for a commercial 

use. No copying fee shall be charged for 

educational, scientific, or news media 

requests if the agency fails to comply 

with any time limit in § 2201.6, 

provided that no unusual or exceptional 

circumstances (as those terms are 

defined in § 2201.6(b) and § 2201.4(d), 

respectively) apply to the processing of 

the request. 

(2) * * * 

(v) Failure to comply with time limits. 

No search fee shall be charged if the 

Commission fails to comply with any 

time limit in § 2201.6, provided that no 

unusual or exceptional circumstances 

(as those terms are defined in 

§ 2201.6(b) and § 2201.4(d), 

respectively) apply to the processing of 

the request. 

(3) Unusual circumstances. (i) If the 

Commission has determined that 

unusual circumstances, as defined in 

§ 2201.6(b), apply and has provided 

timely written notice to the requester, a 

failure to comply with the time limit 

shall be excused for an additional 10 

days and the Commission shall assess 

fees as usual. 

(ii) If the Commission has determined 

that unusual circumstances, as defined 

in § 2201.6(b), apply and more than 

5,000 pages are necessary to respond to 

the request, the Commission may charge 

search fees, or, in the case of requesters 

described in § 2201.8(b)(2)(ii), may 

charge duplication fees, if the 

Commission provided timely written 

notice of unusual circumstances to the 

requester in accordance with § 2201.6(b) 

and the Commission discussed with the 

requester via written mail, email, or 

telephone (or made not less than three 

good-faith attempts to do so) how the 

requester could effectively limit the 

scope of the request in accordance with 

the FOIA. If this exception is satisfied, 

the Commission may charge all 

applicable fees incurred in the 

processing of the request even if such 

processing extends beyond an 

additional 10 days. 

(4) If a court has determined that 

exceptional circumstances exist, as 

defined in § 2201.4(d), a failure to 

comply with the time limits shall be 

excused for the length of time provided 

by the court order. 

(5) Review fee. A review fee shall be 

charged only for commercial requests. 

Review fees shall be calculated in 

accordance with the amounts 

established in OSHRC’s schedule of 

fees. See Appendix A to this part. A 

review fee shall be charged for the 

initial examination of documents 

located in response to a request to 

determine if it may be withheld from 

disclosure, and for the excision of 

withholdable portions. However, a 

review fee shall not be charged for 

review by the Chairman under § 2201.10 

(Appeal of denials). 

* * * * * 

(h) Interest on unpaid bills. The 

Commission’s Office of the Executive 

Director shall begin assessing interest 

charges on unpaid bills starting on the 

thirty-first day after the date the bill was 

sent. Interest will accrue from the date 

of billing until the Commission receives 

full payment. Interest will be at the rate 

described in 31 U.S.C. 3717. 

(i) Debt collection procedures. If bills 

are unpaid 60 days after the mailing of 

a written notice to the requester, the 

Commission’s Office of the Executive 

Director may resort to the debt 

collection procedures set out in the Debt 

Collection Act of 1982 (Pub. L. 97–365, 

96 Stat. 1749), as amended, and its 

administrative procedures, including 

the use of consumer reporting agencies, 

collection agencies, and offset. 

§ 2201.9 [Amended] 

■ 9. Amend redesignated § 2201.9 by 

removing the citation ‘‘§ 2201.7(b)’’ in 

paragraph (a) and adding, in its place, 

the citation ‘‘§ 2201.8(b)’’. 

■ 10. Revise redesignated § 2201.10 to 

read as follows: 

§ 2201.10 Appeal of denials. 

(a) Requirements for making an 

appeal. A denial of a request for 

records, either in whole or in part, a 

request for expedited processing, or a 

request for fee waivers, may be appealed 

in writing to the Chairman of the 

Commission. To be considered timely, 

the appeal must be postmarked, or in 

the case of electronic submissions, 

transmitted, within 90 calendar days of 

the date of the agency’s written notice 

of denial. The appeal should clearly 

identify the agency determination that is 

being appealed and the assigned FOIA 

tracking number. To facilitate handling, 

the requester should mark both the 

appeal and its envelope, or state in the 

subject line of an electronic 

transmission, ‘‘Freedom of Information 

Act Appeal.’’ 

(b) Adjudication of appeals. The 

Chairman shall act on the appeal under 

5 U.S.C. 552(a)(6)(A)(ii) within 20 

working days after the receipt of the 

appeal. An appeal ordinarily will not be 

adjudicated if the request becomes a 

matter of FOIA litigation. On receipt of 

any appeal involving classified 

information, the Chairman shall take 

appropriate action to ensure compliance 

with applicable classification rules. 

(c) Decisions on appeals. The 

Chairman shall provide the decision on 

an appeal in writing. If the Chairman 

wholly or partially upholds the denial 

of the request, the decision shall contain 


asabaliauskas on DSK3SPTVN1PROD with RULES
95040 Federal Register / Vol. 81, No. 248 / Tuesday, December 27, 2016 / Rules and Regulations 

a statement that identifies the reasons 

for the affirmance, including any FOIA 

exemptions applied. The decision must 

include notification that the requester 

may obtain judicial review of the 

decision under 5 U.S.C. 552(a)(4)(B)– 

(G). The decision shall also inform the 

requester of the dispute resolution 

services offered by OGIS as a nonexclusive alternative to litigation. If the 

Chairman’s decision is remanded or 

modified on appeal to the court, the 

requester will be notified by the agency 

of that determination in writing. The 

Commission shall then further process 

the request in accordance with the 

appeal determination and shall respond 

directly to the requester. 

(d) Engaging in dispute services 

provided by OGIS. Dispute resolution is 

a voluntary process. If the Commission 

agrees to participate in the dispute 

resolution services provided by OGIS, it 

will actively engage as a partner in the 

process in an attempt to resolve the 

dispute. 

(e) When appeal is required. Before 

seeking review by a court of the 

Commission’s adverse determination, a 

requester generally must first submit a 

timely administrative appeal. 

§ 2201.11 [Amended] 

■ 11. Amend redesignated § 2201.11 by 

removing the words ‘‘through OSHRC’s 

Web site’’ and adding, in their place, the 

words ‘‘on OSHRC’s Web site’’ in 

paragraph (b). 

■ 12. Add § 2201.12 to read as follows: 

§ 2201.12 Preservation of records. 

OSHRC shall preserve all 

correspondence pertaining to FOIA 

requests, as well as copies of all 

requested records, until disposition or 

destruction is authorized pursuant to 

title 44 of the United States Code or the 

applicable General Records Schedule of 

the National Archives and Records 

Administration. OSHRC shall not 

dispose of or destroy records while they 

are the subject of a pending request, 

appeal or lawsuit under the FOIA. 

[FR Doc. 2016–31133 Filed 12–23–16; 8:45 am] 

BILLING CODE 7600–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2016–0280] 

Drawbridge Operation Regulation; 

Chambers Creek, Steilacoom, WA 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of temporary deviation 

from regulations; request for comments. 

SUMMARY: The Coast Guard has issued a 

temporary deviation from the operating 

schedule that governs the Chambers 

Creek Burlington Northern Santa Fe 

Railroad vertical lift railroad bridge 

across Chambers Creek, mile 0.01, near 

Steilacoom in Pierce County, WA. This 

deviation will test a change to the 

drawbridge operation schedule to 

determine whether a permanent change 

to the schedule is appropriate. This test 

deviation will change the requirement 

for a bridge operator, and modify the 

existing regulation to add an advance 

notification requirement for obtaining 

bridge openings during designated 

evening hours. 

DATES: This deviation is effective from 

Midnight (12:01) on December 28, 2016 

to Midnight (11:59) on June 23, 2017. 

Comments and related material must 

reach the Coast Guard on or before June 

15, 2017. 

ADDRESSES: You may submit comments 

identified by docket number USCG– 

2016–0280 using Federal eRulemaking 

Portal at http://www.regulations.gov. 

See the ‘‘Public Participation and 

Request for Comments’’ portion of the 

SUPPLEMENTARY INFORMATION section 

below for instructions on submitting 

comments. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this temporary 

deviation, call or email Mr. Steven 

Fischer, Bridge Administrator, 

Thirteenth Coast Guard District; 

telephone 206–220–7282, email 

Steven.M.Fischer3@uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Background, Purpose and Legal Basis 

The Chambers Creek Burlington 

Northern Santa Fe Railroad vertical lift 

railroad bridge across Chambers Creek, 

mile 0.01, near Steilacoom in Pierce 

County, WA, has a vertical clearance of 

10ft in the closed-to-navigation position, 

and 50ft of vertical clearance in the 

open-to-navigation position (reference 

plane is MHW elevation of 12.2 feet). 

The bridge currently operates under 33 

CFR 117.5. 

The bridge owner, Burlington 

Northern Santa Fe Railroad, has 

observed minimal to no usage of the 

drawbridge between 10 p.m. and 6 a.m., 

and has requested to test this schedule 

to see if it better balances the needs of 

marine and rail traffic. The USCG 

conducted a test deviation from July 1, 

2016 to December 27, 2016. However, 

only one bridge opening request was 

received during that time, and a 

quantitative ruling could not be made 

from the lack of data. The following 

facts support BNSF’s proposal: (1) over 

the last 6 years only 2% of the subject 

bridge lifts have occurred between the 

hours of 10 p.m. and 6 a.m., which 

equates to approximately 5 openings a 

year, (2) from February 2009 to June 

2015 there were 1932 total openings of 

which only 40 occurred between the 

hours of 10 p.m. and 6 a.m., and (3) the 

navigation traffic consists primarily of 

the tenants of Chambers Bay marina 

(recreational users) that are members of 

the Chambers Bay Boating Association. 

The Coast Guard is publishing this 

temporary deviation to test the proposed 

schedule change to determine whether a 

permanent change to the schedule is 

appropriate to better balance the needs 

of marine and rail traffic. Under this 

temporary deviation, in effect from 

Midnight (12:01) on December 28, 2016 

to Midnight (11:59) on June 23, 2017, 

the subject bridge shall open on signal, 

except from 10 p.m. to 6 a.m. the draw 

shall open on signal if at least 4 hours 

notice is given. The bridge will be 

required to open as soon a possible, no 

later than 1 hour after notification, for 

vessels engaged in emergency response. 

The Coast Guard will inform the users 

of the waterways of this temporary 

deviation through our Local and 

Broadcast Notices to Mariners and 

through direct outreach with the 

Chambers Creek Boating Association so 

that vessel operators can arrange their 

transits to minimize any impact caused 

by the temporary deviation. Vessels able 

to pass underneath the bridge in the 

closed-to-navigation position may do so 

at any time. In accordance with 33 CFR 

117.35(e), the drawbridge must return to 

its regular operating schedule 

immediately at the end of the effective 

period of this temporary deviation. This 

deviation from the operating regulations 

is authorized under 33 CFR 117.35. 

II. Public Participation and Request for 

Comments 

We view public participation as 

essential to effective rulemaking, and 

will consider all comments and material 

received during the comment period. 

Your comment can help shape the 

outcome of this rulemaking. If you 

submit a comment, please include the 

docket number for this rulemaking, 

indicate the specific section of this 

document to which each comment 

applies, and provide a reason for each 

suggestion or recommendation. 

We encourage you to submit 

comments through the Federal 

eRulemaking Portal at http://

www.regulations.gov. If your material 

cannot be submitted using http://

www.regulations.gov, contact the person 


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