[Federal Register: April 28, 2010 (Volume 75, Number 81)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
29 CFR Part 2201
Regulations Implementing the Freedom of Information Act
AGENCY: Occupational Safety and Health Review Commission.
ACTION: Notice of proposed rulemaking.
SUMMARY: The Occupational Safety and Health Review Commission (OSHRC)
is proposing to revise its regulations implementing the Freedom of
Information Act (FOIA). The proposed regulations have been updated to
reflect the amendments to the FOIA from the Openness Promotes
Effectiveness in our National Government Act of 2007 (OPEN Government
Act), as well as changes in OSHRC's own policies and procedures.
DATES: Submit comments on or before May 28, 2010.
ADDRESSES: OSHRC encourages electronic submission of comments. You may
submit comments by any of the following methods:
E-mail: email@example.com. Include "FOIA PROPOSED
RULEMAKING" in the subject line of the message.
Fax: (202) 606-5417.
Mail: 1120 20th Street, NW., 9th Floor, Washington, DC
Hand Delivery/Courier: Same as mailing address.
Instructions: All submissions must include your name, return
address, and e-mail address, if applicable. Please clearly label
submissions as "FOIA PROPOSED RULEMAKING." If you submit comments by
e-mail, you will receive a confirmation e-mail from the system
indicating that we have received your submission. If, in response to
your comments submitted via e-mail, you do not receive a confirmation
e-mail within five working days, please contact us directly at (202)
FOR FURTHER INFORMATION CONTACT: Jennifer D. Marr, FOIA Public Liaison,
or Robert M. Kahn, Office of the General Counsel, via telephone: (202)
606-5410, or via e-mail: firstname.lastname@example.org or email@example.com.
OSHRC proposes several substantive and technical revisions to its
regulations implementing the FOIA (5 U.S.C. 552, as amended) that fall
within two general categories. First, OSHRC proposes modifying its
existing FOIA regulations to reflect the amendments to the FOIA
contained in the OPEN Government Act, Public Law 110-175, 121 Stat.
2524. The OPEN Government Act amended various FOIA administrative
procedures, such as when an agency may toll the statutory time for
responding to FOIA requests and how to indicate exemptions authorizing
deletion of materials under the FOIA on the responsive record.
Second, as a result of the Chief FOIA Officer's review of OSHRC's
FOIA operations, OSHRC proposes to revise its regulations to further
clarify its policies and procedures relating to the processing of FOIA
requests and the administration of its FOIA operations. These proposed
revisions include changes to the description of the OSHRC reading rooms
and to OSHRC fee policies.
Accordingly, OSHRC proposes to revise its regulations implementing
the FOIA and put them out for public comment. The specific amendments
that OSHRC proposes to each section of 29 CFR part 2201 are discussed
hereafter in regulatory sequence.
II. Proposed Regulatory Revisions
In 29 CFR 2201.3, OSHRC proposes revising the description of the
Chief FOIA Officer's duties in paragraph (a) to reflect the more
detailed description of those duties set forth under the OPEN
Government Act. 5 U.S.C. 552(k). Additionally, OSHRC proposes adding a
description of the FOIA Public Liaison's duties in paragraph (c) to
reflect the responsibilities described in the OPEN Government Act. 5
U.S.C. 552(a)(6)(B)(ii), (l). In paragraph (d) OSHRC proposes minor
revisions to the FOIA Service Center's contact information. OSHRC also
proposes revising paragraph (d) to add information about status
requests provided by the FOIA Service Center. 5 U.S.C. 552(a)(7)(B).
In 29 CFR 2201.4, OSHRC proposes revising paragraph (c) to clarify
the type of records publicly available in the e-FOIA Reading Room and
where to access them. OSHRC proposes changing paragraph (d) to explain
the procedures for using OSHRC's on-site e-FOIA Reading Room. OSHRC
also proposes revising its definition of "Representative of the news
media, or news media requester" in paragraph (e) to reflect the
definition provided in the OPEN Government Act. 5 U.S.C.
552(a)(4)(A)(ii). OSHRC would also add definitions of "Exceptional
circumstances" and "Record" to paragraph (e), based on the
description of these terms in the OPEN Government Act. 5 U.S.C.
In 29 CFR 2201.6, OSHRC proposes revising paragraph (a) to add the
tolling requirements set forth in the OPEN Government Act. 5 U.S.C.
552(a)(6)(A)(ii). Following the new requirement in the OPEN Government
Act, OSHRC proposes revising its procedure for making deletions within
records as set forth in paragraph (g) to include, where technically
feasible, marking the exemption under which each deletion is made. 5
U.S.C. 552(b). OSHRC also proposes creating a new paragraph (h)
describing how OSHRC assigns tracking numbers to incoming FOIA requests
and notifies a requester of the tracking number assigned to the
request. 5 U.S.C. 552(a)(7)(A). In addition, OSHRC proposes creating a
new paragraph (i) to indicate that when searching for responsive
records, OSHRC will ordinarily consider only records in its possession
as of the date it begins its search. Finally, OSHRC proposes minor
grammatical corrections to paragraphs (c) and (d)(3).
In 29 CFR 2201.7, OSHRC proposes revising the copying fee provision
in paragraph (b)(1) and the search fee provision in paragraph (b)(2) to
reflect the new requirements for each in the OPEN Government Act. 5
U.S.C. 552(a)(4)(A)(viii). OSHRC proposes revising paragraph (e) to
consider requests for which fees are likely to exceed $25 received only
after the requester agrees to pay the actual or estimated fee.
In 29 CFR 2201.10, OSHRC proposes to update paragraph (a) to
reflect the new maintenance of statistics requirements in the OPEN
Government Act. 5 U.S.C. 552(e).
III. 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.
Paperwork Reduction Act
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.
Regulatory Flexibility Act
OSHRC certifies under the Regulatory Flexibility Act, 5 U.S.C.
605(b), that these rules, if adopted, would not have a significant
economic impact on a substantial number of small entities, because it
applies exclusively to a Federal agency and individuals accessing the
services of a Federal agency. Therefore, a Regulatory Flexibility
Analysis is not required.
Congressional Review Act
These proposed revisions do not constitute a rule or a major rule
under the Congressional Review Act, 5 U.S.C. 801-808. 5 U.S.C. 804(2),
List of Subjects in 29 CFR Part 2201
Freedom of information.
Signed at Washington, DC, on April 15, 2010.
Thomasina V. Rogers,
For the reasons set forth in the preamble, OSHRC proposes to amend
29 CFR part 2201 as follows:
PART 2201--REGULATIONS IMPLEMENTING THE FREEDOM OF INFORMATION ACT
1. The authority citation for part 2201 is revised to read as
Authority: 29 U.S.C. 661(g); 5 U.S.C. 552.
2. Section 2201.3 is amended by revising paragraphs (a), (c), and
(d) to read as follows:
Sec. 2201.3 Delegation of authority and responsibilities.
(a) The Chairman delegates to the Chief FOIA Officer the authority
to act upon all requests for agency records. The Chief FOIA Officer
shall, subject to the authority of the Chairman:
(1) Have agency-wide responsibility for efficient and appropriate
compliance with this section;
(2) Monitor implementation of the FOIA throughout the agency and
keep the Chairman and the Attorney General appropriately informed of
the agency's performance in implementing this section;
(3) Recommend to the Chairman such adjustments to agency practices,
policies, personnel, and funding as may be necessary to improve
implementation of this section;
(4) Review and report to the Attorney General, through the
Chairman, at such times and in such formats as the Attorney General may
direct, on the agency's performance in implementing this section; and
(5) Facilitate public understanding of the purposes of the
statutory exemptions of this section by including concise descriptions
of the exemptions in both the agency's FOIA handbook, and the agency's
annual report on this section, and by providing an overview, where
appropriate, of certain general categories of agency records to which
those exemptions apply.
* * * * *
(c) The Chief FOIA Officer shall designate the FOIA Public
Liaison(s), who shall serve as the supervisory official(s) to whom a
FOIA requester can raise concerns about the service the FOIA requester
has received following an initial response. FOIA Public Liaisons shall
be responsible for assisting in reducing delays, increasing
transparency and understanding of the status of requests, and assisting
in the resolution of disputes.
(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 and telephone number of the FOIA Requester Service Center
is 1120 20th Street, NW., 9th Floor, Washington, DC 20036-3457, (202)
606-5700. The FOIA Requester Service Center is available to provide
information about the status of a request to the person making the
request using the assigned tracking number (as described in Sec.
(1) The date on which the agency originally received the request;
(2) An estimated date on which the agency will complete action on
3. Section 2201.4 is amended:
a. By revising paragraphs (c) introductory text, (c)(1), (3), (4),
b. By revising paragraph (d); and
c. In paragraph (e) by revising the definition of "Representative
of the news media, or news media requester" and adding, in
alphabetical order, the definitions "Exceptional circumstances" and
The revisions and additions read as follows:
Sec. 2201.4 General policy and definitions.
* * * * *
(c) 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 through 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, issued as a result of adjudication of cases;
* * * * *
(3) Agency policy statements and interpretations adopted by OSHRC
and not published in the Federal Register, if any;
(4) Administrative staff manuals that affect a member of the
public, if any;
(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; and
* * * * *
(d) Record availability at the OSHRC on-site e-FOIA Reading Room.
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.
(e) * * *
Exceptional circumstances does not include a delay that results
from a predictable agency workload of requests under this section,
unless the agency demonstrates reasonable progress in reducing its
backlog of pending requests.
* * * * *
Record means any information that would be an OSHRC record subject
to the requirements of the FOIA when maintained by OSHRC in any format,
including an electronic format, and any such OSHRC record that is
maintained for OSHRC by an entity under Government contract, for the
purposes of records management.
Representative of the news media, or news media requester is any
person or entity that gathers information of potential interest to a
segment of the public, uses its editorial skills to turn the raw
materials into a distinct work, and distributes that work to an
audience. For purposes of this definition, the term "news" means
information that is about current events or that would be of current
interest to the public. Examples of news media entities include
television or radio stations broadcasting to the public at large and
publishers of periodicals (but only in those instances where they can
qualify as disseminators of "news") who make their products available
for purchase or subscription by, or free distribution to, the general
public. These examples are not all-inclusive. Moreover, as methods of
news delivery evolve (for example the adoption of the electronic
dissemination of newspapers through telecommunications services), such
alternative media shall be considered to be news-media entities. For
"freelance" journalists to be regarded as working for a news
organization, they must demonstrate a solid basis for expecting
publication through that organization. A publication contract would be
the clearest proof, but OSHRC shall also look to the past publication
record of a requester in making this determination. To be in this
category, a requester must not be seeking the requested records for a
commercial use. However, a request for records supporting the news-
dissemination function of the requester shall not be considered to be
for a commercial use.
* * * * *
4. Section 2201.6 is amended by revising paragraphs (a), (c),
(d)(3), and (g), and adding paragraphs (h) and (i) to read as follows:
Sec. 2201.6 Responses to requests.
(a) Responses within 20 working days. The FOIA Disclosure Officer
will either grant or deny a request for records within 20 working days
after receiving the request. The 20-day period shall not be tolled by
the agency except in the following cases. In these cases, the agency's
receipt of the requester's response to the agency's request for
information or clarification ends the tolling period.
(1) The agency may toll the 20-day period once while awaiting
information that it has reasonably requested from the requester under
this section. The agency may make more than one request to the
requester for information not related to issues regarding fee
assessment, but can only toll the 20-day period once; or
(2) The agency may toll the 20-day period as many times as are
necessary to clarify any issues regarding fee assessment.
* * * * *
(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.
(d) * * *
(3) A requester should assume, unless otherwise notified by the
Commission, that its request is in the first track of processing. The
Commission will notify a requester when its request is placed in the
second track for processing and that notification will include the
estimated time for completion. Should subsequent information
substantially change the estimated time to process a request, the
requester will be notified in writing. In the case of a request
expected to take more than 30 working days for action, a requester may
modify the request to allow it to be processed faster or to reduce the
cost of processing. Partial responses may be sent to a requester as
documents are obtained by the FOIA Disclosure Officer from the
* * * * *
(g) Deletions. The FOIA Disclosure Officer shall provide to the
requester in writing a justification for deletions within records. The
amount of information deleted from records shall be indicated on the
released portion of the record, unless including that indication would
harm an interest protected by the exemption under which the deletion is
made. If technically feasible, the place in the record where the
deletion is made, and the exemption under which the deletion is made,
shall be marked.
(h) Tracking numbers. The FOIA Disclosure Officer shall assign an
individualized tracking number to each request received for processing
and provide to each person making a request the tracking number
assigned to the request. For any response that will take ten or more
days to process, OSHRC will send the requester a postcard indicating
the request's receipt date and its assigned tracking number.
(i) Determining responsive records. In determining which records
are responsive to a request, OSHRC ordinarily will include only records
in its possession as of the date it begins its search for them. If any
other date is used, OSHRC shall inform the requester of that date.
5. Section 2201.7 is amended by
a. Revising paragraphs (b)(1) and (b)(2) introductory text;
b. Adding paragraph (b)(2)(v); and
c. Revising paragraph (e).
The revisions and addition read as follows:
Sec. 2201.7 Fees for copying, searching, and review.
* * * * *
(b) * * *
(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(e), respectively) apply to the processing of the request.
(2) Search fee. Search fees shall be calculated in accordance with
the amounts established in OSHRC's fee schedule. See Appendix A to this
part. Commercial requesters shall be charged for all search time,
except as described below. Search fees shall be charged even if the
responsive documents are not located or if they are located but
withheld on the basis of an exemption. However, search fees shall be
limited or not charged as follows:
* * * * *
(v) Failure to comply with time limits. No search fee shall be
charged 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(e), respectively)
apply to the processing of the request.
* * * * *
(e) Fees likely to exceed $25. If the total fee charges are likely
to exceed $25, the FOIA Disclosure Officer shall notify the requester
of the estimated amount of the charges, unless the requester has
indicated a willingness to pay fees up to the estimated amount. The
notification shall offer the requester an opportunity to confer with
the FOIA Disclosure Officer to reformulate the request to meet the
requester's needs at a lower cost. In cases in which a requester has
been notified that actual or estimated fees amount to more than $25,
the request shall not be considered received and further work shall not
be done on it until the requester agrees to pay the actual or estimated
total fee. Any such agreement shall be memorialized in writing.
* * * * *
6. Section 2201.10 is amended by:
a. Revising paragraphs (a)(3), (5), and (7);
b. Redesignating paragraphs (a)(8), (10), and (11) as paragraphs
(a)(16) through (a)(18);
c. Removing paragraph (a)(9); and
d. Adding new paragraphs (a)(8) through (a)(15).
The revisions and additions read as follows:
Sec. 2201.10 Maintenance of statistics.
(a) * * *
(3) A complete list of all statutes that the agency used to
authorize the withholding of information under 5 U.S.C. 552(b)(3),
which exempts information that is specifically exempted from disclosure
by other statutes and the number of occasions on which each statute was
* * * * *
(5) The number of requests for records pending before the agency as
of September 30 of the preceding year, and the median and average
number of days that these requests had been pending before the agency
as of that date;
* * * * *
(7) The median number of days taken by the agency to process
different types of requests, based on the date on which the requests
were received by the agency;
(8) The average number of days for the agency to respond to a
request beginning on the date on which the request was received by the
agency, the median number of days for the agency to respond to such
requests, and the range in number of days for the agency to respond to
(9) Based on the number of business days that have elapsed since
each request was originally received by the agency--
(i) The number of requests for records to which the agency has
responded with a determination within a period up to and including 20
days, and in 20-day increments up to and including 200 days;
(ii) The number of requests for records to which the agency has
responded with a determination within a period greater than 200 days
and less than 301 days;
(iii) The number of requests for records to which the agency has
responded with a determination within a period greater than 300 days
and less than 401 days; and
(iv) The number of requests for records to which the agency has
responded with a determination within a period greater than 400 days;
(10) The average number of days for the agency to provide the
granted information beginning on the date on which the request was
originally filed, the median number of days for the agency to provide
the granted information, and the range in number of days for the agency
to provide the granted information;
(11) The median and average number of days for the agency to
respond to administrative appeals based on the date on which the
appeals originally were received by the agency, the highest number of
business days taken by the agency to respond to an administrative
appeal, and the lowest number of business days taken by the agency to
respond to an administrative appeal;
(12) Data on the 10 active requests with the earliest filing dates
pending at the agency, including the amount of time that has elapsed
since each request was originally received by the agency;
(13) Data on the 10 active administrative appeals with the earliest
filing dates pending before the agency as of September 30 of the
preceding year, including the number of business days that have elapsed
since the requests were originally received by the agency;
(14) The number of expedited review requests that are granted and
denied, the average and median number of days for adjudicating
expedited review requests, and the number adjudicated within the
required 10 days;
(15) The number of fee waiver requests that are granted and denied,
and the average and median number of days for adjudicating fee waiver
* * * * *
[FR Doc. 2010-9432 Filed 4-27-10; 8:45 am]
BILLING CODE 7600-01-P