[Federal Register Volume 65, Number 80 (Tuesday, April 25, 2000)]
[Rules and Regulations]
[Pages 24128-24132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-10275]


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OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

29 CFR Part 2201


Regulations Implementing the Electronic Freedom of Information 
Act

AGENCY: Occupational Safety and Health Review Commission.

ACTION: Interim final rule.

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SUMMARY: The Occupational Safety and Health Review Commission is 
revising its Freedom of Information Act (FOIA) regulations to conform 
with the Electronic Freedom of Information Act Amendments of 1996 
(EFOIA). The EFOIA specifies how the FOIA applies to records maintained 
in hard copy or electronic format. The rule implements statutory 
provisions that broaden public access to government information by 
making more records available in electronic format. The rule implements 
provisions that recognize the difficulty in responding to requests in 
the 10 working days formerly required and extends that time to 20 
working days. It also provides procedures for discussing with FOIA 
requesters ways of tailoring requests to improve responsiveness. This 
interim rule amends the Review Commission's FOIA regulations to comply 
with the requirements of the new statute. Certain other changes have

[[Page 24129]]

been made to correct administrative errors and to update or remove 
obsolete information.

DATES: This interim final rule is effective on May 22, 2000. Comments 
must be submitted on or before June 26, 2000.

ADDRESSES: Written comments should be submitted to Linda A. Whitsett, 
Freedom of Information Act Officer, Occupational Safety and Health 
Review Commission, 1120 20th St., NW, Ninth Floor, Washington, DC 
20036-3419.

FOR FURTHER INFORMATION CONTACT: Linda A. Whitsett, Freedom of 
Information Act Officer, (202) 606-5398.

SUPPLEMENTARY INFORMATION:

Background Information

    EFOIA requires agencies to promulgate regulations implementing 
certain of its requirements, including the tracking of FOIA requests, 
the aggregation of FOIA requests and the expedited processing of FOIA 
requests. EFOIA also changes the time limit for responding to FOIA 
requests from 10 to 20 working days, the requirements for reporting to 
Congress, and the instances in which an agency may extend the time 
within which it will respond to a FOIA request. In addition, EFOIA 
includes provisions regarding the availability of documents in 
electronic form, the treatment of electronic records and the 
establishment of ``electronic reading rooms.''
    The Review Commission has determined that compelling reasons exist 
to promulgate this interim rule without prior opportunity for public 
comment. This rule is necessary for immediate implementation of EFOIA. 
Comments received in response to the publication of this interim final 
rule will be considered prior to the promulgation of a final rule.

New Provisions

A. Electronic Records

    At 5 U.S.C. 552(f)(2), EFOIA defines ``record,'' for purposes of 
FOIA, as ``any information that would be an agency record subject to 
the requirements of [5 U.S.C. 552] when maintained by an agency in any 
format, including an electronic format.'' Section 552(f) clarifies that 
the term ``agency record'' includes information stored in any computer 
readable format as well as traditional paper documents. This interim 
final rule amends 29 CFR 2201.4(a) to specifically include information 
in an electronic format within the definition of the agency's ``General 
Policy, Non-exempt records available to the public.''

B. Electronic Reading Room

    5 U.S.C. 552(a)(2) broadens the requirement for agencies to make 
available for public inspection and copying certain information, such 
as agency opinions, policy statements and interpretations not published 
in the Federal Register, administrative staff manuals and staff 
instructions that affect a member of the public. EFOIA expands section 
552(a)(2) to include agency records that have been made publicly 
available and are likely to be the subject of repetitive public 
requests, as well as a general index of these frequently sought 
documents. The amendments also provide that section 552(a)(2) records 
created on or after November 1, 1996 must be made available by computer 
telecommunications within one year after such date, or if computer 
telecommunications have not been established, by other electronic 
means. The general index of these records is to be available by 
computer telecommunications by December 31, 1999. These new 
requirements, as well as the on-line address for the Review 
Commission's homepage on the Internet, are incorporated in 29 CFR 
2201.4(d).
    EFOIA also requires that where materials have been withheld in 
records made available to the public, the extent of those deletions 
must be indicated on the portion of the record made available and, 
where technically possible, must be indicated at the place in the 
record where the deletion occurred. This new requirement is included at 
29 CFR 2201.7(f).

C. Honoring Form or Format Requests

    At 5 U.S.C. 552(a)(3), EFOIA requires that agencies make records 
available to the public ``in any form or format requested by the person 
if the record is readily reproducible by the agency'' in the requested 
form or format. This new requirement is included in 29 CFR 2201.6(b). 
EFOIA makes it clear, at 5 U.S.C. 552(a)(3)(C), that agencies should 
search for records in their electronic form, and in hard copy form, in 
response to FOIA requests, except when such searching would 
significantly interfere with the operation of the agency's automated 
information system. Also under the EFOIA amendments, ``search'' means 
to look for agency records manually ``or by automated means'' to locate 
records responsive to a request. This requirement is included in 29 CFR 
2201.4(a).

D. Time Limits for Responding to Requests

    5 U.S.C. 552(a)(6)(A)(I) extends the time to respond to a request 
to 20 working days from 10 working days, effective October 2, 1997. 29 
CFR 2201.7(a) is amended to reflect this change.

E. Multitrack Processing of Requests

    Congress recognized that even with lengthening the time to respond 
to requests, many agencies may fail to meet the 20 working day deadline 
for some requests. Therefore, 5 U.S.C. 552(a)(6)(D) authorizes agencies 
to establish ``multitrack processing.'' Under this system, requests are 
categorized based on the amount of agency effort involved in processing 
the request. This new multitrack system of course still requires the 
exercise of due diligence by agencies. It also requires that requesters 
have the opportunity to limit the scope of their requests to qualify 
for the processing of their request under a faster track. These new 
provisions are incorporated in Commission's two-track system described 
at 29 CFR 2201.7(d).

F. Unusual Circumstances

    Congress recognized that even with multitrack processing, in some 
circumstances the statutory response time will be exceeded. The EFOIA 
retains the provisions for agencies to extend the initial 20 working 
day response time for an initial request, or the 20 working day 
response time for an appeal, by an additional 10 working days in 
``unusual circumstances.'' Agencies must provide the requester with 
written justification for the extension and include the date of the 
expected response. The amendments at 29 U.S.C. 552(a)(6)(B)(iii) define 
``unusual circumstances'' as time needed to search for and collect the 
requested records from field facilities or other establishments that 
are separate from the office processing the request; the need to search 
for, collect, and appropriately examine a voluminous amount of material 
sought in a single request; or the need for consultation with another 
agency having a substantial interest in the determination of the 
request or among two or more parts of the agency having substantial 
interest in the request. These new provisions are incorporated at 29 
CFR 2201.7(b).
    In addition, 5 U.S.C. 552(a)(6)(B)(ii), authorizes agencies to 
negotiate a response time with a requester that may exceed the 
statutory maximum (20 working days plus a 10 working day

[[Page 24130]]

extension) for those FOIA requests that the agency determines cannot be 
processed within the statutory time limits. The agency must offer the 
requester an opportunity to limit the scope of the request so that it 
may be processed within the prescribed 20 working days or arrange an 
alternative time frame for processing the request or a modified 
request. These new provisions are also incorporated at 29 CFR 
2201.7(c).

G. Requests for Expedited Processing

    At 5 U.S.C. 552(a)(6)(E)(I)(I), EFOIA requires agencies to 
promulgate regulations to provide for expedited processing in instances 
where the requester demonstrates a ``compelling need'' and in other 
cases where the agency determines expedited processing is warranted. A 
``compelling need'' exists (1) where a failure to obtain requested 
records on an expedited basis could reasonably be expected to pose an 
imminent threat to the life or physical safety of an individual or (2) 
with respect to a request made by a person primarily engaged in 
disseminating information, there is an urgency to inform the public 
concerning actual or alleged Federal Government activity. The House 
Committee report explaining the legislation (H.R. Rep. No. 795, 104th 
Cong., 2d Sess. (1996) ) states that a person ``primarily engaged'' in 
the business of information dissemination ``should not include 
individuals who are engaged only incidentally in the dissemination of 
information,'' but requires that ``information dissemination be the 
main activity of the requester, although it need not be their sole 
occupation.'' A requester who is ``only incidentally'' involved in 
information dissemination, in addition to other activities, would not 
satisfy this requirement.
    The House Committee report further explains that the term ``urgency 
to inform,'' one of the qualifying elements for expedited processing, 
must involve a matter of ``current exigency to the American public'' 
such that any reasonable person could conclude that delaying a response 
to a FOIA request would compromise a ``significant recognized 
interest.'' The public's right to know, while ``significant and 
important,'' would not stand alone as sufficient to satisfy this 
standard. Agencies must make both ``factual and subjective judgments'' 
about situations cited by requesters as reasons for expedited 
processing and must demonstrate ``fairness and diligence'' in 
exercising their discretion.
    Section 552(a)(6)(E)(ii)(I) requires that requesters must receive 
written notice within 10 calendar days after the date of the request 
regarding the determination of expedited processing. Once expedited 
processing is granted, agencies must process the request ``as soon as 
practicable'' under 5 U.S.C. 552(a)(6)(E)(iii) and administrative 
appeals of a denial of an expedited processing request must be handled 
with ``expeditious consideration'' under 5 U.S.C. 552(a)(6)(E)(ii)(II). 
If an agency denies the request for expedited processing or fails to 
act upon the request within the prescribed 10 calendar days, a 
petitioner may seek judicial review. The Commission has implemented 
these EFOIA requirements regarding expedited processing at 29 CFR 
2201.7(e).

H. Estimates of the Volume of Materials Denied

    At 5 U.S.C. 552(a)(6)(F), EFOIA requires agencies to make a 
reasonable effort to estimate the volume of any requested matter the 
provision of which is denied in whole or in part, and to inform the 
requester unless providing such information would harm an interest 
protected by a FOIA exemption on which the denial is based. This new 
requirement is implemented at 29 CFR 2201.7(f).

I. Annual Report to Congress

    At 5 U.S.C. 552(e), EFOIA amends the annual requirements for 
reporting agency FOIA activities to Congress by expanding the amount of 
information for inclusion in the report and requiring agencies to make 
these reports available to the public by computer access or other 
electronic means. The Commission annual report is on its website at: 
http://www.oshrc.gov. The report is also available in the Commission 
Information Office. The Commission has implemented these amended EFOIA 
reporting requirements at 29 CFR 2201.10.

List of Subjects in 29 CFR Part 2201

    Freedom of information.


    For the reasons set forth in the preamble, 29 CFR part 2201 is 
amended 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.

    2. Section 2201.4 is amended by revising paragraphs (a) and (c) and 
adding paragraph (d) to read as follows:


Sec. 2201.4  General policy.

* * * * *
    (a) Non-exempt records available to public. Except for records and 
information exempted from disclosure by 5 U.S.C. 553(b) or published in 
the Federal Register under 5 U.S.C. 552(a)(1), all records of the 
Commission or in its custody are available to any person who requests 
them in accordance with Sec. 2201.6. Records include any information 
that would be a record subject to the requirements of 5 U.S.C. 552 when 
maintained by the Review Commission in any format, including electronic 
format. In searching for records, the Review Commission will look for 
records manually or by automated means. The Review Commission will 
search for records in their electronic form and in hard copy form, in 
response to FOIA requests, except when such searching would 
significantly interfere with the operation of the Commission's 
automated information system.
* * * * *
    (c) Record availability. The records of Review Commission 
activities are publicly available for inspection and copying at the 
OSHRC Information Office, 1120 20th St., NW, 9th Floor, Washington, DC. 
These records include:
    (1) Final opinions including concurring and dissenting opinions as 
well as orders issued as a result of adjudication of cases.
    (2) OSHRC Rules of Procedure and Guides to those procedures.
    (3) Copies of records that have been released to a person under the 
Freedom of Information Act (FOIA) that, because of the subject matter, 
the Review Commission determines that the records have become or are 
likely to become the subject of subsequent requests for substantially 
the same records.
    (4) A general index of records released under the FOIA.
    (d) Materials created on or after November 1, 1996 under paragraphs 
(c) (1), (2), (3) and (4) of this section may also be accessed through 
the Internet at the Review Commission's World Wide Web site at http://www.oshrc.gov

    3. In Sec. 2201.6, paragraph (b) is revised to read as follows:


Sec. 2201.6  Procedure for requesting records.

* * * * *
    (b) Other information. Persons wishing to obtain copies of 
documents (including the hearing transcript filed in a case before the 
Review Commission or a Judge, and information that is freely available 
under paragraph (a) of this section), shall submit a request in writing 
to the Freedom of Information

[[Page 24131]]

Act Officer at the address in Sec. 2201.5(a). The request shall be 
clearly identified as a request for information under the Freedom of 
Information Act. The envelope or cover enclosing or covering the 
request shall have the phrase ``INFORMATION REQUEST'' in capital 
letters on it. The agency will make information available in any form 
or format requested by the person if the record is readily reproducible 
by the agency in that form or format.
* * * * *

    4. Sec. 2201.7 is amended by revising paragraph (a), redesignating 
paragraph (b) as paragraph (f) and revising it, redesignating paragraph 
(c) as paragraph (g); and adding paragraphs (b), (c), (d), (e) and (h). 
The revised and added text reads as follows:


Sec. 2201.7  Responses to requests.

    (a) Responses within 20 working days. The Review Commission Freedom 
of Information Act Officer will either grant or deny a request for 
records within 20 working days after receiving the request.
    (b) Extensions of response time in unusual circumstances. In 
unusual circumstances, the Review Commission may extend the time limit 
prescribed in paragraph (a) of this section by not more than 10 working 
days. The extension may be made by written or telephonic notice to the 
requester and will include an explanation of the reasons for the 
extension and will indicate the date on which a determination is 
expected to be made. ``Unusual circumstances'' exists, but only to the 
extent reasonably necessary to the proper processing of the particular 
request, when there is a need to:
    (1) Search for and collect the requested records from field 
facilities or other establishments separate from the office processing 
the request;
    (2) Search for, collect, and appropriately examine a voluminous 
amount of separate and distinct records which are demanded in a single 
request; or
    (3) Consult, with all practicable speed, with another agency having 
a substantial interest in the determination of the request or among two 
or more components within the Review Commission having substantial 
subject-matter interest therein.
    (c) Additional extension. A requester shall be notified 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) Multitrack processing. To ensure the most equitable treatment 
possible for all requesters, the Commission will process requests on a 
first-in, first-out basis using a two track processing system based 
upon the estimated time it will take to process the request.
    (1) The first track is for requests of simple to moderate 
complexity that are expected to be completed within 20 working days.
    (2) The second track is for requests involving ``unusual 
circumstances'' that are expected to take between 21 to 30 working days 
to complete and those that, because of their unusual volume or other 
complexity, are expected to take more than 30 working days to complete.
    (3) Requesters should assume, unless notified by the Review 
Commission, that their request is in the first track. The Review 
Commission will notify requesters when their 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 telephonically or in writing. In the case of 
a request expected to take more than 30 working day 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 
requesters as documents are obtained by the FOIA office from the 
supplying offices.
    (e) Expedited processing. (1) The Commission may place a person's 
request at the front of the queue for the appropriate track for that 
request upon receipt of a written request that clearly demonstrates a 
compelling need for expedited processing. Requesters must provide 
detailed explanations to support their expedited requests. For purposes 
of determining expedited processing, the term compelling need means:
    (i) That a failure to obtain requested records on an expedited 
basis could reasonably be expected to pose an imminent threat to the 
life or physical safety of any individual; or
    (ii) That a request is made by a person primarily engaged in 
disseminating information, and that person establishes that there is an 
urgency to inform the public concerning actual or alleged Federal 
Government activity.
    (2) A person requesting expedited processing must include a 
statement certifying the compelling need given to be true and correct 
to the best of his or her knowledge and belief. The certification 
requirement may be waived by the Review Commission as a matter of 
agency discretion.
    (3) The FOIA Officer will make the initial determination whether to 
grant or deny a request for expedited processing and will notify a 
requester within 10 calendar days after receiving the request whether 
its processing will be expedited.
    (4) Administrative appeals of a denial of an expedited processing 
request will be handled with expeditious consideration.
    (f) Content of denial. When the Freedom of Information Act Officer 
denies a request, the notice of the denial shall state the reason for 
it and that the denial may be appealed as specified in paragraph (g) of 
this section. A refusal by the Freedom of Information Act 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 paragraph (g) of this section. When release of entire records is 
denied in whole or in part, a reasonable effort will be made to 
estimate the volume of any requested matter that is denied, unless 
providing such an estimate would harm an interest protected by the 
exemption(s) under which the matter has been denied.
* * * * *
    (h) Deletions. 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 amount of the 
information deleted shall be indicated at the place in the record where 
the deletion is made.
    Sec. 2201.10 is revised to read as follows:


Sec. 2201.10  Maintenance of statistics.

    (a) The Freedom of Information Act Officer shall maintain records 
of:
    (1) The number of determinations made by the agency not to comply 
with the requests for records made to the agency and the reasons for 
those determinations;
    (2) The number of appeals made by persons, the results of those 
appeals, and the reason for the action upon each appeal that results in 
a denial of information;
    (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;

[[Page 24132]]

    (4) A description of whether a court has upheld the decision of the 
agency to withhold information under each of those statutes cited, and 
a concise description of the scope of any information upheld;
    (5) The number of requests for records pending before the agency as 
of September 30 of the preceding year and the median number of days 
that these requests had been pending before the agency as of that date;
    (6) The number of requests for records received by the agency and 
the number of requests the agency processed;
    (7) The median number of days taken by the agency to process 
different types of requests;
    (8) The total amount of fees collected by the agency for processing 
requests;
    (9) The average amount of time that the agency estimates as 
necessary, based on the past experience of the agency, to comply with 
different types of requests;
    (10) The number of full-time staff of the agency devoted to the 
processing of requests for records under this section; and
    (11) The total amount expended by the agency for processing these 
requests.
    (b) The Freedom of Information Act Officer shall annually, on or 
before February 1 of each year, prepare and submit to the Attorney 
General an annual report covering each of the categories of records to 
be maintained in accordance with paragraph (a) of this section, for the 
previous fiscal year. A copy of the report will be available for public 
inspection and copying at the Commission Information Office and a copy 
will accessible through the Internet at OSHRC's World Wide Web site at 
http://www.oshrc.gov.

    Dated: April 18, 2000.
Patricia A. Randle,
Executive Director.
[FR Doc. 00-10275 Filed 4-24-00; 8:45 am]
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