[Federal Register Volume 71, Number 187 (Wednesday, September 27, 2006)]
[Rules and Regulations]
[Pages 56347-56354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-15834]


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OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

29 CFR Part 2201


Regulations Implementing the Freedom of Information Act

AGENCY: Occupational Safety and Health Review Commission.

ACTION: Final rule.

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SUMMARY: The Occupational Safety and Health Review Commission (OSHRC) 
revises its regulations implementing the Freedom of Information Act 
(FOIA), 5 U.S.C. 552, as amended. The regulations contain new 
provisions to comply with Executive Order 13392. In addition, the 
regulations have been updated to reflect changes in OSHRC's policies 
and procedures. As a result of these revisions, the public will have a 
clearer understanding of OSHRC's policies and procedures implementing 
the FOIA.

DATES: This rule is effective on October 27, 2006.

FOR FURTHER INFORMATION CONTACT: Jin H. Kim, Attorney-Advisor, Office 
of the General Counsel, 1120 20th Street, NW., Ninth Floor, Washington, 
DC 20036-3457. Telephone: (202) 606-5410. Fax: (202) 606-5417. E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: OSHRC is publishing a final rule for 
regulations implementing the FOIA. On July 21, 2006, OSHRC published 
for comment a notice of proposed rulemaking (NPRM) in the Federal 
Register that proposed revisions to OSHRC's regulations at 29 CFR part 
2201, implementing the FOIA, 5 U.S.C. 552, as amended. 71 FR 41384, 
Jul. 21, 2006. Interested persons were afforded an opportunity to 
participate in the rulemaking process through submission of written 
comments on the NPRM. OSHRC received no public comments. OSHRC has 
reviewed the proposed regulations and has only changed the regulatory 
text in this final rule to update the contact information in 29 CFR 
2201.3(d), correct the cross-references in 29 CFR 2201.4(c) and (d), 
and add cross-references to Appendix A in 29 CFR 2201.7. All other 
provisions in the regulatory text are the same as in the NPRM, and 
OSHRC adopts them in this final rule.

I. Background

    As mentioned in the preamble to the proposed regulations, OSHRC is 
making several substantive and technical revisions to its regulations 
to (1) Comply with Executive Order 13392 (E.O. 13392), 70 FR 75373, 
Dec. 19, 2005, (2) reflect recent changes in OSHRC's policies and 
procedures as they relate to the processing of FOIA requests, and (3) 
make purely technical or clarifying changes in phrasing and 
nomenclature. 71 FR 41384, Jul. 21, 2006.
    OSHRC's revisions to its FOIA regulations, including the addition 
of new provisions and the modification of existing provisions, comply 
with the requirements of E.O. 13392. See 70 FR at 41384-85. In issuing 
E.O. 13392, the President directed each agency to ensure that its FOIA 
operations are ``citizen-centered'' and ``results-oriented.'' In order 
to achieve these goals, E.O. 13392 requires each agency head to 
designate a Chief FOIA Officer, who has agency-wide responsibility for 
the efficient and appropriate compliance with the FOIA. As part of his 
or her duties under E.O. 13392, the Chief FOIA Officer must review the 
agency's FOIA operations and identify any areas for improvement. In 
addition, E.O. 13392 requires agencies to establish FOIA Requester 
Service Centers to enable any FOIA requester to seek information 
concerning the status of his or her FOIA request, as well as 
appropriate information about the agency's FOIA response. E.O. 13392 
further requires agencies to designate, as part of the FOIA Requester 
Service Center, FOIA Public Liaisons to serve as the supervisory 
officials to whom a FOIA requester can raise concerns about the service 
the FOIA requester has received from the FOIA Requester Service Center, 
following an initial response to the FOIA request. Therefore, OSHRC 
revises its regulations implementing the FOIA to comply fully with E.O. 
13392.
    Furthermore, based on the Chief FOIA Officer's review of OSHRC's 
FOIA operations, OSHRC also proposed revisions to its rule to reflect 
recent changes in OSHRC's policies and procedures as they relate to the 
processing of FOIA requests. As mentioned in the preamble to the NPRM, 
OSHRC moved all FOIA processing from its Office of Administration to 
the Office of the General Counsel at the beginning of this fiscal year 
(FY 2006). 71 FR at 41385. Currently, paralegals and attorneys, who 
have received specialized FOIA training, are now handling all FOIA 
requests. These revised regulations reflect changes in OSHRC's policies 
and procedures, which will make the processing of FOIA requests more 
efficient and responsive.
    Finally, as specified in the preamble to the NPRM, OSHRC revises 
its regulations to correct grammatical errors, change nomenclature, 
renumber sections and paragraphs as a result of deleting and adding 
sections and paragraphs to the regulations, update regulatory cross-
references, and clarify sentences. 71 FR at 41384-87.

II. Section-by-Section Analysis

    OSHRC revises Sec.  2201.1 to correct a grammatical error in the 
section heading and to add abbreviations for OSHRC and FOIA. OSHRC has 
also made similar changes throughout the regulations and corrected 
other grammatical errors, as well as changed nomenclature, such as FOIA 
Disclosure Officer, and updated regulatory cross-references. 71 FR at 
41384-88.
    In Sec.  2201.2, OSHRC adds a sentence to the end of the section to 
provide additional details about the designation of one of the 
Commissioners as the Chairman and his responsibilities for the 
administrative operations of the Commission. This is consistent with 
section 12(e) of the Occupational Safety and Health Act of 1970, 29 
U.S.C. 661(e).
    OSHRC revises the delegation of FOIA-related duties in Sec.  2201.3 
to reflect the changes required by E.O. 13392. First, in paragraph (a), 
the Chairman delegates to the Chief FOIA

[[Page 56348]]

Officer the authority to act on all requests for agency records. 
Further, reference to the alternate designations is removed. Second, in 
paragraph (b), the Chief FOIA Officer designates the agency's FOIA 
Disclosure Officer(s) to process all FOIA requests. Third, in paragraph 
(c), the Chief FOIA Officer designates the FOIA Public Liaison(s) to 
address any concerns about the service a FOIA requester has received 
following an initial response by the agency. Finally, in paragraph (d), 
OSHRC identifies the FOIA Disclosure Officer(s) and FOIA Public 
Liaison(s) as serving in the agency's FOIA Requester Service Center 
located at OSHRC's national office in Washington, DC, and provides the 
address and telephone number to contact the FOIA Requester Service 
Center. Since publishing the NPRM, OSHRC decided to add the specific 
room number of the FOIA Requester Service Center in paragraph (d) to 
provide FOIA requesters more specific information about the location of 
the FOIA Requester Service Center. In addition, OSHRC is changing the 
telephone number of the FOIA Requester Service Center to (202) 606-
5700, which will be dedicated only to FOIA-related matters. Under 
OSHRC's new procedures, the FOIA Disclosure Officer(s) will handle all 
initial responses to FOIA requests. The FOIA Public Liaison(s), who 
must function in a supervisory capacity, will ensure appropriate 
communication between FOIA requesters and FOIA Disclosure Officer(s). 
These changes will help ensure that OSHRC's FOIA operations are 
``citizen-centered'' and ``results-oriented'' as directed in E.O. 
13392.
    In addition to the changes discussed above, OSHRC eliminates the 
language in Sec.  2201.3 that referred to the handling of requests for 
copies of individual decisions because copies of Commission decisions 
have been placed on OSHRC's Web site for the public's convenience, 
pursuant to the Electronic Freedom of Information Act Amendments of 
1996, Pub. L. 104-231, 110 Stat. 3048 (codified as amended in 5 U.S.C. 
552) (e-FOIA). OSHRC further eliminates the language in Sec.  2201.3 
that referred to the handling of ``all other information requests'' 
because this information is covered under revised Sec.  2201.5(a); 
thus, its inclusion in Sec.  2201.3 is redundant.
    In Sec.  2201.4, OSHRC adds new paragraphs (c)(3) and (c)(4) to 
reflect the language of the FOIA and corrects cross-references within 
the section consistent with the statute. See 5 U.S.C. 552(a)(2). OSHRC 
also adds a new paragraph (e) to provide definitions relevant to 29 CFR 
part 2201 that are consistent with other agencies' FOIA regulations. As 
noted in the preamble to the NPRM, these nine definitions clarify 
certain FOIA terminology but in no way change how OSHRC processes FOIA 
requests. 71 FR at 41385. The terms include: ``commercial use 
request,'' ``direct costs,'' ``duplication,'' ``education 
institution,'' ``noncommercial scientific institution,'' 
``representative of the news media, or media requester,'' ``review,'' 
``search,'' and ``working day.'' The terms have been defined using 
standard language consistent with the statute, including the 
incorporation of minor technical modifications from the FOIA 
regulations of several other government agencies, including the 
Department of Justice (28 CFR part 16) and the Office of Management and 
Budget (OMB) (5 CFR part 1303). OSHRC also includes a definition for 
``working day,'' which is not defined in other government agencies' 
FOIA regulations, in order to clarify the FOIA's calculation of time.
    OSHRC removes the text of Sec.  2201.5 in its entirety because it 
is no longer necessary. OSHRC had a policy of providing a hard copy of 
a single decision before the advent of the Internet and e-FOIA. 
Pursuant to e-FOIA, OSHRC has placed Commission decisions on OSHRC's 
Web site, http://www.oshrc.gov, for the public's convenience. 
Therefore, OSHRC removes Sec.  2201.5 in its entirety.
    In new Sec.  2201.5, formerly Sec.  2201.6, OSHRC eliminates 
paragraph (a) in its entirety because OSHRC has placed most of this 
information on its Web site for the public's convenience pursuant to e-
FOIA. In new paragraph (a), formerly paragraph (b), which also has a 
new paragraph heading, ``Requests for information,'' OSHRC modifies the 
language to clearly delineate the procedures for making FOIA requests. 
All requests for information must be made in writing with ``Freedom of 
Information Act Request'' printed on the request's envelope or cover as 
well as the request itself, and addressed to the FOIA Disclosure 
Officer. In addition, FOIA requests must describe the record requested 
to the fullest extent possible and specify the preferred form or format 
of the response. As provided in the revised regulation, OSHRC shall try 
to accommodate requesters as to form or format when possible, and if no 
form or format is specified, OSHRC shall respond in the form or format 
that is most accessible to OSHRC. This new language is easier to 
understand and clarifies the procedures for requesting records. 
Further, OSHRC deletes paragraph (d) (Specificity required) because 
information in this deleted paragraph is now incorporated in paragraph 
(a) of this section.
    In new Sec.  2201.6, formerly Sec.  2201.7, OSHRC deletes in the 
introductory text of paragraph (b) the phrase ``telephonic notice'' 
when discussing ``extensions of response time in usual circumstances'' 
beyond the allowable time because the FOIA requires written notice 
under 5 U.S.C. 552(a)(6)(B). Further, OSHRC modifies paragraph (b)(1) 
to reflect the precise locations of OSHRC records--OSHRC's national 
office, regional offices and an off-site storage. In paragraph (b)(3), 
OSHRC deletes the phrase ``or among two or more components within the 
Commission having substantial subject-matter interest in the request'' 
because this phrase is unnecessary to OSHRC's FOIA operations. For 
consistency purposes, OSHRC will now require the FOIA Disclosure 
Officer(s) to provide written notice to FOIA requesters for additional 
extensions of time and whenever the estimated time to process a FOIA 
request substantially changes in paragraphs (c) and (d)(3), 
respectively. By providing written notice to requesters in these 
circumstances, OSHRC believes it would improve OSHRC's communication 
with requesters.
    In paragraph (d) of Sec.  2201.6, formerly Sec.  2201.7, OSHRC 
renames the heading from ``multitrack processing'' to ``two-track 
processing'' to describe more accurately OSHRC's processing of FOIA 
requests. Further, in order to streamline the FOIA rules and make them 
more user-friendly, OSHRC deletes paragraph (e)(4), as well as 
paragraph (g) and incorporates that information in new Sec.  2201.9 
(Appeal of denials). New Sec.  2201.9 will apply to all appeals of 
denials related to FOIA requests (i.e., requests for records, requests 
for expedited processing, and/or requests for fee waiver).
    In paragraph (f), OSHRC consolidates all denials related to FOIA 
requests (i.e., requests for records, requests for expedited 
processing, and/or requests for fee waiver) to streamline the rules and 
make them more user-friendly. Finally, OSHRC revises paragraph (f) to 
closely track the language of the FOIA, 5 U.S.C. 552(a)(6)(C)(i) and 
(F), by requiring the FOIA Disclosure Officer(s) to provide the reason 
for a denial, 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), the name and title or position of 
the person responsible for the denial of the request, and also notify 
the requester of the right to appeal the determination in the written 
notice of denial.
    OSHRC modifies paragraph (g), formerly paragraph (h), to require

[[Page 56349]]

written justification for deletions within a record because the FOIA 
states that ``the justification for the deletion shall be explained 
fully in writing.'' 5 U.S.C. 552(a).
    In new Sec.  2201.7, formerly Sec.  2201.8, OSHRC revises this 
section to reflect changes in OSHRC's calculation of fees, and to add 
references to a new appendix containing OSHRC's revised fee schedule. 
OSHRC creates a new paragraph (a) out of former Sec.  2201.8(a)(1) and 
also eliminates the specified dollar amount ($10) and changes it to 
``the threshold amount as provided in OSHRC's schedule of fees.'' 
Further, OSHRC deletes paragraphs (a)(2) and (a)(3) because that 
information is now incorporated in Sec.  2201.4(e). In addition, the 
procedural information in paragraph (a)(3) is duplicated in new Sec.  
2201.8(a) discussed below. In paragraph (b), OSHRC revises the copying, 
searching and reviewing fees so they are based on the direct costs of 
these services as provided in the FOIA under 5 U.S.C. 552(a)(4)(A)(iv). 
The FOIA provides that the Director of OMB shall promulgate guidelines 
for a uniform schedule of fees for all agencies under 5 U.S.C. 
552(a)(4)(A)(i). OSHRC calculates its fees in accordance with OMB's 
``Uniform Freedom of Information Act Fee Schedule and Guidelines,'' 52 
FR 10012, Mar. 27, 1987. Under OMB's guidelines, these fees are to be 
based on the average hourly salary (base plus DC locality payment) of 
employees performing the services plus 16 percent for benefits. In 
addition, the fees for clerical employees are to be based on an average 
of all employees at the GS-9 level and below; the fees for professional 
employees are to be based on all employees at the GS-10 through GS-14 
level; and the fees for managerial employees are to be based on an 
average of all employees at the GS-15 level and above. OSHRC's Office 
of Administration has calculated and updated the fees, which appear in 
the attached Appendix A. The FOIA Requester Service Center also will 
provide a hard copy of the schedule of fees upon request. OSHRC revises 
the language in paragraphs (b)(1), (b)(2) and (b)(3) of Sec.  2201.7, 
formerly Sec.  2201.8, to reflect the new calculation of fees and to 
reference OSHRC's schedule of fees in Appendix A.
    OSHRC adds a new paragraph (c) in Sec.  2201.7, formerly Sec.  
2201.8, which will require the FOIA Disclosure Officer to provide 
requesters an itemized invoice for fees related to FOIA requests. 
Although the FOIA does not require an itemized invoice, OSHRC will 
provide an itemized invoice for the convenience of the requester as 
part of OSHRC's effort to be citizen-centered pursuant to E.O. 13392. 
OSHRC also deletes paragraph (d) (Certification or authentication) and 
includes such certification or authentication services in a new 
paragraph (g) (Fees for services not required by the Freedom of 
Information Act), which is more inclusive of other services, such as 
express mail, that are not required by the FOIA.
    In paragraph (e), OSHRC changes ``copying or search'' to ``the 
total fee'' to reflect the true cost of satisfying the request. OSHRC 
will continue to use the $25 total fee as the threshold above which the 
agency is required to contact the requester about cost. Although OSHRC 
contemplated raising the threshold amount and requested comments 
specifically on whether, and by how much, this threshold should be 
raised in its proposed regulations, no comments were received. 
Therefore, OSHRC has decided to continue using the $25 total fee as the 
threshold amount.
    In paragraph (f) of Sec.  2201.7, formerly Sec.  2201.8, OSHRC 
modifies the third sentence to require full payment when a requester 
has previously failed to pay within 30 days. This revision is more 
consistent with the other sentences in the paragraph addressing advance 
payment. As noted above, OSHRC adds a new paragraph (g) on fees for 
services not required by the FOIA. This new paragraph is more inclusive 
of the types of services, such as express mail, that are not in OSHRC's 
current regulation. OSHRC also revises paragraphs (h) and (i) to 
reflect changes in OSHRC's procedures for transferring the bill 
collection responsibilities related to FOIA requests to OSHRC's Office 
of Administration. OSHRC believes that this change in bill collection 
procedures will improve efficiency because the FOIA Requester Service 
Center will not have to devote resources to bill collection and can 
focus on responding to FOIA requests. In addition, OSHRC revises 
paragraph (i) to reflect the Federal government's collection of debts 
under the Debt Collection Act of 1982 and its administrative 
procedures.
    In paragraph (a) of Sec.  2201.8, formerly Sec.  2201.9, OSHRC 
includes some of the procedural language from paragraph (a)(3) of 
former Sec.  2201.8.
    As previously mentioned, OSHRC adds a new section, Sec.  2201.9 
(Appeal of denials), to consolidate all appeals in one section. This 
change is intended to make the FOIA rules more user-friendly. OSHRC 
also changes the time the requester may appeal a denial from 30 working 
days after the requester receives notice of the appeal to 20 working 
days. This change is based on a survey of various smaller agencies, 
including the Federal Mine Safety and Health Review Commission (20 
working days). OSHRC also adds appeals of denial of fee waivers in this 
section because OSHRC's old rule did not specifically provide for 
appeals of denial of fee waivers.
    Finally, as discussed in the section-by-section analysis of Sec.  
2201.7 above, OSHRC adds a new appendix with a schedule of fees it will 
charge for searching, reviewing and duplicating documents in response 
to a FOIA request.

III. Analysis of Comments Received

    As noted above, OSHRC received no comments to the proposed rules.

Executive Order 12866

    The Commission is an independent regulatory agency, and as such, is 
not subject to the requirements of E.O. 12866.

Paperwork Reduction Act

    The Commission 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.

Executive Order 13132

    The Commission is an independent regulatory agency, and as such, is 
not subject to the requirements of E.O. 13132.

Regulatory Flexibility Act

    The Commission has determined under the Regulatory Flexibility Act, 
5 U.S.C. 606(b), as amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996, 5 U.S.C. 804(2), and has certified to 
the Chief Counsel for Advocacy of the Small Business Administration, 
that these rules will not have a significant economic impact on a 
substantial number of small entities. Therefore, a Regulatory 
Flexibility Statement and Analysis has not been prepared.
    The Commission makes a large amount of information available to the 
public, including small entities, on its Web site pursuant to the FOIA 
and other public disclosure requirements. In this regard, the 
Commission has available on its Web site copies of the Commission's 
procedural rules, final Commission decisions since 1972, final 
administrative law judges' decisions since 1993, strategic plans, 
performance reports, budget reports, as well as other information that 
may be of interest to the public. Small entities, like any other

[[Page 56350]]

individual or entity, may request under the FOIA other information from 
the Commission's files that has not been generally made available to 
the public. The FOIA establishes a fee structure to cover the direct 
costs of the government in searching for, reviewing, and duplicating 
requested records. The Commission's final rule is fully consistent with 
these requirements.

Unfunded Mandates Reform Act of 1995

    The Commission is an independent regulatory agency, and, as such, 
is not subject to the Unfunded Mandates Reform Act, 2 U.S.C. 1501 et 
seq.

Congressional Review Act

    Consistent with the Congressional Review Act (Section 804 of the 
Small Business Regulatory Enforcement Fairness Act), 5 U.S.C. 804 et. 
seq., the Commission will submit to Congress and to the Comptroller 
General of the United States, a report regarding the issues of this 
Final Rule prior to the effective date set forth at the outset of this 
document. This rule is not a major rule under the Congressional Review 
Act. The rule will not result in an annual effect on the economy of 
more than $100 million per year; a major increase in costs or prices 
for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of U.S.-based enterprises to compete with 
foreign-based companies in domestic and export markets.

List of Subjects in 29 CFR Part 2201

    Freedom of Information.

    Signed at Washington, DC on September 22, 2006.
W. Scott Railton,
Chairman.

0
For the reasons set forth in the preamble, the Commission revises 
Chapter XX, Part 2201 of Title 29, Code of Federal Regulations, as 
follows:

PART 2201--REGULATIONS IMPLEMENTING THE FREEDOM OF INFORMATION ACT

Sec.
2201.1 Purpose and scope.
2201.2 Description of agency.
2201.3 Delegation of authority and responsibilities.
2201.4 General policy and definitions.
2201.5 Procedure for requesting records.
2201.6 Responses to requests.
2201.7 Fees for copying, searching, and review.
2201.8 Waiver of fees.
2201.9 Appeal of denials.
2201.10 Maintenance of statistics.

Appendix A to Part 2201--Schedule of Fees

    Authority: 29 U.S.C. 661(g); 5 U.S.C. 552; E.O. 13392, 70 FR 
75373, 3 CFR, 2005 Comp., p. 216.


Sec.  2201.1  Purpose and scope.

    This part prescribes procedures to obtain information and records 
of the Occupational Safety and Health Review Commission (OSHRC or 
Commission) under the Freedom of Information Act (FOIA), 5 U.S.C. 552. 
It applies only to records or information of the Commission or in the 
Commission's custody. This part does not affect discovery in adversary 
proceedings before the Commission. Discovery is governed by the 
Commission's Rules of Procedure in 29 CFR part 2200, subpart D.


Sec.  2201.2  Description of agency.

    OSHRC adjudicates contested enforcement actions under the 
Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678. The 
Commission decides cases after the parties are given an opportunity for 
a hearing. All hearings are open to the public and are conducted at a 
place convenient to the parties by an Administrative Law Judge. Any 
Commissioner may direct that a decision of a Judge be reviewed by the 
full Commission. The President designates one of the Commissioners as 
Chairman, who is responsible on behalf of the Commission for the 
administrative operations of the Commission.


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.
    (b) The Chief FOIA Officer shall designate the FOIA Disclosure 
Officer(s), who shall be responsible for processing FOIA requests.
    (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.
    (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., Room 941, Washington, DC 20036-3457, (202) 
606-5700.


Sec.  2201.4  General policy and definitions.

    (a) Non-exempt records available to public. Except for records and 
information exempted from disclosure by 5 U.S.C. 552(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.  2201.5(a). Records include any 
information that would be a record subject to the requirements of 5 
U.S.C. 552 when maintained by the Commission in any format, including 
electronic format. In response to FOIA requests, the Commission will 
search for records manually or by automated means, except when an 
automated search would significantly interfere with the operation of 
the Commission's automated information system.
    (b) Examination of records in cases appealed to courts. A final 
order of the Commission may be appealed to a United States Court of 
Appeals. When this occurs, the Commission may send part or all of the 
official case file to the court and may retain other parts of the file. 
Thus, a document in a case may not be available from the Commission but 
only from the court of appeals. In such a case, the FOIA Disclosure 
Officer may inform the requester that the request for a particular 
document should be directed to the court.
    (c) Record availability at the OSHRC on-site FOIA Reading Room. The 
records of Commission activities are publicly available for inspection 
and copying at the OSHRC on-site FOIA Reading Room, 1120 20th St., NW., 
Ninth Floor, Washington, DC 20036-3457. These records include:
    (1) Final decisions 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) Specific agency policy statements adopted by OSHRC and not 
published in the Federal Register;
    (4) Administrative staff manuals that affect a member of the 
public;
    (5) Copies of records that have been released to a person under the 
FOIA that, because of the subject matter, the Commission determines 
that the records have become or are likely to become the subject of 
subsequent requests for substantially the same records; and
    (6) A general index of records referred to under paragraph (c)(5) 
of this section.
    (d) Record availability at the OSHRC e-FOIA Reading Room. Materials 
created on or after November 1, 1996 under paragraphs (c)(1), (2), (3), 
(4), (5) and (6) of this section may also be accessed electronically 
through the Commission's Web site at http://www.oshrc.gov.

[[Page 56351]]

    (e) Definitions. For purposes of this part:
    Commercial use request means a request from or on behalf of a 
person who seeks information for a use or purpose that furthers his or 
her commercial, trade, or profit interests, which can include 
furthering those interests through litigation. The FOIA Disclosure 
Officer shall determine, whenever reasonably possible, the use to which 
a requester will put the requested records. When it appears that the 
requester will put the records to a commercial use, either because of 
the nature of the request itself or because the FOIA Disclosure Officer 
has reasonable cause to doubt a requester's stated use, the FOIA 
Disclosure Officer shall provide the requester a reasonable opportunity 
to submit further clarification.
    Direct costs means those expenses that the Commission actually 
incurs in searching for and duplicating (and, in the case of commercial 
use requests, reviewing) records to respond to a FOIA request. Direct 
costs include, for example, the salary of the employee performing the 
work (the basic rate of pay for the employee, plus 16 percent of that 
rate to cover benefits) and the cost of operating duplication 
machinery. Not included in direct costs are overhead expenses such as 
the costs of space and heating or lighting of the facility in which the 
records are kept.
    Duplication means the making of a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, microform, audiovisual materials, or 
electronic records (for example, magnetic tape or disk), among others. 
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.
    Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institution of graduate higher education, an institution 
of professional education, or an institution of vocational education, 
that operates a program of scholarly research. To be in this category, 
a requester must show that the request is authorized by and is made 
under the auspices of a qualifying institution and that the records are 
not sought for a commercial use but are sought to further scholarly 
research.
    Noncommercial scientific institution means an institution that is 
not operated on a ``commercial'' basis, as that term is defined in this 
paragraph, and that is operated solely for the purpose of conducting 
scientific research the results of which are not intended to promote 
any particular product or industry. To be in this category, a requester 
must show that the request is authorized by and is made under the 
auspices of a qualifying institution and that the records are not 
sought for a commercial use but are sought to further scientific 
research.
    Representative of the news media, or news media requester is any 
person actively gathering news for an entity that is organized and 
operated to publish or broadcast news to the public. 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 the general public. 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 the FOIA 
Disclosure Officer 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.
    Review means the examination of a record located in response to a 
request in order to determine whether any portion of it is exempt from 
disclosure. It also includes processing any record for disclosure--for 
example, doing all that is necessary to redact it and prepare it for 
disclosure. Review costs are recoverable even if a record ultimately is 
not disclosed. Review time does not include time spent resolving 
general legal or policy issues regarding the application of exemptions.
    Search means the process of looking for and retrieving records or 
information responsive to a request. It includes page-by-page or line-
by-line identification of information within records and also includes 
reasonable efforts to locate and retrieve information from records 
maintained in electronic form or format. The FOIA Disclosure Officer 
shall ensure that searches are done in the most efficient and least 
expensive manner reasonably possible. For example, the FOIA Disclosure 
Officer shall not search line-by-line where duplicating an entire 
document would be quicker and less expensive.
    Working day means a regular Federal working day. It does not 
include Saturdays, Sundays, or Federal legal public holidays.


Sec.  2201.5  Procedure for requesting records.

    (a) Requests for information. All requests for information must be 
made in writing and must be mailed or delivered to the FOIA Disclosure 
Officer at the address in Sec.  2201.3(d). 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. Requests for 
information must describe the particular record requested to the 
fullest extent possible and specify the preferred form or format 
(including electronic formats) of the response. The Commission shall 
accommodate requesters as to form or format if the record is readily 
reproducible in the requested form or format. When requesters do not 
specify the preferred form or format of the response, the Commission 
shall respond in the form or format in which the record is most 
accessible to the Commission.
    (b) 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 received when it is actually received by the 
FOIA Disclosure Officer. For requests that are expected to result in 
fees exceeding $250, the request shall not be deemed to have been 
received until the requester is advised of the anticipated costs and 
the Commission has received full payment or satisfactory assurance of 
full payment as provided under Sec.  2201.7(f).


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.
    (b) Extensions of response time in unusual circumstances. In 
unusual circumstances, the Commission may extend the time limit 
prescribed in paragraph (a) of this section by not more than 10 working 
days. The FOIA Disclosure Officer shall notify the requester in writing 
of the extension, the reasons for the extension and the date on which a 
determination is expected. ``Unusual circumstances'' exists, but only 
to the extent reasonably necessary to the proper processing of the

[[Page 56352]]

particular request, when there is a need to:
    (1) Search for and collect the requested records from one of 
OSHRC's regional offices or off-site storage facilities;
    (2) Search for, collect, and appropriately examine a voluminous 
amount of separate and distinct records that 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.
    (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) Two-track 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 otherwise notified by the 
Commission, that their request is in the first track. The 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 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 requesters as documents are obtained by the FOIA 
Disclosure Officer 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 Commission as a matter of agency 
discretion.
    (3) The FOIA Disclosure 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 processing will be expedited.
    (f) Content of denial. When the FOIA Disclosure Officer denies a 
request for records, either in whole or in part, a request for 
expedited processing, and/or a request for fee waivers (see Sec.  
2201.8), 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, and 
notify the requester of the right to appeal the determination as 
specified in Sec.  2201.9. A refusal by the FOIA Disclosure Officer to 
process the request because the requester has not made advance payment 
or given a satisfactory assurance of full payment required under Sec.  
2201.7(f) may be treated as a denial of the request and appealed under 
Sec.  2201.9.
    (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 shall be marked.


Sec.  2201.7  Fees for copying, searching, and review.

    (a) Fees required unless waived. The FOIA Disclosure Officer shall 
charge the fees in paragraph (b) of this section unless the fees for a 
request are less than the threshold amount as provided in OSHRC's fee 
schedule, in which case no fees shall be charged. See Appendix A. The 
FOIA Disclosure Officer shall, however, waive the fees in the 
circumstances stated in Sec.  2201.8.
    (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 2201. A copy of the schedule 
of fees may also be obtained at no charge from the FOIA Disclosure 
Officer. See Sec.  2201.3(d).
    (1) Copying fee. The fee per copy of each page shall be calculated 
in accordance with the per-page amount established in OSHRC's fee 
schedule. See Appendix A. 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.
    (2) Search fee. Search fees shall be calculated in accordance with 
the amounts established in OSHRC's fee schedule. See Appendix A. 
Commercial requesters shall be charged for all search time. 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:
    (i) Easily identifiable decisions. Search fees shall not be charged 
for searching for decisions that the requester identifies by name and 
date, or by docket number, or that are otherwise easily identifiable.
    (ii) Educational, scientific or news media requests. No fee shall 
be charged if the request is not for a commercial use and is by an 
educational or scientific

[[Page 56353]]

institution, whose purpose is scholarly or scientific research, or by a 
representative of the news media.
    (iii) Other non-commercial requests. No fee shall be charged for 
the first two hours of searching if the request is not for a commercial 
use and is not by an educational or scientific institution, or a 
representative of the news media.
    (iv) Requests for records about self. No fee shall be charged to 
search for records filed in the Commission's systems of records if the 
requester is the subject of the requested records. See the Privacy Act 
of 1974, 5 U.S.C. 552a(f)(5) (fees to be charged only for copying).
    (3) 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. A 
review fee shall be charged for the initial examination of documents 
located in response to a request to determine if it may be withheld 
from disclosure, and for the excision of withholdable portions. 
However, a review fee shall not be charged for review by the Chairman 
under Sec.  2201.9 (Appeal of denials).
    (c) Invoices. The FOIA Disclosure Officer shall provide the 
requester with an invoice containing an itemization of assessed fees.
    (d) Aggregation of requests. When the FOIA Disclosure Officer 
reasonably believes that a requester, or a group of requesters acting 
in concert, is attempting to break a request into a series of requests 
for the purpose of evading the assessment of fees, the FOIA Disclosure 
Officer may aggregate any such requests and charge accordingly.
    (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. 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.
    (f) Advance payments. Advance payment of fees will generally not be 
required. If, however, charges are likely to exceed $250, the FOIA 
Disclosure Officer shall notify the requester of the likely cost and: 
if the requester has a history of prompt payment of FOIA charges, 
obtain satisfactory assurance of full payment; or if the requester has 
no history of payment, require an advance payment of an amount up to 
the full estimated charge. If the requester has previously failed to 
pay a fee within 30 days of the date of billing, the FOIA Disclosure 
Officer shall require the requester to pay the full amount owed plus 
any interest owed as provided in paragraph (h) of this section or 
demonstrate that he or she has, in fact, paid the fee, and to make an 
advance payment of the full amount of the estimated charges before the 
FOIA Disclosure Officer begins to process the new request or a pending 
request from that requester.
    (g) Fees for services not required by the Freedom of Information 
Act. The Commission has discretion regarding its response to requests 
for services not required by the FOIA. For example, the FOIA does not 
require agencies to certify or authenticate responsive documents, nor 
does it require responsive documents to be sent by express mail. If 
these services are requested, the FOIA Disclosure Officer shall assess 
the direct costs of such services.
    (h) Interest on unpaid bills. The Commission's Office of 
Administration 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 Administration may resort to the debt collection procedures 
set out in the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 
1749), as amended, and its administrative procedures, including the use 
of consumer reporting agencies, collection agencies, and offset.


Sec.  2201.8  Waiver of fees.

    (a) General. The FOIA Disclosure Officer shall waive part or all of 
the fees assessed under Sec.  2201.7(b) if two conditions are 
satisfied: Disclosure of the information is in the public interest 
because it is likely to contribute significantly to public 
understanding of the operations or activities of the government; and 
disclosure is not primarily in the commercial interest of the 
requester. Where the FOIA Disclosure Officer has reasonable cause to 
doubt the use to which a requester will put the records sought, or 
where that use is not clear from the request itself, the FOIA 
Disclosure Officer may seek clarification from the requester before 
assigning the request to a specific category for fee assessment 
purposes. The FOIA Disclosure Officer shall afford the requester the 
opportunity to show that the requester comes within these two 
conditions. The following factors may be considered in determining 
whether the two conditions are satisfied:
    (1) Whether the subject of the requested records concerns the 
operations or activities of the government;
    (2) Whether the disclosure is likely to contribute significantly to 
public understanding of government operations or activities;
    (3) Whether the requester has a commercial interest that would be 
furthered by the requested disclosure; and, if so, whether the 
magnitude of the identified commercial interest of the requester is 
sufficiently large, in comparison with the public interest in 
disclosure, that disclosure is primarily in the commercial interest of 
the requester.
    (b) Partial waiver of fees. If the two conditions stated in 
paragraph (a) of this section are met, the FOIA Disclosure Officer will 
ordinarily waive all fees. In exceptional cases, however, only a 
partial waiver may be granted if the request for records would impose 
an exceptional burden or require an exceptional expenditure of 
Commission resources, and the request for a waiver minimally satisfies 
the ``public interest'' requirement in paragraph (a) of this section.


Sec.  2201.9  Appeal of denials.

    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 within 20 working 
days of the date of the letter denying an initial request. 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. If the Chairman wholly or 
partially upholds the denial of the request, the Chairman shall notify 
the requesting person that the requester may obtain judicial review of 
the Chairman's action under 5 U.S.C. 552(a)(4)(B)-(G).


Sec.  2201.10  Maintenance of statistics.

    (a) The FOIA Disclosure 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

[[Page 56354]]

U.S.C. 552(b)(3), which exempts information that is specifically 
exempted from disclosure by other statutes;
    (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 FOIA Disclosure 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 OSHRC FOIA Reading Room, and a copy will 
be accessible through OSHRC's Web site at http://www.oshrc.gov.

Appendix A to Part 2201--Schedule of Fees

------------------------------------------------------------------------
          Type of fee                         Amount of fee
------------------------------------------------------------------------
Threshold Amount (Amount below   $10
 which fees will not be
 assessed).
Search and Review Hourly Fees:
    Clerical (GS-9 and below).   23
    Professional (GS-10          46
     through GS 14).
    Managerial (GS-15 and        76
     above).
Duplication cost per page.....   0.25
Computer printout copying fee.   0.40
Searches of computerized         Actual cost to the Commission, but
 records.                        shall not exceed $300 per hour,
                                 including machine time and the cost of
                                 the operator and clerical personnel.
Certification Fee.............   $35 per authenticating affidavit or
                                 declaration. (Note: Search and review
                                 charges may be assessed in accordance
                                 with the rates listed above.)
------------------------------------------------------------------------

 [FR Doc. E6-15834 Filed 9-26-06; 8:45 am]
BILLING CODE 7600-01-P