[Federal Register Volume 75, Number 81 (Wednesday, April 28, 2010)]
[Proposed Rules]
[Pages 22320-22323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-9432]


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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: Notice of proposed rulemaking.

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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 protected]. Include ``FOIA PROPOSED 
RULEMAKING'' in the subject line of the message.
     Fax: (202) 606-5417.
     Mail: 1120 20th Street, NW., 9th Floor, Washington, DC 
20036-3457.
     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) 
606-5410.

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: [email protected] or [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    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

[[Page 22321]]

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. 
552(a)(4)(A)(viii), (f)(2).
    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), 
(3)(C).

List of Subjects in 29 CFR Part 2201

    Freedom of information.

    Signed at Washington, DC, on April 15, 2010.
Thomasina V. Rogers,
Chairman.
    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 
follows:

    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.  
2201.6(h)), including
    (1) The date on which the agency originally received the request; 
and
    (2) An estimated date on which the agency will complete action on 
the request.
    3. Section 2201.4 is amended:
    a. By revising paragraphs (c) introductory text, (c)(1), (3), (4), 
and (5);
    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 
``Record''.
    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

[[Page 22322]]

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 
supplying offices.
* * * * *
    (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

[[Page 22323]]

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 
relied upon;
* * * * *
    (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 
such requests;
    (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 
determinations;
* * * * *
[FR Doc. 2010-9432 Filed 4-27-10; 8:45 am]
BILLING CODE 7600-01-P