[Federal Register Volume 75, Number 136 (Friday, July 16, 2010)]
[Rules and Regulations]
[Pages 41370-41373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-17369]


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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). The 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: This rule is effective on August 16, 2010.

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: OSHRC is publishing a final rule revising 
its regulations implementing the FOIA. On April 28, 2010, 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. 75 FR 
22320, Apr. 28, 2010. 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 adopts them in this final rule.

I. Background

    OSHRC makes 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 modifies 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 revises its regulations to further clarify its 
policies and procedures relating to the processing of FOIA requests and 
the administration of its FOIA operations. These revisions include 
changes to the description of the OSHRC reading rooms and to OSHRC fee 
policies.

II. Section-by-Section Analysis

    In 29 CFR 2201.3, OSHRC revises 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 adds 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 revises the FOIA Service 
Center's contact information. OSHRC also revises 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 revises paragraph (c) to clarify the type 
of records publicly available in the e-FOIA Reading Room and where to 
access them. OSHRC changes paragraph (d) to explain the procedures for 
using OSHRC's on-site e-FOIA Reading Room. OSHRC also revises its 
definition of ``Representative of the news media, or news media 
requester'' in paragraph (e) to reflect the definition provided in the 
OPEN Government Act. 5 U.S.C. 552(a)(4)(A)(ii). OSHRC also adds 
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 revises 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 revises 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 creates 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 creates 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 makes minor grammatical corrections 
to paragraphs (c) and (d)(3).
    In 29 CFR 2201.7, OSHRC revises 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 revises 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 updates paragraph (a) to reflect the new 
maintenance of statistics requirements in the OPEN Government Act. 5 
U.S.C. 552(e).

III. Analysis of Comments Received

    OSHRC received no comments to the proposed rules.

[[Page 41371]]

IV. 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

    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. 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, administrative law judges' decisions pending 
Commission review, strategic plans, performance reports, budget 
reports, as well as other information that may be of interest to the 
public. Small entities, like any other 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 the FOIA's 
requirements. For these reasons, a Regulatory Flexibility Statement and 
Analysis has not been prepared.

Congressional Review Act

    In compliance with the Congressional Review Act provisions of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 
801 et seq.), this rule has been transmitted to Congress and the 
Comptroller General for review. The rule is not a ``major rule'' as 
that term is defined in 5 U.S.C. 804, because it is not likely to 
result in (1) an annual effect on the economy of $100 million or more; 
(2) a major increase in costs or prices for consumers, individual 
industries, or Federal, State, or local government agencies, or 
geographic regions; or (3) significant adverse effects on competition, 
employment, investment, productivity, innovation, or on the ability of 
United States-based enterprises to compete with foreign-based 
enterprises in domestic and export markets.

List of Subjects in 29 CFR Part 2201

    Freedom of information.

    Signed at Washington, DC, on July 9, 2010.
Thomasina V. Rogers,
Chairman.

0
For the reasons set forth in the preamble, OSHRC amends 29 CFR part 
2201 as follows:

PART 2201-REGULATIONS IMPLEMENTING THE FREEDOM OF INFORMATION ACT

0
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.


0
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.

0
3. Section 2201.4 is amended:
0
a. By revising paragraphs (c) introductory text, (c)(1), (3), (4), and 
(5);
0
b. By revising paragraph (d); and
0
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 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

[[Page 41372]]

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.
* * * * *

0
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.

0
5. Section 2201.7 is amended by
0
a. Revising paragraphs (b)(1) and (b)(2) introductory text;
0
b. Adding paragraph (b)(2)(v); and
0
c. Revising paragraph (e).
    The revisions and addition read as follows:


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

* * * * *
    (b) * * *
    (1) Copying fee. The fee per copy of each page shall be calculated 
in accordance with the per-page amount established in OSHRC's fee 
schedule. See Appendix A to this part. For other forms of duplication, 
direct costs of producing the copy, including operator time, shall be 
calculated and assessed.

[[Page 41373]]

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.
* * * * *

0
6. Section 2201.10 is amended by:
0
a. Revising paragraphs (a)(3), (5), and (7);
0
b. Redesignating paragraphs (a)(8), (10), and (11) as paragraphs 
(a)(16) through (a)(18);
0
c. Removing paragraph (a)(9); and
0
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. 2010-17369 Filed 7-15-10; 8:45 am]
BILLING CODE 7600-01-P