[Federal Register: July 21, 2006 (Volume 71, Number 140)][Proposed Rules] [Page 41384-41392]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21jy06-10]
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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), 5 U.S.C. 552, as amended. The proposed
regulations contain new provisions to comply with Executive Order
13392. In addition, the proposed regulations have been updated to
reflect changes in OSHRC's policies and procedures. As a result of
these proposed amendments, the public will have a clearer understanding
of OSHRC's policies and procedures implementing the FOIA.
DATES: Submit comments on or before August 21, 2006.
ADDRESSES: You may submit comments by any of the following methods:
E-mail: regsdocket@oshrc.gov. Include "FOIA PROPOSED
RULEMAKING" in the subject line of the message.
Fax: (202) 606-5417.
Mail: 1120 20th Street, NW., Ninth 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 an automatic 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: Jin H. Kim, Attorney-Advisor, Office
of the General Counsel, via telephone: (202) 606-5410, or via e-mail:
jkim@oshrc.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The Occupational Safety and Health Review Commission (OSHRC)
proposes several substantive and technical revisions governing its
regulations implementing the Freedom of Information Act (FOIA), 5
U.S.C. 552, as amended. OSHRC proposes revising its FOIA regulations,
including the addition of new provisions and the modification of
existing provisions, to comply with Executive Order 13392 (E.O. 13392),
70 FR 75373, December 19, 2005. In E.O. 13392, the President directs
each agency to ensure that its FOIA operations treat FOIA requesters
courteously and appropriately and to provide requesters with prompt
information regarding the status of their FOIA requests, as well as
appropriate information regarding the agency's response. In addition,
each agency is to provide FOIA requesters and the public in general
with "citizen-centered" ways to learn about the agency's FOIA process
and how to receive agency records that are publicly available. By
ensuring that its FOIA operations are "citizen-centered" and
"results-oriented," each agency will improve service and performance,
thereby strengthening compliance with the FOIA.
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. As part of
the FOIA Requester Service Center, E.O. 13392 further requires an
agency to designate its own FOIA Public Liaison(s) to serve as the
supervisory official(s) 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. Based upon these
new requirements, OSHRC therefore proposes to revise its regulations
implementing the FOIA to comply fully with E.O. 13392.
Further, as a result of the Chief FOIA Officer's review of OSHRC's
FOIA operations, OSHRC proposes to amend its rules to reflect recent
changes in OSHRC's policies and procedures as they relate to the
processing of FOIA requests. At the beginning of this fiscal year,
OSHRC moved all FOIA processing from its Office of Administration to
the Office of the General Counsel, where paralegals and attorneys have
received training in the handling of FOIA requests. Moreover, OSHRC has
identified several areas for improvement in its processing of FOIA
requests that are addressed by these proposed rules, such as
establishing a recordkeeping log, standardizing forms for processing
FOIA requests, adding definitions to clarify the use of terms, and
establishing a streamlined appeals process that covers fee waiver
denials. These changes in OSHRC's policies and procedures will make the
processing of FOIA requests more efficient and responsive. Lastly,
OSHRC proposes several minor revisions that are purely technical or
clarifying in nature which relate to changes in phrasing and
nomenclature.
Accordingly, OSHRC proposes to revise its regulations implementing
the FOIA and put them out for public comment pursuant to 5 U.S.C.
552(a)(4)(A)(i), (a)(6)(B)(iv), (a)(6)(D)(i), and (a)(6)(E)(i). For the
convenience of the reader, OSHRC reproduces proposed 29 CFR part 2201
in its entirety. The specific amendments that OSHRC proposes to each
section of 29 CFR part 2201 are discussed hereafter in regulatory
sequence.
II. Proposed Regulatory Revisions
The President's issuance of E.O. 13392 on December 14, 2005 created
new requirements and duties for improving agency disclosure of
information under the FOIA which are implemented in these proposed
rules. Consequently, OSHRC proposes to amend the authority citation in
29 CFR part 2201 to add a reference to E.O. 13392.
In 29 CFR 2201.1, OSHRC would make changes to correct a grammatical
error in the section heading and to add abbreviations for
"Occupational Safety and Health Review Commission" and "Freedom of
Information Act" to the regulatory text. Accordingly, the proposed
rules in part 2201 are revised throughout to refer to the
"Occupational Safety and Health Review Commission" as "OSHRC" or
"Commission," and the "Freedom of Information Act" as "FOIA."
In Sec. 2201.2, OSHRC proposes adding a sentence to the end of the
section that provides additional details about the designation of one
of the Commissioners as the Chairman and his responsibilities for the
administrative operations of the Commission, consistent with section
12(e) of the Occupational Safety and Health Act of 1970, 29 U.S.C.
661(e). Also, to conform to the abbreviations noted above in Sec.
2201.1, OSHRC would substitute "OSHRC" in place of "The Occupational
Safety and Health Review Commission (OSHRC or Commission)" in new
Sec. 2201.2.
In Sec. 2201.3, OSHRC proposes revising the delegation of FOIA-
related duties to reflect the changes required by E.O. 13392 and break
them out into new paragraphs (a) through (d). In order to comport with
E.O. 13392, OSHRC would eliminate the current language regarding the
Chairman's delegation of authority to the Freedom of Information Act
Officer. In its place, OSHRC proposes adding a delegation of authority
to the Chief FOIA Officer under new paragraph (a). In addition, OSHRC
would eliminate the alternate designation of another OSHRC officer or
employee, such as the General Counsel or the Executive Secretary, by
the Chairman or the Executive Director in the absence of the Freedom of
Information Act Officer. Instead, under new paragraph (b) of proposed
Sec. 2201.3, the Chief FOIA Officer would designate the agency's FOIA
Disclosure Officer(s) to process all FOIA requests. Under paragraph
(c), the Chief FOIA Officer would designate the FOIA Public Liaison(s)
to address any concerns about the service a FOIA requester has received
following an initial response by the agency. Under new paragraph (d),
OSHRC's proposal identifies the FOIA Disclosure Officer(s) and FOIA
Public Liaison(s) as serving in the agency's FOIA Requester Service
Center and provides the address and telephone number to contact the
FOIA Requester Service Center. This new language reflects changes in
the delegation of authority and designation of personnel in compliance
with E.O. 13392.
Indeed, in order to ensure appropriate communication with FOIA
requesters, E.O. 13392 requires agencies to "establish one or more
FOIA Requester Service Centers" to receive and respond to inquiries
from FOIA requesters. To comply with this requirement, OSHRC proposes
to establish a FOIA Requester Service Center at its national office in
Washington, DC OSHRC's FOIA Requester Service Center, which will handle
all FOIA requests and inquiries about FOIA requests, will consist of
FOIA Disclosure Officer(s) and FOIA Public Liaison(s). Under OSHRC's
new procedures, the FOIA Disclosure Officer(s) will handle all initial
responses to FOIA requests. The FOIA Public Liaison(s) will ensure
appropriate communication between FOIA requesters and FOIA Disclosure
Officer(s) and will be supervisory employee(s). This change will help
ensure that OSHRC's FOIA operations are "citizen-centered" and
"results-oriented" as directed in E.O. 13392. OSHRC also would update
references to the FOIA Officer and Information Office throughout 29 CFR
part 2201 to reflect this change.
OSHRC proposes to eliminate the second to last sentence of current
Sec. 2201.3 that refers 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, Public
Law 104-231, 110 Stat. 3048 (codified as amended in 5 U.S.C. 552) (e-
FOIA). OSHRC would further eliminate the last sentence of current Sec.
2201.3 which refers to the handling of "all other information
requests" because this information will be covered under new Sec.
2201.5(a) of the regulations; thus, its inclusion in Sec. 2201.3 is
redundant.
In Sec. 2201.4, OSHRC first proposes to change the heading to
include the phrase "and definitions." Second, OSHRC would update
regulatory cross-references and make minor nomenclature changes
throughout the section, such as deleting "Review" from "Review
Commission" and replacing "Freedom of Information Act Officer" with
"FOIA Disclosure Officer." Third, OSHRC would make other minor
changes in phrasing to paragraph (a) by combining the last two
sentences of the existing regulations for clarity without changing the
meaning of the provision. Fourth, in paragraph (c), OSHRC would edit
the paragraph heading to update the nomenclature, as well as the
introductory text to describe more precisely the location of the
reading room. Fifth, OSHRC would also add new paragraphs (c)(3) and
(c)(4) to reflect the language of the FOIA, and renumber current
paragraphs (c)(3) and (c)(4) as new paragraphs (c)(5) and (c)(6).
Sixth, in paragraph (d), OSHRC would add a new paragraph heading noting
record availability at the OSHRC e-FOIA reading room, as well as language
clarifying the availability of electronic records. Finally, OSHRC would
add a new paragraph (e) to Sec. 2201.4 to provide definitions relevant
to 29 CFR part 2201 that are consistent with other agencies' FOIA
regulations. These nine definitions clarify certain FOIA terminology but
in no way change how OSHRC processes FOIA requests. 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 proposes to define "working
day," which is not defined in other government agencies" FOIA
regulations, in order to clarify the FOIA's calculation of time.
OSHRC would remove current Sec. 2201.5 altogether 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
proposes to remove Sec. 2201.5 in its entirety and renumber subsequent
sections accordingly.
OSHRC then proposes to redesignate current Sec. 2201.6 as new
Sec. 2201.5. In new Sec. 2201.5 (old Sec. 2201.6), OSHRC would
eliminate paragraph (a) of the current regulations in its entirety.
Pursuant to e-FOIA, OSHRC has placed most of this information on its
Web site for the public's convenience. OSHRC also proposes to make
minor technical changes throughout this section to update cross-
references and to reflect changes made to other sections in part 2201,
as well as to clarify language which would not change the meaning of
the provision. For example, OSHRC would remove "Review" from "Review
Commission," replace "Freedom of Information Act Officer" with
"FOIA Disclosure Officer" and change references to other provisions.
Further, OSHRC would redesignate the old paragraph (b) as paragraph (a)
with a new paragraph heading, "Requests for information" and modify
the language within new paragraph (a) to clearly delineate the
procedures for making FOIA requests. The new paragraph (a) provides
that 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. The new language states that 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 would redesignate current paragraph (c) as new paragraph
(b), and would rephrase new paragraph (b) for clarity regarding the
date of receipt of a FOIA request. OSHRC would also delete paragraph
(d) (Specificity required) (old Sec. 2201.6) because the information
requested in paragraph (d) is now incorporated in new paragraph (a) of
proposed Sec. 2201.5.
OSHRC proposes to redesignate current Sec. 2201.7 as new Sec.
2201.6. In new Sec. 2201.6 (old Sec. 2201.7), OSHRC would first
update cross-references to other sections changed in part 2201 and then
make minor technical and grammatical changes throughout this section.
For example, OSHRC would remove "Review" from "Review Commission"
and replace "Freedom of Information Act Officer" with "FOIA
Disclosure Officer" throughout this section. OSHRC also proposes to
rephrase paragraph (b) for clarity without changing the meaning of the
provision by directly stating that the FOIA Disclosure Officer(s) shall
notify the requester in writing about extensions of time. Also in the
introductory text to paragraph (b), OSHRC would delete 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
would modify the language of paragraph (b)(1) to reflect in a more
precise manner the location of OSHRC records. OSHRC records are
currently located in OSHRC's national office, regional offices and an
off-site storage location. In paragraph (b)(3), OSHRC would delete 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 proposes requiring written notice in paragraph (c) for
additional extensions of time, as well as in paragraph (d)(3) for when
the estimated time to process a FOIA request substantially changes. By
providing written notice to requesters for these circumstances, OSHRC
believes that it would improve OSHRC's communication with requesters.
In paragraph (d) of Sec. 2201.6 (old Sec. 2201.7), OSHRC would
rename 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 proposes deleting paragraph (e)(4), as well
as paragraph (g) of current Sec. 2201.7 and incorporate 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 proposes to consolidate 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 would further revise the
language in 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.
Due to the movement of paragraph (g) to new Sec. 2201.9 (Appeal of
denials), OSHRC proposes redesignating paragraph (h) as new paragraph
(g). OSHRC would edit the language in new paragraph (g) to require
written justification for deletions within a record, because the FOIA
states that "the justification for the deletion shall be explained
fully in writing" as required under 5 U.S.C. 552(a).
OSHRC proposes to redesignate current Sec. 2201.8 as new Sec.
2201.7. In new Sec. 2201.7 (old Sec. 2201.8), OSHRC would revise this
section to reflect changes in OSHRC's calculation of fees, and create
an appendix that reflects OSHRC's fee schedule. In paragraph (a), OSHRC
proposes to make several nomenclature changes and update a cross-
reference to the section on fee waivers. In addition, OSHRC proposes
eliminating the specified dollar amount ($10) and changing it to "the
threshold amount as provided in OSHRC's schedule of fees." Further, in
new Sec. 2201.7 (old Sec. 2201.8), OSHRC proposes deleting paragraphs
(a)(2) and (a)(3) and incorporating that definitional information in
paragraph 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 proposes revising 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, March 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 proposes to revise the language in paragraphs (b)(1),
(b)(2) and (b)(3) of new Sec. 2201.7 (old Sec. 2201.8) to reflect the
new calculation of fees.
OSHRC proposes to add a new paragraph (c) in new Sec. 2201.7 (old
Sec. 2201.8) requiring 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 would
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 would also redesignate old paragraph (c) as new paragraph (d) to
reflect the addition of the new paragraph (c). New paragraph (d) will
be updated to include changes in nomenclature. OSHRC also would delete
the current paragraph (d) (Certification or authentication), and
include such certification or authentication service 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.
Paragraph (e) will remain essentially the same, except that OSHRC
would make changes in wording that are technical in nature, such as
replacing "Freedom of Information Act Officer" with "FOIA Disclosure
Officer" and using gender neutral language. OSHRC would also change
"copying or search" to "the total fee" to reflect the true cost of
satisfying the request. OSHRC in this proposal has left in place the
$25 total fee threshold, above which the agency is required to contact
the requester about cost. OSHRC is considering, however, whether to
raise that threshold amount. OSHRC requests comments specifically on
whether, and by how much, this threshold should be raised.
In paragraph (f) of new Sec. 2201.7 (old Sec. 2201.8), OSHRC
would make some changes in nomenclature to insert the term "FOIA
Disclosure Officer" and insert gender neutral language. OSHRC would
also modify the language in 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 proposes to create 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 is not in OSHRC's current regulation. OSHRC also
would revise the language in paragraph (h), as well as paragraph (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 paragraph (i), OSHRC would
further revise the language to more precisely reflect the statutory
provisions relating to the Federal government's collection of debts
under the Debt Collection Act of 1982 and its administrative
procedures.
OSHRC proposes to redesignate current Sec. 2201.9 as new Sec.
2201.8. In new Sec. 2201.8 (old Sec. 2201.9), OSHRC would make
several minor changes that are technical in nature, such as replacing
references to the "Freedom of Information Act Officer" with "FOIA
Disclosure Officer" and using gender neutral language. As mentioned in
the discussion of new Sec. 2201.7 (old Sec. 2201.8), OSHRC would
include some of the procedural language from paragraph (a)(3) of old
Sec. 2201.8 in paragraph (a) of new Sec. 2201.8 (old Sec. 2201.9).
As previously mentioned, OSHRC proposes adding 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 would also change 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). In addition, OSHRC would add appeals of
denial of fee waivers in this section because OSHRC's current rule does
not specifically provide for appeals of denial of fee waivers.
In Sec. 2201.10, OSHRC would make minor technical changes, such as
replacing "Freedom of Information Act Officer" with "FOIA Disclosure
Officer."
Finally, OSHRC would update the cross-references to the various
sections and paragraphs throughout the rules in 29 CFR part 2201 to
reflect changes in section numbers and paragraphs due to the
reorganization of these proposed regulations.
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), that these rules, if adopted, would not have a
significant economic impact on a substantial number of small entities.
Therefore, a Regulatory Flexibility Statement and Analysis has not been
prepared.
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.
Small Business Regulatory Enforcement Fairness Act of 1996
This proposed rule is not a major rule under the Small Business
Regulatory Enforcement Fairness Act, 5 U.S.C. 804(2). The proposed 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 July 17, 2006.
W. Scott Railton,
Chairman.
For the reasons set forth in the preamble, the Commission proposes
that Chapter XX, part 2201 of Title 29, Code of Federal Regulations, be
revised 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., Washington, DC 20036-3457, (202) 606-5410.
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)(3)
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)
and (4) of this section may also be accessed electronically through the
Commission's Web site at http://www.oshrc.gov.
(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
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. 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. 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. 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 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. 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 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 which $10.
fees will not be assessed).
Search and Review Hourly Fees:
Clerical (GS-9 and below).......... $23.
Professional (GS-10 through GS 14). $46.
Managerial (GS-15 and above)....... $76.
Duplication cost per page.............. $0.25.
Computer printout copying fee.......... $0.40.
Searches of computerized records....... Actual cost to the Commission,
but 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. E6-11574 Filed 7-20-06; 8:45 am]
BILLING CODE 7600-01-P
