PART 2201—REGULATIONS IMPLEMENTING THE FREEDOM OF INFORMATION ACT Authority: 29 U.S.C. 661(g); 5 U.S.C. 552. Source: 71 FR 56350, Sept. 27, 2006, unless otherwise noted. § 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. § 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. § 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 Reference Guide, 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. (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 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 of the FOIA Requester Service Center is 1120 20th Street NW., 9th Floor, Washington, DC 20036-3457. The telephone number, fax number and additional contact information for the FOIA Requester Service Center is located on the agency's Web site at: http://www.oshrc.gov/foia/index.html. (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. [71 FR 56350, Sept. 27, 2006, as amended at 75 FR 41371, July 16, 2010; 81 FR 95037, Dec. 27, 2016] § 2201.4 General policy and definitions. (a) Non-exempt records available to public. Federal Register (b) Record availability at the OSHRC e-FOIA Reading Room. http://www.oshrc.gov/foia/foia_reading_room.html. (1) Final decisions, including concurring and dissenting opinions, remand orders, as well as Administrative Law Judge decisions pending OSHRC review, briefing notices, and other significant orders; (2) OSHRC Rules of Procedure and Guides to those procedures; (3) Agency policy statements and interpretations adopted by OSHRC and not published in the Federal Register, (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, or that have been requested three or more times, as well as records the Commission determines absent a FOIA request could be of significant public interest; and (6) A general index of records referred to under paragraph (b)(5) of this section. (c) Record availability onsite at OSHRC National Office. (d) Definitions. Commercial use request Direct costs Duplication Educational institution Exceptional circumstances Noncommercial scientific institution Record Representative of the news media, or news media requester Review Search Working day [71 FR 56350, Sept. 27, 2006, as amended at 75 FR 41371, July 16, 2010; 81 FR 95037, Dec. 27, 2016] § 2201.5 Procedure for requesting records. (a) General information. http://www.oshrc.gov/foia/foia_request_form.html (b) A requester who is making a request for records about himself or herself must comply with verification of identity requirements as required by 29 CFR 2400.4 in OSHRC's Privacy Act regulations. (c) Where a request for records pertains to another individual, a requester may receive greater access by submitting either a notarized authorization signed by that individual or a declaration made in compliance with the requirements set forth in 28 U.S.C. 1746 by that individual authorizing disclosure of the records to the requester, or by submitting proof that the individual is deceased ( e.g., (d) Description of records sought. (e) Requests may specify the preferred form or format (including electronic formats) of the response. 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. When a requester does not specify the preferred form or format of the response, the FOIA Disclosure Officer shall respond in the form or format in which the record is most accessible to the Commission. (f) The requester must provide contact information, such as a phone number, email address, and/or mailing address, to facilitate the agency's communication with the requester. (g) Date of receipt. [81 FR 95037, Dec. 27, 2016, as amended at 85 FR 72565, Nov. 13, 2020] § 2201.6 Responses to requests. (a) Responses within 20 working days. (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; and (2) The agency may toll the 20-day period as many times as are necessary to clarify any issues regarding fee assessment. (b) Extensions of response time in unusual circumstances. (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. (d) Two-track processing. (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) 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. (e) Expedited processing. compelling need (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. (g) Deletions. (h) Tracking numbers. (i) Determining responsive records. [71 FR 56350, Sept. 27, 2006, as amended at 75 FR 41372, July 16, 2010; 81 FR 95038, Dec. 27, 2016; 85 FR 72565, Nov. 13, 2020] § 2201.7 Confidential commercial information. (a) Definitions. Confidential commercial information (2) Submitter (b) Designation of confidential commercial information. (c) When notice to submitters is required. (d) Exceptions to submitter notice requirements. (1) OSHRC determines that the information is exempt under the FOIA, and therefore will not be disclosed; (2) The information has been lawfully published or has been officially made available to the public; (3) Disclosure of the information is required by a statute other than the FOIA or by a regulation issued in accordance with the requirements of Executive Order 12600 of June 23, 1987; or (4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous. In such case, OSHRC shall give the submitter written notice of any final decision to disclose the information within a reasonable number of days prior to a specified disclosure date. (e) Opportunity to object to disclosure. (f) Analysis of objections. (g) Notice of decision. (h) Notice of FOIA lawsuit. (i) Requester notification. [81 FR 95038, Dec. 27, 2016] § 2201.8 Fees for copying, searching, and review. (a) Fees required unless waived. (b) Calculation of fees. (1) Copying fee. (2) Search fee. (i) Easily identifiable decisions. (ii) Educational, scientific or news media requests. (iii) Other non-commercial requests. (iv) Requests for records about self. (v) Failure to comply with time limits. (3) Unusual circumstances. (ii) If the Commission has determined that unusual circumstances, as defined in § 2201.6(b), apply and more than 5,000 pages are necessary to respond to the request, the Commission may charge search fees, or, in the case of requesters described in § 2201.8(b)(2)(ii), may charge duplication fees, if the Commission provided timely written notice of unusual circumstances to the requester in accordance with § 2201.6(b) and the Commission discussed with the requester via written mail, email, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with the FOIA. If this exception is satisfied, the Commission may charge all applicable fees incurred in the processing of the request even if such processing extends beyond an additional 10 days. (4) If a court has determined that exceptional circumstances exist, as defined in § 2201.4(d), a failure to comply with the time limits shall be excused for the length of time provided by the court order. (5) Review fee. (c) Invoices. (d) Aggregation of requests. (e) Fees likely to exceed $25. (f) Advance payments. (g) Fees for services not required by the Freedom of Information Act. (h) Interest on unpaid bills. (i) Debt collection procedures. [71 FR 56350, Sept. 27, 2006, as amended at 75 FR 41372, July 16, 2010. Redesignated and amended at 81 FR 95038, 95039, Dec. 27, 2016; 85 FR 72565, Nov. 13, 2020] § 2201.9 Waiver of fees. (a) General. (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. [71 FR 56350, Sept. 27, 2006. Redesignated and amended at 81 FR 95038, 95039, Dec. 27, 2016] § 2201.10 Appeal of denials. (a) Requirements for making an appeal. (b) Adjudication of appeals. (c) Decisions on appeals. (d) Engaging in dispute services provided by OGIS. (e) When appeal is required. [81 FR 95039, Dec. 27, 2016] § 2201.11 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 and the number of occasions on which each statute was relied upon; (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 and average 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, 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; (16) The total amount of fees collected by the agency for processing requests; (17) The number of full-time staff of the agency devoted to the processing of requests for records under this section; and (18) 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 on OSHRC's Web site at http://www.oshrc.gov. [71 FR 56350, Sept. 27, 2006, as amended at 75 FR 41373, July 16, 2010. Redesignated and amended at 81 FR 95038, 95040, Dec. 27, 2016] § 2201.12 Preservation of records. OSHRC shall preserve all correspondence pertaining to FOIA requests, as well as copies of all requested records, until disposition or destruction is authorized pursuant to title 44 of the United States Code or the applicable General Records Schedule of the National Archives and Records Administration. OSHRC shall not dispose of or destroy records while they are the subject of a pending request, appeal or lawsuit under the FOIA. [81 FR 95040, Dec. 27, 2016] Appendix A to Part 2201—Schedule of Fees Type of fee Amount of fee Threshold Amount (Amount below which fees will not be assessed) $10 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.)