Proposed Rule2021-18623
Freedom of Information Act Procedural Rules
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 30, 2021
Issuing agencies
Federal Mine Safety and Health Review Commission
Abstract
The Federal Mine Safety and Health Review Commission (the Commission) is proposing revisions to its rules implementing the Freedom of Information Act (FOIA) in light of the FOIA Improvement Act of 2016, its experience under the rules, the need to update its fee schedule, and the need to update and clarify a number of its FOIA procedures. These proposed changes ensure rapid and effective procedures for requesting information and processing requests under the FOIA.
Full Text
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<title>Federal Register, Volume 86 Issue 165 (Monday, August 30, 2021)</title>
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[Federal Register Volume 86, Number 165 (Monday, August 30, 2021)]
[Proposed Rules]
[Pages 48346-48353]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-18623]
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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
29 CFR Part 2702
Freedom of Information Act Procedural Rules
AGENCY: Federal Mine Safety and Health Review Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Federal Mine Safety and Health Review Commission (the
Commission) is proposing revisions to its rules implementing the
Freedom of Information Act (FOIA) in light of the FOIA Improvement Act
of 2016, its experience under the rules, the need to update its fee
schedule, and the need to update and clarify a number of its FOIA
procedures. These proposed changes ensure rapid and effective
procedures for requesting information and processing requests under the
FOIA.
DATES: Send comments on or before September 29, 2021.
ADDRESSES: You may send comments by any of the following methods:
<bullet> Email: <a href="/cdn-cgi/l/email-protection#9ac8eff6ffe9d9f5f7f7fff4eee9dafcf7e9f2e8f9b4fdf5ec"><span class="__cf_email__" data-cfemail="8cdef9e0e9ffcfe3e1e1e9e2f8ffcceae1ffe4feefa2ebe3fa">[email protected]</span></a>. Include ``Comments on
FOIA rules'' in the subject line of the message.
<bullet> Mail: Michael A. McCord, General Counsel, Office of the
General Counsel, Federal Mine Safety and Health Review Commission, 1331
Pennsylvania Avenue NW, Suite 520N, Washington, DC 20004-1710.
[[Page 48347]]
All comments received will be posted without change to
<a href="http://www.fmshrc.gov/content/proposed-foia-rules">www.fmshrc.gov/content/proposed-foia-rules</a>, including any personal
information provided.
FOR FURTHER INFORMATION CONTACT: Michael A. McCord, General Counsel,
202-434-9900, <a href="/cdn-cgi/l/email-protection#96dbdbf5f5f9e4f2d6f0fbe5fee4f5b8f1f9e0"><span class="__cf_email__" data-cfemail="ce8383adada1bcaa8ea8a3bda6bcade0a9a1b8">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
The Commission is an independent adjudicatory agency that provides
hearings and appellate review of cases arising under the Federal Mine
Safety and Health Act of 1977 (the ``Mine Act''). Hearings are held
before the Commission's Administrative Law Judges, and appellate review
is provided by a five-member Review Commission appointed by the
President and confirmed by the Senate.
In accordance with the amendments made by the FOIA Improvement Act
of 2016, Public Law 114-185, 130 Stat. 538, to the Freedom of
Information Act, 5 U.S.C. 552, the Commission is proposing to revise
its rules on procedures for the disclosure of records under the FOIA,
including procedures for engaging in dispute resolution through the
FOIA Public Liaison and the Office of Government Information Services
(``OGIS'') and the requirement that requesters be given a minimum of 90
days to file an administrative FOIA appeal.
Additionally, the proposed revisions include clarification on the
types of information that a requester must provide in order to
facilitate a FOIA search of the agency's records, additional
circumstances under which expedited processing will be granted, and
increases in certain fees. Based on its years of experience in
implementing the FOIA, the Commission is proposing the changes set
forth below in its FOIA rules to better reflect agency practice under
the rules and to clarify our FOIA processes to the requester community.
Lastly, while the proposed rules retain much of the substantive
practices and procedures in effect prior to this proposal, they have
been extensively reorganized under new section headers and paragraph
headers. The Commission is also proposing adding two new procedural
rules, one addressing confidential commercial Information and the other
addressing the preservation of records.
II. Section-by-Section Analysis
Part 2702--Regulations Implementing the Freedom of Information Act
Sec. Sec. 2702.3 through 2702.8 [Redesignated]
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Old section New section(s)
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2702.3(b)................................. 2702.4(a) and (d)(1), 2702.5
2702.3(c)................................. 2702.4(b) and (c)
2702.3(d)................................. 2702.4(b)(2)
2702.3(e)................................. 2702.4(b)(3)
2702.3(f)................................. 2702.4(d)(3), 2702.5(e)
2702.3(g)................................. 2702.4(d)(2)
2702.4.................................... 2702.7
2702.5.................................... 2702.8
2702.6.................................... 2702.9
2702.7.................................... 2702.10
2702.8.................................... 2702.11
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29 CFR 2702.1
The Commission is revising 29 CFR 2702.1 to explain that the
purpose of these rules is to establish procedures to implement the FOIA
as amended by the FOIA Improvement Act of 2016. The Commission is also
amending 29 CFR 2702.1 to make three non-substantive revisions: (1)
Adding the short name of ``the Mine Act'' for the Mine statute; (2)
clarifying that the Commission reviews legal disputes between private
parties ``arising under the Mine Act;'' and (3) updating reference to
the Commission's website to include that the FOIA guide is located
specifically at the web address <a href="https://www.fmshrc.gov/guides/foia-guide">https://www.fmshrc.gov/guides/foia-guide</a>.
29 CFR 2702.3
The Commission is revising 29 CFR 2702.3 to limit the section's
focus to the proper procedure for making a FOIA request and to
reorganize the information provided in the rule so that the
requirements are more reader friendly. In addition, new paragraph
headers have been added.
The information in Sec. 2702.3(a), which was previously provided
in paragraph form, has been enumerated, thereby making it easier to
identify the number of requirements that must be met and to distinguish
each requirement.
Pursuant to the authority of 5 U.S.C. 552(a)(3)(A), a new
requirement has been added at newly added Sec. 2702.3(a)(3), which
requires requesters seeking information from cases that have come
before or are currently before the Commission to provide the Commission
assigned docket number (beginning with CENT, KENT, LAKE, PENN, SE, VA,
WEST, WEVA or YORK) and/or the related Mine Safety and Health
Administration (MSHA) issued citation or order number (not to be
confused with the MSHA case number) when making a request. This change
is consistent with long-standing Commission practice and is necessary
in order to effectively search the Commission's docketing database.
In newly added Sec. 2702.3(a)(4), the language ``shall describe
the particular record requested to the fullest extent possible'' has
been replaced with ``reasonably describe the particular record(s)
requested.'' ``Reasonably describe'' is taken directly from the FOIA, 5
U.S.C. 552(a)(3)(A).
The information previously contained in Sec. 2702.3(b), (f), and
(g), which explained the Commission's procedure for responding to
requests and the FOIA appeals process, has been redesignated as new
Sec. Sec. 2702.4 and 2702.5. New Sec. 2702.3(b) now briefly explains
the format and timing of requests for expedited processing and for fee
waivers.
The information previously contained in Sec. 2702.3(c), which
explained the Commission's procedure for taking additional time to
process requests involving ``unusual circumstances,'' has been
redesignated as new Sec. 2702.4. New Sec. 2702.3(c) advises
individuals to refer to the Commission's Privacy Act regulations for
instructions if seeking records on him or herself that do not include
cases currently or previously on review before the Commission.
The information previously contained in Sec. 2702.3(d) discussing
additional time to respond has been redesignated as new Sec.
2702.4(b). New Sec. 2702.3(d) now explains the procedure for properly
submitting a FOIA request to the Commission.
The information previously contained in Sec. 2702.3(e) discussing
expedited processing has been redesignated as newly added Sec.
2702.4(b)(3).
29 CFR 2702.4
The information previously contained in Sec. 2702.4, which
explained the types of records generally maintained by the Commission
and how they may be publicly accessed, has been redesignated as new
Sec. 2702.7.
Section 2702.4 now contains language previously found in Sec.
2702.3. This section now clarifies the Commission's procedures for
responding to requests, processing requests, and making request
determinations, and explains its long- standing multi-track processing
system. Much of this information was relocated from Sec. 2702.3.
The information in Sec. 2702.4(a) generally explains the
Commission's timetable for making a determination on a FOIA request. It
notes that, generally, the Commission will respond to requests in the
order they are received. This is not intended as a restriction on
[[Page 48348]]
the Commission's ability to prioritize requests differently, if
necessary.
Consistent with 5 U.S.C. 552(a)(6)(D)(i), Sec. 2702.4(b) details
the agency's longstanding, three-tier multitrack processing system,
which includes simple, complex, and expedited processing. Section
2702.4(b)(2) explains the ``unusual circumstances'' that may warrant a
delayed response by the Commission.
Pursuant to 5 U.S.C. 552(a)(6)(E)(i)(II), newly added Sec.
2702.4(b)(3) explains the time requirements for making requests for
expedited processing and includes a new agency-specific criterion for
requesters seeking expedited processing. The new criterion, paragraph
(b)(3)(iii), allows parties engaged in litigation before the Commission
to request expedited processing if the record is required to meet a
fast-approaching deadline set by a Commission.
Administrative Law Judge (ALJ) or the Commission. This criterion
will be particularly helpful for parties requesting hearing transcripts
needed to prepare post-hearing briefs.
Newly added Sec. 2702.4(c) contains the information previously
contained in Sec. 2702.3(c)(2) explaining the aggregation of requests.
Newly added Sec. 2702.4(d) explains the various determinations
that a Commission FOIA officer can reach when processing a request
under the FOIA.
In accordance with the FOIA Improvement Act of 2016, newly added
Sec. 2702.4(e) explains the dispute resolution and mediation services
available to requesters and the process for attaining these services.
29 CFR 2702.5
The information previously contained in Sec. 2702.5 under header
``Fees applicable--categories of requesters,'' which explained the
Commission's categories of requesters for purposes of determining the
appropriate fees, has been redesignated as new Sec. 2702.8.
Section 2702.5 now contains language previously found in Sec.
2702.3 and added language explaining the procedures surrounding the
various types of FOIA appeals, including the format and timing of
appeals and the Commission's process for reviewing appeals. The appeal
language was taken from former Sec. Sec. 2702.3(b), (e)(2), and (f)
and 2702.7(b)(2) and consolidated under this new section.
In accordance with the Improvement Act 2016, paragraph (a) reflects
the new time period in which a requester has to appeal an adverse
determination, that is not more than 90 days after the date of such
determination. Paragraphs (a) through (d) include new instructions
regarding the required content when filing an appeal. In paragraph (a),
we also removed the word ``Chairman'' and added, in its place, the word
``Chair.''
29 CFR 2702.6
The information previously contained in Sec. 2702.6 under header
``Fee schedule,'' has been redesignated as newly added Sec. 2702.9
under the same header. Section 2702.6 now contains the Commission's
procedure for the handling of confidential commercial information.
While requests for confidential commercial information is not an issue
the Commission has typically had to deal with in the past, in recent
years it has seen an increase in FOIA requests that in some way relate
to potentially sensitive records that mine operators may not want
released to the public.
The language was adopted from the regulation template provided by
the Department of Justice's Office of Information Policy (``OIP'') in
its ``Template for Agency FOIA Regulations,'' published on February 22,
2017. The section mirrors OIP's sample language.
Section 2702.6(a) defines ``confidential commercial information''
and ``submitter.'' Section 2702.6(b) informs submitters what steps they
must take to protect information they believe should be withheld from
disclosure. This provision will be most useful for mining companies
submitting sensitive commercial records during the course of litigation
before the Commission. Section 2702.6(c) explains the circumstances
under which a submitter of confidential commercial information must be
notified that the information has been requested and may be disclosed.
It describes the different ways the Commission may satisfy the notice
requirement and describes the content that must be included in the
notice.
Section 2702.6(d) explains the exceptions to the submitter notice
requirements. Section 2702.6(e) sets forth the process for submitters
to object to disclosures. The section goes on to explain the
Commission's process for addressing objected disclosures and the
notices it will provide to both submitter and requester.
29 CFR 2702.7
The information previously contained in Sec. 2702.7 under header
``No fees; waiver or reduction of fees,'' has been redesignated as
newly added Sec. 2702.10. Section 2702.7 now contains the information
previously found in Sec. 2702.4 discussing the types of records
maintained by the Commission and available to the public, as well as
how records may be accessed without the need to file a FOIA request. It
additionally explains what records are available to the public upon
request and generally how the Commission will search for requested
records.
Specifically, under FOIA, each agency must make available for
public inspection and copying (without the need for a formal FOIA
request) the following items: Final opinions and orders issued in the
adjudication of administrative cases; policy statements and
interpretations that have been adopted by the agency but which were not
published in the Federal Register; administrative staff manuals that
affect members of the public; and records processed and disclosed in
response to a FOIA request which the agency has determined have or will
become the subject of similar requests for substantially the same
records (often referred to as ``FOIA-processed records''). See 5 U.S.C.
552(a)(2).
Historically, agencies have generally provided access to these
records in reading rooms located at one or more of the agency's
offices. However, with the increased reliance on technology, agencies
have eliminated full-time reading rooms and switched to posting the
records online where they are easily accessible by the public. While
the Commission will continue to permit in-office inspection of records,
if requested, it will primarily rely on its e-reading room to satisfy
this requirement under the FOIA.
There is one substantive change to this section, which includes a
new paragraph (a) that generally describes the availability of the
Commission's records. Former paragraphs (a) and (b) have been
transposed and relettered as paragraphs (b) and (c). The term ``FOIA
Reading Room'' has been replaced with the term ``FOIA in-office
review.''
The rule continues to model the statutory language in the FOIA.
Additionally, a more detailed listing of materials available at the
Commission is provided in the Commission's FOIA Guide, also available
on its website.
29 CFR 2702.8
The information previously contained in Sec. 2702.8 under header
``Advance payment of fees; interest; debt collection procedures,'' has
been redesignated as newly created Sec. 2702.11.
Section 2702.8, under revised header ``Categories of requesters and
applicable fees,'' now contains the information previously found in
Sec. 2702.5 discussing fee requester categories. This section includes
newly added paragraph (f), which explains that the FOIA office may
[[Page 48349]]
require clarification from the requester at times in order to determine
proper fee category. The remainder of the section contains several
minor stylistic changes to sentence structure, and descriptive headers/
titles have also been added to each paragraph.
29 CFR 2702.9
Newly added Sec. 2702.9 contains the information previously found
in Sec. 2702.6 under the same header, ``Fee schedule.'' This
transferred content continues to outline the various fees charged by
the Commission for its FOIA services. Substantively, the language of
the section remains largely the same. There are minor revisions to
paragraphs (a) and (b) to reflect a more accurate website location and
paragraph (b) to reflect the proper rule citation in light of these
amendments. The website address in paragraphs (a) and (b) has been
modified to include the direct website address for the Commission's
FOIA Guide. In paragraph (b), we also removed the word ``Chairman'' and
added, in its place, the word ``Chair.''
The Commission is amending the language of paragraph (c) to state
that duplication fees will be charged for records that are not
routinely kept in electronic format and must be scanned for purposes of
satisfying a FOIA request. Additionally, the Commission is amending the
duplication fee from $0.15 per page to $0.25 per page to account for
the cost of inflation. As most of our records are in electronic format,
we expect this increase to have very little impact on the requester
community.
29 CFR 2702.10
Newly added Sec. 2702.10 contains the information previously found
in Sec. 2702.7 under former header ``No fees; waiver or reduction of
fees.'' Now under revised header ``Waivers and reduction of fees,''
this section continues to explain the circumstances under which fees
will not be charged and under what circumstances a fee waiver will be
granted.
Substantively, the language of the section remains largely the
same. Paragraph (b) has been minimally revised to include additional
information on the proper Commission procedure for requesting a fee
waiver, which is also stated in amended Sec. 2702.3(b). Paragraph (b)
has been revised to reflect the proper rule citation in light of these
amendments and descriptive headers/titles have been added to paragraphs
(a) and (b).
29 CFR 2702.11
Newly added Sec. 2702.11 under header ``Payment of fees; advance
payments; interest, debt collection,'' contains the information
previously found in Sec. 2702.8 under former header ``Advance payment
of fees; interest; debt collection procedures.'' This section continues
to explain when advance payment of fees could be required, when
interest charges could be assessed, and that delinquent payments would
be referred to debt collection.
Substantively, the language of the section remains the same with
one key exception. New paragraph (a) now explains the process for
remitting payment to the Commission for FOIA services rendered.
Additionally, paragraph (b), formerly paragraph (a), has been reworded
for concision, but substantively remains the same. Descriptive headers/
titles have also been added to each paragraph.
29 CFR 2702.12
Newly added Sec. 2702.12 under header ``Preservation of records,''
is a new addition to the Commission's FOIA rules. This section explains
the Commission's procedure and time frames for the maintenance of its
FOIA records. We believe this section will be very helpful for FOIA
requesters who seek records going back a certain number of years and
who are trying to determine the scope of their request prior to
submission. This is a relatively common occurrence with Commission FOIA
requests. This rule is intended to decrease processing times by
eliminating the added correspondence that often ensues as a result of a
requester seeking records that are outside of the required maintenance
period.
III. Matters of Regulatory Procedure
The Commission is an independent regulatory agency, and as such, is
not subject to the requirements of Executive Order (``E.O.'') 12866
(Sept. 30, 1993; 58 FR 51735, Oct. 4, 1993); E.O. 13563 (Jan. 18, 2011;
76 FR 3821, Jan. 21, 2011); E.O. 13771 (Jan. 30, 2017; 82 FR 9339, Feb.
3, 2017); or E.O. 13777 (Jan. 30, 2017; 82 FR 12285, Mar. 1, 2017). The
proposed regulatory amendments also do not have Federal implications or
``substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.''
Therefore, E.O. 13132 is not applicable.
The Commission's Chair has determined that this proposed rule will
not ``have a significant economic impact on a substantial number of
small entities'' under the Regulatory Flexibility Act (``RFA'') (5
U.S.C. 605) due to the limited scope of the rule and its impact of
streamlining the procedures required under FOIA. The Commission has
also 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 the OMB.
List of Subjects in 29 CFR Part 2702
Administrative practice and procedure, Appeals, Confidential
commercial information, Freedom of information, Privacy.
0
For the reasons stated in the preamble, the Federal Mine Safety and
Health Review Commission proposes to revise 29 CFR part 2702 to read as
follows:
PART 2702--REGULATIONS IMPLEMENTING THE FREEDOM OF INFORMATION ACT
Sec.
2702.1 Purpose and scope.
2702.2 Location of offices.
2702.3 Making a request for information.
2702.4 Response to request; processing; determinations.
2702.5 Right to appeal.
2702.6 Confidential commercial information.
2702.7 Materials available.
2702.8 Categories of requesters and applicable fees.
2702.9 Fee schedule.
2702.10 Waivers and reduction of fees.
2702.11 Payment of fees; advance payments; interest; debt
collection.
2702.12 Preservation of records.
Authority: 30 U.S.C. 801 et seq.; 5 U.S.C. 551, 552, and 552a
and 44 U.S.C. 3102 as amended by Public Law 104-231, 110 Stat. 3048,
Public Law 110-175, 121 Stat. 2524, and Public Law 114-185, 130
Stat. 538; E.O. 13392, 70 FR 75373, 3 CFR, 2005 Comp., p. 216.
Sec. 2702.1 Purpose and scope.
The Federal Mine Safety and Health Review Commission (Commission),
pursuant to the Federal Mine Safety and Health Act of 1977 (the ``Mine
Act''), 30 U.S.C. 801 et seq., is an independent adjudicative agency
that provides administrative trial and appellate review of legal
disputes arising between the U.S. Department of Labor's Mine Safety and
Health Administration (MSHA) and private parties, as well as certain
disputes solely between private parties arising under the Mine Act. The
purpose of the rules in this part is to establish procedures for
implementing the Freedom of Information Act (FOIA), 5 U.S.C. 552, as
amended by the
[[Page 48350]]
Electronic Freedom of Information Act Amendments of 1996, Public Law
104-231, 110 Stat. 3048, the OPEN Government Act of 2007, Public Law
110-175, 121 Stat. 2524, and the FOIA Improvement Act of 2016, Public
Law 114-185, 130 Stat. 538; to provide guidance for those seeking to
obtain information from the Commission; and to make all information
subject to disclosure pursuant to this subchapter and FOIA, and not
otherwise protected by law, readily available to the public. Additional
guidance on obtaining information from the Commission can be found in
the document entitled ``FOIA Guide,'' which is available for viewing
and download on the Commission's website at <a href="https://www.fmshrc.gov/guides/foia-guide">https://www.fmshrc.gov/guides/foia-guide</a>. Hard copies are also available upon written request
to the Commission's FOIA Office. The rules in this part apply only to
records or information of the Commission or in the Commission's
custody. Nothing in this part shall be construed to entitle any person,
as of right, to any service or to the disclosure of any record to which
such person is not entitled under the FOIA. 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 2700.
Sec. 2702.2 Location of offices.
The Commission maintains its headquarters office at 1331
Pennsylvania Avenue NW, Suite 520N, Washington, DC 20004-1710. The
locations of other Commission offices may be obtained from the
Commission's website (<a href="http://www.fmshrc.gov">http://www.fmshrc.gov</a>).
Sec. 2702.3 Making a request for information.
(a) Content of request. All requests for information must:
(1) Be in writing;
(2) Include the words ``Freedom of Information Act Request'' or
``FOIA'' on the face of the request;
(3) Include, if concerning a case that has come before the
Commission or a Commission Administrative Law Judge, the Commission
case docket number or, in the alternative, the related MSHA citation or
order number(s);
(4) Reasonably describe the particular record(s) requested; and
(5) Specify the preferred form or format in which the requester
wishes to receive the response. The Commission shall accommodate
requests 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) Optional content considerations. If the requester desires
expedited processing or a waiver or reduction of fees, such requests
must be in writing and should be included in the initial request for
information filed in accordance with paragraph (a) of this section. See
Sec. Sec. 2702.4(b)(3) and 2702.10 for additional requirements.
(c) Personal records. For individuals seeking access to their
records, not including Commission files generated in adversary
proceedings under the Mine Act, please see the Commission's Privacy Act
rules at 29 CFR part 2705.
(d) Submitting a request. Requests must be submitted via:
(1) The Commission's FOIA Request form located on the Commission's
website at <a href="https://www.fmshrc.gov/foia/foia-request-form">https://www.fmshrc.gov/foia/foia-request-form</a>; or by
(2) Email, mail, fax or hand delivery to the Chief FOIA Officer at
<a href="/cdn-cgi/l/email-protection#c5838a8c84858388968d9786eba2aab3"><span class="__cf_email__" data-cfemail="2f6960666e6f69627c677d6c01484059">[email protected]</span></a>, Federal Mine Safety and Health Review Commission,
Attn: Chief FOIA Officer,1331 Pennsylvania Avenue NW, Suite 520N,
Washington, DC 20004-1710, Fax: 202-434-9944.
Sec. 2702.4 Response to request; processing; determinations.
(a) Response to request. Upon receipt of a request, a determination
to grant, deny, or partially grant the request will be made within 20
business days by the Commission's FOIA Office, except in unusual
circumstances, as described in paragraph (b) of this section.
Generally, the Commission will respond to requests according to their
order of receipt.
(b) Processing time.
(1) Simple track. Except in circumstances described in paragraph
(b)(2) or (3) of this section, upon receipt of a request, a Commission
FOIA officer will reach a determination to grant, deny, or partially
grant the request within 20 business days after receipt by the
Commission's FOIA Office.
(2) Complex track. In unusual circumstances, it may not be possible
for the agency to reach a determination within 20 business days. When
additional time is needed to respond to the initial request, the
Commission shall notify the requester in writing within the 20 business
day period, describe the circumstances causing the delay, and indicate
the anticipated date for a substantive response that may not exceed 10
additional business days, except as provided in paragraph (b)(2)(i) of
this section.
(i) Unusual circumstances that may warrant delay include:
(A) The need to search for and collect the requested records from
facilities that are separate from the office processing the request;
(B) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records that are requested
in a single request;
(C) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request, or among two or more components of
the agency having substantial subject matter interest in the request;
and
(D) The need to consult with the submitter of the records being
requested.
(ii) With respect to a request for which a written notice has
extended the time limit by 10 additional business days, if the
Commission determines that it cannot make a response determination
within that additional 10 business day period, the requester will be
notified and provided an opportunity to limit the scope of the request
so that it may be processed within the extended time limit, or an
opportunity to arrange an alternative time frame for processing the
request or a modified request.
(3) Expedited track. While it is recommended that a request for
expedited services be submitted with the initial Sec. 2702.3(a)
request, such request may be made at any time. A person may request
expedited processing of a Sec. 2702.3(a) request for records in cases
where the requester can demonstrate a compelling need for said records.
Requesters will be notified of the determination in accordance with
paragraph (d)(4) of this section. A demonstration of compelling need by
a person making a request for expedited processing shall be made by a
statement certified by such person to be true and correct to the best
of his knowledge and belief. For purposes of this paragraph (b)(3), a
``compelling need'' means:
(i) That a failure to obtain the requested records on an expedited
basis could reasonably be expected to pose an imminent threat to the
life or physical safety of an individual; or
(ii) The information is urgently needed by a person primarily
engaged in disseminating information in order to inform the public
concerning actual or alleged Federal Government activity; or
(iii) The records are necessary to assist with meeting an impending
deadline set by a Commission Judge or the Commission in a pending case
to which the requester is a party.
(c) Aggregated requests. Whenever it reasonably appears that
certain requests
[[Page 48351]]
by the same requester, or a group of requesters acting in concert,
actually constitute a single request that would otherwise satisfy the
unusual circumstances specified in this section, and the requests
involve clearly related matters, such requests may be aggregated for
purposes of this paragraph (c). Multiple requests involving unrelated
matters will not be aggregated.
(d) Determinations.
(1) Full grant of request. Unless a Commission FOIA officer
reasonably foresees that disclosure would harm an interest protected by
one of the nine statutory exemptions found at 5 U.S.C. 552(b) or
determines that disclosure is prohibited by law, all relevant records
obtained through reasonable search efforts shall be provided within the
relevant time period described in paragraph (b) of this section.
(2) Partial grant/denial of request. Any reasonably segregable
portion(s) of a record shall be provided to the person requesting it
after the deletion of any exempt portion(s) of the record. The
applicable exemption(s) and the amount of information deleted shall be
indicated on the released portion(s) of the record, at the place in the
record the deletion is made if technically feasible, unless indicating
the extent of the deletion would harm an interest protected by the
exemption pursuant to which the deletion is made.
(3) Denial of request. In denying a request for records, the
Commission shall state the reason for the denial and the applicable
exemption; set forth the name and title or position of the person
responsible for the denial of the request; make a reasonable effort to
estimate the volume of the records denied; and provide this estimate to
the person making the request, unless providing such an estimate would
harm an interest protected by the exemption pursuant to which the
request is denied.
(4) Determination of request to expedite. Notice of the
determination whether to grant expedited processing in response to a
requester's claim of compelling need shall be provided to the person
making the request within 10 days after receipt of the request for
expedited processing.
(5) Determination of fee waiver/reduction request. The Chief FOIA
Officer or designated employee, upon request, shall determine whether a
waiver or reduction of fees is warranted. See Sec. 2702.10 for
additional information.
(e) Dispute resolution. At any time during the processing of a
request, requesters may seek dispute resolution assistance from the
Commission's FOIA Public Liaison at <a href="/cdn-cgi/l/email-protection#31777e78701c7d585058425e5f71575c425943521f565e47"><span class="__cf_email__" data-cfemail="74323b3d3559381d151d071b1a341219071c06175a131b02">[email protected]</span></a>. In the
event of an adverse determination, requesters may file an appeal in
accordance with Sec. 2702.5 and/or obtain mediation and dispute
resolution services from the Commission's FOIA Public Liaison, as well
as from the Office of Government Information Services (``OGIS'') at
<a href="https://archives.gov/ogis">https://archives.gov/ogis</a>. Additional information regarding dispute
resolution can be found on the Commission's website at <a href="https://www.fmshrc.gov/content/foia-public-liaison">https://www.fmshrc.gov/content/foia-public-liaison</a>.
Sec. 2702.5 Right to appeal.
(a) Generally. Any requester adversely affected by a final decision
of the Commission's FOIA Office may file an appeal of that decision
within 90 days of the initial determination. All FOIA appeals must be
in writing and shall be made to the Chair of the Commission. Sitting
Commissioners will decide appeals within 20 business days after
receipt. In the event that a sitting Commissioner is the subject of the
disputed FOIA records or has a substantial interest in the disputed
records, that Commissioner should be recused from consideration of said
FOIA appeal. In the event of a tie vote of those Commissioners, the
FOIA Office's initial determination will be deemed approved by the
Commission. Appeals must be submitted via email, mail, fax or hand
delivery to <a href="/cdn-cgi/l/email-protection#c5838a8c84e8a4b5b5a0a4a9b685a3a8b6adb7a6eba2aab3"><span class="__cf_email__" data-cfemail="8ec8c1c7cfa3effefeebefe2fdcee8e3fde6fceda0e9e1f8">[email protected]</span></a>, Federal Mine Safety and Health
Review Commission, 1331 Pennsylvania Avenue NW, Suite 520N, Washington,
DC 20004-1710, Fax: 202-434-9944.
(b) Appeal of denial or partial denial of information request. The
appeal must include a copy of the initial FOIA request, a copy of the
determination denying the request in whole or in part, and a detailed
statement explaining why the initial determination should be reversed.
Any records to be disclosed by the Commission to the requester shall be
provided with the letter setting forth the determination as to the
appeal or shall be sent as soon as possible thereafter.
(c) Appeal of denial of request to expedite. The appeal must
include a copy of the initial request to expedite, a copy of the
determination denying the request, and a detailed explanation
demonstrating a compelling need as stated in Sec. 2702.4(b)(3). The
Commission will provide expeditious consideration of administrative
appeals of determinations on whether to provide expedited processing.
Once a determination has been made to grant expedited processing, the
Commission will process the request as soon as practicable.
(d) Appeal of denial of fee waiver or reduction. The appeal must
include a copy of the initial fee waiver/reduction request, a copy of
the determination denying the request, and a detailed statement
explaining how the request satisfies one or more requirements in Sec.
2702.10(b).
(e) Denial of appeal. If an appeal is denied, the Commission's
notice of denial shall inform the requester of the right to obtain
judicial review of the Commission's action under 5 U.S.C. 552(a)(4)(B)-
(G). The requester may appeal the Commission's decision by filing a
complaint in the district court of the United States in the district in
which the complainant resides, or has its principal place of business,
or in which the agency records are situated, or in the District of
Columbia.
Sec. 2702.6 Confidential commercial information.
(a) Definitions.
(1) Confidential commercial information means commercial or
financial information obtained by the agency from a submitter that may
be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C.
52(b)(4).
(2) Submitter means any person or entity, including a corporation,
State, or foreign government, but not including another Federal
Government entity, that provides confidential commercial information,
either directly or indirectly to the Federal Government.
(b) Designation of confidential commercial information. A submitter
of confidential commercial information must use good faith efforts to
designate by appropriate markings, at the time of submission, any
portion of its submission that it considers to be protected from
disclosure under Exemption 4. These designations expire 10 years after
the date of the submission unless the submitter requests and provides
justification for a longer designation period.
(c) When notice to submitters is required.
(1) The Commission will promptly provide written notice to the
submitter of confidential commercial information whenever records
containing such information are requested under the FOIA if the
Commission determines that it may be required to disclose the records,
provided:
(i) The requested information has been designated in good faith by
the submitter as information considered protected from disclosure under
Exemption 4; or
(ii) The Commission has a reason to believe that the requested
information
[[Page 48352]]
may be protected from disclosure under Exemption 4, but has not yet
determined whether the information is protected from disclosure.
(2) The notice must either describe the commercial information
requested or include a copy of the requested records or portions of
records containing the information.
(d) Exceptions to submitter notice requirements. The notice
requirements of this section do not apply if:
(1) The Commission 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, the Commission
will give the submitter written notice of any final decision to
disclose the information within a reasonable number of days prior to a
date specified for disclosure.
(e) Opportunity to object to disclosure.
(1) If the submitter objects to disclosure of any of the requested
information, a written response to the notice issued under paragraph
(c) of this section must be submitted to the Commission within 30
calendar days of the date of the notice.
(2) The response must include a detailed statement that specifies
all grounds for withholding the particular information under any
exemption of the FOIA. In order to rely on Exemption 4 of the FOIA as a
basis for nondisclosure, the submitter must explain why the information
constitutes a trade secret or commercial or financial information that
is confidential.
(3) A submitter who fails to respond within 30 calendar days will
be considered to have no objection to disclosure of the information.
The Commission is not required to consider any information received
after the date of any disclosure decision. Any information provided by
a submitter under this part may itself be subject to disclosure under
the FOIA.
(f) Analysis of objections. The Commission will consider a
submitter's objections and specific grounds for nondisclosure in
deciding whether to disclose the requested information.
(g) Notice of intent to disclose. Whenever the Commission decides
to disclose information over the objection of a submitter, the
Commission will provide the submitter written notice, which shall
include:
(1) A statement of the reasons why each of the submitter's
disclosure objections was not sustained;
(2) A description of the information to be disclosed or copies of
the records as the Commission intends to release them; and
(3) A specified disclosure date, which must be a reasonable time
after the notice.
(h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit
seeking to compel the disclosure of confidential commercial
information, the agency must promptly notify the submitter.
(i) Requester notification. The Commission will notify the
requester whenever it provides the submitter with notice and an
opportunity to object to disclosure; whenever it notifies the submitter
of its intent to disclose the requested information; and whenever a
submitter files a lawsuit to prevent the disclosure of the information.
(j) Effect of disclosure. Once a record has been disclosed by the
Commission to any requester, that record will no longer be deemed
confidential commercial information and protected under this section.
Sec. 2702.7 Materials available.
(a) Records. Except for records and information under seal or
exempted from disclosure, all records of the Commission or in its
custody are available to any person who requests them in accordance
with Sec. 2702.3. 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) FOIA e-reading room. Materials created on or after November 1,
1996, under this paragraph (b) may be accessed electronically through
the Commission's website at <a href="https://www.fmshrc.gov/foia/e-reading-room">https://www.fmshrc.gov/foia/e-reading-room</a>.
Materials available include, but are not limited to:
(1) Final opinions, including concurring and dissenting opinions,
as well as orders, made in the adjudication of cases;
(2) Those statements of policy and interpretations which have been
adopted by the agency and are not published in the Federal Register;
(3) Administrative staff manuals and instructions to staff that
affect a member of the public;
(4) Copies of all records, regardless of form or format, which have
been released to any person under this part and which, because of the
nature of their subject matter, the Commission has determined have
become or are likely to become the subject of subsequent requests for
substantially the same records; and
(5) A general index of records referred to under this paragraph
(b).
(c) FOIA in-office review. Materials are also available for
inspection and copying at the Commission's headquarters located at 1331
Pennsylvania Avenue NW, Suite 520N, Washington, DC 20004-1710.
Sec. 2702.8 Categories of requesters and applicable fees.
(a) Commercial requesters. When documents are requested for
commercial use, the requester will be assessed the full direct costs of
searching for, reviewing for release, and duplicating the records
sought.
(b) Educational or noncommercial scientific institutions
requesters. When records are being requested by educational or
noncommercial scientific institutions whose purpose is scholarly or
scientific research, and not for commercial use, the requester will be
assessed only for the cost of duplicating the records sought, but no
charge will be made for the first 100 paper pages reproduced.
(c) News media requesters. When records are being requested by
representatives of the ``news media,'' as defined by 5 U.S.C.
552(a)(4)(A)(ii) of the FOIA, the requester will be assessed only for
the cost of duplicating the records sought, but no charge will be made
for the first 100 paper pages reproduced. When records are being
requested by representatives of the news media.
(d) Other requesters. For any other request not described in
paragraphs (a) through (c) of this section, the requester will be
assessed the full direct costs of searching for and duplicating the
records sought, except that no charge will be made for the first two
hours of manual search time and the first 100 paper pages of
reproduction.
(e) Requesters acting in concert. For purposes of paragraphs (b)
through (d) of this section, whenever it reasonably appears that a
requester, or a group of requesters acting in concert, is attempting to
break down a single request into a series of requests relating to the
same subject matter for the purpose of evading the assessment of
[[Page 48353]]
fees, such requests will be aggregated and fees assessed accordingly.
(f) Clarification of records use. Where the FOIA 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 officer may seek clarification from the requester before
assigning the request to a specific category for fee assessment
purposes.
Sec. 2702.9 Fee schedule.
(a) Search fee. The fee for searching for information and records
shall be the salary rate (that is, basic pay plus 16%) of the employee
making the search. This hourly rate is listed in the Commission's FOIA
Guide at <a href="https://www.fmshrc.gov/guides/foia-guide">https://www.fmshrc.gov/guides/foia-guide</a>. Fees for searches of
computerized records shall be the actual cost to the Commission but
shall not exceed $300 per hour. This fee includes machine time and that
of the operator and clerical personnel. If search charges are likely to
exceed $50, the requester shall be notified of the estimated amount of
fees, unless the requester has indicated in advance his willingness to
pay fees as high as those anticipated. Fees may be charged even if the
documents are not located or if they are located but withheld on the
basis of an exemption.
(b) Review fee. The review fee shall be charged for the Chief FOIA
Officer's initial examination of documents located in response to a
request in order to determine if they may be withheld from disclosure,
and for the deletion of portions that are exempt from disclosure, but
shall not be charged for review by the Chair or the Commissioners. See
Sec. 2702.5. The review fee is the salary rate (that is, basic pay
plus 16%) of the Chief FOIA Officer or the employee designated to
perform the review. This hourly rate is listed in the Commission's FOIA
Guide at <a href="https://www.fmshrc.gov/guides/foia-guide">https://www.fmshrc.gov/guides/foia-guide</a>.
(c) Duplicating fee. The copy fee for each page of paper up to 8\1/
2\'' x 14'', including the scanning of pages not routinely stored in
electronic format, shall be $.25 per page. When the use of third-party
services is required, the fee will be the actual direct cost incurred
by the Commission. For copies of records produced on tapes, disks, or
other media, the Commission shall charge the direct costs of production
of the material, including operator time. For other methods of
reproduction or duplication, the Commission will charge the actual
direct costs of producing the document(s). If duplication charges are
likely to exceed $50, the requester shall be notified of the estimated
amount of fees, unless the requester has indicated in advance his
willingness to pay fees as high as those anticipated.
Sec. 2702.10 Waivers and reduction of fees.
(a) Automatic fee waiver. No fees shall be charged to any
requester, including commercial use requesters, if the anticipated cost
of processing and collecting the fee would be equal to or greater than
the fee itself. Accordingly, the Commission has determined that fees of
less than $20 shall be waived.
(b) Request for fee waiver or reduction. A request for fee waiver
or reduction shall be made in writing and shall address the criteria
outlined in paragraphs (b)(1) through (6) of this section. The request
should be submitted with the original request for information filed
pursuant to Sec. 2702.3(a). If the request is granted, the documents
shall be furnished without any charge, or at a charge reduced below the
fees otherwise applicable. A waiver or reduction of fees will be
granted only if disclosure of the information is determined to be in
the public interest because it is likely to contribute significantly to
public understanding of the operations or activities of the government
and is not primarily in the commercial interest of the requester. The
following six factors will be employed in determining when such fees
shall be waived or reduced:
(1) The subject of the request: Whether the subject of the
requested records concerns ``the operations or activities of the
government;''
(2) The informative value of the information to be disclosed:
Whether the disclosure is ``likely to contribute'' to an
understanding of government operations or activities;
(3) The contribution to an understanding of the subject by the
general public likely to result from disclosure: Whether disclosure
of the requested information will contribute to ``public
understanding;''
(4) The significance of contribution to public understanding:
Whether the disclosure is likely to contribute ``significantly'' to
public understanding of government operations or activities;
(5) The existence and magnitude of a commercial interest:
Whether the requester has a commercial interest that would be
furthered by the requested disclosure; and
(6) The primary interest in disclosure: Whether the magnitude of
any 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.''
(c) Determination. The Chief FOIA Officer, upon request, shall
determine whether a waiver or reduction of fees is warranted.
Sec. 2702. 11 Payment of fees; advance payments; interest; debt
collection.
(a) Payment of fees. Upon receipt of the invoice or statement
detailing the charges incurred for processing, the requester shall make
payment within 30 calendar days to the Federal Mine Safety and Health
Review Commission or FMSHRC, Attention: Office of the Executive
Director, 1331 Pennsylvania Avenue NW, Suite 520N, Washington, DC
20004-1710.
(b) Advance payment. Before work is commenced or continued on a
request, advance payment may be required if the charges are likely to
exceed $250.
(c) Delinquent requesters. Requesters who have previously failed to
pay FOIA processing fees associated with a prior request, within the
time mandated by paragraph (a) of this section, and are unable to
demonstrate that the fee was previously paid, may be required to first
pay the unpaid balance plus any applicable interest and then make an
advance payment of the full amount of the estimated fee before the new
or pending request is processed.
(d) Interest charges. Interest charges may be assessed on any
unpaid bill starting on the 31st day following the day on which the
billing was sent, at the rate prescribed in 31 U.S.C. 3717, and will
accrue from the date of billing.
(e) Debt collection. The Debt Collection Act of 1982, Public Law
97-365, including disclosure to consumer credit reporting agencies and
the use of collection agencies, will be utilized to encourage payment
where appropriate.
Sec. 2702.12 Preservation of records.
Pursuant to title 44 of the United States Code or the General
Records Schedule 4.2 of the National Archives and Records
Administration, the Commission preserves all correspondence pertaining
to requests received under this part, as well as copies of all
requested records for six years following final agency action or three
years after final adjudication by the courts, whichever is later. The
Commission will not dispose of or destroy records while they are the
subject of a pending request, appeal, or lawsuit under the FOIA.
Dated: August 25, 2021.
Arthur R. Traynor, III
Chair, Federal Mine Safety and Health Review Commission.
[FR Doc. 2021-18623 Filed 8-27-21; 8:45 am]
BILLING CODE 6735-01-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.