Freedom of Information Act Procedural Rules, 5393-5401 [2022-01449]

Agencies

• Federal Mine Safety and Health Review Commission

[Federal Register Volume 87, Number 21 (Tuesday, February 1, 2022)]
[Rules and Regulations]
[Pages 5393-5401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01449]


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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: Final rule.

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SUMMARY: The Federal Mine Safety and Health Review Commission (the 
Commission) is adopting revised rules as final 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 revised rules will ensure rapid and effective 
procedures for requesting information and processing requests under the 
FOIA. The Commission published a notice of proposed rulemaking that 
permitted public comment on the rules. The Commission has determined 
that it will make two changes to its proposed rules in light of 
comments received and that it will adopt those rules as final.

DATES: 
    Effective date: These revised rules are effective on March 3, 2022.

[[Page 5394]]

    Applicability date: The final rules will apply to requests 
initiated after the rules take effect. The final rules will also apply 
to further proceedings regarding requests pending on the effective 
date, except to the extent that such application would be infeasible or 
unfair, in which event the present procedural rules would continue to 
apply.

ADDRESSES: Questions may be sent by any of the following methods:
     Email: [email protected].
     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.

FOR FURTHER INFORMATION CONTACT: Michael A. McCord, General Counsel, 
202-434-9900, [email protected].

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 revising 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 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 adopting 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 revised rules 
retain much of the substantive practices and procedures in effect prior 
to these revisions, they have been extensively reorganized under new 
section headers and paragraph headers. The Commission is also adding 
two new procedural rules, one addressing confidential commercial 
information and the other addressing the preservation of records.
    In August 2021, the Commission published a notice of proposed 
rulemaking (``NPRM''). 86 FR 48346, Aug. 30, 2021. Although the 
proposed rules were procedural in nature and did not require notice and 
comment publication (see 5 U.S.C. 553(b)(3)(A)), the Commission invited 
comment from the interested public until September 29, 2021. The 
Commission received comments from several individual members of the 
FOIA requester community. While all commenters expressed general 
agreement with the Commission's proposed revisions, one commenter 
expressed concern regarding a fee increase in one rule and suggested 
the inclusion of additional language to another rule. Both comments are 
discussed in further detail below. In response to the comments received 
and after further reflection by the Commission, several changes were 
made to the proposed rules.

II. Section-by-Section Analysis

    Set forth below is an analysis of the comments received on the 
Commission's proposed rules and the final actions taken.

Part 2702--Regulations Implementing the Freedom of Information Act

    Sec. Sec.  2702.3 through 2702.8 [Redesignated]

------------------------------------------------------------------------
                     Old section                         New section(s)
------------------------------------------------------------------------
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
------------------------------------------------------------------------

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 https://www.fmshrc.gov/guides/foia-guide.
    The Commission received no comments on the proposed changes and 
adopts the rule as proposed.

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

[[Page 5395]]

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).
    The Commission received no comments on the proposed changes and 
adopts the rule as proposed.

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 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.
    While the Commission received no objections to these proposed 
changes, the Commission adopts the rule with one minor modification. 
The Commission adds a reference to Sec.  2702.10(a), which discusses 
related fee restrictions.

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.''
    The Commission received no comments on the proposed changes and 
adopts the rule as proposed.

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.
    The Commission received no comments on the proposed changes and 
adopts the rule as proposed.

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

[[Page 5396]]

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.
    The Commission received no comments on the proposed changes and 
adopts the rule as proposed.

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 
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.
    The Commission received no comments on the proposed changes and 
adopts the rule as proposed.

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 initially 
sought to amend the duplication fee from $0.15 per page to $0.25 per 
page to account for the cost of inflation. However, during the public 
comment period, a commenter challenged a proposed increase to 25 cents 
per page, contending that the Commission's proffered rationale of 
inflation was insufficient to justify the increase because the 
commercial cost of photoduplication has fallen over the years.
    The Commission notes that duplication fees may incorporate the cost 
of labor, as well as material. The Commission established the 15 cent 
per page duplication fee in 1996. Since that time, labor costs have 
risen due to inflation (as reflected, for example, in adjustments to 
the general schedule pay scale which govern the salaries of the 
Commission's FOIA personnel). The Commission maintains that labor cost 
inflation is a valid rationale for increasing duplication fees. 
However, the Commission also acknowledges that any increase must be 
commensurate and may be partially offset by decreased material costs. 
Upon further analysis, duplication costs are set at 20 cents per page. 
As the vast majority 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. The section also includes the restriction that prohibits an 
agency from assessing search fees or duplication fees, should it fail 
to comply with the extended time limit.
    Substantively, the language of the section remains largely the 
same. Paragraph (a) has been revised to include fee restrictions when 
the agency fails to comply with extended time limits. 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).
    During the public comment period, a commenter noted that the newest 
change to 30 U.S.C. 552(a)(4)(A)(viii)(II)(aa) states that ``If the 
agency fails to comply with the extended time limit, the agency may not 
assess any search fees (or in the case of a requester described under 
clause (ii)(II) of this subparagraph, duplication fees).'' The 
commenter noted that a section respecting and restating the statutory 
provision was missing from the proposed rules. In lieu of placing this 
new fee requirement in its rules, the Commission intended to include a 
full explanation of the fee adjustment in the Commission's updated FOIA 
guide, which has historically provided additional context to the 
agency's fee set-up. However, in light of the commenter's suggestion 
and after further consideration, the Commission has amended the 
associated regulations at Sec. Sec.  2702.4(b)(2)(ii) and 2702.10(a) to 
reflect the new fee restriction. The fee restriction is also discussed 
in the Commission's FOIA Guide.

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.

[[Page 5397]]

    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.
    The Commission received no comments on the proposed changes and 
adopts the rule as proposed.

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.
    The Commission received no comments on the proposed change here and 
adopts the rule as proposed.

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 
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 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 Office of 
Management and Budget (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 revises 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.
702.9 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 Pub. L. 104-231, 110 Stat. 3048, 
Pub. L. 110-175, 121 Stat. 2524, and Pub. L. 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 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 
https://www.fmshrc.gov/guides/foia-guide. 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 (https://www.fmshrc.gov).


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

[[Page 5398]]

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 https://www.fmshrc.gov/foia/foia-request-form; or by
    (2) Email, mail, fax, or hand delivery to the Chief FOIA Officer at 
[email protected], 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. See Sec.  2702.10 for fee adjustments 
applicable to processing time delays.
    (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 or her 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 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 [email protected]. In the 
event of an adverse determination, requesters may file an appeal in 
accordance with Sec.  2702.5 and/

[[Page 5399]]

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 https://archives.gov/ogis. Additional information regarding dispute resolution can be found 
on the Commission's website at https://www.fmshrc.gov/content/foia-public-liaison.


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 [email protected], 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 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:

[[Page 5400]]

    (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 https://www.fmshrc.gov/foia/e-reading-room. 
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.
    (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 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 https://www.fmshrc.gov/guides/foia-guide. 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 or her 
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 https://www.fmshrc.gov/guides/foia-guide.
    (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 $.20 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 or 
her willingness to pay fees as high as those anticipated.

[[Page 5401]]

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. If the Commission fails to comply with 
the time limits in Sec.  2702.4(b), including the requirements related 
to the 10-day extension for unusual circumstances, search fees will not 
be assessed and, for requesters described in 30 U.S.C. 
552(a)(4)(A)(ii)(II), duplication fees will not be assessed. See 
Commission's FOIA Guide for further information.
    (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 6 years following final agency action or 3 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: January 20, 2022.
Arthur R. Traynor, III,
Chair, Federal Mine Safety and Health Review Commission.
[FR Doc. 2022-01449 Filed 1-31-22; 8:45 am]
BILLING CODE 6735-01-P