Freedom of Information Act Procedural Rules
| Citation | 86 FR 48346 |
| Record Number | 2021-18623 |
| Published date | 30 August 2021 |
| Court | Federal Mine Safety And Health Review Commission |
48346
Federal Register / Vol. 86, No. 165 / Monday, August 30, 2021 / Proposed Rules
Background
One of the main responsibilities of the
Los Angeles Air Route Traffic Control
Center (ARTCC) (ZLA) is separating and
sequencing en route, arrival, and
departure traffic in the vicinity of Las
Vegas, NV. The operational complexity
of this airspace is affected not only by
traffic volume, but by the airspace
limitations imposed by the large amount
of Special Use Airspace (SUA) in the
Desert Southwest.
RNAV route Q–13 is the primary
route utilized for Phoenix, AZ (PHX)
arrivals from the Bay Area, Seattle,
Portland, and the Pacific Northwest,
including Alaska and Canada. The letter
of agreement (LOA) between ZLA and
Albuquerque ARTCC (ZAB) requires
that aircraft handed off to ZAB at or
below FL290. There has been a
significant increase in traffic filing Q–13
traveling northwest, which has caused
increased complexity for arrivals
landing at PHX.
RNAV route Q–15 currently
terminates at CHILY, just west of
Prescott Regional airport (PRC) Prescott,
AZ. The intention of extending Q–15
from CHILY to NABOB is to provide air
traffic controllers, through automation
and industry outreach, one direction
airways in that area for Q–13 and Q–15
between waypoints where both would
intersect between NABOB and HOUZZ.
This proposal would allow traffic
traveling southeast from HOUZZ to
NABOB to utilize RNAV route Q–13 and
traffic traveling northwest to utilize
RNAV route Q–15, allowing for a
smoother traffic flow in that area.
The Proposal
The FAA is proposing an amendment
to 14 CFR part 71 to amend RNAV route
Q–15 in order to safely segregate
overflight, arrival and departure traffic,
and military operations in the high
altitude airspace between Las Vegas, NV
and Phoenix, AZ. The full legal
description are included in the Rule
section below.
Q–15: Q–15 currently extends from
CHILY to LOMIA. The FAA proposes to
add an extension to the route from
NABOB to CHILY. The rest of the route
will remain unchanged.
RNAV routes are published in
paragraph 6009 of FAA Order 7400.11E
dated July 21, 2020 and effective
September 15, 2020, which is
incorporated by reference in 14 CFR
71.1. The RNAV route listed in this
document would be published
subsequently in the Order.
FAA Order 7400.11, Airspace
Designations and Reporting Points, is
published yearly and effective on
September 15.
Regulatory Notices and Analyses
The FAA has determined that this
proposed regulation only involves an
established body of technical
regulations for which frequent and
routine amendments are necessary to
keep them operationally current. It,
therefore: (1) Is not a ‘‘significant
regulatory action’’ under Executive
Order 12866; (2) is not a ‘‘significant
rule’’ under Department of
Transportation (DOT) Regulatory
Policies and Procedures (44 FR 11034;
February 26, 1979); and (3) does not
warrant preparation of a regulatory
evaluation as the anticipated impact is
so minimal. Since this is a routine
matter that will only affect air traffic
procedures and air navigation, it is
certified that this proposed rule, when
promulgated, will not have a significant
economic impact on a substantial
number of small entities under the
criteria of the Regulatory Flexibility Act.
Environmental Review
This proposal will be subject to an
environmental analysis in accordance
with FAA Order 1050.1F,
‘‘Environmental Impacts: Policies and
Procedures’’ prior to any FAA final
regulatory action.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (air).
The Proposed Amendment
In consideration of the foregoing, the
Federal Aviation Administration
proposes to amend 14 CFR part 71 as
follows:
PART 71—DESIGNATION OF CLASS A,
B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
■1. The authority citation for part 71
continues to read as follows:
Authority: 49 U.S.C. 106(f), 106(g); 40103,
40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR,
1959–1963 Comp., p. 389.
§ 71.1 [Amended]
■2. The incorporation by reference in
14 CFR 71.1 of FAA Order 7400.11E,
Airspace Designations and Reporting
Points, dated July 21, 2020, and
effective September 15, 2020, is
amended as follows:
Paragraph 2006 United States Area
Navigation Routes.
* * * * *
Q–15 NABOB, AZ to LOMIA, NV [Amend]
NABOB, AZ FIX
(Lat. 34°19′40.60″ N, long. 111°18′53.90″
W)
CHILY, AZ WP
(Lat. 34°42′48.61″ N, long. 112°45′42.27″
W)
DOVEE, NV WP
(Lat. 35°26′51.07″ N, long. 114°48′00.94″
W)
SOTOO, NV WP
(Lat. 36°17′22.55″ N, long. 116°13′14.12″
W)
HOUZZ, NV WP
(Lat. 36°36′43.75″ N, long. 116°36′37.60″
W)
FUULL, NV WP
(Lat. 37°16′52.93″ N, long. 117°10′13.96″
W)
SKANN, NV WP
(Lat. 37°22′52.68″ N, long. 117°15′54.53″
W)
LOMIA, NV WP
(Lat. 39°13′11.57″ N, long. 119°06′22.95″
W)
* * * * *
Issued in Washington, DC, on August 24,
2021.
George Gonzalez,
Acting Manager, Rules and Regulations
Group.
[FR Doc. 2021–18515 Filed 8–27–21; 8:45 am]
BILLING CODE 4910–13–P
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.
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:
•Email: RulesComments@
fmshrc.gov. Include ‘‘Comments on
FOIA rules’’ in the subject line of the
message.
•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.
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All comments received will be posted
without change to www.fmshrc.gov/
content/proposed-foia-rules, including
any personal information provided.
FOR FURTHER INFORMATION CONTACT
:
Michael A. McCord, General Counsel,
202–434–9900, MMccord@fmshrc.gov.
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
§§ 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.
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 § 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
§ 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 § 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 § 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 §§ 2702.4 and 2702.5. New
§ 2702.3(b) now briefly explains the
format and timing of requests for
expedited processing and for fee
waivers.
The information previously contained
in § 2702.3(c), which explained the
Commission’s procedure for taking
additional time to process requests
involving ‘‘unusual circumstances,’’ has
been redesignated as new § 2702.4. New
§ 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 § 2702.3(d) discussing additional
time to respond has been redesignated
as new § 2702.4(b). New §2702.3(d)
now explains the procedure for properly
submitting a FOIA request to the
Commission.
The information previously contained
in § 2702.3(e) discussing expedited
processing has been redesignated as
newly added § 2702.4(b)(3).
29 CFR 2702.4
The information previously contained
in § 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 § 2702.7.
Section 2702.4 now contains language
previously found in § 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 § 2702.3.
The information in § 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
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the Commission’s ability to prioritize
requests differently, if necessary.
Consistent with 5 U.S.C.
552(a)(6)(D)(i), § 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 § 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 § 2702.4(c) contains the
information previously contained in
§ 2702.3(c)(2) explaining the aggregation
of requests.
Newly added § 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
§ 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 § 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 § 2702.8.
Section 2702.5 now contains language
previously found in § 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
§§ 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 § 2702.6 under header ‘‘Fee
schedule,’’ has been redesignated as
newly added § 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 § 2702.7 under header ‘‘No fees;
waiver or reduction of fees,’’ has been
redesignated as newly added § 2702.10.
Section 2702.7 now contains the
information previously found in
§ 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 § 2702.8 under header ‘‘Advance
payment of fees; interest; debt collection
procedures,’’ has been redesignated as
newly created § 2702.11.
Section 2702.8, under revised header
‘‘Categories of requesters and applicable
fees,’’ now contains the information
previously found in § 2702.5 discussing
fee requester categories. This section
includes newly added paragraph (f),
which explains that the FOIA office may
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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 § 2702.9 contains the
information previously found in
§ 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 § 2702.10 contains the
information previously found in
§ 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
§ 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 § 2702.11 under header
‘‘Payment of fees; advance payments;
interest, debt collection,’’ contains the
information previously found in
§ 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 § 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.
■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.
§ 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
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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.
§ 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 (http://www.fmshrc.gov).
§ 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 §§ 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 FOIA@
FMSHRC.gov, 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.
§ 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 § 2702.3(a) request, such
request may be made at any time. A
person may request expedited
processing of a § 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
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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 § 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 FOIA-Liaison@
fmshrc.gov. In the event of an adverse
determination, requesters may file an
appeal in accordance with § 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
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.
§ 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 FOIA-appeals@fmshrc.gov,
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 § 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
§ 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.
§ 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
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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.
§ 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 § 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.
§ 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
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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.
§ 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 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 § 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 $.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.
§ 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
§ 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.
§ 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.
§ 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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