[Federal Register Volume 62, Number 206 (Friday, October 24, 1997)]
[Rules and Regulations]
[Pages 55332-55336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-28206]


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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

29 CFR Part 2702


Regulations Implementing the Freedom of Information Act

AGENCY: Federal Mine Safety and Health Review Commission (Commission).

ACTION: Final rulemaking.

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SUMMARY: The Federal Mine Safety and Health Review Commission is 
revising its regulations implementing the Freedom of Information Act 
(FOIA), to reflect recent changes to the FOIA as a result of the 
Electronic Freedom of Information Act Amendments of 1996. This revision 
also implements certain changes in the manner in which FOIA requests 
are processed by the Commission, and in the rates charged to certain 
categories of requesters for time spent by Commission employees 
searching for and reviewing documents.

DATES: This rule is effective October 24, 1997.

FOR FURTHER INFORMATION CONTACT: Norman Gleichman, General Counsel, 
Federal Mine Safety and Health Review Commission, 1730 K Street, NW., 
6th Floor, Washington DC 20006-3867, telephone (202) 653-5610, FAX 
(202) 653-5030; or Richard L. Baker, Executive Director, Federal Mine 
Safety and Health Review Commission, 1730 K Street, NW., 6th Floor, 
Washington DC 20006-3867, telephone (202) 653-5625, FAX (202) 653-5030.

SUPPLEMENTARY INFORMATION:

I. Background

    On October 2, 1996, the President signed into law the Electronic 
Freedom of Information Act Amendments of 1996

[[Page 55333]]

(EFOIA), Pub. L. 104-231, 110 Stat. 3048 (1996), which amends the FOIA, 
5 U.S.C. 552. Among other things, EFOIA requires agencies to promulgate 
regulations that provide for expedited processing of requests for 
records. In addition, EFOIA changes the time limit for responding to a 
FOIA request from ten to twenty days and specifies the circumstances in 
which an agency may extend the time within which it will respond to a 
FOIA request, and enables a requester to request ``expedited 
processing'' of a FOIA request where he can demonstrate a ``compelling 
need'' for the information requested. EFOIA also contains provisions 
regarding the availability of documents in electronic form, the 
treatment of electronic records, and the establishment of ``electronic 
reading rooms.''
    The Commission issues amendments to its regulations implementing 
the Freedom of Information Act, 29 CFR part 2702, in order to comply 
with EFOIA. In addition, the Commission is making some minor 
adjustments in its procedures for responding to FOIA requests and in 
the fees charged to certain categories of requesters for time spent by 
Commission employees searching for and reviewing documents responsive 
to requests.

II. Analysis of the Regulations

Section 2702.1  Purpose and Scope

    The Commission is adding new language to this section to refer to 
EFOIA. In addition, the Commission is adding new language to indicate 
that additional guidance on obtaining information from the Commission 
can be found in the document entitled ``Reference Guide for Obtaining 
Information from the Federal Mine Safety and Health Review 
Commission,'' and that this document is available upon request from the 
Commission.

Section 2702.2  Location of Offices

    This section has been modified to provide updated information 
concerning the addresses of the Commission's headquarters and regional 
offices, and to include a new address for the Commission's regional 
office in Denver, Colorado.

Section 2702.3  Requests for Information

    Paragraph (a) contains language from the previous Sec. 2702.3 
regarding the procedure for submitting a FOIA request to the 
Commission. Paragraph (a) also contains new language directing 
requesters to describe the record requested to the fullest extent 
possible and specify the preferred form or format of the response, 
including an electronic format. In addition, paragraph (a) contains 
language indicating the Commission will accommodate requesters as to 
the form or format requested if the record is readily reproducible in 
that form or format, and that the Commission will respond in the most 
accessible form or format if the requester does not specify the 
preferred form or format of the response.
    Paragraph (b) contains language derived from the previous section 
Sec. 2702.3 concerning determinations by the Commission whether to 
respond to a FOIA request and appeals of adverse determinations. The 
language in previous paragraph (b) has been modified to indicate that 
where it is not possible to obtain the consent of a majority of the 
Commissioners to the initial determination made by the Executive 
Director as the result of a tie vote, the recommendation of the 
Executive Director would control and be deemed to be approved by the 
Commission. In addition, the language of paragraph (b) has been 
modified to indicate that the time periods for making the initial 
determination whether to comply with a request, and for appealing from 
an adverse determination, have been extended from 10 to 20 working 
days.
    Paragraph (c) contains new language, based on provisions of EFOIA, 
providing that the Commission may propose extending the 20-day time 
period for responding to a FOIA request for up to 10 additional days in 
the case of ``unusual circumstances.'' Paragraph (c) defines ``unusual 
circumstances'' that may justify such a delay as:
    (i) The need to search for and collect requested records from other 
facilities separate from the office processing the request;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records that are requested 
in a single request;
    (iii) 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; 
or
    (iv) The need to consult with the submitter of requested 
information.
    Paragraph (c) also contains language providing that when the 
Commission determines it cannot make a response determination within an 
additional 10 working day period, it will notify the requester and 
provide him with 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. Paragraph (c) further provides that a 
refusal by a requester to reasonably modify the request or arrange for 
an alternative time frame shall be considered as a factor in 
determining whether ``exceptional circumstances'' exist for purposes of 
paragraph (d) of Sec. 2702.3, described below. In addition, paragraph 
(c) contains new language providing that, 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 the 
paragraph, and the requests involve clearly related matters, such 
requests may be aggregated for purposes of this paragraph, but that 
multiple requests involving unrelated matters will not be aggregated.
    Paragraph (d) contains new language providing that if the 
Commission is unable to comply with the extended time limit for 
responding to a request set forth in paragraph (c) of Sec. 2702.3, it 
may request additional time to complete its review of the records, and 
request a court to retain jurisdiction and allow it such additional 
time to complete its review, if it can show that exceptional 
circumstances exist and that it is exercising due diligence in 
responding to the request. Paragraph (d) further states that, for the 
purposes set forth herein, ``exceptional circumstances'' do not include 
a delay that results from a predictable workload of requests, unless 
the Commission demonstrates reasonable progress in reducing its backlog 
of pending requests. Paragraph (d) also provides that refusal by a 
requester to reasonably modify the scope of a request or arrange an 
alternative time frame for processing the request (or a modified 
request) under paragraph (c) shall be considered as a factor in 
determining whether exceptional circumstances exist.
    Paragraph (e) contains new language, based upon a provision of 
EFOIA, authorizing a person requesting records from the Commission to 
request expedited processing of his request in cases in which he can 
demonstrate a compelling need for the records requested. A ``compelling 
need'' is defined in paragraph (e) to mean:
    (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

[[Page 55334]]

    (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.
    Paragraph (e) further provides that a person making a request for 
expedited processing shall make a showing of compelling need by means 
of a statement certified by that person to be true and correct to the 
best of his knowledge and belief. In addition, paragraph (e) provides 
that the Commission will provide notice to a requester of its 
determination whether to grant expedited processing in response to a 
requester's claim of compelling need within 10 calendar days after 
receipt of the request. Paragraph (e) also provides that the Commission 
will provide expeditious consideration of administrative appeals of 
determinations whether to provide expedited processing, and will 
process the request as soon as practicable once a determination has 
been made to grant expedited processing.
    Paragraph (f) contains new language, based upon a provision of 
EFOIA, providing that when the Commission denies a request for records, 
in whole or in part, it will 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.
    Paragraph (g) contains new language providing that the Commission 
will provide any reasonably segregable portion of a record to the 
person requesting it after the deletion of any exempt portions of the 
record. Paragraph (g) also contains language, based upon a provision of 
EFOIA, providing that the Commission will indicate the amount of 
information deleted on the released portion 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.

Section 2702.4  Materials Available

    The language of previous Sec. 2702.4 has been modified to indicate 
the availability of the Commission's reference guide for requesting 
records or publicly available information from the Commission, and to 
make other minor clarifying changes in the description of the materials 
available from the Commission.

Section 2702.5  Fee Applicable--Categories of Requesters

    The language of Sec. 2702.5 has been revised slightly to clarify 
the circumstances under which a series of FOIA requests from a 
requester, or a group of requesters acting in concert, will be 
aggregated for the purpose of assessing fees.

Section 2702.6  Fee Schedule

    Paragraph (a) has been revised to reflect adjustments in the fees 
charged to certain categories of requesters for time spent by 
Commission employees in searching for information and records. The fees 
have been raised from $10 to $15 per hour for clerical time, and from 
$20 to $30 per hour for professional time.
    Paragraph (b) has been revised slightly, primarily to reflect an 
adjustment in the fee charged to certain categories of requesters for 
the initial examination by the Commission's Executive Director of 
documents located in response to a request to determine if they may be 
withheld from disclosure. This fee has been raised from $30 to $45 per 
hour.
    Language has been added to paragraph (c) to indicate that the fee 
charged for copying computer tapes or discs, photographs, and other 
nonstandard documents will be the actual direct cost incurred by the 
Commission.

Section 2702.7  No Fees; Waiver or Reduction of Fees

    The language of Sec. 2702.7 is essentially unchanged. Minor, non-
substantive revisions have been made to the language of paragraph (b).

Matters of Regulatory Procedure

E.O. 12866, Regulatory Planning and Review

    The Commission has determined that these revised rules are not 
subject to Office of Management and Budget review because they do not 
constitute ``significant regulatory action'' within the meaning of 
Executive Order 12866.

Regulatory Flexibility Act

    The Commission has determined under the Regulatory Flexibility Act 
(5 U.S.C. 601-611) that these rules will not have a substantial 
economic impact on a substantial number of small entities. This rule 
implements the Freedom of Information Act (5 U.S.C. 552), a statute 
concerning the release of Federal Government records, and does not 
economically impact Federal Government relations with the private 
sector. Therefore, a Regulatory Flexibility Statement and Analysis has 
not been prepared.

Paperwork Reduction Act

    The Commission has determined that the Paperwork Reduction Act (44 
U.S.C. chapter 35) does not apply because these revised rules do not 
contain any information collection requirements or recordkeeping 
requirements that require the approval of the Office of Management and 
Budget.

List of Subjects in 29 CFR Part 2702

    Administrative practice and procedure, Freedom of information.

    For the reasons set out in the preamble, 29 CFR 2702 is amended as 
follows:

PART 2702--REGULATIONS IMPLEMENTING THE FREEDOM OF INFORMATION ACT

    1. The authority citation for part 2704 is revised to read as 
follows:

    Authority: Sec. 113, Federal Mine Safety and Health Act of 1977, 
Pub. L. 95-165 (30 U.S.C. 801 et seq.); 5 U.S.C. 552; Pub. L. 104-
231, October 2, 1996, 110 Stat. 3048.

    2. Section 2702.1 is revised to read as follows:


Sec. 2702.1  Purpose and scope.

    The Federal Mine Safety and Health Review Commission (Commission) 
is an independent agency with authority to adjudicate contests between 
the Mine Safety and Health Administration of the U.S. Department of 
Labor and private parties, as well as certain disputes solely between 
private parties, arising under the Federal Mine Safety and Health Act 
of 1977, 30 U.S.C. 801 et seq. The purpose of these rules is to 
establish procedures for implementing the Freedom of Information Act, 5 
U.S.C. 552, as amended by the Electronic Freedom of Information Act 
Amendments of 1996, Pub. L. No. 104-231, 110 Stat. 3048; to provide 
guidance for those seeking to obtain information from the Commission; 
and to make all designated information readily available to the public. 
Additional guidance on obtaining information from the Commission can be 
found in the document entitled ``Reference Guide for Obtaining 
Information from the Federal Mine Safety and Health Review 
Commission,'' which is available upon request from the Commission. The 
scope of these rules may be limited to requests for information that is 
not presently the subject of litigation before the Commission and that 
is not otherwise governed by the Commission's Procedural Rules at 29 
CFR part 2700.

[[Page 55335]]

    3. Section 2702.2 is revised to read as follows:


Sec. 2702.2  Location of offices.

    The Commission maintains its central office at 1730 K Street NW., 
6th Floor, Washington DC 20006-3867. It has two regional offices for 
Administrative Law Judges, one at Skyline Towers No. 2, Tenth Floor, 
5203 Leesburg Pike, Falls Church, Virginia 22041-3474, and the other at 
1244 Speer Boulevard, Suite 280, Denver, Colorado 80204-3582.
    4. Section 2702.3 is revised to read as follows:


Sec. 2702.3  Requests for information.

    (a) All requests for information should be in writing and should be 
mailed or delivered to Executive Director, Federal Mine Safety and 
Health Review Commission, 6th Floor, 1730 K Street NW., Washington, DC 
20006-3867. The words ``Freedom of Information Act Request'' should be 
printed on the face of the envelope. Requests for information shall 
describe the particular record requested to the fullest extent possible 
and specify the preferred form or format (including electronic formats) 
of the response. The Commission shall accommodate requesters as to form 
or format if the record is readily reproducible in the requested form 
or format. When requesters do not specify the preferred form or format 
of the response, the Commission shall respond in the form or format in 
which the record is most accessible to the Commission.
    (b) A determination whether to comply with the request will be made 
by the Executive Director, with the consent of a majority of the 
Commissioners. In the event of a tie vote of the Commissioners 
regarding the Executive Director's determination whether to comply with 
a request, the Executive Director's recommendation will be deemed 
approved by the Commission. Except in unusual circumstances, as 
described in paragraph (c) of this section the determination will be 
made within 20 working days of receipt. Appeals of adverse decisions 
may be made, in writing, to the Chairman of the Commission, at the same 
address, within 20 working days. Determination of appeals will be made 
by the Chairman within 20 working days after receipt. If the records to 
be disclosed are not provided with the initial letter setting forth the 
determination as to the request, the records will be sent as soon as 
possible thereafter.
    (c)(1) In unusual circumstances as described in this paragraph, 
when additional time is needed to respond to the initial request, the 
Commission shall acknowledge the request in writing within the 20-day 
period, describe the circumstances requiring the delay, and indicate 
the anticipated date for a substantive response that may not exceed 10 
additional working days, except as provided in paragraph (d) of this 
section. With respect to a request for which a written notice has 
extended the time limit by 10 additional working days, and the 
Commission determines that it cannot make a response determination 
within that additional 10 working 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. Refusal by the requester to reasonably 
modify the request or arrange for an alternative time frame shall be 
considered as a factor in determining whether exceptional circumstances 
exist for purposes of paragraph (d) of this section. For purposes of 
this paragraph, ``unusual circumstances'' that may justify a delay are:
    (i) The need to search for and collect the requested records from 
other facilities that are separate from the office processing the 
request;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records that are requested 
in a single request;
    (iii) 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; 
or
    (iv) The need to consult with the submitter of requested 
information.
    (2)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 paragraph, and the requests involve 
clearly related matters, such requests may be aggregated for purposes 
of this paragraph. Multiple requests involving unrelated matters will 
not be aggregated.
    (d) In the event that the Commission is unable to comply with the 
time limits for responding to a request specified in paragraphs (a) and 
(c) of this section, it may request additional time to complete its 
review of the records, and request a court to retain jurisdiction and 
allow it such additional time to complete its review, if it can show 
that exceptional circumstances exist and that it is exercising due 
diligence in responding to the request. For purposes of this paragraph, 
``exceptional circumstances'' do not include a delay that results from 
a predictable workload of requests, unless the agency demonstrates 
reasonable progress in reducing its backlog of pending requests. 
Refusal by a person to reasonably modify the scope of a request or 
arrange an alternative time frame for processing the request (or a 
modified request) under paragraph (c) of this section shall be 
considered as a factor in determining whether exceptional circumstances 
exist for purposes of this paragraph.
    (e)(1) A person requesting records from the Commission pursuant to 
this section may request expedited processing of his request in cases 
in which he can demonstrate a compelling need for the records 
requested. For purposes of this paragraph 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.
    (2) 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. 
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 calendar days after receipt of 
the request. The Commission will provide expeditious consideration of 
administrative appeals of determinations 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.
    (f) In denying a request for records, in whole or in part, the 
Commission shall 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.
    (g) Any reasonably segregable portion of a record shall be provided 
to the person requesting it after the deletion of any exempt portions 
of the record. The amount of information deleted shall be

[[Page 55336]]

indicated on the released portion 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.
    5. Section 2702.4 is revised to read as follows:


Sec. 2702.4  Materials available.

    Materials which may be made promptly available from the Commission 
include, but are not limited to:
    (a) A guide for requesting records or publicly available 
information from the Commission;
    (b) Final opinions, including concurring and dissenting opinions, 
as well as orders, made in the adjudication of cases;
    (c) Indices providing identifying information to the public as to 
the opinions described in the preceding paragraph which may be relied 
upon, used, or cited as precedent;
    (d) Statements of policy and interpretations which have been 
adopted by the Commission and are not published in the Federal 
Register.
    6. Section 2702.5(e) is revised to read as follows:


Sec. 2702.5  Fees applicable--categories of requesters.

* * * * *
    (e) 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.
    7. In Section 2702.6 the first sentence of paragraph (a) and 
paragraphs (b) and (c) are revised to read as follows:


Sec. 2702.6  Fee schedule.

    (a) Search fee. The fee for searching for information and records 
shall be $15 per hour for clerical time and $30 per hour for 
professional time. *  *  *
    (b) Review fee. The review fee shall be charged for the initial 
examination by the Executive Director 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 Chairman or the 
Commissioners. See Sec. 2702.3. The review fee is $45 per hour.
    (c) Duplicating fee. The copy fee for each page of paper up to 8\1/
2\'' x 14'' shall be $.15 per copy per page. Any private section 
services required will be assessed at the charge to the Commission. The 
fee for copying computer tapes or discs, photographs, and other 
nonstandard documents will be the actual direct cost incurred by the 
Commission. If duplication charges are likely to exceed $25, 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.
    8. Section 2702.7(b) is revised to read as follows:


Sec. 2702.7  No fees; waiver or reduction of fees.

* * * * *
    (b) Documents shall be furnished without any charge, or at a charge 
reduced below the fees otherwise applicable, 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.
* * * * *
    Issued this 15th day of October, 1997 at Washington, D.C.
Mary Lu Jordan,
Chairman, Federal Mine Safety and Health Review Commission.
[FR Doc. 97-28206 Filed 10-23-97; 8:45 am]
BILLING CODE 6735-01-P