[Federal Register Volume 72, Number 243 (Wednesday, December 19, 2007)]
[Rules and Regulations]
[Pages 71788-71791]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-24599]


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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 publishing final revisions to its rules implementing 
the Freedom of Information Act (``FOIA'') in light of its experience 
under the rules, the need to update its fee schedules, and changes in 
implementing the FOIA mandated by Executive Order 13392.

DATES: Effective date: These revised rules will take effect on December 
19, 2007.
    Applicability date: The final rules will apply to FOIA requests 
initiated after the rules take effect. The final rules also will apply 
to further proceedings in matters pending on the effective date, except 
to the extent that such application would be infeasible or unfair, in 
which event the former rules would continue to apply.

ADDRESSES: Questions may be mailed to Michael A. McCord, General 
Counsel, Office of the General Counsel, Federal Mine Safety and Health 
Review Commission, 601 New Jersey Avenue, NW., Suite 9500, Washington, 
DC 20001, or sent via facsimile to 202-434-9944.

FOR FURTHER INFORMATION CONTACT: Michael A. McCord, General Counsel, 
Office of the General Counsel, 601 New Jersey Avenue, NW., Suite 9500, 
Washington, DC 20001; telephone 202-434-9935; fax 202-434-9944.

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.
    On October 17, 2007, the Commission published proposed revisions to 
its rules implementing the FOIA and requested written comments to be 
submitted by November 16, 2007. 72 FR 58790. Upon request, the 
Commission subsequently reopened the comment period and accepted 
comments through November 30, 2007. 72 FR 65494. The Commission 
received comments from the United Mine Workers of America.
    The Commission proposed revisions to its FOIA rules that expanded 
its use of electronic records to better implement the 1996 amendments 
to the FOIA that addressed electronic record-keeping in federal 
agencies. Additionally, the proposed rules described changes in the 
Commission's practices to ensure timely and effective responses to the 
public's requests for information as mandated by Executive Order 13392. 
70 FR 75373. Further, based on its years of experience in implementing 
the FOIA, the Commission proposed certain changes in its FOIA rules to 
better reflect agency practice under the rules and to maximize its 
utilization of the internet to disseminate information. Finally, after 
a comprehensive review of its fee schedule, the proposed rules 
increased certain fees and moved others from the rules to the 
Commission's FOIA Guide for greater flexibility in adjusting the fees. 
The final rules retain much of the same text set forth in the proposed 
rules, with a few non-substantive revisions.

II. Section-by-Section Analysis

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

PART 2702--REGULATIONS IMPLEMENTING THE FREEDOM OF INFORMATION ACT

29 CFR 2702.1

    The Commission is revising 29 CFR 2702.1 to clarify that the 
reference to ``all designated information'' to be made readily 
available to the public means information subject to disclosure 
pursuant to FOIA and the Commission's FOIA rules and not otherwise 
protected by law.
    The last sentence in 29 CFR 2702.1 states that the scope of the 
Commission's FOIA regulations may be limited to requests for 
information that is not presently the ``subject of litigation before 
the Commission.'' 29 CFR 2702.1. As currently written, the rule could 
be read to exclude discovery records from the Commission's disclosure 
obligation under FOIA. In fact, however, such records could be subject 
to disclosure pursuant to FOIA, unless they fall under one of the nine 
exemptions provided in the statute. As proposed, the Commission is 
adding language stating that the Commission's FOIA rules do not affect 
discovery in adversary proceedings before the Commission, which are 
governed by the Commission's Rules of Procedure, 29 CFR Part 2700. This 
section also has been modified to clarify that the scope of the 
Commission's FOIA rules is limited to records or information of the 
agency or within its custody.
    Finally, the Commission is amending 29 CFR 2702.1 by making two 
additional non-substantive revisions: (1) shortening the official title 
of the agency's guide to ``FOIA Guide'' and (2) including a reference 
to the Commission's Web site as an alternative means of obtaining the 
Commission's FOIA Guide.

29 CFR 2702.3

Initial Requests
    On December 14, 2005, the President issued Executive Order 13392, 
which contained several statements of government-wide FOIA policy as 
well as several additional planning and reporting requirements. The 
Executive Order requires agencies to appoint a Chief FOIA Officer who 
has ``agency-wide responsibility for efficient and appropriate 
compliance with the FOIA.'' See Executive Order 13392, sec. 2(b)(I). 
Under the Commission's current rule, the Executive Director makes the 
initial determination on a FOIA request with the consent of a majority 
of the Commissioners. 29 CFR 2702.3(b). Pursuant to the Executive 
Order, the Commission is revising paragraphs (a) and (b) of 29 CFR 
2702.3 to reflect the agency's current practice of initial FOIA 
requests being handled by the Chief FOIA Officer, instead of the 
Executive Director, without the consultation of the Commissioners. In 
addition, the Commission is revising paragraph (b) by deleting the 
requirement that a majority of the Commission must consent to the Chief 
FOIA Officer's initial determination of a request.
    The commenter suggested that the Commission include in the rule 
language that specifically allows FOIA requests by e-mail and by fax. 
The Commission agrees and has revised the

[[Page 71789]]

rule to include language that refers to submission by e-mail and fax, 
as has been the practice under the present rule. In addition, to 
further assist requesters, the Commission is adding a reference in 29 
CFR 2702.3(a) to its FOIA Guide, which specifies the Commission's fax 
number and e-mail address.
Appeals
    FOIA refers to ``the right of [a] person to appeal to the head of 
the agency any adverse determination.'' 5 U.S.C. 552(a)(6)(A)(I). Under 
the Commission's current FOIA rules, appeals are to be made to the 
Chairman, who independently makes a determination on appeal. Consistent 
with the changes to paragraphs (a) and (b) regarding the handling of 
initial requests, the Commission is revising paragraph (b) to reflect 
that appeals from the Chief FOIA Officer's initial determinations on 
FOIA requests should go to the Commission, with a majority vote of the 
sitting Commissioners determining the disposition of the appeal. The 
amended rule provides that, in the event of a tie vote, the Chief FOIA 
Officer's determination would be affirmed.
Denials
    Currently, paragraph (f) only states that when a request is denied, 
the Commission will attempt to provide an estimate of the volume of 
records denied. The Commission is amending paragraph (f) to comply with 
additional statutory requirements regarding denials of requests. When 
an agency denies a record request, it must notify the requester of his 
or her right to judicial review, 5 U.S.C. 552(a)(6)(A)(ii), and state 
the name and title or position of each person responsible for the 
denial of a FOIA request, 5 U.S.C. 552(a)(6)(C)(I). Accordingly, as 
proposed, the Commission is revising paragraph (f) to state that a 
denial of a request, after an administrative appeal, shall include 
notice of a requester's right to judicial appeal and the name and title 
or position of each person denying the FOIA request.
Other Revisions
    The Commission is adding headings to each paragraph of 29 CFR 
2702.3 to make it easier for a reader to locate important information 
governing the Commission's processing of FOIA requests.

29 CFR 2702.4

    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). Agencies 
generally provide access to these records in what is called a reading 
room, which is open to the public. Records in all four categories must 
be indexed in order to facilitate the public's access to them. The 
index must be published and distributed at least quarterly unless an 
agency determines by order published in the Federal Register that the 
publication would be unnecessary and impracticable.
    In addition to an on-site reading room, the E-FOIA amendments of 
1996 require each agency to make the records created by it on or after 
November 1, 1996, in all four categories described above, available to 
the public by electronic means. 5 U.S.C. 552(a)(2). The index of the 
FOIA-processed records must be made available electronically. 
Electronic reading rooms were to be operational by November 1, 1997.
    The Commission is revising 29 CFR 2702.4 to refer to a Commission 
on-site reading room, to state that the four categories of documents as 
described in 5 U.S.C. 552(a)(2) of the FOIA may be made available at 
that reading room, and to refer to the Commission's electronic reading 
room available on its Web site at http://www.fmshrc.gov. The commenter 
stated that the Commission should clarify what information is available 
to the public. The Commission's rule generally tracks the statutory 
language in the FOIA. In addition, a more detailed listing of materials 
available in the Commission's reading rooms is provided in the 
Commission's FOIA Guide, also available on its Web site.

29 CFR 2702.6

    The fees the Commission charges for searching, reviewing, and 
duplicating records pursuant to FOIA requests are set forth in 29 CFR 
2702.6. In its submission, the commenter generally objects to any 
increase in fees that the Commission charges in responding to FOIA 
requests. However, the Commission believes it is appropriate to update 
its fee schedule, which was last revised in 1997, to ensure that the 
fees represent ``reasonable standard charges'' as required by FOIA. 5 
U.S.C. 552(a)(4)(A)(ii). Revisions are also necessary to comply with 
guidelines promulgated by the Office of Management and Budget, Uniform 
Freedom of Information Act Fee Schedule and Guidelines, 52 FR 10012, 
10018, Mar. 27, 1987 (``OMB Guidance''), which states that an agency 
must charge fees that recoup the full allowable direct costs that it 
incurs.
    Accordingly, the Commission is adopting its proposal to revise its 
search and review fees to charge at the salary rates (basic pay plus 16 
percent) of the employees making the search or providing the review. 
This is consistent with the language of the OMB Guidance. The 
Commission is adding to the rule the address of its Web site, where the 
specific hourly rates will be listed.
    The Commission's current fee regulation also states that if search 
charges are likely to be more than $25, the Commission shall notify the 
requester of the estimated amount of fees, unless the requester has 
indicated in advance a willingness to pay fees as high as those 
anticipated. 29 CFR 2704.6(a). This language originated in the 
Commission's 1988 interim FOIA rule, 53 FR 737, 739, Jan. 12, 1988, 
published almost twenty years ago. As was proposed, the Commission is 
increasing the $25 figure to $50.
    In addition, the Commission is revising the statement in the 
current rule that ``[t]ime spent on unsuccessful searches shall be 
fully charged.'' 29 CFR 2702.6(a). The term ``unsuccessful'' is 
ambiguous and requires clarification. Pursuant to the OMB Guidance, 29 
CFR 2702.6(a) is revised, as proposed, to clarify that fees shall be 
charged even if the documents are not located or if they are located 
but withheld on the basis of an exemption. Also, the reference in 29 
CFR 2702.6(b) to the Executive Director is being changed to the Chief 
FOIA Officer for the reasons stated in the discussion above regarding 
revisions to 29 CFR 2702.3.
    The Commission also is adding language in paragraph (c) which 
states that the Commission shall charge the actual cost of production, 
including operator time, for copies prepared by computer (such as tapes 
or printouts). This is consistent with language in the OMB Guidance and 
replaces the current language in paragraph (a) stating that the fee for 
computer printouts shall be $.40 per page. With regard to a comment 
concerning the cost of computer printouts, the Commission notes that it 
is not increasing the cost of computer printouts, which is presently 
$.40, but imposing the actual cost of producing a

[[Page 71790]]

computer copy, which it anticipates will be close to the $.15 amount 
charged for other copies. The Commission is moving language about fees 
for computer copies to paragraph (c) (duplicating fee) from paragraph 
(a) (search fee) because language addressing fees for computer copies 
is more similar to that describing a duplicating fee than a search fee. 
As proposed, the Commission also is adding language to paragraph (c) 
stating that for other methods of reproduction or duplication, it will 
charge the actual direct costs of producing the documents. This is also 
consistent with the OMB Guidance.

29 CFR 2702.7

    The Commission is revising paragraph (a), as proposed. That 
provision states that fees of less than $10 shall be waived, 
essentially because it is not cost effective for the Commission to 
collect sums smaller than $10. 29 CFR 2702.7(a). This figure was first 
utilized in an interim FOIA rule published by the Commission in 1988. 
53 FR 737, 739, Jan. 12, 1988. Taking inflation into account, the 
Commission is amending this figure to $20.
    The Commission also is revising paragraph (b)(2), as proposed, to 
reflect that the Chief FOIA Officer, rather than the Executive 
Director, shall decide whether a waiver or reduction of fees is 
warranted. Similarly, the Commission is amending the rule to state that 
the Commission, rather than the Chairman, decides appeals regarding fee 
issues. This is consistent with the amendment of the language of 29 CFR 
2702.3 requiring that an appeal from the Chief FOIA Officer's initial 
substantive determination shall be decided by the full Commission, 
rather than the Chairman.

III. Matters of Regulatory Procedure

    The Commission is an independent regulatory agency, and as such, is 
not subject to the requirement of Executive Order 12866, Sept. 30, 
1993; 58 FR 51735, Oct. 4, 1993.
    The Commission has determined under the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.) that these rules will not have a significant 
economic impact on a substantial number of small entities. Therefore, a 
Regulatory Flexibility Statement and Analysis has not been prepared.
    The Commission has 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

    Freedom of information.

0
For the reasons stated in the preamble, the Federal Mine Safety and 
Health Review Commission is amending 29 CFR part 2702 as follows:

PART 2702--REGULATIONS IMPLEMENTING THE FREEDOM OF INFORMATION ACT

0
1. The authority citation for part 2702 continues to read as follows:

    Authority: Sec. 113, Federal Mine Safety and Health Act of 1977, 
Pub. L. 95-164 (30 U.S.C. 801 et seq.); 5 U.S.C. 552; E.O. 13392, 70 
FR 75373.

0
2. Revise Sec.  2702.1 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 the rules in this part 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 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 upon request from the Commission and on the 
Commission's Web site (http://www.fmshrc.gov). These rules apply only 
to records or information of the Commission or in the Commission's 
custody. This part does not affect discovery in adversary proceedings 
before the Commission. Discovery is governed by the Commission's Rules 
of Procedure in 29 CFR part 2700.

0
3. In Sec.  2702.3, add paragraph headings to paragraphs (a) through 
(g), remove the first sentence of paragraph (a) and add two sentences 
in its place, revise paragraph (b), and revise paragraph (f) to read as 
follows:


Sec.  2702.3  Requests for information.

    (a) Content of request. All requests for information should be in 
writing and should be mailed or delivered to Chief FOIA Officer, 
Federal Mine Safety and Health Review Commission, 601 New Jersey 
Avenue, NW., Suite 9500, Washington, DC 20001-2021. See FOIA Guide for 
more information on the submission of requests, including requests 
submitted electronically or by facsimile. * * *
    (b) Response to request. The Chief FOIA Officer will determine 
whether to comply with the request. 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 of the decision. The sitting 
Commissioners, by majority vote, will decide appeals within 20 working 
days after receipt. In the event of a tie vote of those Commissioners, 
the Chief FOIA Officer's initial determination will be deemed approved 
by the Commission. Records to be disclosed shall be provided with the 
initial letter setting forth the determination as to the request or 
shall be sent as soon as possible thereafter.
    (c) Processing of request. * * *
    (d) Additional time to respond to request. * * *
    (e) Expedited processing of request. * * *
    (f) Denial of request. In denying a request for records, in whole 
or in part, the Commission shall state the reason for the denial; 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. 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).
    (g) Partial response to request. * * *

0
4. Revise Sec.  2702.4, to read as follows:


Sec.  2702.4  Materials available.

    (a) FOIA Reading Room. Materials which may be made publicly 
available for inspection and copying at the Commission's on-site FOIA 
Reading Room, 601 New Jersey Ave., NW., Suite 9500, Washington, DC, 
include, but are not limited to:
    (1) Final opinions, including concurring and dissenting opinions, 
as well as orders, made in the adjudication of cases;

[[Page 71791]]

    (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 subpart 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 
(a).
    (b) E-FOIA Reading Room. Materials created on or after November 1, 
1996, under paragraphs (a)(1) through (5) of this section may also be 
accessed electronically through the Commission's Web site at http://www.fmshrc.gov. ?>

0
5. Revise Sec.  2702.6 to read as follows:


Sec.  2702.6  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 on the Commission's Web 
site at http://www.fmshrc.gov. 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 Chairman or the Commissioners. 
See Sec.  2702.3. 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 on the Commission's Web 
site at http://www.fmshrc.gov.
    (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 sector 
services required, including the fee for copying photographs and 
nonstandard documents, will be the actual direct cost incurred by the 
Commission. For copies prepared by computer, such as tapes or 
printouts, the Commission shall charge the actual cost, including 
operator time, of production of the tape or printout. 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.
0
6. In Sec.  2702.7, revise paragraph (a) and paragraph (b)(2) to read 
as follows:


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

    (a) 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 or greater than the fee itself. Accordingly, the 
Commission has determined that fees of less than $20 shall be waived.
    (b) * * *
    (2) The Chief FOIA Officer, upon request, shall determine whether a 
waiver or reduction of fees is warranted. Requests shall be made 
concurrently with requests for information under Sec.  2702.3. In 
accordance with the procedures set forth in Sec.  2702.3, appeals of 
adverse decisions may be made to the Commission within 5 working days. 
Determination of appeals will be made by the Commission within 10 
working days of receipt.

    Dated: December 14, 2007.
Michael F. Duffy,
Chairman, Federal Mine Safety and Health Review Commission.
 [FR Doc. E7-24599 Filed 12-18-07; 8:45 am]
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