CHAPTER XXVII--FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
PART 2702--REGULATIONS IMPLEMENTING THE FREEDOM OF INFORMATION ACT
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.
§ 2702.1 Purpose and scope.
The Federal Mine Safety and Health Review Commission (Commission), pursuant to the Federal Mine Safety and Health Act of 1977 (the “Mine Act”), 30 U.S.C. 801 et seq., is an independent adjudicative agency that provides administrative trial and appellate review of legal disputes arising between the U.S. Department of Labor's Mine Safety and Health Administration (MSHA) and private parties, as well as certain disputes solely between private parties arising under the Mine Act. The purpose of the rules in this part is to establish procedures for implementing the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended by the Electronic Freedom of Information Act Amendments of 1996, Public Law 104-231, 110 Stat. 3048, the OPEN Government Act of 2007, Public Law 110-175, 121 Stat. 2524, and the FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat. 538; to provide guidance for those seeking to obtain information from the Commission; and to make all information subject to disclosure pursuant to this subchapter and FOIA, and not otherwise protected by law, readily available to the public. Additional guidance on obtaining information from the Commission can be found in the document entitled “FOIA Guide,” which is available for viewing and download on the Commission's website at https://www.fmshrc.gov/guides/foia-guide. Hard copies are also available upon written request to the Commission's FOIA Office. The rules in this part apply only to records or information of the Commission or in the Commission's custody. Nothing in this part shall be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA. This part does not affect discovery in adversary proceedings before the Commission. Discovery is governed by the Commission's rules of procedure in 29 CFR part 2700.
§ 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. See § 2702.10 for fee adjustments applicable to processing time delays.
(3) Expedited track. While it is recommended that a request for expedited services be submitted with the initial § 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 or her knowledge and belief. For purposes of this paragraph (b)(3), a “compelling need” means:
(i) That a failure to obtain the requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or
(ii) The information is urgently needed by a person primarily engaged in disseminating information in order to inform the public concerning actual or alleged Federal Government activity; or
(iii) The records are necessary to assist with meeting an impending deadline set by a Commission Judge or the Commission in a pending case to which the requester is a party.
(c) Aggregated requests. Whenever it reasonably appears that certain requests by the same requester, or a group of requesters acting in concert, actually constitute a single request that would otherwise satisfy the unusual circumstances specified in this section, and the requests involve clearly related matters, such requests may be aggregated for purposes of this paragraph (c). Multiple requests involving unrelated matters will not be aggregated.
(d) Determinations —
(1) Full grant of request. Unless a Commission FOIA officer reasonably foresees that disclosure would harm an interest protected by one of the nine statutory exemptions found at 5 U.S.C. 552(b) or determines that disclosure is prohibited by law, all relevant records obtained through reasonable search efforts shall be provided within the relevant time period described in paragraph (b) of this section.
(2) Partial grant/denial of request. Any reasonably segregable portion(s) of a record shall be provided to the person requesting it after the deletion of any exempt portion(s) of the record. The applicable exemption(s) and the amount of information deleted shall be indicated on the released portion(s) of the record, at the place in the record the deletion is made if technically feasible, unless indicating the extent of the deletion would harm an interest protected by the exemption pursuant to which the deletion is made.
(3) Denial of request. In denying a request for records, the Commission shall state the reason for the denial and the applicable exemption; set forth the name and title or position of the person responsible for the denial of the request; make a reasonable effort to estimate the volume of the records denied; and provide this estimate to the person making the request, unless providing such an estimate would harm an interest protected by the exemption pursuant to which the request is denied.
(4) Determination of request to expedite. Notice of the determination whether to grant expedited processing in response to a requester's claim of compelling need shall be provided to the person making the request within 10 days after receipt of the request for expedited processing.
(5) Determination of fee waiver/reduction request. The Chief FOIA Officer or designated employee, upon request, shall determine whether a waiver or reduction of fees is warranted. See § 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 FOIAfirstname.lastname@example.org, 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.
(1) Confidential commercial information means commercial or financial information obtained by the agency from a submitter that may be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 52(b)(4).
(2) Submitter means any person or entity, including a corporation, State, or foreign government, but not including another Federal Government entity, that provides confidential commercial information, either directly or indirectly to the Federal Government.
(b) Designation of confidential commercial information. A submitter of confidential commercial information must use good faith efforts to designate by appropriate markings, at the time of submission, any portion of its submission that it considers to be protected from disclosure under Exemption 4. These designations expire 10 years after the date of the submission unless the submitter requests and provides justification for a longer designation period.
(c) When notice to submitters is required.
(1) The Commission will promptly provide written notice to the submitter of confidential commercial information whenever records containing such information are requested under the FOIA if the Commission determines that it may be required to disclose the records, provided:
(i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or
(ii) The Commission has a reason to believe that the requested information may be protected from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure.
(2) The notice must either describe the commercial information requested or include a copy of the requested records or portions of records containing the information.
(d) Exceptions to submitter notice requirements. The notice requirements of this section do not apply if:
(1) The Commission determines that the information is exempt under the FOIA, and therefore will not be disclosed;
(2) The information has been lawfully published or has been officially made available to the public;
(3) Disclosure of the information is required by a statute other than the FOIA or by a regulation issued in accordance with the requirements of Executive Order 12600 of June 23, 1987; or
(4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous. In such case, the Commission will give the submitter written notice of any final decision to disclose the information within a reasonable number of days prior to a date specified for disclosure.
(e) Opportunity to object to disclosure.
(1) If the submitter objects to disclosure of any of the requested information, a written response to the notice issued under paragraph (c) of this section must be submitted to the Commission within 30 calendar days of the date of the notice.
(2) The response must include a detailed statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 of the FOIA as a basis for nondisclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is confidential.
(3) A submitter who fails to respond within 30 calendar days will be considered to have no objection to disclosure of the information. The Commission is not required to consider any information received after the date of any disclosure decision. Any information provided by a submitter under this part may itself be subject to disclosure under the FOIA.
(f) Analysis of objections. The Commission will consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose the requested information.
(g) Notice of intent to disclose. Whenever the Commission decides to disclose information over the objection of a submitter, the Commission will provide the submitter written notice, which shall include:
(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.
(d) Other requesters. For any other request not described in paragraphs (a) through (c) of this section, the requester will be assessed the full direct costs of searching for and duplicating the records sought, except that no charge will be made for the first two hours of manual search time and the first 100 paper pages of reproduction.
(e) Requesters acting in concert. For purposes of paragraphs (b) through (d) of this section, whenever it reasonably appears that a requester, or a group of requesters acting in concert, is attempting to break down a single request into a series of requests relating to the same subject matter for the purpose of evading the assessment of fees, such requests will be aggregated and fees assessed accordingly.
(f) Clarification of records use. Where the FOIA officer has reasonable cause to doubt the use to which a requester will put the records sought, or where that use is not clear from the request itself, the FOIA officer may seek clarification from the requester before assigning the request to a specific category for fee assessment purposes.
§ 2702.9 Fee schedule.
(a) Search fee. The fee for searching for information and records shall be the salary rate (that is, basic pay plus 16%) of the employee making the search. This hourly rate is listed in the Commission's FOIA Guide at https://www.fmshrc.gov/guides/foia-guide. Fees for searches of computerized records shall be the actual cost to the Commission but shall not exceed $300 per hour. This fee includes machine time and that of the operator and clerical personnel. If search charges are likely to exceed $50, the requester shall be notified of the estimated amount of fees, unless the requester has indicated in advance his or her willingness to pay fees as high as those anticipated. Fees may be charged even if the documents are not located or if they are located but withheld on the basis of an exemption.
(b) Review fee. The review fee shall be charged for the Chief FOIA Officer's initial examination of documents located in response to a request in order to determine if they may be withheld from disclosure, and for the deletion of portions that are exempt from disclosure, but shall not be charged for review by the Chair or the Commissioners. See § 2702.5. The review fee is the salary rate (that is, basic pay plus 16%) of the Chief FOIA Officer or the employee designated to perform the review. This hourly rate is listed in the Commission's FOIA Guide at https://www.fmshrc.gov/guides/foia-guide.
(c) Duplicating fee. The copy fee for each page of paper up to 8 1/2 ″ x 14″, including the scanning of pages not routinely stored in electronic format, shall be $.20 per page. When the use of third-party services is required, the fee will be the actual direct cost incurred by the Commission. For copies of records produced on tapes, disks, or other media, the Commission shall charge the direct costs of production of the material, including operator time. For other methods of reproduction or duplication, the Commission will charge the actual direct costs of producing the document(s). If duplication charges are likely to exceed $50, the requester shall be notified of the estimated amount of fees, unless the requester has indicated in advance his or her willingness to pay fees as high as those anticipated.
§ 2702.10 Waivers and reduction of fees.
(a) Automatic fee waiver. No fees shall be charged to any requester, including commercial use requesters, if the anticipated cost of processing and collecting the fee would be equal to or greater than the fee itself. Accordingly, the Commission has determined that fees of less than $20 shall be waived. If the Commission fails to comply with the time limits in § 2702.4(b), including the requirements related to the 10-day extension for unusual circumstances, search fees will not be assessed and, for requesters described in 30 U.S.C. 552(a)(4)(A)(ii)(II), duplication fees will not be assessed. See Commission's FOIA Guide for further information.
(b) Request for fee waiver or reduction. A request for fee waiver or reduction shall be made in writing and shall address the criteria outlined in paragraphs (b)(1) through (6) of this section. The request should be submitted with the original request for information filed pursuant to § 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 6 years following final agency action or 3 years after final adjudication by the courts, whichever is later. The Commission will not dispose of or destroy records while they are the subject of a pending request, appeal, or lawsuit under the FOIA.
Publication Date: February 1, 2022