[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
