Federal Register / Vol. 87, No. 21 / Tuesday, February 1, 2022 / Rules and Regulations 5393 

(a) Effective Date 

This airworthiness directive (AD) is 

effective March 8, 2022. 

(b) Affected ADs 

This AD replaces AD 2021–11–23, 

Amendment 39–21585 (86 FR 40932, July 30, 

2021) (AD 2021–11–23). 

(c) Applicability 

This AD applies Airbus SAS Model A350– 

941 and –1041 airplanes, certificated in any 

category; with an original airworthiness 

certificate or original export certificate of 

airworthiness issued on or before June 30, 

2021. 

(d) Subject 

Air Transport Association (ATA) of 

America Code 05, Time Limits/Maintenance 

Checks. 

(e) Reason 

This AD was prompted by a determination 

that new or more restrictive airworthiness 

limitations are necessary. The FAA is issuing 

this AD to address the potential of ignition 

sources inside fuel tanks, which, in 

combination with flammable fuel vapors, 

could result in a fuel tank explosion and 

consequent loss of the airplane. 

(f) Compliance 

Comply with this AD within the 

compliance times specified, unless already 

done. 

(g) Maintenance or Inspection Program 

Revision 

Except as specified in paragraph (h) of this 

AD: Comply with all required actions and 

compliance times specified in, and in 

accordance with, European Union Aviation 

Safety Agency (EASA) AD 2021–0209, dated 

September 15, 2021 (EASA AD 2021–0209). 

(h) Exceptions to EASA AD 2021–0209 

(1) The requirements specified in 

paragraphs (1) and (2) of EASA AD 2021– 

0209 do not apply to this AD. 

(2) Paragraph (3) of EASA AD 2021–0209 

specifies revising ‘‘the AMP [aircraft 

maintenance program]’’ within 12 months 

after its effective date, but this AD requires 

revising the existing maintenance or 

inspection program, as applicable, to 

incorporate the ‘‘limitations, tasks and 

associated thresholds and intervals’’ 

specified in paragraph (3) of EASA AD 2021– 

0209 within 90 days after the effective date 

of this AD. 

(3) The initial compliance time for doing 

the tasks specified in paragraph (3) of EASA 

AD 2021–0209 is at the applicable 

‘‘associated thresholds’’ specified in 

paragraph (3) of EASA AD 2021–0209, or 

within 90 days after the effective date of this 

AD, whichever occurs later. 

(4) The provisions specified in paragraphs 

(4) and (5) of EASA AD 2021–0209 do not 

apply to this AD. 

(5) The ‘‘Remarks’’ section of EASA AD 

2021–0209 does not apply to this AD. 

(i) Provisions for Alternative Actions, 

Intervals, and CDCCLs 

After the maintenance or inspection 

program has been revised as required by 

paragraph (g) of this AD, no alternative 

actions (e.g., inspections), intervals, and 

critical design configuration control 

limitations (CDCCLs) are allowed unless they 

are approved as specified in the provisions 

of the ‘‘Ref. Publications’’ section of EASA 

AD 2021–0209. 

(j) Other FAA AD Provisions 

The following provisions also apply to this 

AD: 

(1) Alternative Methods of Compliance 

(AMOCs): The Manager, Large Aircraft 

Section, International Validation Branch, 

FAA, has the authority to approve AMOCs 

for this AD, if requested using the procedures 

found in 14 CFR 39.19. In accordance with 

14 CFR 39.19, send your request to your 

principal inspector or responsible Flight 

Standards Office, as appropriate. If sending 

information directly to the Large Aircraft 

Section, International Validation Branch, 

send it to the attention of the person 

identified in paragraph (k) of this AD. 

Information may be emailed to: 9-AVS-AIR730-AMOC@faa.gov. Before using any 

approved AMOC, notify your appropriate 

principal inspector, or lacking a principal 

inspector, the manager of the responsible 

Flight Standards Office. 

(2) Contacting the Manufacturer: For any 

requirement in this AD to obtain instructions 

from a manufacturer, the instructions must 

be accomplished using a method approved 

by the Manager, Large Aircraft Section, 

International Validation Branch, FAA; or 

EASA; or Airbus SAS’s EASA Design 

Organization Approval (DOA). If approved by 

the DOA, the approval must include the 

DOA-authorized signature. 

(3) Required for Compliance (RC): Except 

as required by paragraph (j)(2) of this AD, if 

any service information contains procedures 

or tests that are identified as RC, those 

procedures and tests must be done to comply 

with this AD; any procedures or tests that are 

not identified as RC are recommended. Those 

procedures and tests that are not identified 

as RC may be deviated from using accepted 

methods in accordance with the operator’s 

maintenance or inspection program without 

obtaining approval of an AMOC, provided 

the procedures and tests identified as RC can 

be done and the airplane can be put back in 

an airworthy condition. Any substitutions or 

changes to procedures or tests identified as 

RC require approval of an AMOC. 

(k) Related Information 

For more information about this AD, 

contact Dan Rodina, Aerospace Engineer, 

Large Aircraft Section, International 

Validation Branch, FAA, 2200 South 216th 

St., Des Moines, WA 98198; telephone and 

fax 206–231–3225; email dan.rodina@

faa.gov. 

(l) Material Incorporated by Reference 

(1) The Director of the Federal Register 

approved the incorporation by reference 

(IBR) of the service information listed in this 

paragraph under 5 U.S.C. 552(a) and 1 CFR 

part 51. 

(2) You must use this service information 

as applicable to do the actions required by 

this AD, unless this AD specifies otherwise. 

(i) European Union Aviation Safety Agency 

(EASA) AD 2021–0209, dated September 15, 

2021. 

(ii) [Reserved] 

(3) For EASA AD 2021–0209, contact 

EASA, Konrad-Adenauer-Ufer 3, 50668 

Cologne, Germany; telephone +49 221 8999 

000; email ADs@easa.europa.eu; internet 

www.easa.europa.eu. You may find this 

EASA AD on the EASA website at https://

ad.easa.europa.eu. 

(4) You may view this material at the FAA, 

Airworthiness Products Section, Operational 

Safety Branch, 2200 South 216th St., Des 

Moines, WA. For information on the 

availability of this material at the FAA, call 

206–231–3195. 

(5) You may view this material that is 

incorporated by reference at the National 

Archives and Records Administration 

(NARA). For information on the availability 

of this material at NARA, email 

fr.inspection@nara.gov, or go to: https://

www.archives.gov/federal-register/cfr/ibrlocations.html. 

Issued on December 23, 2021. 

Lance T. Gant, 

Director, Compliance & Airworthiness 

Division, Aircraft Certification Service. 

[FR Doc. 2022–01954 Filed 1–31–22; 8:45 am] 

BILLING CODE 4910–13–P 

FEDERAL MINE SAFETY AND HEALTH 

REVIEW COMMISSION 

29 CFR Part 2702 

Freedom of Information Act Procedural 

Rules 

AGENCY: Federal Mine Safety and Health 

Review Commission. 

ACTION: Final rule. 

SUMMARY: The Federal Mine Safety and 

Health Review Commission (the 

Commission) is adopting revised rules 

as final rules implementing the Freedom 

of Information Act (FOIA) in light of the 

FOIA Improvement Act of 2016, its 

experience under the rules, the need to 

update its fee schedule, and the need to 

update and clarify a number of its FOIA 

procedures. These revised rules will 

ensure rapid and effective procedures 

for requesting information and 

processing requests under the FOIA. 

The Commission published a notice of 

proposed rulemaking that permitted 

public comment on the rules. The 

Commission has determined that it will 

make two changes to its proposed rules 

in light of comments received and that 

it will adopt those rules as final. 

DATES: 

Effective date: These revised rules are 

effective on March 3, 2022. 


tkelley on DSK125TN23PROD with RULES1
5394 Federal Register / Vol. 87, No. 21 / Tuesday, February 1, 2022 / Rules and Regulations 

Applicability date: The final rules will 

apply to requests initiated after the rules 

take effect. The final rules will also 

apply to further proceedings regarding 

requests pending on the effective date, 

except to the extent that such 

application would be infeasible or 

unfair, in which event the present 

procedural rules would continue to 

apply. 

ADDRESSES: Questions may be sent by 

any of the following methods: 

• Email: MMccord@fmshrc.gov. 

• Mail: Michael A. McCord, General 

Counsel, Office of the General Counsel, 

Federal Mine Safety and Health Review 

Commission, 1331 Pennsylvania 

Avenue NW, Suite 520N, Washington, 

DC 20004–1710. 

FOR FURTHER INFORMATION CONTACT: 

Michael A. McCord, General Counsel, 

202–434–9900, MMccord@fmshrc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Commission is an independent 

adjudicatory agency that provides 

hearings and appellate review of cases 

arising under the Federal Mine Safety 

and Health Act of 1977 (the ‘‘Mine 

Act’’). Hearings are held before the 

Commission’s Administrative Law 

Judges, and appellate review is provided 

by a five-member Review Commission 

appointed by the President and 

confirmed by the Senate. 

In accordance with the amendments 

made by the FOIA Improvement Act of 

2016, Public Law 114–185, 130 Stat. 

538, to the Freedom of Information Act, 

5 U.S.C. 552, the Commission is revising 

its rules on procedures for the 

disclosure of records under the FOIA, 

including procedures for engaging in 

dispute resolution through the FOIA 

Public Liaison and the Office of 

Government Information Services 

(‘‘OGIS’’) and the requirement that 

requesters be given a minimum of 90 

days to file an administrative FOIA 

appeal. 

Additionally, the revisions include 

clarification on the types of information 

that a requester must provide in order 

to facilitate a FOIA search of the 

agency’s records, additional 

circumstances under which expedited 

processing will be granted, and 

increases in certain fees. Based on its 

years of experience in implementing the 

FOIA, the Commission is adopting the 

changes set forth below in its FOIA 

rules to better reflect agency practice 

under the rules and to clarify our FOIA 

processes to the requester community. 

Lastly, while the revised rules retain 

much of the substantive practices and 

procedures in effect prior to these 

revisions, they have been extensively 

reorganized under new section headers 

and paragraph headers. The 

Commission is also adding two new 

procedural rules, one addressing 

confidential commercial information 

and the other addressing the 

preservation of records. 

In August 2021, the Commission 

published a notice of proposed 

rulemaking (‘‘NPRM’’). 86 FR 48346, 

Aug. 30, 2021. Although the proposed 

rules were procedural in nature and did 

not require notice and comment 

publication (see 5 U.S.C. 553(b)(3)(A)), 

the Commission invited comment from 

the interested public until September 

29, 2021. The Commission received 

comments from several individual 

members of the FOIA requester 

community. While all commenters 

expressed general agreement with the 

Commission’s proposed revisions, one 

commenter expressed concern regarding 

a fee increase in one rule and suggested 

the inclusion of additional language to 

another rule. Both comments are 

discussed in further detail below. In 

response to the comments received and 

after further reflection by the 

Commission, several changes were 

made to the proposed rules. 

II. Section-by-Section Analysis 

Set forth below is an analysis of the 

comments received on the 

Commission’s proposed rules and the 

final actions taken. 

Part 2702—Regulations Implementing 

the Freedom of Information Act 

§§ 2702.3 through 2702.8 

[Redesignated] 

Old section New section(s) 

2702.3(b) ........................ 2702.4(a) and 

(d)(1), 2702.5 

2702.3(c) ......................... 2702.4(b) and (c) 

2702.3(d) ........................ 2702.4(b)(2) 

2702.3(e) ........................ 2702.4(b)(3) 

2702.3(f) ......................... 2702.4(d)(3), 

2702.5(e) 

2702.3(g) ........................ 2702.4(d)(2) 

2702.4 ............................. 2702.7 

2702.5 ............................. 2702.8 

2702.6 ............................. 2702.9 

2702.7 ............................. 2702.10 

2702.8 ............................. 2702.11 

29 CFR 2702.1 

The Commission is revising 29 CFR 

2702.1 to explain that the purpose of 

these rules is to establish procedures to 

implement the FOIA as amended by the 

FOIA Improvement Act of 2016. The 

Commission is also amending 29 CFR 

2702.1 to make three non-substantive 

revisions: (1) Adding the short name of 

‘‘the Mine Act’’ for the Mine statute; (2) 

clarifying that the Commission reviews 

legal disputes between private parties 

‘‘arising under the Mine Act;’’ and (3) 

updating reference to the Commission’s 

website to include that the FOIA guide 

is located specifically at the web 

address https://www.fmshrc.gov/guides/ 

foia-guide. 

The Commission received no 

comments on the proposed changes and 

adopts the rule as proposed. 

29 CFR 2702.3 

The Commission is revising 29 CFR 

2702.3 to limit the section’s focus to the 

proper procedure for making a FOIA 

request and to reorganize the 

information provided in the rule so that 

the requirements are more reader 

friendly. In addition, new paragraph 

headers have been added. 

The information in § 2702.3(a), which 

was previously provided in paragraph 

form, has been enumerated, thereby 

making it easier to identify the number 

of requirements that must be met and to 

distinguish each requirement. 

Pursuant to the authority of 5 U.S.C. 

552(a)(3)(A), a new requirement has 

been added at newly added 

§ 2702.3(a)(3), which requires requesters 

seeking information from cases that 

have come before or are currently before 

the Commission to provide the 

Commission assigned docket number 

(beginning with CENT, KENT, LAKE, 

PENN, SE, VA, WEST, WEVA or YORK) 

and/or the related Mine Safety and 

Health Administration (MSHA) issued 

citation or order number (not to be 

confused with the MSHA case number) 

when making a request. This change is 

consistent with long-standing 

Commission practice and is necessary in 

order to effectively search the 

Commission’s docketing database. 

In newly added § 2702.3(a)(4), the 

language ‘‘shall describe the particular 

record requested to the fullest extent 

possible’’ has been replaced with 

‘‘reasonably describe the particular 

record(s) requested.’’ ‘‘Reasonably 

describe’’ is taken directly from the 

FOIA, 5 U.S.C. 552(a)(3)(A). 

The information previously contained 

in § 2702.3(b), (f), and (g), which 

explained the Commission’s procedure 

for responding to requests and the FOIA 

appeals process, has been redesignated 

as new §§ 2702.4 and 2702.5. New 

§ 2702.3(b) now briefly explains the 

format and timing of requests for 

expedited processing and for fee 

waivers. 

The information previously contained 

in § 2702.3(c), which explained the 

Commission’s procedure for taking 

additional time to process requests 

involving ‘‘unusual circumstances,’’ has 


tkelley on DSK125TN23PROD with RULES1
Federal Register / Vol. 87, No. 21 / Tuesday, February 1, 2022 / Rules and Regulations 5395 

been redesignated as new § 2702.4. New 

§ 2702.3(c) advises individuals to refer 

to the Commission’s Privacy Act 

regulations for instructions if seeking 

records on him or herself that do not 

include cases currently or previously on 

review before the Commission. 

The information previously contained 

in § 2702.3(d) discussing additional 

time to respond has been redesignated 

as new § 2702.4(b). New § 2702.3(d) 

now explains the procedure for properly 

submitting a FOIA request to the 

Commission. 

The information previously contained 

in § 2702.3(e) discussing expedited 

processing has been redesignated as 

newly added § 2702.4(b)(3). 

The Commission received no 

comments on the proposed changes and 

adopts the rule as proposed. 

29 CFR 2702.4 

The information previously contained 

in § 2702.4, which explained the types 

of records generally maintained by the 

Commission and how they may be 

publicly accessed, has been 

redesignated as new § 2702.7. 

Section 2702.4 now contains language 

previously found in § 2702.3. This 

section now clarifies the Commission’s 

procedures for responding to requests, 

processing requests, and making request 

determinations, and explains its longstanding multi-track processing system. 

Much of this information was relocated 

from § 2702.3. 

The information in § 2702.4(a) 

generally explains the Commission’s 

timetable for making a determination on 

a FOIA request. It notes that, generally, 

the Commission will respond to 

requests in the order they are received. 

This is not intended as a restriction on 

the Commission’s ability to prioritize 

requests differently, if necessary. 

Consistent with 5 U.S.C. 

552(a)(6)(D)(i), § 2702.4(b) details the 

agency’s longstanding, three-tier 

multitrack processing system, which 

includes simple, complex, and 

expedited processing. Section 

2702.4(b)(2) explains the ‘‘unusual 

circumstances’’ that may warrant a 

delayed response by the Commission. 

Pursuant to 5 U.S.C. 552(a)(6)(E)(i)(II), 

newly added § 2702.4(b)(3) explains the 

time requirements for making requests 

for expedited processing and includes a 

new agency-specific criterion for 

requesters seeking expedited processing. 

The new criterion, paragraph (b)(3)(iii), 

allows parties engaged in litigation 

before the Commission to request 

expedited processing if the record is 

required to meet a fast-approaching 

deadline set by a Commission 

Administrative Law Judge (ALJ) or the 

Commission. This criterion will be 

particularly helpful for parties 

requesting hearing transcripts needed to 

prepare post-hearing briefs. 

Newly added § 2702.4(c) contains the 

information previously contained in 

§ 2702.3(c)(2) explaining the aggregation 

of requests. 

Newly added § 2702.4(d) explains the 

various determinations that a 

Commission FOIA officer can reach 

when processing a request under the 

FOIA. 

In accordance with the FOIA 

Improvement Act of 2016, newly added 

§ 2702.4(e) explains the dispute 

resolution and mediation services 

available to requesters and the process 

for attaining these services. 

While the Commission received no 

objections to these proposed changes, 

the Commission adopts the rule with 

one minor modification. The 

Commission adds a reference to 

§ 2702.10(a), which discusses related fee 

restrictions. 

29 CFR 2702.5 

The information previously contained 

in § 2702.5 under header ‘‘Fees 

applicable—categories of requesters,’’ 

which explained the Commission’s 

categories of requesters for purposes of 

determining the appropriate fees, has 

been redesignated as new § 2702.8. 

Section 2702.5 now contains language 

previously found in § 2702.3 and added 

language explaining the procedures 

surrounding the various types of FOIA 

appeals, including the format and 

timing of appeals and the Commission’s 

process for reviewing appeals. The 

appeal language was taken from former 

§§ 2702.3(b), (e)(2), and (f) and 

2702.7(b)(2) and consolidated under this 

new section. 

In accordance with the Improvement 

Act 2016, paragraph (a) reflects the new 

time period in which a requester has to 

appeal an adverse determination, that is 

not more than 90 days after the date of 

such determination. Paragraphs (a) 

through (d) include new instructions 

regarding the required content when 

filing an appeal. In paragraph (a), we 

also removed the word ‘‘Chairman’’ and 

added, in its place, the word ‘‘Chair.’’ 

The Commission received no 

comments on the proposed changes and 

adopts the rule as proposed. 

29 CFR 2702.6 

The information previously contained 

in § 2702.6 under header ‘‘Fee 

schedule,’’ has been redesignated as 

newly added § 2702.9 under the same 

header. Section 2702.6 now contains the 

Commission’s procedure for the 

handling of confidential commercial 

information. While requests for 

confidential commercial information is 

not an issue the Commission has 

typically had to deal with in the past, 

in recent years it has seen an increase 

in FOIA requests that in some way 

relate to potentially sensitive records 

that mine operators may not want 

released to the public. 

The language was adopted from the 

regulation template provided by the 

Department of Justice’s Office of 

Information Policy (‘‘OIP’’) in its 

‘‘Template for Agency FOIA 

Regulations,’’ published on February 22, 

2017. The section mirrors OIP’s sample 

language. 

Section 2702.6(a) defines 

‘‘confidential commercial information’’ 

and ‘‘submitter.’’ Section 2702.6(b) 

informs submitters what steps they must 

take to protect information they believe 

should be withheld from disclosure. 

This provision will be most useful for 

mining companies submitting sensitive 

commercial records during the course of 

litigation before the Commission. 

Section 2702.6(c) explains the 

circumstances under which a submitter 

of confidential commercial information 

must be notified that the information 

has been requested and may be 

disclosed. It describes the different ways 

the Commission may satisfy the notice 

requirement and describes the content 

that must be included in the notice. 

Section 2702.6(d) explains the 

exceptions to the submitter notice 

requirements. Section 2702.6(e) sets 

forth the process for submitters to object 

to disclosures. The section goes on to 

explain the Commission’s process for 

addressing objected disclosures and the 

notices it will provide to both submitter 

and requester. 

The Commission received no 

comments on the proposed changes and 

adopts the rule as proposed. 

29 CFR 2702.7 

The information previously contained 

in § 2702.7 under header ‘‘No fees; 

waiver or reduction of fees,’’ has been 

redesignated as newly added § 2702.10. 

Section 2702.7 now contains the 

information previously found in 

§ 2702.4 discussing the types of records 

maintained by the Commission and 

available to the public, as well as how 

records may be accessed without the 

need to file a FOIA request. It 

additionally explains what records are 

available to the public upon request and 

generally how the Commission will 

search for requested records. 

Specifically, under FOIA, each agency 

must make available for public 

inspection and copying (without the 

need for a formal FOIA request) the 


tkelley on DSK125TN23PROD with RULES1
5396 Federal Register / Vol. 87, No. 21 / Tuesday, February 1, 2022 / Rules and Regulations 

following items: Final opinions and 

orders issued in the adjudication of 

administrative cases; policy statements 

and interpretations that have been 

adopted by the agency but which were 

not published in the Federal Register; 

administrative staff manuals that affect 

members of the public; and records 

processed and disclosed in response to 

a FOIA request which the agency has 

determined have or will become the 

subject of similar requests for 

substantially the same records (often 

referred to as ‘‘FOIA-processed 

records’’). See 5 U.S.C. 552(a)(2). 

Historically, agencies have generally 

provided access to these records in 

reading rooms located at one or more of 

the agency’s offices. However, with the 

increased reliance on technology, 

agencies have eliminated full-time 

reading rooms and switched to posting 

the records online where they are easily 

accessible by the public. While the 

Commission will continue to permit inoffice inspection of records, if 

requested, it will primarily rely on its ereading room to satisfy this requirement 

under the FOIA. 

There is one substantive change to 

this section, which includes a new 

paragraph (a) that generally describes 

the availability of the Commission’s 

records. Former paragraphs (a) and (b) 

have been transposed and relettered as 

paragraphs (b) and (c). The term ‘‘FOIA 

Reading Room’’ has been replaced with 

the term ‘‘FOIA in-office review.’’ 

The rule continues to model the 

statutory language in the FOIA. 

Additionally, a more detailed listing of 

materials available at the Commission is 

provided in the Commission’s FOIA 

Guide, also available on its website. 

The Commission received no 

comments on the proposed changes and 

adopts the rule as proposed. 

29 CFR 2702.8 

The information previously contained 

in § 2702.8 under header ‘‘Advance 

payment of fees; interest; debt collection 

procedures,’’ has been redesignated as 

newly created § 2702.11. 

Section 2702.8, under revised header 

‘‘Categories of requesters and applicable 

fees,’’ now contains the information 

previously found in § 2702.5 discussing 

fee requester categories. This section 

includes newly added paragraph (f), 

which explains that the FOIA office may 

require clarification from the requester 

at times in order to determine proper fee 

category. The remainder of the section 

contains several minor stylistic changes 

to sentence structure, and descriptive 

headers/titles have also been added to 

each paragraph. 

The Commission received no 

comments on the proposed changes and 

adopts the rule as proposed. 

29 CFR 2702.9 

Newly added § 2702.9 contains the 

information previously found in 

§ 2702.6 under the same header, ‘‘Fee 

schedule.’’ This transferred content 

continues to outline the various fees 

charged by the Commission for its FOIA 

services. Substantively, the language of 

the section remains largely the same. 

There are minor revisions to paragraphs 

(a) and (b) to reflect a more accurate 

website location and paragraph (b) to 

reflect the proper rule citation in light 

of these amendments. The website 

address in paragraphs (a) and (b) has 

been modified to include the direct 

website address for the Commission’s 

FOIA Guide. In paragraph (b), we also 

removed the word ‘‘Chairman’’ and 

added, in its place, the word ‘‘Chair.’’ 

The Commission is amending the 

language of paragraph (c) to state that 

duplication fees will be charged for 

records that are not routinely kept in 

electronic format and must be scanned 

for purposes of satisfying a FOIA 

request. Additionally, the Commission 

initially sought to amend the 

duplication fee from $0.15 per page to 

$0.25 per page to account for the cost of 

inflation. However, during the public 

comment period, a commenter 

challenged a proposed increase to 25 

cents per page, contending that the 

Commission’s proffered rationale of 

inflation was insufficient to justify the 

increase because the commercial cost of 

photoduplication has fallen over the 

years. 

The Commission notes that 

duplication fees may incorporate the 

cost of labor, as well as material. The 

Commission established the 15 cent per 

page duplication fee in 1996. Since that 

time, labor costs have risen due to 

inflation (as reflected, for example, in 

adjustments to the general schedule pay 

scale which govern the salaries of the 

Commission’s FOIA personnel). The 

Commission maintains that labor cost 

inflation is a valid rationale for 

increasing duplication fees. However, 

the Commission also acknowledges that 

any increase must be commensurate and 

may be partially offset by decreased 

material costs. Upon further analysis, 

duplication costs are set at 20 cents per 

page. As the vast majority of our records 

are in electronic format, we expect this 

increase to have very little impact on 

the requester community. 

29 CFR 2702.10 

Newly added § 2702.10 contains the 

information previously found in 

§ 2702.7 under former header ‘‘No fees; 

waiver or reduction of fees.’’ Now under 

revised header ‘‘Waivers and reduction 

of fees,’’ this section continues to 

explain the circumstances under which 

fees will not be charged and under what 

circumstances a fee waiver will be 

granted. The section also includes the 

restriction that prohibits an agency from 

assessing search fees or duplication fees, 

should it fail to comply with the 

extended time limit. 

Substantively, the language of the 

section remains largely the same. 

Paragraph (a) has been revised to 

include fee restrictions when the agency 

fails to comply with extended time 

limits. Paragraph (b) has been minimally 

revised to include additional 

information on the proper Commission 

procedure for requesting a fee waiver, 

which is also stated in amended 

§ 2702.3(b). Paragraph (b) has been 

revised to reflect the proper rule citation 

in light of these amendments and 

descriptive headers/titles have been 

added to paragraphs (a) and (b). 

During the public comment period, a 

commenter noted that the newest 

change to 30 U.S.C. 

552(a)(4)(A)(viii)(II)(aa) states that ‘‘If 

the agency fails to comply with the 

extended time limit, the agency may not 

assess any search fees (or in the case of 

a requester described under clause 

(ii)(II) of this subparagraph, duplication 

fees).’’ The commenter noted that a 

section respecting and restating the 

statutory provision was missing from 

the proposed rules. In lieu of placing 

this new fee requirement in its rules, the 

Commission intended to include a full 

explanation of the fee adjustment in the 

Commission’s updated FOIA guide, 

which has historically provided 

additional context to the agency’s fee 

set-up. However, in light of the 

commenter’s suggestion and after 

further consideration, the Commission 

has amended the associated regulations 

at §§ 2702.4(b)(2)(ii) and 2702.10(a) to 

reflect the new fee restriction. The fee 

restriction is also discussed in the 

Commission’s FOIA Guide. 

29 CFR 2702.11 

Newly added § 2702.11 under header 

‘‘Payment of fees; advance payments; 

interest, debt collection,’’ contains the 

information previously found in 

§ 2702.8 under former header ‘‘Advance 

payment of fees; interest; debt collection 

procedures.’’ This section continues to 

explain when advance payment of fees 

could be required, when interest charges 

could be assessed, and that delinquent 

payments would be referred to debt 

collection. 


tkelley on DSK125TN23PROD with RULES1
Federal Register / Vol. 87, No. 21 / Tuesday, February 1, 2022 / Rules and Regulations 5397 

Substantively, the language of the 

section remains the same with one key 

exception. New paragraph (a) now 

explains the process for remitting 

payment to the Commission for FOIA 

services rendered. Additionally, 

paragraph (b), formerly paragraph (a), 

has been reworded for concision, but 

substantively remains the same. 

Descriptive headers/titles have also 

been added to each paragraph. 

The Commission received no 

comments on the proposed changes and 

adopts the rule as proposed. 

29 CFR 2702.12 

Newly added § 2702.12 under header 

‘‘Preservation of records,’’ is a new 

addition to the Commission’s FOIA 

rules. This section explains the 

Commission’s procedure and time 

frames for the maintenance of its FOIA 

records. We believe this section will be 

very helpful for FOIA requesters who 

seek records going back a certain 

number of years and who are trying to 

determine the scope of their request 

prior to submission. This is a relatively 

common occurrence with Commission 

FOIA requests. This rule is intended to 

decrease processing times by 

eliminating the added correspondence 

that often ensues as a result of a 

requester seeking records that are 

outside of the required maintenance 

period. 

The Commission received no 

comments on the proposed change here 

and adopts the rule as proposed. 

III. Matters of Regulatory Procedure 

The Commission is an independent 

regulatory agency, and as such, is not 

subject to the requirements of Executive 

Order (‘‘E.O.’’) 12866 (Sept. 30, 1993; 58 

FR 51735, Oct. 4, 1993); E.O. 13563 (Jan. 

18, 2011; 76 FR 3821, Jan. 21, 2011); 

E.O. 13771 (Jan. 30, 2017; 82 FR 9339, 

Feb. 3, 2017); or E.O. 13777 (Jan. 30, 

2017; 82 FR 12285, Mar. 1, 2017). The 

regulatory amendments also do not have 

Federal implications or ‘‘substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ Therefore, E.O. 

13132 is not applicable. 

The Commission’s Chair has 

determined that this rule will not ‘‘have 

a significant economic impact on a 

substantial number of small entities’’ 

under the Regulatory Flexibility Act 

(‘‘RFA’’) (5 U.S.C. 605) due to the 

limited scope of the rule and its impact 

of streamlining the procedures required 

under FOIA. The Commission has also 

determined that the Paperwork 

Reduction Act (44 U.S.C. 3501 et seq.) 

does not apply because these rules do 

not contain any information collection 

requirements that require the approval 

of the Office of Management and Budget 

(OMB). 

List of Subjects in 29 CFR Part 2702 

Administrative practice and 

procedure, Appeals, Confidential 

commercial information, Freedom of 

information, Privacy. 

■ For the reasons stated in the preamble, 

the Federal Mine Safety and Health 

Review Commission revises 29 CFR part 

2702 to read as follows: 

PART 2702—REGULATIONS 

IMPLEMENTING THE FREEDOM OF 

INFORMATION ACT 

Sec. 

2702.1 Purpose and scope. 

2702.2 Location of offices. 

2702.3 Making a request for information. 

2702.4 Response to request; processing; 

determinations. 

2702.5 Right to appeal. 

2702.6 Confidential commercial 

information. 

2702.7 Materials available. 

2702.8 Categories of requesters and 

applicable fees. 

702.9 Fee schedule. 

2702.10 Waivers and reduction of fees. 

2702.11 Payment of fees; advance 

payments; interest; debt collection. 

2702.12 Preservation of records. 

Authority: 30 U.S.C. 801 et seq.; 5 U.S.C. 

551, 552, and 552a and 44 U.S.C. 3102 as 

amended by Pub. L. 104–231, 110 Stat. 3048, 

Pub. L. 110–175, 121 Stat. 2524, and Pub. L. 

114–185, 130 Stat. 538; E.O. 13392, 70 FR 

75373, 3 CFR, 2005 Comp., p. 216. 

§ 2702.1 Purpose and scope. 

The Federal Mine Safety and Health 

Review Commission (Commission), 

pursuant to the Federal Mine Safety and 

Health Act of 1977 (the ‘‘Mine Act’’), 30 

U.S.C. 801 et seq., is an independent 

adjudicative agency that provides 

administrative trial and appellate 

review of legal disputes arising between 

the U.S. Department of Labor’s Mine 

Safety and Health Administration 

(MSHA) and private parties, as well as 

certain disputes solely between private 

parties arising under the Mine Act. The 

purpose of the rules in this part is to 

establish procedures for implementing 

the Freedom of Information Act (FOIA), 

5 U.S.C. 552, as amended by the 

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 


tkelley on DSK125TN23PROD with RULES1
5398 Federal Register / Vol. 87, No. 21 / Tuesday, February 1, 2022 / Rules and Regulations 

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/ 


tkelley on DSK125TN23PROD with RULES1
Federal Register / Vol. 87, No. 21 / Tuesday, February 1, 2022 / Rules and Regulations 5399 

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-publicliaison. 

§ 2702.5 Right to appeal. 

(a) Generally. Any requester adversely 

affected by a final decision of the 

Commission’s FOIA Office may file an 

appeal of that decision within 90 days 

of the initial determination. All FOIA 

appeals must be in writing and shall be 

made to the Chair of the Commission. 

Sitting Commissioners will decide 

appeals within 20 business days after 

receipt. In the event that a sitting 

Commissioner is the subject of the 

disputed FOIA records or has a 

substantial interest in the disputed 

records, that Commissioner should be 

recused from consideration of said FOIA 

appeal. In the event of a tie vote of those 

Commissioners, the FOIA Office’s initial 

determination will be deemed approved 

by the Commission. Appeals must be 

submitted via email, mail, fax or hand 

delivery to FOIA-appeals@fmshrc.gov, 

Federal Mine Safety and Health Review 

Commission, 1331 Pennsylvania 

Avenue NW, Suite 520N, Washington, 

DC 20004–1710, Fax: 202–434–9944. 

(b) Appeal of denial or partial denial 

of information request. The appeal must 

include a copy of the initial FOIA 

request, a copy of the determination 

denying the request in whole or in part, 

and a detailed statement explaining why 

the initial determination should be 

reversed. Any records to be disclosed by 

the Commission to the requester shall be 

provided with the letter setting forth the 

determination as to the appeal or shall 

be sent as soon as possible thereafter. 

(c) Appeal of denial of request to 

expedite. The appeal must include a 

copy of the initial request to expedite, 

a copy of the determination denying the 

request, and a detailed explanation 

demonstrating a compelling need as 

stated in § 2702.4(b)(3). The 

Commission will provide expeditious 

consideration of administrative appeals 

of determinations on whether to provide 

expedited processing. Once a 

determination has been made to grant 

expedited processing, the Commission 

will process the request as soon as 

practicable. 

(d) Appeal of denial of fee waiver or 

reduction. The appeal must include a 

copy of the initial fee waiver/reduction 

request, a copy of the determination 

denying the request, and a detailed 

statement explaining how the request 

satisfies one or more requirements in 

§ 2702.10(b). 

(e) Denial of appeal. If an appeal is 

denied, the Commission’s notice of 

denial shall inform the requester of the 

right to obtain judicial review of the 

Commission’s action under 5 U.S.C. 

552(a)(4)(B)–(G). The requester may 

appeal the Commission’s decision by 

filing a complaint in the district court of 

the United States in the district in 

which the complainant resides, or has 

its principal place of business, or in 

which the agency records are situated, 

or in the District of Columbia. 

§ 2702.6 Confidential commercial 

information. 

(a) Definitions. (1) Confidential 

commercial information means 

commercial or financial information 

obtained by the agency from a submitter 

that may be protected from disclosure 

under Exemption 4 of the FOIA, 5 

U.S.C. 52(b)(4). 

(2) Submitter means any person or 

entity, including a corporation, State, or 

foreign government, but not including 

another Federal Government entity, that 

provides confidential commercial 

information, either directly or indirectly 

to the Federal Government. 

(b) Designation of confidential 

commercial information. A submitter of 

confidential commercial information 

must use good faith efforts to designate 

by appropriate markings, at the time of 

submission, any portion of its 

submission that it considers to be 

protected from disclosure under 

Exemption 4. These designations expire 

10 years after the date of the submission 

unless the submitter requests and 

provides justification for a longer 

designation period. 

(c) When notice to submitters is 

required. (1) The Commission will 

promptly provide written notice to the 

submitter of confidential commercial 

information whenever records 

containing such information are 

requested under the FOIA if the 

Commission determines that it may be 

required to disclose the records, 

provided: 

(i) The requested information has 

been designated in good faith by the 

submitter as information considered 

protected from disclosure under 

Exemption 4; or 

(ii) The Commission has a reason to 

believe that the requested information 

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: 


tkelley on DSK125TN23PROD with RULES1
5400 Federal Register / Vol. 87, No. 21 / Tuesday, February 1, 2022 / Rules and Regulations 

(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/foiaguide. 

(c) Duplicating fee. The copy fee for 

each page of paper up to 81⁄2′′ 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. 


tkelley on DSK125TN23PROD with RULES1
Federal Register / Vol. 87, No. 21 / Tuesday, February 1, 2022 / Rules and Regulations 5401 

§ 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. 

Dated: January 20, 2022. 

Arthur R. Traynor, III, 

Chair, Federal Mine Safety and Health Review 

Commission. 

[FR Doc. 2022–01449 Filed 1–31–22; 8:45 am] 

BILLING CODE 6735–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2022–0015] 

Drawbridge Operation Regulation; 

Grand Canal, Indian Harbour Beach, FL 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of temporary deviation 

from regulations; request for comments. 

SUMMARY: The Coast Guard has issued a 

temporary deviation from the operating 

schedule that governs the Lansing 

Island Bridge across Grand Canal, mile 

0.7 at Indian Harbour Beach, FL. A 

request was made to the Coast Guard to 

allow the drawbridge to remain closed 

to navigation and untended during the 

overnight hours due to a lack of 

requested openings. This deviation will 

test a change to the drawbridge 

operation schedule to determine 

whether a permanent change to the 

schedule is needed. The Coast Guard is 

seeking comments from the public 

regarding these temporary changes. 

DATES: This deviation is effective from 

12:01 a.m. on February 1, 2022 through 

11:59 p.m. on July 30, 2022. 

Comments and related material must 

reach the Coast Guard on or before April 

1, 2022. 

ADDRESSES: You may submit comments 

identified by docket number USCG– 

2022–0015 using Federal Decision 

Making Portal at https://

www.regulations.gov. 

See the ‘‘Public Participation and 

Request for Comments’’ portion of the 

SUPPLEMENTARY INFORMATION section 

below for instructions on submitting 

comments. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this test 

deviation, call or email Ms. Jennifer 

Zercher, Bridge Management Specialist, 

Seventh Coast Guard District, telephone 

305–415–6740, email 

Jennifer.N.Zercher@uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Background, Purpose and Legal Basis 

The Lansing Island Bridge across 

Grand Canal, mile 0.7, at Indian 

Harbour Beach, FL is a single-leaf 


tkelley on DSK125TN23PROD with RULES1