Freedom of Information, Government in the Sunshine, and Privacy Act Requirements, 54256-54267 [E8-21801]

Agencies

• Election Assistance Commission

[Federal Register Volume 73, Number 182 (Thursday, September 18, 2008)]
[Rules and Regulations]
[Pages 54256-54267]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-21801]



[[Page 54255]]

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Part IV





Election Assistance Commission





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11 CFR Chapter II



Freedom of Information, Government in the Sunshine, and Privacy Act 
Requirements; Final Rule

Federal Register / Vol. 73, No. 182 / Thursday, September 18, 2008 / 
Rules and Regulations

[[Page 54256]]


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ELECTION ASSISTANCE COMMISSION

11 CFR Chapter II

RIN 3265-AA00


Freedom of Information, Government in the Sunshine, and Privacy 
Act Requirements

AGENCY: United States Election Assistance Commission (EAC).

ACTION: Final rule.

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SUMMARY: The U.S. Election Assistance Commission is publishing notice 
of its final rules implementing provisions of the Freedom of 
Information Act, the Government in the Sunshine Act, and the Privacy 
Act.

DATES: The rules promulgated today become effective September 18, 2008.

FOR FURTHER INFORMATION CONTACT: Tamar Nedzar, Attorney, U.S. Election 
Assistance Commission, 1225 New York Avenue NW., Suite 1100, 
Washington, DC 20005. Telephone (202) 566-3100.

SUPPLEMENTARY INFORMATION: 

Preamble Table of Contents

    The following is an outline of the preamble.

I. Disposition of Comments
II. Legal Basis for the Rulemaking
III. Discussion of the Rulemaking
IV. Rulemaking Analyses and Notices

I. Disposition of Comments

    The EAC issued a notice of proposed rulemaking and requested public 
comment on these rules on June 30, 2008 (73 FR 36,807). The comment 
period ended on August 29, 2008. The EAC received no comments on this 
rulemaking activity, and therefore made no changes to the proposed 
rules. The regulations in this notice are the same in form and 
substance as those posted in the Notice of Proposed Rulemaking 
associated with this RIN.

II. Legal Basis for the Rulemaking

    The U.S. Election Assistance Commission (EAC) is required to 
promulgate this final rule pursuant to the Freedom of Information Act 
(FOIA), 5 U.S.C. 552, as amended; the Government in the Sunshine Act 
(Sunshine Act), 5 U.S.C. 552b; and the Privacy Act, 5 U.S.C. 552a, as 
amended. The FOIA requires each federal agency to publish certain 
information in the Federal Register, to make available for public 
inspection and copying certain other information, and to make available 
certain information to any members of the public upon specific request 
for that information. The FOIA stipulates that an agency must 
promulgate regulations specifying the schedule of fees applicable to 
the processing of requests for information. The Government in the 
Sunshine Act requires meetings of a federal agency headed by a 
collegial body, a majority of whose members are appointed by the 
President with the advice and consent of the Senate, to be open to 
public observation. The EAC is a collegial body subject to the Act. The 
Act specifies certain exemptions from the open meeting requirement, and 
the procedures that an agency must follow to conduct or to close a 
meeting. The Privacy Act creates requirements that apply to systems of 
records pertaining to individuals that are established, maintained, or 
controlled by a federal agency, and prescribes rights and limits to 
access to such records.

III. Discussion of the Rulemaking

    The United States Election Assistance Commission was created by 
Congress in the Help America Vote Act of 2002. The Commission's primary 
function is to serve as a national clearinghouse and resource for 
information on and procedures for federal elections. The EAC conducts 
studies on election administration and makes those studies available to 
the public. The EAC also has adopted Voluntary Voting System 
Guidelines; administers a voting system testing and certification 
program; allocates election-related federal funding to the States; and 
carries out administrative duties under the National Voter Registration 
Act of 1993 (the Motor Voter Law), including developing and maintaining 
a mail voter registration application form for elections to federal 
office.
    The EAC is committed to operating transparently, competently, and 
subject to public scrutiny and accountability. To help implement these 
goals, the EAC is promulgating these regulations to implement three 
important federal statutes addressing access to information about the 
EAC and its activities--the Freedom of Information Act, as amended, 
including recent amendments found in the OPEN Government Act of 2007; 
the Government in the Sunshine Act; and the Privacy Act.
    Many of the provisions in today's rules are identical to or closely 
resemble the requirements adopted by other federal agencies, and as 
such represent regulatory ``best practices'' on the topics of FOIA, 
open government, and protection of the privacy of information about 
individuals.

IV. Regulatory Analyses and Notices

Regulatory Flexibility Act, as Amended

    The Regulatory Flexibility Act, as amended by the Small Business 
Regulatory Enforcement Fairness Act (SBREFA) of 1996 (5 U.S.C. 601 et 
seq.) generally requires an agency to prepare a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements under the Administrative Procedure Act or any other 
statute, unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
government jurisdictions. The EAC has considered the effects of this 
regulatory action on small entities and certifies that these rules will 
not have a significant impact on a substantial number of small 
entities.

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 2 U.S.C. 
1532) requires each agency to assess the effects of its regulatory 
actions on State, local, and tribal governments and the private sector. 
Any agency promulgating a rule likely to result in a federal mandate 
requiring expenditures by a State, local, or tribal government or by 
the private sector of $120.7 million or more in any one year must 
prepare a written statement incorporating various assessments, 
estimates, and descriptions that are delineated in the Act. The EAC has 
determined that these rules would create no unfunded mandates because 
they require no expenditures by a State, local, or tribal government 
and will not have an impact of $120.7 million or more in any one year.

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by 
SBREFA, provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. If the rule meets the definition of a 
major rule, as defined in SBREFA, the Comptroller General must provide 
a report to Congress and the rule may not take effect until 60 days 
after it has been published in the Federal Register. The current action 
is a Final Rule that does not meet the definition of a major rule. The 
EAC is submitting the necessary rule report to the Congress and the 
Comptroller General of the United States.

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National Environmental Policy Act

    The EAC analyzed these rules for the purpose of the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and 
determined that this action includes no circumstances that would have 
any effect on the quality of the environment. The rules pertain solely 
to the dissemination of information. Thus, these actions do not require 
an environmental assessment or an environmental impact statement.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
the EAC to consider the impact of paperwork and other information 
collection burdens imposed on the public. These rules do not impose any 
reporting or recordkeeping requirements. They pertain solely to the 
dissemination of information under the FOIA; access to information 
about meetings and the decision-making process of the EAC; and 
dissemination of information about what information is maintained about 
identifiable individuals by the EAC and how they may gain access to and 
correct or amend information about them.

Executive Order 12630 (Taking of Private Property)

    These rules would not affect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
``Governmental Actions and Interference with Constitutionally Protected 
Property Rights.''

Executive Order 12988 (Civil Justice Reform)

    These rules meet applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, ``Civil Justice Reform,'' to minimize 
litigation, eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (April 23, 1997, 62 FR 19885), requires 
that agencies issuing economically significant rules, which also 
concern an environmental health or safety risk that an agency has 
reason to believe may disproportionately affect children, must include 
an evaluation of the environmental health and safety effects of the 
regulation on children. Section 5 of Executive Order 13045 directs an 
agency to submit for a covered regulatory action an evaluation of its 
environmental health or safety effects on children. The EAC has 
determined that these rules are not covered regulatory actions as 
defined under Executive Order 13045. This determination is based upon 
the fact that these rules are not economically significant under 
Executive Order 12866, because the changes would not have an impact of 
$100 million or more in any one year, and do not constitute an 
environmental health risk or safety risk that would disproportionately 
affect children.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on federal programs and activities do 
not apply to this rulemaking.

Executive Order 13211 (Energy Supply, Distribution, or Use)

    The EAC has analyzed these rules under Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use.'' This rule is not a significant energy 
action within the meaning of section 4(b) of the Executive Order. These 
rules involve internal procedures of and dissemination of information 
about the EAC, is not economically significant, and will not have a 
significant adverse effect on the supply, distribution, or use of 
energy.

List of Subjects

11 CFR Part 9405

    Administrative practice and procedure, Confidential business 
information, Freedom of information, Government employees.

11 CFR Part 9407

    Administrative practice and procedure, Government employees.

11 CFR Part 9410

    Administrative practice and procedure, Freedom of information, 
Government employees.

0
For the reasons set forth in the preamble, the Election Assistance 
Commission establishes a new Chapter II, consisting of parts 9405, 
9407, and 9410 in Title 11 of the code of Federal Regulations to read 
as follows:

CHAPTER II--ELECTION ASSISTANCE COMMISSION

PART 9405--PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM 
OF INFORMATION ACT

Sec.
9405.1 Purpose and scope.
9405.2 Definitions.
9405.3 Policy on disclosure of records.
9405.4 Availability of records.
9405.5 Categories of exemptions.
9405.6 Discretionary release of exempt records.
9405.7 Requests for records.
9405.8 Appeals of denials of requests for records.
9405.9 Fees in general.
9405.10 Fees to be charged--categories of requesters.
9405.11 Miscellaneous fee provisions.
9405.12 Waiver or reduction of charges.

    Authority: 5 U.S.C. 552, as amended.


Sec.  9405.1  Purpose and scope.

    The regulations in this part implement the provisions of the 
Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended, with 
respect to the availability of records for inspection and copying.


Sec.  9405.2  Definitions.

    As used in this part, the term--
    Chief FOIA Officer means the person designated under Sec.  
9405.3(d) who has Commission-wide responsibility for the efficient and 
appropriate compliance with the FOIA.
    Commercial use request means a FOIA request from or on behalf of a 
person who seeks information for a use or purpose that furthers his/her 
commercial, trade, or profit interests, which can include furthering 
those interests through litigation. The FOIA Officer will determine, 
whenever reasonably possible, the use to which a requester will put the 
requested documents. Where the FOIA Officer has reasonable cause to 
doubt the use for which the requester claims to have made the FOIA 
request or where that use is not clear from the FOIA request itself, 
the FOIA Officer will seek additional clarification before assigning 
the request to a specific category.
    Commission means the U.S. Election Assistance Commission, 
established by the Help America Vote Act of 2002, 42 U.S.C. 15301 et 
seq.
    Commissioner means an individual appointed to the Commission by the 
President and confirmed by the Senate under section 203 of the Help 
America Vote Act of 2002, 42 U.S.C. 15323.
    Direct costs means those expenditures which the Commission actually 
incurs in searching for, duplicating, and, in the case of commercial 
use requesters, reviewing documents to respond to a FOIA request. 
Direct costs include, but are not limited to, the salary of the 
employee performing the work (the basic rate of pay for the employee 
plus 16 percent of that basic rate to cover benefits) and the cost of 
operating duplicating equipment. Direct costs do not include overhead 
expenses, such as the cost of space and heating or lighting the 
facility in which the records are stored.

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    Duplication means the process of making a copy of a document 
necessary to respond to a FOIA request. Examples of the form such 
copies can take include, but are not limited to, paper copy, microform, 
audio-visual materials, or machine readable documentation (e.g., 
magnetic tape, DVD, or CD). The Commission will honor a requester's 
specified preference of form or format of disclosure if the records 
requested are reasonably reproducible with reasonable efforts in the 
requested form or format.
    Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institute of graduate higher education, an institution of 
professional education, and an institution of vocational education, 
which operates a program or programs of scholarly research.
    Executive Director means the Executive Director of the Commission 
or his or her designee.
    FOIA means Freedom of Information Act, 5 U.S.C. 552, as amended.
    FOIA Officer means a person designated by the Chief FOIA Officer 
under Sec.  9405.3(d) to carry out day-to-day implementation of the 
FOIA activities of the Commission.
    FOIA Public Liaison means a person designated by the Chief FOIA 
Officer under Sec.  9405.3(d) to assist in the resolution of any 
disputes between the requester and the Commission.
    FOIA request means to seek the release of records under 5 U.S.C. 
552, as amended.
    General Counsel means the General Counsel of the Commission or his 
or her designee.
    Non-commercial scientific institution means an organization that is 
not operated on a commercial basis and which is operated solely for the 
purpose of conducting scientific research, the results of which are not 
intended to promote any particular product or industry.
    Record means any information that would be a Commission record 
subject to the requirements of this part when maintained by the 
Commission in any format, including, but not limited to, an electronic 
format. Record includes information that is maintained for the 
Commission by an entity under Government contract for the purposes of 
records management.
    Representative of the news media means any person or entity that 
gathers information of potential interest to a segment of the public, 
uses editorial skills to turn the raw materials into a distinct work, 
and distributes that work to an audience. As used in this paragraph, 
``news'' means information that is about current events or that would 
be of current interest to the public. Examples of news media entities 
include, but are not limited to, television or radio stations 
broadcasting to the public at large, web logs, and publishers of 
periodicals (but only in those instances in which these entities can 
qualify as disseminators of news, as defined in this paragraph) who 
make their products available for purchase or subscription by the 
general public. As used in this paragraph, a ``web log'' means a 
publicly available Web site, usually maintained by an individual, with 
regular entries of commentary, descriptions of events, or other 
material. A freelance journalist may be regarded as working for a news 
media entity and therefore, considered a representative of the news 
media if that person can demonstrate a solid basis for expecting 
publication by a news organization (whether or not the journalist is 
actually employed by the entity). A publication contract would present 
a solid basis for such an expectation. The Commission may also consider 
the past publication record of the requester in making this 
determination.
    Requester is any person who submits a FOIA request to the 
Commission for release of a record under 5 U.S.C. 552, as amended.
    Review means the process of examining a document located in 
response to a commercial use request to determine whether any portion 
of the document located is exempt from disclosure. Review also refers 
to processing any document for disclosure, i.e., doing all that is 
necessary to excise exempt portions of the document or otherwise 
prepare the document for release. Review time includes time spent 
considering any formal objection to disclosure made by a business 
submitter requesting confidential treatment but does not include time 
spent resolving general legal or policy issues regarding the 
application of exemptions.
    Search means all time spent reviewing, manually or by automated 
means, Commission records for the purpose of locating those records 
that are responsive to a FOIA request, including, but not limited to, 
page-by-page or line-by-line identification of material within 
documents and also includes reasonable efforts to locate and retrieve 
information from records maintained in electronic form or format. 
Search time does not include review of material to determine whether 
the material is exempt from disclosure.


Sec.  9405.3  Policy on disclosure of records.

    (a) The Commission will make the fullest possible disclosure of 
records to the public, consistent with the rights of individuals to 
privacy, the rights of individuals and other entities with respect to 
trade secrets and commercial or financial information entitled to 
privileged and confidential treatment, and the need for the Commission 
to promote free internal policy deliberations and to pursue its 
official activities without undue disruption.
    (b) All Commission records shall be available to the public unless 
they are specifically exempt under this part.
    (c) In the interest of efficiency and economy, the Commission's 
preference is to furnish records to requesters in electronic format, 
when possible.
    (d) To carry out this policy, the Commission shall designate a 
Chief Freedom of Information Act Officer (Chief FOIA Officer). The 
Chief FOIA Officer shall designate one or more Commission officials, as 
appropriate, as FOIA Public Liaison and/or as FOIA Officers. A FOIA 
Public Liaison shall serve as a supervisory official to whom a FOIA 
requester can raise questions about the service the FOIA requester has 
received. A FOIA Officer shall have the authority, subject to the 
direction and supervision of the Chief FOIA Officer, the requirements 
of this part, and the FOIA, to make decisions concerning disclosure of 
records to the public.


Sec.  9405.4  Availability of records.

    (a) The FOIA and its provisions apply only to existing Commission 
records; the FOIA does not require the creation of new records.
    (b) In accordance with 5 U.S.C. 552(a)(2), the Commission shall 
make the following materials available for public inspection and 
copying:
    (1) Statements of policy and interpretation that have been adopted 
by the Commission but have not been published in the Federal Register;
    (2) Administrative staff manuals and instructions to staff that 
affect a member of the public;
    (3) Copies of all records, regardless of form or format, that have 
been released to any person under this paragraph and that, because of 
their nature or subject matter, the Commission determines have become 
or are likely to become the subject of subsequent requests for 
substantially the same records; and
    (4) A general index of the records referred to in paragraph (b)(3) 
of this section.
    (c) In accordance with 5 U.S.C. 552(a)(3), the Commission shall 
make available, upon proper request, all non-exempt Commission records, 
or portions

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of records, not previously made public under 5 U.S.C. 552(a)(1) and 
(a)(2).
    (d) The Commission shall maintain and make available current 
indexes and supplements providing identifying information regarding any 
matter issued, adopted, or promulgated after July 4, 1967. These 
indexes and supplements shall be published and made available on at 
least a quarterly basis for public distribution unless the Commission 
determines by Notice in the Federal Register that publication would be 
unnecessary, impracticable, or not feasible due to budgetary 
considerations. Nevertheless, copies of any index or supplement shall 
be made available upon request at a cost not to exceed the direct cost 
of duplication.
    (e) If documents or files contain both disclosable and non-
disclosable information, the non-disclosable information will be 
deleted and the disclosable information released, unless the 
disclosable portions cannot be reasonably segregated from the other 
portions in a manner which will allow meaningful information to be 
disclosed.
    (f) All records created in the process of implementing provisions 
of 5 U.S.C. 552 will be maintained by the Commission in accordance with 
the authority granted by the National Archives and Records Service of 
the General Services Administration.
    (g) The Commission encourages the public to explore the information 
available on the Commission's Web site, located at https://www.eac.gov.


Sec.  9405.5  Categories of exemptions.

    (a) No FOIA requests under 5 U.S.C. 552 shall be denied release 
unless the record contains, or its disclosure would reveal, matters 
that are:
    (1) Specifically authorized under criteria established by an 
Executive Order to be kept secret in the interest of national defense 
or foreign policy and are, in fact, properly classified under such 
Executive Order;
    (2) Related solely to the internal personnel rules and practices of 
the Commission;
    (3) Specifically exempted from disclosure by statute, provided that 
such statute:
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (4) Trade secrets and commercial or financial information obtained 
from a person that are privileged or confidential. Such information 
includes confidential business information which concerns or relates to 
the trade secrets, processes, operations, style of works, or apparatus, 
or to the production, sales, shipments, purchases, transfers, 
identification of customers, inventories, or amount of source of 
income, profits, losses, or expenditures of any person, firm, 
partnership, corporation, or other organization, if the disclosure is 
likely to have the effect of either impairing the Commission's ability 
to obtain such information as is necessary to perform its statutory 
functions or causing substantial harm to the competitive position of 
the person, firm, partnership, corporation, or other organization from 
which the information was obtained, unless the Commission is required 
by law to disclose such information. For purposes of this section, 
trade secret means a secret, commercially valuable plan, formula, 
process, or device that is used for the making, preparing, compounding, 
or processing of trade commodities and that can be said to be the end 
product of either innovation or substantial effort. Examples of trade 
secrets may include, but are not limited to, plans, schematics, 
specifications of materials used in production, source code used to 
develop software, technical descriptions of manufacturing process, 
quality control methodology, and test results. The following procedures 
shall be used for submitting business information in confidence:
    (i) Clearly mark any portion of any data or information being 
submitted that in the submitter's opinion is a trade secret or 
commercial and financial information that the submitter is claiming 
should be treated as privileged and confidential and submit such data 
or information separately from other material being submitted to the 
Commission;
    (ii) A request for confidential treatment shall be addressed to the 
Chief FOIA Officer, U.S. Election Assistance Commission, 1225 New York 
Avenue, NW., Suite 1100, Washington, DC 20005 and shall indicate 
clearly on the envelope that it is a request for confidential 
treatment.
    (iii) With each submission of, or offer to submit, business 
information which a submitter desires to be treated as confidential 
under paragraph (a)(4) of this section, the submitter shall provide the 
following, which may be disclosed to the public:
    (A) A written description of the nature of the subject information 
and a justification for the request for its confidential treatment, and
    (B) A certification in writing under oath that substantially 
identical information is not available to the public.
    (iv) Approval or denial of requests shall be made only by the Chief 
FOIA Officer or his or her designees. A denial shall be in writing, 
shall specify the reason for the denial, and shall advise the submitter 
of the right to appeal to the Commission.
    (v) For good cause shown, the Commission may grant an appeal from a 
denial by the Chief FOIA Officer or his or her designee if the appeal 
is filed within 15 days after receipt of the denial. An appeal shall be 
addressed to the Chief FOIA Officer, U.S. Election Assistance 
Commission, 1225 New York Avenue, NW., Suite 1100, Washington, DC 20005 
and shall clearly indicate that it is a confidential submission appeal. 
An appeal will be decided within 20 days after its receipt (excluding 
Saturdays, Sundays, and legal holidays) unless an extension, stated in 
writing with the reasons therefore, has been provided to the person 
making the appeal.
    (vi) Any business information submitted in confidence and 
determined to be entitled to confidential treatment shall be maintained 
in confidence by the Commission and not disclosed except as required by 
law. In the event that any business information submitted to the 
Commission is not entitled to confidential treatment, the submitter 
will be permitted to withdraw the tender unless it is the subject of a 
request under the FOIA or of judicial discovery proceedings.
    (5) Interagency or intra-agency memoranda or letters that would not 
be available by law to a party in litigation with the Commission;
    (6) Personnel and medical files and similar files, the disclosure 
of which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information:
    (i) Could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) Would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, or foreign agency or 
authority or any private institution that furnished information on a 
confidential basis, and, in the case of a record or information 
compiled by a criminal law enforcement authority in the course of a 
criminal

[[Page 54260]]

investigation, or by an agency conducting a lawful national security 
intelligence investigation, information furnished by a confidential 
source;
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (b) Any portion of a record that reasonably can be segregated from 
the balance of the record shall be provided to any individual 
requesting such record after deletion of the portions which are exempt. 
The amount of information deleted and the exemption under which the 
deletion is made shall be indicated on the released portion of the 
record, unless including that indication would harm an interest 
protected by an exemption in paragraph (a) of this section under which 
the deletion is made. If technically feasible, the amount of the 
information deleted shall be indicated at the place in the record where 
such deletion is made.
    (c) If a requested record is one of another government agency or 
deals with subject matter to which a government agency other than the 
Commission has exclusive or primary responsibility, the request for 
such a record shall be promptly referred by the Commission to that 
agency for disposition or guidance as to disposition.
    (d) Nothing in this part authorizes withholding of information or 
limiting the availability of records to the public, except as 
specifically provided; nor is this part authority to withhold 
information from Congress.


Sec.  9405.6  Discretionary release of exempt records.

    The Commission may, in its discretion, release requested records 
despite the applicability of the exemptions in Sec.  9405.5, if it 
determines that it is in the public interest and that the rights of 
third parties would not be prejudiced. The Executive Director will have 
the authority to determine that requested records may be released 
despite otherwise applicable exemptions.


Sec.  9405.7  Requests for records.

    (a) Requests for copies of Commission records under the FOIA shall 
be made in writing and addressed to the Chief FOIA Officer, U.S. 
Election Assistance Commission, 1225 New York Avenue, NW., Suite 1100, 
Washington, DC 20005. The request shall reasonably describe the records 
sought with sufficient specificity with respect to names, dates, and 
subject matter to permit the records to be located. A requester will be 
promptly advised if the records cannot be located on the basis of the 
description given and that further identifying information must be 
provided before the request can be satisfied.
    (b) Requests for Commission records and copies thereof shall 
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 available in that form or format. When 
requesters do not specify the form or format of the response, the 
Commission shall respond in the form or format in which the document is 
most accessible to the Commission. In the interest of efficiency and 
economy, the Commission's preference is to furnish records to 
requesters in electronic format, whenever possible.
    (c) The Commission shall determine within 20 working days after 
receipt of a request, or 20 working days after an appeal is granted, 
whether to comply with such request, unless in unusual circumstances 
the time is extended. The 20-day period shall commence on the date on 
which the request was first received by the appropriate component of 
the Commission, but in any event, not later than 10 days after the 
request is first received by the component of the Commission designated 
to receive requests under this part. The 20-day period shall not be 
tolled by the Commission except--
    (1) The Commission may make one request of the requester for 
information and toll the 20-day period while it is awaiting such 
information that it has reasonably requested from the requester.
    (2) If it is necessary to clarify with the requester issues 
regarding fee assessment.
    (3) Under paragraphs (c)(1) or (2) of this section, the 
Commission's receipt of the requester's response to the Commission's 
request for information or clarification ends the tolling period.
    (d) In the event the time is extended under paragraph (c) of this 
section, the requester shall be notified of the reasons for the 
extension and the date on which a determination is expected to be made. 
An extension may be made if it is--
    (1) Necessary to locate records or transfer them from physically 
separate facilities; or
    (2) Necessary to search for, collect, and appropriately examine a 
large quantity of separate and distinct records that are the subject of 
a single request; or
    (3) Necessary for consultation with another agency that has a 
substantial interest in the determination of the request.
    (e) If the Commission determines that an extension of time is 
necessary to respond to a request satisfying the unusual circumstances 
specified in paragraph (c) of this section, the Commission shall so 
notify the requester and give the requester an opportunity to limit the 
scope of the request so that it may be processed within the time limit 
prescribed in paragraph (c) of this section or arrange with the 
Commission an alternative time frame for processing the request or a 
modified request.
    (f) The Commission may aggregate and process as a single request 
requests by the same requester, or a group of requesters acting in 
concert, if the Commission reasonably believes that the requests 
actually constitute a single request that would otherwise satisfy the 
unusual circumstances specified in paragraph (c) of this section, and 
the requests involve clearly related matters.
    (g) The Commission will process requests under the FOIA based on 
the order they are received.
    (h) The Commission shall consider requests for the expedited 
processing of requests in cases where the requester demonstrates a 
compelling need for such processing.
    (1) The term ``compelling need'' means, with respect to a request 
made by a person primarily engaged in disseminating information, 
urgency to inform the public concerning actual or alleged Federal 
government activity.
    (2) Requesters for expedited processing must include in their 
requests a statement setting forth the basis for the claim that a 
``compelling need'' exists for the requested information, certified by 
the requester to be true and correct to the best of his or her 
knowledge and belief.
    (3) The Commission shall determine whether to grant a request for 
expedited processing and notify the requester of such determination 
within 10 days of receipt of the request. Denials of requests for 
expedited processing may be appealed as set forth in Sec.  9405.8. The 
Commission shall expeditiously determine any such appeal. As soon as 
practicable, the Commission shall process the documents responsive to a 
request for which expedited processing is granted.
    (i) Any person denied access to records by the Commission shall be 
notified immediately of the denial, including the reasons for the 
decision

[[Page 54261]]

and notified of his or her right to appeal the adverse determination to 
the Commission.
    (j) The date of receipt of a request under this part shall be the 
date on which the Chief FOIA Officer actually receives the request.
    (k) Each request received by the Chief FOIA Officer will be 
assigned an individualized tracking number. Requesters may call (866) 
747-1471 and, using the tracking number, obtain information about the 
request, including the date on which the Commission originally received 
the request and an estimated date on which the Commission will complete 
action on the request.


Sec.  9405.8  Appeals of denials of requests for records.

    (a) Any person who has been notified under Sec.  9405.7(i) that 
his/her request for inspection of a record or for a copy of a record 
has been denied, or who has received no response within 20 working days 
(or within such extended period as is permitted under Sec.  9405.7(d)) 
after the request has been received by the Commission, or who has 
received no response within 20 days after a request for expedited 
processing has been received by the Commission, may appeal the adverse 
determination or the failure to respond by requesting the Commission to 
direct that the record be made available or that the expedited 
processing shall occur.
    (b) The appeal request shall be in writing, shall clearly and 
prominently state on the envelope or other cover and at the top of the 
first page ``FOIA Appeal,'' and shall identify the record in the form 
in which it was originally requested.
    (c) The appeal request should be delivered or addressed to the 
Chief FOIA Officer, U.S. Election Assistance Commission, 1225 New York 
Avenue, NW., Suite 1100, Washington, DC 20005.
    (d) The requester may state facts and cite legal or other 
authorities as he or she deems appropriate in support of the appeal 
request.
    (e) The Commission will make a determination with respect to any 
appeal within 20 working days after receipt of the appeal (or within 
such extended period as is permitted under Sec.  9405.7). If, on 
appeal, the denial of the request for a record or a copy is in whole or 
in part upheld, the Commission shall advise the requester of the denial 
and shall notify him or her of the provisions for judicial review of 
that determination as set forth in 5 U.S.C. 552(a)(4).
    (f) Because of the risk of misunderstanding inherent in oral 
communications, the Commission will not entertain any appeal from an 
alleged denial or failure to comply with an oral request. Any person 
who has orally requested a copy of a record that he or she believes to 
have been improperly denied should resubmit the request in writing as 
set forth in Sec.  9405.7.


Sec.  9405.9  Fees in general.

    (a) Generally. The Commission will charge fees that recoup the full 
allowable direct costs it incurs. The Commission will use the most 
efficient and least costly means to comply with requests for 
documentation.
    (b) Manual searches for records. The Commission will charge fees at 
the salary rate(s) (basic pay plus 16 percent) of the employee(s) 
making the search.
    (c) Computer searches for records. The Commission will charge the 
actual direct cost of operating the central processing unit (CPU) for 
that portion of operating time that is directly attributable to 
searching for records responsive to a FOIA request and operator/
programmer salary apportionable to the search.
    (d) Review of records. Only requesters who are seeking documents 
for commercial use may be charged for time spent reviewing records to 
determine whether they are exempt from mandatory disclosure. Charges 
may be assessed only for the initial review (i.e., the review 
undertaken the first time the Commission analyzes the applicability of 
a specific exemption to a particular record or portion of a record). 
Records or portions of records withheld in full under an exemption that 
is subsequently determined not to apply may be reviewed again to 
determine the applicability of other exemptions not previously 
considered. The costs for such a subsequent review are assessable. The 
Commission will charge at the salary rate(s) (basic pay plus 16 
percent) of the employee(s) reviewing records.
    (e) Duplication of records. Records will be duplicated at a rate of 
fifteen (15) cents per page. For copies prepared by computers, such as 
tapes, CDs, DVDs, or printouts, the Commission shall charge the actual 
cost, including operator time, of production. For other methods of 
reproduction or duplication, the Commission will charge the actual 
direct costs of producing the document(s). If the Commission estimates 
that duplication charges are likely to exceed $25, it shall notify the 
requester of the estimated amount of fees, unless the requester has 
indicated in advance a willingness to pay fees as high as those 
anticipated. Such a notice shall offer a requester the opportunity to 
confer with agency personnel with the object of reformulating the 
request to meet his or her needs at a lower cost.
    (f) Other charges. The Commission will recover the full costs of 
providing services such as those enumerated below when it provides them 
in response to a direct request for such services:
    (1) Certifying that records are true copies; or
    (2) Sending records by special methods such as express mail.
    (g) Payment of fees. Remittance shall be in the form either of a 
personal check or bank draft drawn on a bank in the United States or a 
postal money order. Remittance shall be made payable to the order of 
the Treasury of the United States and mailed to the Chief FOIA Officer, 
U.S. Election Assistance Commission, 1225 New York Avenue, NW., Suite 
1100, Washington, DC 20005.
    (h) Receipt of fees. A receipt for fees paid will be given upon 
request. Refund of fees paid for services actually rendered will not be 
made.
    (i) Restrictions on assessing fees. The Commission shall not assess 
search fees or duplication fees under this paragraph if the Commission 
fails to comply with any time limit in these regulations. The 
Commission will not charge fees to any requester, including commercial 
use requesters, if the cost of collecting a fee would be equal to or 
greater than the fee itself. With the exception of requesters seeking 
documents for a commercial use, the Commission will not charge fees for 
the first 100 pages of duplication and the first two hours of search 
time.
    (1) The elements to be considered in determining the ``cost of 
collecting a fee'' are the administrative costs of receiving and 
recording a requester's remittance and processing the fee for deposit 
in the Treasury Department's special account.
    (2) For purposes of these restrictions on assessment of fees, the 
word ``pages'' means paper copies of 8.5'' x 11'' or 11'' x 14.'' Thus, 
requesters are not entitled to 100 computer disks, for example.
    (3) For purposes of these restrictions on assessment of fees, the 
term ``search time'' means manual search. To apply this term to 
searches made by computer, the Commission will determine the hourly 
cost of operating the CPU and the operator's hourly salary plus 16 
percent. When the cost of such search (including operator time and the 
cost of operating the computer to process a request) equals the 
equivalent dollar amount of two hours of salary of the person 
performing the search (i.e., the

[[Page 54262]]

operator), the Commission will begin assessing charges for computer 
search.


Sec.  9405.10  Fees to be charged--categories of requesters.

    There are four categories of FOIA requesters: Commercial use 
requesters; educational and non-commercial scientific institutions; 
representatives of the news media; and all other requesters.
    (a) Commercial use requesters. When the Commission receives a 
request for documents for commercial use, it will assess charges that 
recover the full direct costs of searching for, reviewing for release, 
and duplicating the record sought. Commercial use requesters are 
neither entitled to two hours of free search time nor 100 free pages of 
duplication. The Commission may recover the cost of searching for and 
reviewing records even if there is ultimately no disclosure of records 
(see Sec.  9405.11(b)).
    (b) Educational and non-commercial scientific institution 
requesters. The Commission shall provide documents to requesters in 
this category for the cost of reproduction alone, excluding charges for 
the first 100 pages. To be eligible for inclusion in this category, 
requesters must show that the record is being made as authorized by and 
under the auspices of a qualifying institution and that the records are 
not sought for a commercial use but are sought in the furtherance of 
scholarly (if the request is from an educational institution) or 
scientific (if the request is from a non-commercial scientific 
institution) research.
    (c) Representatives of the news media. The Commission shall provide 
documents to requesters in this category for the cost of reproduction 
alone, excluding charges for the first 100 pages. To be eligible for 
inclusion in this category, the requester must fit the definition of a 
representative of the news media as stated in Sec.  9405.2, and the 
request must not be made for commercial use. For purposes of this 
paragraph, a request for records supporting the news dissemination 
function of the requester shall not be considered to be a request that 
is for commercial use.
    (d) All other requesters. The Commission shall charge requesters 
who do not fit into any of the categories above fees that recover the 
full reasonable direct cost of searching for and reproducing records 
that are responsive to the request, except that the first 100 pages of 
reproduction and the first two hours of search time shall be furnished 
without charge.


Sec.  9405.11  Miscellaneous fee provisions.

    (a) Charging Interest--notice and rate. The Commission may begin 
assessing interest charges on an unpaid bill starting on the 31st day 
following the day on which the billing was sent. The fact that the fee 
has been received by the Commission within the 30-day grace period, 
even if it is not processed, will suffice to stay the accrual of 
interest. Interest will be at the rate prescribed in section 3717 of 
title 31 of the United States Code and will accrue from the date of the 
billing.
    (b) Charges for unsuccessful search. The Commission may assess 
charges for time spent searching, even if it fails to locate the 
records or if the records located are determined to be exempt from 
disclosure. If the Commission estimates that search charges are likely 
to exceed $25, it shall notify the requester of the estimated amount of 
fees, unless the requester has indicated in advance his willingness to 
pay fees as high as those anticipated. Such a notice shall offer the 
requester the opportunity to confer with agency personnel with the 
object of reformulating the request to meet his or her needs at a lower 
cost.
    (c) Aggregating requests. A requester may not file multiple 
requests at the same time, each seeking portions of a document or 
documents, solely in order to avoid payment of fees. When the 
Commission reasonably believes that a requester or a group of 
requestors acting in concert has submitted requests that constitute a 
single request involving clearly related matters, the Commission may 
aggregate those requests and charge accordingly. One element to be 
considered in determining whether a belief would be reasonable is the 
time period over which the requests have occurred.
    (d) Advance payments. The Commission may not require a requester to 
make an advance payment (i.e., payment before work is commenced or 
continued on a request) unless:
    (1) The Commission estimates or determines that allowable charges 
that a requester may be required to pay are likely to exceed $250. 
Then, the Commission will notify the requester of the likely cost and 
obtain satisfactory assurance of full payment where the requester has a 
history of prompt payment of FOIA fees or require an advance payment of 
an amount up to the full estimated charges in the case of requesters 
with no history of payment; or
    (2) A requester has previously failed to pay a fee charged in a 
timely fashion (i.e., within 30 days of the date of the billing). Then, 
the Commission may require the requester to:
    (i) Pay the full amount owed plus any applicable interest as 
provided above or demonstrate that he or she has, in fact, paid the 
fee, and
    (ii) Make an advance payment of the full amount of the estimated 
fee before the agency begins to process a new request or a pending 
request from that requester.
    (3) When the Commission acts under paragraphs (d)(1) or (2) of this 
section, the administrative time limits prescribed in 5 U.S.C. 
552(a)(6) will begin only after the Commission has received payments 
described in paragraphs (d)(1) and (2) of this section.
    (e) Effect of Debt Collection Act of 1982. The Commission shall 
comply with the provisions of the Debt Collection Act, including 
disclosure to consumer reporting agencies and use of collection 
agencies, where appropriate, to encourage repayment.


Sec.  9405.12  Waiver or reduction of charges.

    Records responsive to a request will be furnished without charge 
when the Chief FOIA Officer determines, based on all available 
information, that disclosure of the requested information is 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.

PART 9407--IMPLEMENTATION OF THE GOVERNMENT IN THE SUNSHINE ACT

Sec.
9407.1 Purpose and scope.
9407.2 Definitions.
9407.3 Open meetings.
9407.4 Notice of meetings.
9407.5 Closed meetings.
9407.6 Procedures for closing meetings.
9407.7 Recordkeeping requirements.
9407.8 Public availability of records.

    Authority: 5 U.S.C. 552b.


Sec.  9407.1  Purpose and scope.

    This part contains the regulations of the U.S. Election Assistance 
Commission implementing the Government in the Sunshine Act (5 U.S.C. 
552b). Consistent with the Act, it is the policy of the Commission that 
the public is entitled to the fullest practicable information regarding 
its decision making processes. This part sets forth the basic 
responsibilities of the Commission with regard to this policy and 
offers guidance to members of the public who wish to exercise the 
rights established by the Act. These regulations also fulfill the 
requirement

[[Page 54263]]

of 5 U.S.C. 552b(g) that each agency subject to the Act promulgates 
regulations to implement the open meeting requirements of paragraphs 
(b) through (f) of section 552b.


Sec.  9407.2  Definitions.

    As used in this part, the term--
    Commission means the U.S. Election Assistance Commission, 
established by the Help America Vote Act of 2002, 42 U.S.C. 15301 et 
seq.
    Commissioner means an individual appointed to the Commission by the 
President and confirmed by the Senate under section 203 of the Help 
America Vote Act of 2002, 42 U.S.C. 15323.
    Executive Director means the Executive Director of the Commission 
or his or her designee.
    General Counsel means the General Counsel of the Commission or his 
or her designee.
    Meeting means the deliberations of at least three Commissioners 
where such deliberations determine or result in the joint conduct or 
disposition of official Commission business. A deliberation conducted 
through telephone or similar communications equipment in which all 
persons participating can hear each other shall be considered a 
meeting. For the purposes of this section, ``joint conduct'' does not 
include situations where the requisite number of members is physically 
present in one place but not conducting agency business as a body. In 
addition, the term ``meeting'' does not include a process of notation 
voting by circulated memorandum for the purpose of expediting 
consideration of official Commission business. The term ``meeting'' 
also does not include deliberations on whether to:
    (1) Schedule a meeting;
    (2) Hold a meeting with less than seven days notice, as provided in 
Sec.  9407.4(e);
    (3) Change the subject matter of a publicly announced meeting or 
the determination of the Commission to open or close a meeting or 
portions of a meeting to public observation, as provided in Sec.  
9407.4(f);
    (4) Change the time or place of an announced meeting, as provided 
in Sec.  9407.4(g);
    (5) Close a meeting or portions of a meeting, as provided in Sec.  
9407.5; or
    (6) Withhold from disclosure information pertaining to a meeting or 
portions of a meeting, as provided in Sec.  9407.5.
    Public observation means attendance by one or more members of the 
public at a meeting of the Commission but does not include 
participation in the meeting.
    Public participation means the presentation or discussion of 
information, raising of questions, or other manner of involvement in a 
meeting of the Commission by one or more members of the public in a 
manner that contributes to the disposition of Commission business.


Sec.  9407.3  Open meetings.

    (a) The Commissioners shall not jointly conduct, determine, or 
dispose of agency business other than in accordance with this section.
    (b) Except as otherwise provided in this part, every portion of 
every Commission meeting shall be open to public observation.
    (c) No additional right to participate in Commission meetings is 
granted to any person by this part. Meetings of the Commission, or 
portions of a meeting, shall be open to public participation only when 
an announcement to that effect is issued under Sec.  9407.4(b)(4). 
Public participation shall be conducted in an orderly, non-disruptive 
manner and in accordance with any procedures as the chairperson of the 
meeting may establish. Public participation may be terminated at any 
time for any reason.
    (d) When holding open meetings, the Commission shall make a 
diligent effort to provide appropriate space, sufficient visibility, 
and adequate acoustics to accommodate the public attendance anticipated 
for the meeting. When open meetings are conducted through telephone or 
similar communications equipment, the Commission shall make an effort 
to provide sufficient access to the public in a manner which allows the 
public to clearly hear, see, or otherwise follow the proceedings. The 
meeting room or other forum selected shall be sufficient to accommodate 
a reasonable number of interested members of the public. The Commission 
shall ensure that public meetings are held at a reasonable time and are 
readily accessible to individuals with disabilities.
    (e) Members of the public attending open Commission meetings may 
use small electronic audio recording devices to record the proceedings. 
The use of any other recording equipment and cameras requires advance 
coordination with and notice to the Commission's Communications Office. 
The chair or acting chair of the Commission may prohibit, at any time, 
the use of any recording equipment during a public meeting if he or she 
determines that such recording would disrupt the orderly conduct of the 
meeting.


Sec.  9407.4  Notice of meetings.

    (a) Except as otherwise provided in this section, the Commission 
shall make a public announcement at least seven days prior to a 
meeting.
    (b) The public announcement shall include:
    (1) The time and place of the meeting;
    (2) The subject matter of the meeting;
    (3) Whether the meeting is to be open, closed, or portions of a 
meeting will be closed;
    (4) Whether public participation will be allowed; and
    (5) The name and telephone number of the person who will respond to 
requests for information about the meeting.
    (c) The public announcement requirement shall be implemented by:
    (1) Publishing the announcement on the Commission's Web site; and
    (2) Distributing the announcement to affected government entities 
and persons and organizations that the Executive Director determines 
may have an interest in the subject matter of the meeting.
    (d) The announcement will be submitted for publication in the 
Federal Register immediately following the public posting and 
distribution noted in paragraph (c) of this section.
    (e) A meeting may be held with less than seven days notice if a 
majority of the Commission determines by recorded vote that the 
business of the Commission so requires. The Commission shall make a 
public announcement to this effect at the earliest practicable time. 
The announcement shall include the information required by paragraph 
(b) of this section and shall be issued in accordance with those 
procedures set forth in paragraphs (c) and (d) of this section that are 
practicable given the available period of time.
    (f) The subject matter of an announced meeting or the determination 
of the Commission to open or close a meeting or portions of a meeting 
to public observation may be changed only if:
    (1) A majority of the Commissioners determine by a recorded vote 
that agency business so requires and that no earlier announcement of 
the change was possible,
    (2) The Commission publicly announces the change and the vote of 
each Commissioner upon such change at the earliest practicable time.
    (3) The announcement of the change noted in paragraph (f)(2) of 
this section is issued in accordance with those procedures set forth in 
paragraphs (c) and (d) of this section that are practicable given the 
available period of time.
    (g) The time or place of an announced meeting may be changed only 
if a public

[[Page 54264]]

announcement of the change is made at the earliest practicable time. 
The announcement shall be issued in accordance with those procedures 
set forth in paragraphs (c) and (d) of this section that are 
practicable given the available period of time.


Sec.  9407.5  Closed meetings.

    (a) A meeting or portions of a meeting may be closed and 
information pertaining to such meeting or portions of a meeting may be 
withheld from the public only if the Commission determines that such 
meeting or portions of a meeting or the disclosure of such information 
is likely to:
    (1) Disclose matters that are:
    (i) Specifically authorized under criteria established by an 
Executive Order to be kept secret in the interest of national defense 
or foreign policy, and
    (ii) To be properly classified under that Executive Order;
    (2) Relate solely to the internal personnel rules and practices of 
the Commission;
    (3) Disclose matters specifically exempted from disclosure by 
statute (other than the Freedom of Information Act, 5 U.S.C. 552) 
provided that the statute:
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (4) Disclose the trade secrets and commercial or financial 
information obtained from a person and privileged or confidential;
    (5) Involve either accusing any person of a crime or formally 
censuring any person;
    (6) Disclose information of a personal nature, if disclosure would 
constitute a clearly unwarranted invasion of personal privacy;
    (7) Disclose either investigatory records compiled for law 
enforcement purposes or information which, if written, would be 
contained in such records but only to the extent that the production of 
the records or information would:
    (i) Interfere with enforcement proceedings,
    (ii) Deprive a person of a right to either a fair trial or an 
impartial adjudication,
    (iii) Constitute an unwarranted invasion of personal privacy,
    (iv) Disclose the identity of a confidential source or sources and, 
in the case of a record compiled either by a criminal law enforcement 
authority in the course of a criminal investigation or by an agency 
conducting a lawful national security intelligence investigation, 
confidential information furnished only by the confidential source or 
sources,
    (v) Disclose investigative techniques and procedures, or
    (vi) Endanger the life or physical safety of law enforcement 
personnel;
    (8) Disclose information contained in or related to examination, 
operating, or condition reports prepared by, on behalf of, or for the 
use of an agency responsible for the regulation or supervision of 
financial institutions;
    (9) Disclose information the premature disclosure of which would be 
likely to significantly frustrate implementation of a proposed action 
of the Commission. This exception shall not apply in any instance where 
the Commission has already disclosed to the public the content or 
nature of the proposed action or where the Commission is required by 
law to make such disclosure on its own initiative prior to taking final 
action on the proposal; or
    (10) Specifically concern the issuance of a subpoena by the 
Commission; or the participation of the Commission in a civil action or 
proceeding, an action in a foreign court or international tribunal, or 
an arbitration; or the initiation, conduct, or disposition by the 
Commission of a particular case of formal adjudication under the 
procedures in 5 U.S.C. 554 or otherwise involving a determination on 
the record after opportunity for a hearing.
    (b) Before a meeting or portions of a meeting may be closed to 
public observation, the Commission shall determine, notwithstanding the 
exemptions set forth in paragraph (a) of this section, whether the 
public interest requires that the meeting or portions of a meeting be 
open consistent with Federal law. The Commission may open a meeting or 
portions of a meeting that could be closed under paragraph (a) of this 
section if the Commission finds it to be in the public interest to do 
so and the disclosure is not otherwise prohibited by Federal law.


Sec.  9407.6  Procedures for closing meetings.

    (a) A meeting or portions of a meeting may be closed and 
information pertaining to a meeting or portions of a meeting may be 
withheld under Sec.  9407.5(a) only when a majority of the members of 
the Commission vote to take the action.
    (b) A separate vote of the Commissioners shall be taken with 
respect to each meeting or portion of a meeting proposed to be closed 
and with respect to information which is proposed to be withheld. A 
single vote may be taken with respect to a series of meetings or 
portions of a meeting that are proposed to be closed, so long as each 
meeting or portion of a meeting in the series involves the same 
particular matter and is scheduled to be held no more than 30 days 
after the initial meeting in the series. The vote of each participating 
Commission member shall be recorded, and no proxies shall be allowed.
    (c) A person whose interests may be directly affected by a portion 
of a meeting may request in writing that the Commission close that 
portion of the meeting for any of the reasons referred to in Sec.  
9407.5(a)(5), (6), or (7) . Upon the request of a Commissioner, a 
recorded vote shall be taken whether to close such meeting or a portion 
of a meeting.
    (d) Before the Commission may hold a meeting that is closed, in 
whole or part, a certification shall be obtained from the General 
Counsel that, in his or her opinion, the meeting may properly be 
closed. The certification shall be in writing and shall state each 
applicable exemption provision from Sec.  9407.5(a).
    (e) Within one day of a vote taken under this section, the 
Commission shall make publicly available a written copy of such vote 
reflecting the vote of each Commissioner.
    (f) In the case of the closure of a meeting or portions thereof, 
the Commission shall make publicly available within one day of the vote 
on such action a full written explanation of the reasons for the 
closing with a list of all persons expected to attend the meeting and 
their affiliation.


Sec.  9407.7  Recordkeeping requirements.

    (a) The Commission shall maintain either a complete transcript or 
electron