Freedom of Information Act Regulations, 33388-33394 [E9-16417]

Agencies

• POSTAL REGULATORY COMMISSION

[Federal Register Volume 74, Number 132 (Monday, July 13, 2009)]
[Proposed Rules]
[Pages 33388-33394]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-16417]


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POSTAL REGULATORY COMMISSION

39 CFR Parts 3001 and 3004

[Docket No. RM2009-6; Order No. 230]


Freedom of Information Act Regulations

AGENCY: Postal Regulatory Commission.

ACTION: Proposed rulemaking.

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SUMMARY: The Commission is proposing to revise rules related to the 
Freedom of Information Act. The proposed revisions implement recent 
amendments, clarify the relationship of these rules to others, and make 
minor editorial and conforming changes.

DATES: Initial comments due: August 12, 2009; reply comments due August 
27, 2009.

ADDRESSES: Submit comment electronically via the Commission's Filing 
Online system at https://www.prc.gov.

FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel, 
202-789-6820.

SUPPLEMENTARY INFORMATION: 

I. Introduction
II. Discussion of the Proposed Rules
III. Section-by-Section Analysis of Changes
IV. Public Representative
V. Ordering Paragraphs

I. Introduction

    The Postal Regulatory Commission (Commission) proposes to update 
its rules governing Freedom of Information Act (FOIA), 5 U.S.C. 552, 
requests. The Openness Promotes Effectiveness in our National 
Government Act of 2007, Public Law 110-175, 121 Stat. 2524 (OPEN 
Government Act) was signed into law on December 31, 2007 and amends 5 
U.S.C. 552. The amendments require an update to the Commission's FOIA 
rules published in 39 CFR part 3004.
    On January 21, 2009, President Obama issued a memorandum for the 
heads of all Federal agencies and departments directing a presumption 
of disclosure for all decisions involving FOIA.\1\ At the direction of 
the President, the Attorney General issued a memorandum for the heads 
of all Federal agencies and departments which instructs agencies to use 
``a presumption of openness'' and take proactive steps to publicly post 
information online in advance of any request.\2\
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    \1\ Memorandum for the Heads of Executive Departments and 
Agencies, January 21, 2009 (74 FR 4683 (January 26, 2009)).
    \2\ Office of the Attorney General, Memorandum for Heads of 
Executive Departments and Agencies, March 19, 2009.
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    As a result of amendments to 5 U.S.C. 552, policy memoranda from 
the President and Attorney General, and changes to the regulatory 
framework and organization under the Postal Accountability and 
Enhancement Act (PAEA), Public Law 109-435, 120 Stat. 3198 (2006), the 
Commission proposes to amend its FOIA rules in 39 CFR part 3004.

II. Discussion of the Proposed Rules

    The Commission proposes to implement the OPEN Government Act with 
modifications to its FOIA rules in 39 CFR part 3004. First, the 
Commission adds proposed rule 3004.42, which provides each person 
making a FOIA request with a unique tracking number, and a mechanism to 
track the status of a FOIA request. Second, the Commission adds a 
paragraph to the section governing fees charged for requests. Proposed 
rule 3004.52(e) is added to reflect a change in the statute that does 
not allow an agency to collect fees if it fails to meet applicable time 
limits imposed by the statute. Third, the Commission adds proposed rule 
3004.60, which designates the Director

[[Page 33389]]

of the Office of Public Affairs and Government Relations as the FOIA 
Public Liaison.
    To align the Commission's FOIA policies with the President's vision 
for a more open and accountable government, the Commission makes 
several changes to part 3004. First, the Commission adds proposed rule 
3004.2, announcing the ``presumption of openness'' to be applied to any 
requests under FOIA, and stating that it proactively posts public 
records on its Web site in advance of any public request. Second, the 
Commission adds proposed rule 3004.43(c), which allows for a partial 
grant of a request, rather than a denial, when the Commission cannot 
make a full disclosure. Third, the Commission edits the language in 
proposed rule 3004.43 and requires, when a request is denied in whole 
or in part, an explanation of the basis for withholding the records and 
a description of the foreseeable harm.
    To make the information pertaining to FOIA contained in part 3004 
easier to find, the proposed amendment divides the regulations into 
several smaller individual regulations. For example, proposed rule 
3004.6 Fees is separated into five regulations. Paragraph (a) of 
section 3004.6 becomes proposed rule 3004.50 Fees--definitions as used 
in this subpart. The information in paragraph (b) is relocated to 
proposed rule 3004.52 Fees--general provisions, and the information in 
paragraph (c)(1) is moved to proposed rule 3004.51 Fees--category of 
requests. Paragraph (c)(2) becomes proposed rule 3004.53 Fee schedule. 
Miscellaneous information currently in sections 3004.6(b), (c)(2)(i) 
and (f) is consolidated in proposed rule 3004.52 Fees--general 
provisions. Finally, paragraphs (d) and (e) are relocated to proposed 
rule 3004.54 Procedure for assessing and collecting fees. The substance 
of the regulations being divided is not modified, although the existing 
text is simplified. Similar minor editing is employed throughout the 
proposed rules and noted in the section-by-section analysis.
    Finally, the Commission references its rules governing the 
treatment of non-public materials in several sections.\3\ Proposed rule 
3004.10 references section 3007.10 as an exception to ``public 
records'' as section 3007.10 allows persons to designate materials as 
non-public and initially exempt from disclosure. Similarly, proposed 
rule 3004.30(d) is added which formalizes that FOIA requests for Postal 
Service records will be referred to the Postal Service. The paragraph 
also indicates that records may be requested through the Commission's 
rules in part 3007. Finally, proposed rule 3004.70, which governs 
submission of business information, references part 3007 and the 
submitter's ability to file an application for non-public treatment 
pursuant to that part.
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    \3\ See Docket No. RM2008-1, Final Rules Establishing 
Appropriate Confidentiality Procedures, June 19, 2009. 74 FR 30938 
(June 29, 2009).
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III. Section-by-Section Analysis of Changes

    Section 3004.1 Purpose. In proposed rule 3004.1 the original 
language of paragraph (a) is modified to better describe the function 
of the rules devoted to implementing FOIA. The information in paragraph 
(b) is updated to state that certain information is available on the 
Commission's Web site rather than in the electronic reading room or 
elsewhere on the site.
    Section 3004.2 Presumption of openness. Proposed rule 3004.2 is 
added to recognize the ``presumption of openness'' mandated by the 
President and further explained by the Attorney General and Department 
of Justice.
    Section 3004.10 Public records. Proposed rule 3004.10 replaces 
sections 3001.42(b)(1) through (b)(11). The information contained in 
section 3001.42(b) does not change, although the paragraphs are 
relabeled. For example, paragraph (b)(1) becomes paragraph (a) and 
paragraph (b)(2) becomes paragraph (b). Currently, section 
3001.42(b)(2) is lengthy and contains a long list separated by commas. 
To make the information in the list easier to find, section 
3001.42(b)(2) is divided into paragraphs (b)(1) through (7) of proposed 
rule 3004.10. Finally, the statement that offers of settlement are not 
public would be deleted as it is repeated in section 
3001.42(b)(13)(ii).
    Section 3004.11 Non-public records. Proposed rule 3004.11 replaces 
paragraphs (b)(12) and (13) of section 3001.42. Paragraphs (i) through 
(vii) of section 3001.42(b)(12) are redesignated as proposed rule 
3004.11(a) through (g), and section 3001.42(b)(13) is redesignated as 
proposed rule 3004.11(h).
    Section 3004.12 Reading room. Proposed rule 3004.12 contains the 
same substantive information as current rule 3004.2. The information 
contained in section 3004.2(c), which concerns the electronic reading 
room, is divided into proposed rule 3004.12(a) and (b). Proposed 
paragraph (a) indicates that the Commission has two reading rooms--one 
at its offices and one on its Web site. Proposed paragraph (b) lists 
examples of materials accessible in the reading rooms.
    Section 3004.13 Notice and publication of public information. 
Current section 3001.42(a) is redesignated as proposed rule 3004.13, 
and is divided into two paragraphs--one concerning the availability and 
service of Commission rulings, decisions and reports, and the second 
regarding the availability of the Commission's guiding principles.
    Section 3004.20 Commission procedure when served a subpoena. This 
proposed rule sets forth the procedure the Commission or its officers 
or employees shall follow when served with a subpoena for materials 
which are not public files or records. It requires that service of the 
subpoena shall be immediately reported to the Commission, along with a 
statement of relevant facts, and the Commission shall take the 
appropriate action to respond to the subpoena.
    Section 3004.30 Relationship among the Freedom of Information Act, 
the Privacy Act, and the Commission's procedures for according 
appropriate confidentiality. Proposed rule 3004.30 replaces sections 
3004.1(b) and 3004.6(c)(1)(v). The proposed rule is amended to include 
a reference to the Commission's rules governing the treatment of non-
public materials, and the policy of referring a FOIA request for Postal 
Service records to the Postal Service.
    Section 3004.40 Hard copy requests for records and for expedited 
processing. Section 3004.3, which governs the contents of requests for 
information made to the Commission under FOIA, is redesignated as 
proposed rule 3004.40. Paragraph (a) is divided into six paragraphs 
(a)(1) through (a)(6) to clearly delineate the requirements for hard 
copy requests, including a new requirement that the requester identify 
the category of request under proposed rule 3004.51. The substantive 
information in paragraphs (b) and (c) is consolidated into proposed 
paragraph (b) and rewritten to make the regulations more clear.
    Section 3004.41 Electronic requests for records and for expedited 
processing. Proposed rule 3004.41 sets forth the requirements for 
electronically submitted requests for information made to the 
Commission under FOIA. The rule contains similar requirements to 
proposed rule 3004.40, but requires that the electronic request utilize 
the form for FOIA requests on the Commission's Web site.
    Section 3004.42 Tracking of requests. Proposed rule 3004.42 is

[[Page 33390]]

added to reflect an amendment to FOIA which requires that agencies 
provide a tracking number and mechanism to monitor requests that take 
longer than 10 days to complete.
    Section 3004.43 Response to requests. Proposed rule 3004.43 
explains the Commission's actions upon receiving a request. Currently, 
the information in this proposed regulation is found in section 3004.3. 
The information contained in paragraph (a) is reorganized in multiple 
paragraphs within proposed rule 3004.43. Paragraph (c) is added to 
require that partial disclosures shall be made, if feasible, when a 
full disclosure is not possible. Former section 3004.3(b) contains 
superfluous information and is deleted. Paragraph (f) is added to 
proposed rule 3004.43 replacing section 3004.3(d).
    Section 3004.44 Appeals. Proposed rule 3004.44 replaces section 
3004.5(a). The substantive information in paragraph (a) is reorganized 
into three paragraphs to simplify the regulations.
    Section 3004.45 Extension of response time limit. The information 
currently in section 3004.4(d) and section 3004.5(b) is consolidated 
and reorganized into two paragraphs in proposed rule 3004.45.
    Section 3004.50 Fees---definitions as used in this part. Current 
section 3004.6(a) is redesignated as proposed rule 3004.50. In 
addition, rather than making each definition its own paragraph as in 
section 3004.6(a), the definitions are arranged in alphabetical order 
without any paragraph designation. This allows definitions to be added 
alphabetically in the future without a redesignation of paragraphs. The 
definition of ``Representative of the news media'' is modified to 
conform with an amendment to the definition in the statute.
    Section 3004.51 Fees--category of requests. The fees the Commission 
charges for processing FOIA requests are determined by the category of 
the requester--commercial, educational and scientific, news media, and 
other. Proposed rule 3004.53 replaces section 3004.6(c)(1) in 
identifying the processing fees for each type of requester. The 
language of sections 3004.6(c)(1)(i) through (iv) is not modified, 
although titles identifying the category of user are added to each 
paragraph. Section 3004.6(c)(1)(v) is rewritten to clarify the types of 
fees.
    Section 3004.52 Fees--general provisions. Proposed rule 3004.52 
consolidates general fee information currently found in sections 
3004.6(b), (c)(2)(i), and (f). The part of section 3004.6(c)(2)(i) that 
explains that the Commission may charge for conducting a search even if 
no records are found or the records located are exempt from disclosure 
is relocated to proposed rule 3004.53(a). The information in section 
3004.6(b) is moved to proposed rule 3004.52(b) and (c). Paragraph (f) 
is redesignated as proposed rule 3004.52(d). Proposed rule 3004.52(e) 
is added to reflect a change in the statute which does not allow an 
agency to recover fees if it fails to comply with time limits imposed 
by the statute. However, paragraph (e) does allow the Commission to 
charge fees for a partial disclosure while review continues on other 
sensitive records which may be responsive to the request.
    Section 3004.53 Fee schedule. Section 3004.6(c)(2) is redesignated 
as proposed rule 3004.53.
    Section 3004.54 Procedure for assessing and collecting fees. 
Proposed rule 3004.54 explains the Commission's assessment of interest 
and the circumstances under which the Commission requires advance 
payment of fees. Currently, the information in this proposed rule can 
be found in section 3004.3. Section 3004.6(e) is replaced by proposed 
rule 3004.54(a), which edits the original text to clarify the 
information. Paragraph (d) of section 3004.6 is redesignated as 
proposed rule 3004.54(b).
    Section 3004.60 Freedom of Information Act public liaison. Proposed 
rule 3004.60 is added to designate the Director of the Office of Public 
Affairs and Government Relations as the FOIA Public Liaison. The FOIA 
Public Liaison provides an avenue for the public to informally resolve 
FOIA disputes with the Commission.
    Section 3004.70 Submission of business information. Section 3004.8 
is redesignated as proposed rule 3004.70. Titles are added to each 
paragraph to clarify the information contained therein. Proposed rule 
3004.70(a) is added to indicate the overlap between this rule and 
application for non-public treatment pursuant to part 3007.

IV. Public Representative

    Pursuant to 39 U.S.C. 505, Jeremy L. Simmons is appointed the 
officer of the Commission (Public Representative) to represent the 
interests of the general public in the captioned docket.

V. Ordering Paragraphs

    It is ordered:
    1. Docket No. RM2009-6 is established for the purpose of amending 
the Commission's rules governing the Freedom of Information Act.
    2. Pursuant to 39 U.S.C. 505, Jeremy L. Simmons is appointed to 
serve as officer of the Commission (Public Representative) to represent 
the interests of the general public in these proceedings.
    3. Interested persons may submit initial comments no later than 30 
days from the date of publication of this notice in the Federal 
Register.
    4. Reply comments may be filed no later than 45 days from the date 
of publication of this notice in the Federal Register.
    5. The Secretary shall arrange for publication of this Notice in 
the Federal Register.

List of Subjects

39 CFR Part 3001

    Administrative practice and procedure, Confidential business 
information, Postal Service.

39 CFR Part 3004

    Administrative practice and procedure, Archives and records, 
Freedom of information, Organization, Privacy, Reporting and 
recordkeeping requirements.

    By the Commission.
Judith M. Grady,
Acting Secretary.

    For the reasons stated in the preamble, under the authority at 39 
U.S.C. 504, the Postal Regulatory Commission proposes to amend 39 CFR 
chapter III as follows:

PART 3001--RULES OF PRACTICE AND PROCEDURE

    1. The authority citation for Part 3001 continues to read as 
follows:

    Authority: 39 U.S.C. 404(d) 503; 3661.


Sec.  3001.42  [Removed]

    2. Remove Sec.  3001.42 in its entirety.

PART 3004--PUBLIC RECORDS AND FREEDOM OF INFORMATION ACT

    3. Part 3004 is revised to read as follows:

PART 3004--PUBLIC RECORDS AND FREEDOM OF INFORMATION ACT

Sec.
3004.1 Purpose.
3004.2 Presumption of openness.
3004.10 Public records.
3004.11 Non-public records.
3004.12 Reading room.
3004.13 Notice and publication of public information.
3004.20 Commission procedure when served a subpoena.
3004.30 Relationship among the Freedom of Information Act, the 
Privacy Act, and the

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Commission's procedures for according appropriate confidentiality.
3004.40 Hard copy requests for records and for expedited processing.
3004.41 Electronic requests for records and for expedited 
processing.
3004.42 Tracking of requests.
3004.43 Response to requests.
3004.44 Appeals.
3004.45 Extension of response time limit.
3004.50 Fees-definitions as used in this subpart.
3004.51 Fees-category of requests.
3004.52 Fees-general provisions.
3004.53 Fee schedule.
3004.54 Procedure for assessing and collecting fees.
3004.60 Freedom of Information Act Public Liaison.
3004.70 Submission of business information.

    Authority: 5 U.S.C. 552; 39 U.S.C. 503.


Sec.  3004.1  Purpose.

    (a) This part implements the Freedom of Information Act (FOIA), 5 
U.S.C. 552, and describes the procedures by which a person may request 
copies of Commission records pursuant to FOIA. It contains the rules 
that the Commission follows in handling requests, such as the amount of 
time it has to make a determination regarding release of records and 
what fees to charge. It also describes how a submitter of trade secrets 
or confidential business information can identify information that the 
submitter believes to be exempt from disclosure under 5 U.S.C. 552(b).
    (b) Information required to be published or made available pursuant 
to 5 U.S.C. 552(a)(1) and (a)(2) may be found in 39 CFR part 3002, in 
the Federal Register, or on the Commission's Web site at https://www.prc.gov. The Commission's guide to FOIA, all required FOIA indexes, 
and any available annual FOIA reports are also available on the Web 
site.
    (c) Section 3004.10 identifies records that the Commission has 
determined to be public.


Sec.  3004.2  Presumption of openness.

    (a) The Commission shall be proactive and systematically, in a 
timely manner, post public records online in advance of any public 
request.
    (b) It is the stated policy of the Commission that FOIA requests 
shall be administered with a clear presumption of openness.


Sec.  3004.10  Public records.

    (a) Except as provided in Sec.  3004.11 and in Sec.  3007.10 of 
this chapter, the public records of the Commission include all 
submissions and filings as follows:
    (1) Requests of the Postal Service for decisions or advisory 
opinions, public reports, complaints (both formal and informal), and 
other papers seeking Commission action;
    (2) Financial, statistical and other reports to the Commission, and 
other filings and submittals to the Commission in compliance with the 
requirements of any statute, executive order, or Commission rule, 
regulation or order;
    (3) All answers, replies, responses, objections, protests, motions, 
stipulations, exceptions, other pleadings, notices, depositions, 
certificates, proofs of service, transcripts and briefs in any matter 
or proceeding;
    (4) Exhibits, attachments and appendices to, amendments and 
corrections of, supplements to, or transmittals or withdrawals of any 
of the foregoing; and
    (5) Commission correspondence related to the foregoing.
    (b) All other parts of the formal record in any matter or 
proceeding set for formal or statutory hearing and any Commission 
correspondence related thereto, including:
    (1) Notices or Commission orders initiating the matter or 
proceeding;
    (2) Designation of the presiding officer;
    (3) Transcript of hearings;
    (4) Offers of proof, motions and stipulations made during a 
hearing;
    (5) Exhibits received in evidence during a hearing;
    (6) Certifications to the Commission; and
    (7) Anything else upon which action of a presiding officer or the 
Commission may be based.
    (c) Proposed testimony or exhibit filed with the Commission but not 
yet offered or received in evidence.
    (d) Presiding officer actions and all presiding officer 
correspondence and memoranda to or from anyone other than staff 
assigned to provide assistance to the presiding officer.
    (e) Commission decisions, reports, opinions, orders, notices, 
findings, determinations and other actions in any matter or proceeding 
and all Commission minutes which have been approved.
    (f) Commission correspondence relating to any furnishing of data or 
information by the Postal Service.
    (g) Commission correspondence with respect to the furnishing of 
data, information, comments or recommendations to or by another branch, 
department, or agency of the Government where furnished to satisfy a 
specific requirement of a statute or where made public by that branch, 
department or agency.
    (h) Commission correspondence and reports on legislative matters 
under consideration by the Office of Management and Budget or Congress, 
but only if and after authorized for release or publication by that 
office, the Commission or the Member of Congress involved.
    (i) Commission correspondence on the interpretation or 
applicability of any statute, rule, regulation, decision, advisory 
opinion or public report issued by the Commission and letters of 
opinion on that subject signed by the General Counsel and sent to 
persons other than the Commission, a Commissioner or any of the staff.
    (j) Copies of all filings by the Commission, and all orders, 
judgments, decrees and mandates directed to the Commission in court 
proceedings involving Commission action and all correspondence with the 
courts or clerks of court.
    (k) The Commission's administrative and operating manuals as 
issued.


Sec.  3004.11  Non-public records.

    (a) The public records of the Commission do not include records 
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, in fact, properly classified pursuant to such 
executive order;
    (2) Related solely to the internal personnel rules and practices of 
the Commission;
    (3) Specifically exempted from disclosure by statute;
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Interagency or intra-agency memoranda or letters which would 
not be available by law to a party other than a person or entity 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; and
    (7) Investigatory records compiled for law enforcement purposes to 
the extent specified in 5 U.S.C. 552(b)(7).
    (b) The following are examples of information that are not part of 
the public records of the Commission:
    (1) Written communications between or among the Commission, members 
of the Commission, the Secretary, and expressly designated members of 
the staff while particularly assigned, in accordance with all 
applicable legal requirements, to aid the Commission in the drafting of 
any decision, advisory opinion, or public report and findings, with or 
without opinion, or report in any matter or proceeding;

[[Page 33392]]

    (2) Reports and records compiled or created by the Inspector 
General of the Commission designated as confidential; and
    (3) Unaccepted offers of settlement in any matter or proceeding 
unless or until made public by act of the offeror.


Sec.  3004.12  Reading room.

    (a) The Commission maintains a public reading room at its offices 
(901 New York Avenue, NW., Suite 200, Washington, DC 20268-0001) and an 
electronic reading room at https://www.prc.gov. The public reading room 
at its offices is open during business hours.
    (b) The records available for public inspection and printing 
include, for example, decisions; reports; opinions; orders; notices; 
findings; determinations; statements of policy; copies of selected 
records released under FOIA; indexes required to be maintained under 
FOIA; and records described in Sec.  3004.10 relating to any matter or 
proceeding before the Commission.


Sec.  3004.13  Notice and publication of public information.

    (a) Decisions, advisory opinions, orders and public reports will be 
made available to the public by posting on the Commission's Web site at 
https://www.prc.gov and will be served upon parties to the proceedings 
in accordance with 3001.9 through 3001.12.
    (b) Descriptions of the Commission's organization, its methods of 
operation, statements of policy and interpretations, procedural and 
substantive rules, and amendments thereto are published in the Federal 
Register, and are available on the Commission's Web site, https://www.prc.gov.


Sec.  3004.20  Commission procedure when served a subpoena.

    If an officer or employee of the Commission is served with a 
subpoena duces tecum, material that is not part of the public files and 
records of the Commission shall be produced only as authorized by the 
Commission. Service of such a subpoena shall immediately be reported to 
the Commission with a statement of all relevant facts. The Commission 
will thereupon enter such order or give such instructions as it deems 
advisable.


Sec.  3004.30  Relationship among the Freedom of Information Act, the 
Privacy Act, and the Commission's procedures for according appropriate 
confidentiality.

    (a) Coverage. FOIA applies to all Commission records and provides 
the public with access to government records.
    (b) Requesting records subject to the Privacy Act. A request by an 
individual for his or her own records contained in a system of records 
will be considered under the Privacy Act pursuant to part 3003 of this 
chapter. If there is any record that the Commission need not release to 
such individual under those provisions, the Commission will also 
consider that request under FOIA, and will release the record if FOIA 
requires it.
    (c) Requesting another individual's record. Request for records of 
individuals which may not be granted under the Privacy Act shall be 
considered under FOIA.
    (1) If the Commission makes a disclosure in response to a request 
and the disclosure is permitted by the Privacy Act's disclosure 
provision, 5 U.S.C. 552a(b), the Commission will rely on the Privacy 
Act to govern the disclosure.
    (2) In some circumstances, the Privacy Act may prohibit the 
Commission's ability to release records which may be released under 
FOIA.
    (d) Requesting a Postal Service record. The Commission maintains 
custody of Postal Service records.
    (1) Postal Service records which are covered by the Commission's 
treatment of non-public materials under part 3007 of this chapter may 
be requested following the procedures set forth in that part.
    (2) A request to the Commission for Postal Service records via a 
Freedom of Information Act request pursuant to 5 U.S.C. 552 shall be 
referred to the Postal Service.


Sec.  3004.40  Hard copy requests for records and for expedited 
processing.

    (a) A hard copy request for records must:
    (1) Be in writing;
    (2) Reasonably describe the records sought;
    (3) Include a daytime telephone number;
    (4) Be clearly identified as ``Freedom of Information Act Request'' 
both in the text of the request and on the envelope;
    (5) Identify the category of requester under Sec.  3004.51; and
    (6) Be submitted to the Secretary of the Commission at the offices 
of the Commission (901 New York Avenue, NW., Suite 200, Washington, DC 
20268-0001).
    (b) Expedited processing. A person demonstrating a compelling need 
as defined in 5 U.S.C. 552(a)(6)(E)(v) may request expedited processing 
at the time of an initial request (or appeal) or at a later time. In 
addition to the requirements in paragraph (a) of this section, an 
expedited request for records must:
    (1) Demonstrate a compelling need as defined in 5 U.S.C. 
552(a)(6)(E)(v);
    (2) Be clearly identified as ``Expedited Freedom of Information Act 
Request'' both in the text of the request and on the envelope; and
    (3) Certify the statement of compelling need to be true and correct 
to the best of the requester's knowledge and belief. At its discretion, 
the Commission may waive the requirement for certification.


Sec.  3004.41  Electronic requests for records and for expedited 
processing.

    (a) An electronic request for records must:
    (1) Be made via the Commission's online FOIA request form at https://www.prc.gov;
    (2) Reasonably describe the records sought;
    (3) Include a daytime telephone number and valid e-mail address; 
and
    (4) Identify the category of requester under Sec.  3004.51.
    (b) Expedited processing. A person satisfying the requirements of 
subsection (a) may request expedited processing at the time of the 
initial request or at a later time by:
    (1) Demonstrating a compelling need as defined in 5 U.S.C. 
552(a)(6)(E)(v);
    (2) Clearly identifying the request as an ``Expedited Freedom of 
Information Act Request'' in the body of the submission; and
    (3) Certifying the statement of compelling need to be true and 
correct to the best of the requester's knowledge and belief. At its 
discretion, the Commission may waive the requirement for certification.


Sec.  3004.42  Tracking of requests.

    (a) Upon receipt of a request, the Commission shall assign a unique 
tracking number to the request and within 3 days (excluding Saturdays, 
Sundays and legal holidays) and provide that number to the person 
making the request.
    (b) Any person with a tracking number may call or e-mail the 
Commission's Office of Public Affairs and Government Relations (PAGR) 
to check the status of a request. PAGR may be e-mailed at PRC-PAGR@prc.gov or called at 202-789-6800.


Sec.  3004.43  Response to requests.

    (a) Within 20 days (excluding Saturdays, Sundays and legal 
holidays) after receipt of a request for a Commission record, the 
Secretary of the Commission will notify the requester of its 
determination to grant or deny the request.

[[Page 33393]]

    (b) Granting request. If granting the request, the Commission will 
notify the requester of any fees that must be paid.
    (c) Partial granting of request. If the Commission is unable to 
grant the request in its entirety, any reasonably segregable portion of 
the request shall be provided, with deleted portions treated as 
specified in paragraph (d) of this section, and the Commission will 
notify the requester of any fees that must be paid.
    (d) Denying request. If denying the request, in whole or in part, 
the Commission will inform the requester in writing of:
    (1) The reason for the denial, including each exemption used as a 
basis for withholding of the records sought and, if applicable, the 
harm to an interest protected by a statutory exemption;
    (2) An estimate of the volume of requested matter that was denied:
    (i) If disclosure of a record has been partially denied, the amount 
of information deleted will be indicated on the released portion if 
technically feasible; and
    (ii) If revealing the amount or location of a denied record will 
harm an interest protected by an exemption, then the description of the 
amount or location of deleted information shall be withheld.
    (3) The right to appeal the denial to the Commission within 1 year.
    (e) Expedited processing. Within 10 days (excluding Saturdays, 
Sundays and legal holidays) after receipt of a request for expedited 
processing, the Secretary of the Commission will:
    (1) Grant the request for expedited processing and process the 
request for records as soon as practicable; or
    (2) Deny the request for expedited processing by informing the 
individual of:
    (i) The denial in writing;
    (ii) The right to appeal the denial to the Commission in writing; 
and
    (iii) The procedures for appealing the denial.
    (3) Any request for records that has been denied expedited 
processing will be processed in the same manner as a request that did 
not seek expedited processing.
    (f) Where a compelling need is not shown in an expedited request as 
specified in Sec.  3004.21(b)(1), the Commission may grant requests for 
expedited processing at its discretion.


Sec.  3004.44  Appeals.

    (a) The Commission may review any decision of the Secretary of the 
Commission on its own initiative.
    (b) A requester who seeks to appeal any denial must file an appeal 
with the Commission.
    (c) Response to appeal.
    (1) The Commission will grant or deny the appeal in writing within 
20 days (excluding Saturdays, Sundays and legal holidays) of the date 
the appeal is received. If on appeal the denial of the request for 
records is upheld, the Commission will notify the requester of the 
provisions for judicial review of that determination pursuant to 5 
U.S.C. 552(c).
    (2) The Commission will expeditiously consider an appeal of a 
denial of expedited processing.


Sec.  3004.45  Extension of response time limit.

    (a) The Commission may extend the time limit for a response at the 
request stage and at the appeal stage up to 10 working days due to 
unusual circumstances as specified in 5 U.S.C. 552(a)(6)(B)(iii).
    (b) The Commission will:
    (1) Notify the requester of any extension and the reason for the 
extension in writing; and
    (2) Provide the requester with an opportunity to limit the scope of 
the request or to arrange an alternative timeframe for processing the 
request or a modified request. The applicable time limits are not 
tolled while the Commission waits for a response from the requester 
under this subsection.


Sec.  3004.50  Fees--definitions as used in this part.

    Commercial use means a request from or on behalf of a person 
seeking information for a use or purpose that furthers the commercial, 
trade, or profit interests of the requester or person on whose behalf 
the request is made. In determining the applicability of this term, the 
use to which a requester will put the document is considered first; 
where reasonable doubt exists as to the use, the Commission may seek 
clarification before assigning the request to a category.
    Direct costs means the expenditures the Commission incurs in 
searching for, duplicating, and, where applicable, reviewing documents 
to respond to a request. They include (without limitation) the salary 
of the employee(s) performing work (the basic pay rate of such 
employee(s) plus 16 percent to cover benefits).
    Duplication means copying the documents necessary to respond to a 
request. Such copies may be paper, microform, audiovisual, or machine-
readable.
    Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of graduate or 
undergraduate higher education, an institution of professional 
education, and an institution of vocational education, which operates a 
program or programs of scholarly research.
    Noncommercial scientific institution means an institution, not 
operated on a commercial basis (as referenced above), which is operated 
solely for the purpose of conducting scientific research whose results 
are not intended to promote any particular product or industry.
    Representative of the news media means any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn the raw materials into a distinct 
work, and distributes that work to an audience. The term ``news'' means 
information that is about current events or that would be of current 
interest to the public. Examples of news media entities are television 
or radio stations broadcasting to the public at large and publishers of 
periodicals (but only if such entities qualify as disseminators of 
``news'') who make their products available for purchase or by 
subscription or by free distribution to the general public. These 
examples are not all inclusive and may include alternate media to 
disseminate news. A freelance journalist shall be regarded as working 
for a news media entity if the journalist can demonstrate a solid basis 
for expecting publication through that entity (e.g., by a publication 
contract or prior publication record), whether or not the journalist is 
actually employed by the entity.
    Review means examining documents located in response to a 
commercial use request to determine whether any portion is exempt from 
disclosure, and processing or preparing documents for release, but not 
determination of general legal or policy issues regarding application 
of exemptions.
    Search includes all time spent looking for material responsive to a 
request, including identification of pages or lines within documents. 
The term covers both manual and computerized searching.


Sec.  3004.51  Fees--category of requests.

    (a) The level of fee charged depends on the category of requester.
    (1) Commercial use. A request appearing to be for commercial use 
will be charged the full direct costs of searching for, reviewing and 
duplicating the records sought.
    (2) Educational and noncommercial scientific institutions. A 
request from an educational or noncommercial scientific institution 
will be charged for the cost of duplication only (excluding charges for 
the first 100 pages). To be eligible for this category, a requester 
must show that the request is made under the

[[Page 33394]]

auspices of a qualifying institution and that the records are not 
sought for commercial use but are in furtherance of scholarly (in the 
case of educational institutions) or scientific (in the case of 
noncommercial scientific institutions) research.
    (3) News media. A request from a representative of the news media 
will be charged the cost of duplication only (excluding charges for the 
first 100 pages).
    (4) Other requesters. A request from any other person will be 
charged the full direct cost of searching for, review of, and 
duplicating records responsive to the request, except that the first 
100 pages of duplication and the first 2 hours of search will be 
furnished without charge.
    (b) Privacy Act. A request by an individual for his or her own 
records in a system of records will be charged fees as provided under 
the Commission's Privacy Act regulations in part 3003 of this chapter.


Sec.  3004.52  Fees--general provisions.

    (a) The Commission may charge search fees even if no records are 
found or if the records found are exempt from disclosure.
    (b) Except in the case of commercial use requesters, the first 100 
pages of duplication and the first 2 hours of search time are provided 
without charge.
    (1) A page for these purposes is a letter- or legal-size sheet, or 
the equivalent amount of information in a medium other than paper copy.
    (2) Search time for these purposes refers to manual searching; if 
the search is performed by computer, the 2 hours provided without 
charge will be equal to 2 hours' salary of the person performing the 
search.
    (c) No requester will be charged a fee when the Commission 
determines that the cost of collecting the fee would equal or exceed 
the fee itself. In determining whether cost of collection would equal 
or exceed the fee, the allowance for 2 hours' search or 100 pages of 
duplication will be made before comparing the remaining fee and the 
cost of collection.
    (d) Records will be provided without charge or at a reduced charge 
if disclosure of the 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.
    (e) No requester will be charged a fee after any search or response 
which occurs after the applicable time limits as described in 
Sec. Sec.  3004.42 and 3004.44, so long as there are no unusual or 
exceptional circumstances, such as those used to justify an extension 
of the time limit as described in Sec.  3004.44. The Commission may, 
however, charge fees for a partial grant of a request while it reviews 
other sensitive records, which may be responsive to the request, if it 
is made within the applicable time limits.


Sec.  3004.53  Fee schedule.

    (a) Fees will be calculated as follows:
    (1) Manual search. At the salary rate (basic pay plus 16 percent) 
of the employee(s) making the search. Search time may be charged for 
even if the Commission fails to locate records or if records located 
are exempt from disclosure.
    (2) Computer search. At the direct cost of providing the search, 
including computer search time directly attributable to searching for 
records responsive to the request runs and operator salary 
apportionable to the search.
    (3) Review (commercial use). At the salary rate (basic pay plus 16 
percent) of the employee(s) conducting the review. Charges are imposed 
only for the review necessary at the initial administrative level to 
determine the applicability of any exemption, and not for review at the 
administrative appeal level of an exemption already applied.
    (4) Duplication. At 15 cents per page for paper copy, which the 
Commission has found to be the reasonable direct cost thereof. For 
copies of records prepared by computer (such as tapes or printouts), 
the actually incurred cost of production, including employee time, will 
be charged.
    (5) Additional services. Postage, insurance, and other additional 
services that may be arranged for by the requester will be charged at 
actually incurred cost.
    (b) Fees may be waived at the discretion of the Commission.


Sec.  3004.54  Procedure for assessing and collecting fees.

    (a) Advance payment may be required if the requester failed to pay 
previous bills in a timely fashion or when the fees are likely to 
exceed $250.
    (1) Where the requester has previously failed to pay within 30 days 
of the billing date, the Commission may require the requester to pay an 
advance payment of the estimated fee together with either the past due 
fees (plus applicable interest) or proof that the past fees were paid.
    (2) When advance payment is required, the administrative time 
limits prescribed in 5 U.S.C. 552(a)(6) (Sec.  3004.42) begin only 
after such payment has been received.
    (b) Interest at the rate published by the Secretary of the Treasury 
as prescribed in 31 U.S.C. 3717 will be charged on unpaid fee bills 
starting on the 31st day after the bill was sent. Receipt of a fee by 
the Commission, whether processed or not, will stay the accrual of 
interest.


Sec.  3004.60  Freedom of Information Act Public Liaison.

    The Commission designates the Director of the Office of Public 
Affairs and Government Relations as the FOIA Public Liaison who shall 
assist in the resolution of any dispute between a requester and the 
Commission. The FOIA Public Liaison may be contacted via e-mail at PRC-PAGR@prc.gov or telephone at 202-789-6800.


Sec.  3004.70  Submission of business information.

    (a) Overlap with treatment of non-public materials. Any person who 
submits materials to the Commission (submitter) that the person 
reasonably believes to be exempt from public disclosure may submit 
materials under seal and lodge an application for non-public treatment 
as described in Sec.  3007.10.
    (b) Notice of request. If a FOIA request seeks materials designated 
as exempt from public disclosure, the Commission will provide the 
submitter with notice of the request. The Commission may also provide 
notice when it has reason to believe that business information possibly 
exempt from disclosure may fall within the scope of any FOIA request.
    (c) Objections to disclosure. A submitter may file written 
objections to the request specifying all grounds for withholding the 
information under FOIA within 7 days of the date of the notice. If the 
submitter fails to respond to the notice, the submitter will be 
considered to have no objection to the disclosure of the information.
    (d) Notice of decision. If, after considering the submitter's 
objections to disclosure the Commission decides to disclose the 
information, it will give the submitter written notice of the decision 
and a brief explanation of the reasons for not sustaining the 
submitter's objections. The actual disclosure will not be made before 3 
days after the submitter has received the notice.

 [FR Doc. E9-16417 Filed 7-10-09; 8:45 am]
BILLING CODE 7710-FW-P