Freedom of Information Act Regulations, 57252-57260 [E9-26144]

Agencies

• POSTAL REGULATORY COMMISSION

[Federal Register Volume 74, Number 213 (Thursday, November 5, 2009)]
[Rules and Regulations]
[Pages 57252-57260]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-26144]


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POSTAL REGULATORY COMMISSION

39 CFR Parts 3001 and 3004

[Docket No. RM2009-6; Order No. 322]


Freedom of Information Act Regulations

AGENCY: Postal Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Commission is adopting final rules related to the Freedom 
of Information Act. The final rules reflect several changes made in 
response to commenters' suggestions. They implement recent amendments 
clarifying the relationship of these rules to others, and make minor 
editorial and conforming changes.

DATES: Effective December 7, 2009.

FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel, 
202-789-6820 or stephen.sharfman@prc.gov.

SUPPLEMENTARY INFORMATION: Regulatory History, 74 FR 33388 (July 13, 
2009).

I. Introduction
II. Comments
III. Discussion
IV. Section-by-Section Analysis of the Rules
V. Ordering Paragraphs

I. Introduction

    In this order, the Postal Regulatory Commission (Commission) adopts 
rules which govern processing of Freedom of Information Act (FOIA), 5 
U.S.C. 552, requests. These final rules revise procedures for the 
Commission's handling of FOIA requests to reflect the Openness Promotes 
Effectiveness in our National Government Act of 2007, Public Law 110-
175, 121 Stat. 2524 (OPEN Government Act). The Commission finds these 
updates necessary in light of statutory changes and policy direction 
from the President and the Attorney General.\1\
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    \1\ See OPEN Government Act, Public Law 110-175, 121 Stat. 2524 
(2007); see also Memorandum for the Heads of Executive Departments 
and Agencies, January 21, 2009, 74 FR 4683 (January 26, 2009); and 
Office of the Attorney General, Memorandum for Heads of Executive 
Departments and Agencies (March 19, 2009); and Department of Justice 
Office of Information Policy FOIA Post 8, April 17, 2009.
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    The Commission proposed changes to its FOIA rules (39 CFR part 
3004) in Order No. 230.\2\ The substantive changes included a 
declaration of a presumption of openness, a provision to allow partial 
grants of requests, a mechanism for requesters to receive a tracking 
number for each FOIA request,

[[Page 57253]]

a rule barring the collection of fees if the Commission does not comply 
with the 20 working day time limit, and a designation of the FOIA 
Public Liaison. See id. at 3. Following evaluation of comments 
received, the Commission makes several minor clarifying changes, adds 
language to distinguish the Chief Freedom of Information Officer from 
the Freedom of Information Act Liaison, and adopts these revised rules.
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    \2\ PRC Order No. 230, Notice of Proposed Rulemaking to 
Establish Procedures for the Freedom of Information Act, July 1, 
2009 (Order No. 230).
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II. Comments

    The Commission received three comments on the proposed rules.\3\ 
The Commission appreciates the parties' comments on the proposed rules, 
and incorporates several minor revisions as suggested by the comments. 
Thus, these final rules differ slightly from the proposed rules in ways 
designed to clarify and improve the rules in response to the comments.
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    \3\ Comments of the National Security Archive on the Postal 
Regulatory Commission's Proposed Freedom of Information Act 
Regulations, August 10, 2009 (NSA Comments); Initial Comments of the 
Greeting Card Association, August 12, 2009 (GCA Comments); and 
Public Representative Comments on Proposed Rulemaking to Establish 
Procedures for the Freedom of Information Act, August 12, 2009 
(Public Representative Comments).
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    The Public Representative states that the proposed changes to the 
Commission's FOIA rules ``appear to be in the interests of the general 
public.'' Public Representative Comments at 2. However, the Public 
Representative suggests that the Commission remove or revise proposed 
rule 3004.11, Non-Public Records, to reflect the reality that all 
records kept by the Commission are public records. Id. The Public 
Representative believes proposed rules 3004.10 (public records) and 
3004.11 (non-public records) may imply that only public records may be 
requested. Id. at 3. The Public Representative also calls for a 
reduction in the fees charged for reproduction under proposed rule 
3004.53 to reflect decreased costs from technology gains. Id.
    The National Security Archive makes three suggestions. First, it 
suggests revising proposed rules 3004.10 and 3004.11 to clarify that 
all records of the Commission are public records, and that many of the 
statutory exemptions are discretionary. NSA Comments at 1-4. Second, it 
proposes amending proposed rule 3004.12 to describe the Commission's 
obligation to post frequently requested records in its electronic 
reading room. Id. at 4-5. Finally, it suggests that the Commission edit 
proposed rule 3004.52(e) to bar collection of fees for a partial grant 
of a request, arguing, inter alia, that it ``creates an inefficient and 
inappropriate incentive for the Commission to release whatever records 
it can most easily aggregate before the time limit runs * * *.'' Id. at 
6.
    The Greeting Card Association (GCA) suggests that the Commission 
clarify the relationship between its FOIA rules (part 3004) and its 
confidentiality rules (part 3007). GCA comments that proposed rule 
3004.30(d)(1) should be clarified because it makes ``no provision for 
legitimately confidential third-party information which is not also a 
Postal Service record.'' GCA Comments at 2. GCA also expresses concern 
that the protections afforded in part 3007 are broader than the FOIA 
exemptions, and thus the FOIA procedures may undermine the protections 
afforded under part 3007. Id. at 3-5. Similarly, GCA comments that the 
title of proposed rule 3004.70, ``Submission of business information,'' 
is narrower than the FOIA exemptions and part 3007 in general. Id. at 
6.

III. Discussion

    This rulemaking amends the Commission's rules for Freedom of 
Information Act requests to reflect changes in 5 U.S.C. 552 as updated 
by the OPEN Government Act and policy articulated by the President and 
the Attorney General. The rules also provide procedures which 
accommodate FOIA policies and requirements as well as the Commission's 
rules for according appropriate confidentiality, 39 CFR part 3007. The 
Commission endeavors to conduct its business transparently; it 
proactively discloses a wealth of information to the public. In these 
rules, the Commission identifies the Secretary of the Commission as the 
officer responsible for answering all FOIA requests.
    When the Commission receives a FOIA request, it must balance 
parties' legitimate conflicting interests. For example, on one hand, 
the Public Representative and National Security Archive urge the 
Commission to adopt FOIA rules which provide the public with open 
access to Commission records. On the other hand, GCA is concerned that 
confidential material parties submit to the Commission remains 
protected as articulated in part 3007. Both interests are valid, and 
the Commission strikes an appropriate balance with its FOIA rules. Four 
issues are raised by the comments to the Commission's previously 
proposed rules.
    Public vs. non-public records. The Public Representative and the 
National Security Archive comment that proposed rule 3004.11, Non-
public records, should be modified or deleted to remove a source of 
possible confusion. The Public Representative and the National Security 
Archive state that all Commission records are public records, and a 
rule describing non-public records may lead the public to believe they 
may not request such records under FOIA. See NSA Comments at 1-4.
    The Commission agrees with the Public Representative's and the 
National Security Archive's characterization that all records of the 
Commission are public records. It also agrees that proposed rule 
3004.11, Non-public records, may be misleading. The purpose of the rule 
is to offer some guidance to the public as to the types of records the 
Commission is likely to claim exempt from disclosure under 5 U.S.C. 
552(b). However, in the interest of avoiding confusion, the Commission 
re-titles proposed rule 3004.11 with language proposed by the National 
Security Archive. Rule 3004.11 is now ``Use of exemptions'' and 
provides a summary of the possible exemptions the Commission may claim 
under FOIA.
    Reading room. Similarly, the National Security Archive suggests 
amending proposed rule 3004.12 to describe the Commission's duty to 
post frequently requested records, or records the Commission believes 
to be of great public interest. Id. at 2-4.
    The Commission finds the National Security Archive's suggestions to 
revise proposed rule 3004.12 reasonable. The Commission adds a 
paragraph to that rule which describes the Commission's duty to post 
frequently requested records, and without a request, those records the 
Commission believes to be of significant public interest.
    Fees. Both the Public Representative and the National Security 
Archive comment on the Commission's fees as outlined in proposed rules 
3004.52 and 3004.53. The Public Representative encourages the 
Commission to reduce its fees for duplication found in proposed rule 
3004.53(a)(4) to reflect the lower actual cost of duplication. The 
Commission allows that technology gains have lowered the cost of 
duplication, but it must also take into account the cost of materials, 
operator time, and other direct costs. As a result of these 
considerations, the Commission finds it reasonable to reduce the 
duplication fee in proposed rule 3004.53(a)(4) from 15 cents to 10 
cents per page for paper copies.
    The Commission is not persuaded by the National Security Archive's 
recommendation to eliminate proposed rule 3004.52(e), which allows the 
Commission to charge a fee for the

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partial grant of a request while it reviews other sensitive records 
which may be responsive to the request. The Commission's files 
frequently contain records submitted by a third party or on behalf of a 
third party which are commercially sensitive.\4\ The Commission must 
protect such materials from disclosure or risk that third parties will 
not provide it with the materials necessary to fulfill its statutory 
obligations. Therefore, when the Commission receives a request for 
voluminous records, it must be able to segregate those records that it 
can release immediately and those which trigger due process rights for 
other parties prior to the Commission making a determination regarding 
public release.
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    \4\ See Docket No. RM2008-1, Final Rule Establishing Appropriate 
Confidentiality Procedures, June 19, 2009, for an overview of the 
types of materials the Commission must use to fulfill its duties and 
keep under seal for protection of the Postal Service or third 
parties.
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    The Commission appreciates the National Security Archive's concern 
that this rule may create an incentive for the Commission to quickly 
release a set of records to charge a fee, and postpone consideration of 
release for ``other sensitive records.'' However, to amend the rule as 
the National Security Archive suggests would constrain the Commission's 
ability to give the submitters of non-public materials an opportunity 
to address their concerns about the possible release of their 
confidential information. In the interest of avoiding confusion, the 
Commission amends the proposed rule to remove the ambiguous ``sensitive 
records'' language and replace it with a specific reference to the 
exemptions.
    Relationship between part 3004 and part 3007. GCA raises several 
concerns about the relationship between the FOIA rules (part 3004) and 
the confidentiality rules (part 3007).
    First, GCA sets forth what it thinks is the meaning of proposed 
rule 3004.30(d), which provides that Postal Service non-public filings 
may be requested under part 3007, and that FOIA requests for Postal 
Service records shall be referred to the Postal Service. GCA believes 
that if a FOIA request seeks non-public materials (defined in part 
3007) that are Postal Service records, the FOIA request ``will be 
denied and the requester will be allowed to seek access to them under 
Part 3007.'' GCA Comments at 2. It further believes that any FOIA 
request for Postal Service records which are not non-public (as defined 
in part 3007) will be referred to the Postal Service. Id.
    GCA's reading of proposed rule 3004.30(d) is not entirely correct. 
The Commission may not deny a FOIA request simply because the materials 
are non-public under part 3007. Proposed rule 3004.30 sets forth that 
part 3007 is an alternate means of accessing Postal Service records 
that are held by the Commission. Proposed rule 3004.30 also informs a 
requester that a FOIA request for a record that the Postal Service 
designates as non-public and files with the Commission shall be 
referred to the Postal Service. See, e.g., Sussman v. U.S. Marshals 
Serv., 494 F.3d 1106, 1118 (DC Cir. 2007) (refusing summary judgment 
and rejecting the argument that consultation is the only approved 
procedure under FOIA). The Commission shall continue its current 
practice of handling FOIA requests for records which are both Postal 
Service and Commission records insofar as it will consult, refer, or 
release as appropriate under the circumstances.
    The Commission adopts rule 3004.30(d) as proposed with minor 
editorial revisions to clarify the procedures the Commission shall 
follow when it receives FOIA requests for records which are both 
Commission and Postal Service records. The rule gives guidance to the 
public that Postal Service records may be requested under part 3007, 
but a FOIA request for records which the Postal Service filed as non-
public materials pursuant to part 3007 shall be referred to the Postal 
Service.
    Second, GCA points out the tension between the standard in the 
Commission's confidentiality rules for general release (rule 3007.33) 
and exemption 4 under FOIA. GCA Comments at 4-5. Rule 3007.33 balances 
the interests of the parties under Federal Rule of Civil Procedure 
26(c) when determining if a third-party non-public record shall be 
released. Exemption 4 applies to privileged or confidential trade 
secret and commercial or financial information. Because exemption 4 is 
narrower than the standard articulated in rule 3007.33, GCA expresses 
concern that a FOIA request may reopen the question of its non-public 
status for non-public materials submitted under part 3007. Id. at 5.
    GCA raises valid concerns. The Commission adds new paragraph (e) to 
proposed rule 3004.30 entitled ``Requesting a third-party record 
submitted under seal.'' This paragraph explains that the Commission 
will endeavor to provide the same standard for release of third-party 
materials under FOIA as it provides third-party materials filed under 
seal pursuant to part 3007. The Commission adopts the statutory 
exemptions articulated in 39 U.S.C. 410(c) to allow full protection of 
Postal Service and third-party non-public materials and to afford 
consistency with the Commission's confidentiality rules. The Commission 
believes that, when deciding public release, balancing the interests of 
the parties, pursuant to rule 3007.33 will offer no less protection 
than applying exemption 4 and 39 U.S.C. 410(c) under FOIA.
    Final rule 3004.30(e) follows the same structure as proposed rule 
3004.30(d) and assures third-party non-public material submitters that 
their materials shall only be released under FOIA if applicable 
exemptions, including section 410(c) standards, do not apply.
    The Commission adopts the section 410(c) standard in proposed rule 
3004.11 for use when a third party designates materials as non-public 
and submits them to the Commission. 39 U.S.C. 504(e) sets forth that 
``section 410 * * * of this title shall apply to the Commission, as 
appropriate.'' The Commission finds it appropriate to incorporate 
section 410(c) standards in its FOIA rules applicable to third-party 
non-public materials.
    Third, GCA expresses concern that proposed rule 3004.30 does not 
protect third-party or Postal Service non-public materials with as 
broad a standard as part 3007. Id. at 2-3. GCA argues that if proposed 
rule 3004.70 requires the submitter to furnish ``a statement in 
addition to the grounds already given, and accepted, for non-public 
treatment under Part 3007, this provision would not be inappropriate.'' 
Id. at 3-4. (Emphasis in original.)
    GCA's reading of the proposed rule is correct, with one caveat. 
GCA's statement that the rationale for non-public treatment was 
``already given, and accepted'' is an incorrect reading of part 3007. 
Rules 3007.21 and 3007.22 set forth the requirements for Postal Service 
and third-party applications for non-public treatment. Once those 
requirements are met, the Commission shall preliminarily treat those 
materials as non-public materials as provided in rule 3007.23.
    However, no rationale for non-public treatment given in the 
application has been ``accepted'' unless the Commission makes a 
determination of non-public status (for Postal Service submissions) 
under rule 3007.32, or in response to a motion for early termination of 
non-public status (for any submissions) under rule 3007.31.
    GCA also cites the example of 39 U.S.C. 410(c), the ``good business 
practice'' statutory exemption from

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FOIA, which is broader than the nine FOIA exemptions. Id. at 4. This 
point is well taken; however, because records designated as non-public 
by the Postal Service that are requested under FOIA shall be referred 
to the Postal Service (where the Postal Service can invoke its section 
410(c) exemption), there is no conflict between 39 U.S.C. 410(c) and 
the FOIA exemptions. Because the Commission adopts section 410(c) 
standards, as discussed in the preceding paragraphs, the Commission is 
able to afford third parties the same protections the Postal Service 
affords itself through use of the section 410(c) ``good business 
practice'' exemption, and thus there is no conflict between the Postal 
Service's protection of third-party non-public materials, and the 
Commission's protection of those materials.
    Fourth, GCA argues that the heading and paragraph (b) of proposed 
rule 3004.70 improperly use the term ``business information'' since the 
FOIA exemptions cover more than business information. Id. at 6.
    The Commission agrees with GCA's assessment, and amends the heading 
of rule 3004.70 as originally proposed to ``Third-party submission of 
non-public materials.'' Likewise, the term ``business information'' in 
paragraph (b) is replaced with ``materials.''

IV. Section-by-Section Analysis of the Rules

    Section 3004.1 Purpose. Rule 3004.1 sets forth the purpose of part 
3004, and outlines the procedures under FOIA for requesting records 
from the Commission. Paragraph (b) identifies the location of required 
FOIA publications.
    Section 3004.2 Presumption of openness. Rule 3004.2 explains the 
``presumption of openness'' mandated by the President and further 
explained by the Attorney General and Department of Justice.
    Section 3004.10 Public records. Rule 3004.10 describes examples of 
Commission records which do not implicate any exemption under 5 U.S.C. 
552(b).
    Section 3004.11 Use of exemptions. Rule 3004.11 sets forth the 
exemptions the Commission may use to protect records from disclosure, 
and identifies which exemptions are discretionary in nature. The rule 
also identifies the 39 U.S.C. 410(c) exemptions as examples of 
exemption 3 ``specifically exempted from disclosure by statute.''
    Section 3004.12 Reading room. Rule 3004.12 indicates that the 
Commission maintains an electronic reading room on the Commission's Web 
site and a physical reading room at the Commission's offices. 
Paragraphs (b) and (c) describe the types of records available in the 
reading rooms.
    Section 3004.13 Notice and publication of public information. Rule 
3004.13 gives information about the availability of Commission orders, 
decisions, and reports, and the availability of the Commission's 
guiding principles.
    Section 3004.20 Commission procedure when served a subpoena. This 
rule sets forth the procedure the Commission, 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 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. This rule includes 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. Paragraph (d) states that the Commission shall 
refer FOIA requests for Postal Service non-public materials filed 
pursuant to part 3007, and that part 3007 is an alternate avenue for 
seeking release of those records. Paragraph (e) is added to describe 
how the Commission shall handle FOIA requests for third-party non-
public materials.
    Section 3004.40 Hard copy requests for records and for expedited 
processing. This rule lists the requirements for hard copy requests for 
records under FOIA. Paragraphs (a)(1) through (a)(6) delineate the 
requirements for hard copy requests, including a new requirement that 
the requester identify the request category under rule 3004.51. 
Paragraphs (b)(1) through (b)(3) describe the requirements for a 
request for expedited processing.
    Section 3004.41 Electronic requests for records and for expedited 
processing. 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 rule 3004.40, but requires 
that an electronic request utilize the form for FOIA requests on the 
Commission's Web site.
    Section 3004.42 Tracking of requests. Rule 3004.42 states that the 
Commission shall assign a unique tracking number to each request within 
3 days of receipt, and how a requester may use the number to check the 
status of a request.
    Section 3004.43 Response to requests. Rule 3004.43 explains the 
Commission's actions upon receiving a request. It describes that the 
Commission may grant a request, in whole or in part, deny a request, or 
grant or deny expedited processing.
    Section 3004.44 Appeals. Rule 3004.44 describes the process of 
administrative appeals to the Commission after the Secretary or 
Assistant Secretary makes an initial determination on the request.
    Section 3004.45 Extension of response time limit. This rule 
describes the procedures the Commission must follow to extend the time 
limit for responding to a request.
    Section 3004.50 Fees--definitions as used in this part. Rule 
3004.50 sets forth definitions used to determine the request category 
and fee structure.
    Section 3004.51 Fees--request category. This rule describes that 
the fees the Commission charges for processing FOIA requests are 
determined by the category of the requester--commercial, educational 
and scientific institution, representative of the news media, and all 
other requesters.
    Section 3004.52 Fees--general provisions. This rule describes when 
the Commission may charge fees, and how the fees are to be calculated 
for various activities. The proposed rule was modified to remove the 
ambiguous ``other sensitive records'' language and replace it with a 
reference to the exemptions.
    Section 3004.53 Fee schedule. Rule 3004.53 describes the fees 
charged for various activities the Commission may complete to respond 
to a request. The duplication fees described in proposed rule 
3004.53(a)(4) are reduced from 15 cents to 10 cents per page.
    Section 3004.54 Procedure for assessing and collecting fees. Rule 
3004.54 explains the Commission's assessment of interest and the 
circumstances under which the Commission requires advance payment of 
fees.
    Section 3004.60 Chief Freedom of Information Act Officer. Rule 
3004.60 designates the Secretary of the Commission as the Chief FOIA 
Officer. The Chief FOIA Officer is responsible for administration of 
and reporting on the Commission's FOIA program.
    Section 3004.61 Freedom of Information Act Public Liaison. Rule 
3004.61 designates the Director of the Office of Public Affairs and 
Government Relations as the FOIA Public Liaison. The FOIA Public 
Liaison provides an

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avenue for the public to informally resolve FOIA disputes with the 
Commission.
    Section 3004.70 Third-party submission of non-public materials. 
Rule 3004.70 describes how the Commission will respond to requests for 
confidential third-party materials, and how the FOIA standard overlaps 
with part 3007.

V. Ordering Paragraphs

    It is ordered:
    1. The Commission hereby adopts the set of final rules governing 
the Freedom of Information Act that follow the Secretary's signature as 
part of 39 CFR part 3004.
    2. It is also making a conforming change to eliminate 39 CFR 
3001.42.
    3. These rules shall take effect 30 days after publication in the 
Federal Register.
    4. The Secretary shall arrange for publication of this order 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.
Shoshana M. Grove,
Secretary.

0
For the reasons discussed in the preamble, the Postal Regulatory 
Commission amends chapter III of title 39 of the Code of Federal 
Regulations as follows:

PART 3001--RULES OF PRACTICE AND PROCEDURE

0
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]

0
2. Remove Sec.  3001.42.
0
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 Use of exemptions.
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 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 part.
3004.51 Fees--request category.
3004.52 Fees--general provisions.
3004.53 Fee schedule.
3004.54 Procedure for assessing and collecting fees.
3004.60 Chief Freedom of Information Act Officer.
3004.61 Freedom of Information Act Public Liaison.
3004.70 Third-party submission of non-public materials.

    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, and 
on the Commission's Web site at https://www.prc.gov. The Commission's 
guide to FOIA, all required FOIA indexes, and recent 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, notices, 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 before the Commission and 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 exhibits 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 data or information 
request directed to the Postal Service.
    (g) Commission correspondence with respect to the furnishing of 
data, information, comments, or

[[Page 57257]]

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  Use of exemptions.

    (a) Under FOIA, there are nine exemptions which may be used to 
protect information from disclosure. The Commission has paraphrased the 
exemptions in paragraphs (b) through (j) of this section. These 
paraphrases are not intended to be interpretations of the exemptions.
    (b) National security information concerning national defense or 
foreign policy, provided that such information has been properly 
classified, in accordance with an Executive Order.
    (c) Information related solely to the internal personnel rules and 
practices of an agency.
    (d) Information specifically exempted from disclosure by statute, 
for example, 39 U.S.C. 410(c):
    (1) The name or address, past or present, of any postal patron;
    (2) Information of a commercial nature, including trade secrets, 
whether or not obtained from a person outside the Postal Service, which 
under good business practice would not be publicly disclosed;
    (3) Information prepared for use in connection with the negotiation 
of collective bargaining agreements under 39 U.S.C. chapter 12, or 
minutes of, or notes kept during negotiating sessions conducted under 
such chapter;
    (4) Information prepared for use in connection with proceedings 
under 39 U.S.C. chapter 36; and
    (5) The reports and memoranda of consultants or independent 
contractors except to the extent that they would be required to be 
disclosed if prepared within the agency.
    (e) Trade secrets and commercial or financial information which is 
obtained from a person and is privileged or confidential.
    (f) Inter-agency or intra-agency memoranda or letters, which would 
not be available by law to a party other than an agency in litigation 
with the agency.
    (g) Personnel and medical files and similar files, the disclosure 
of which would constitute a clearly unwarranted invasion of personal 
privacy.
    (h) Records or information compiled for law enforcement purposes, 
the release of which:
    (1) Could reasonably be expected to interfere with enforcement 
proceedings;
    (2) Would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (3) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (4) Could reasonably be expected to disclose the identity of a 
confidential source and investigations or prosecutions if such 
disclosure could reasonably be expected to risk circumvention of the 
law; or
    (5) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (i) Information contained in or related to examination, operating, 
or condition reports, prepared by, or on behalf of, or for the use of 
an agency responsible for regulating or supervising financial 
institutions.
    (j) Geological and geophysical information and data, including 
maps, concerning wells.
    (k) It is Commission policy to make records publicly available upon 
request, unless the record qualifies for exemption under one or more of 
the nine exemptions. It is Commission policy to make discretionary 
releases; however, a discretionary release is not normally appropriate 
for records exempt under exemptions identified in paragraphs (b), (d), 
(e), (g), (h)(3) and (h)(5) of this section. The remainder of the 
exemptions are discretionary.
    (l) The following are examples of information that is 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 staff 
members while particularly assigned, in accordance with all applicable 
legal requirements, to aid the Commission in the drafting of any 
decision, notice, order, advisory opinion, or public report and 
findings, with or without opinion, or report in any matter or 
proceeding;
    (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.
    (c) The Commission shall make available, in the electronic and 
physical reading rooms, records previously released under FOIA and 
which the Commission determines are or are likely to become of 
significant public interest.


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.
    (b) Descriptions of the Commission's organization, its methods of 
operation, statements of policy and interpretations, and procedural and 
substantive rules, are published in the Federal Register publication 
system, 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

[[Page 57258]]

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 
is governed by the Privacy Act. Release will first be considered under 
the Privacy Act pursuant to part 3003 of this chapter. However, if 
there is any record that the Commission need not release under the 
Privacy Act, the Commission will also consider the 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 records that are both Commission and Postal Service records.
    (1) A request made pursuant to FOIA for records designated as non-
public by the Postal Service shall be referred to the Postal Service; 
and
    (2) A request made pursuant to part 3007 of this chapter for 
records designated as non-public by the Postal Service shall be 
considered under the applicable standards set forth in that part.
    (e) Requesting a third-party record submitted under seal. The 
Commission maintains records of a confidential nature submitted by 
third parties as non-public materials.
    (1) A request made pursuant to FOIA for records designated as non-
public by a third party shall be considered in light of all applicable 
exemptions; and
    (2) A request made pursuant to part 3007 of this chapter for 
records designated as non-public by a third party shall be considered 
under the applicable standards set forth in that part.


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) Include the name and address of the requester;
    (3) Reasonably describe the records sought;
    (4) Include a daytime telephone number;
    (5) Be clearly identified as ``Freedom of Information Act Request'' 
both in the text of the request and on the envelope;
    (6) Identify the request category under Sec.  3004.51; and
    (7) 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 submitted using 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 request category under Sec.  3004.51.
    (b) Expedited processing. A person satisfying the requirements of 
paragraph (a) of this section 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) 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 or Assistant Secretary will notify the requester of its 
determination to grant or deny the request.
    (b) Granting request. If granting the request, the Secretary, or 
Assistant Secretary 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 Secretary or 
Assistant Secretary will notify the requester of any fees that must be 
paid.
    (d) Denying request. If denying the request, in whole or in part, 
the Secretary or Assistant Secretary 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 or Assistant Secretary will:

[[Page 57259]]

    (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.  3004.41(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 or 
Assistant Secretary on its own initiative.
    (b) A requester who seeks to appeal any denial must file an appeal 
with the Commission.
    (c)(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 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--request category.

    (a) The level of fee charged depends on the request category.
    (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 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, reviewing, and 
duplicating records responsive to the request, except that the first 
100 pages of duplication and the first 2 hours of search/review 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.

[[Page 57260]]

    (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.  3004.43 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.  3004.45. The Commission may, 
however, charge fees for a partial grant of a request while it reviews 
records that may be exempt and 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 employee 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 10 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 the direct 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) In addition to the fee waiver provisions of Sec.  3004.52(d), 
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.  3004.43) 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  Chief Freedom of Information Act Officer.

    The Commission designates the Secretary of the Commission as the 
Chief FOIA Officer. The Chief FOIA Officer shall be responsible for the 
administration of and reporting on the Commission's Freedom of 
Information Act program.


Sec.  3004.61  Freedom of Information Act Public Liaison.

    The Commission designates the Director of the Office of Public 
Affairs and Government Relations or his or her designee 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  Third-party submission of non-public materials.

    (a) Overlap with treatment of non-public materials. Any person who 
submits materials to the Commission (submitter) that the submitter 
reasonably believes to be exempt from public disclosure may submit 
materials under seal and lodge an application for nonpublic treatment 
as described in Sec.  3007.10 of this chapter.
    (b) Notice of request. Except as provided in Sec.  3004.30(d), if a 
FOIA request seeks materials designated as nonpublic materials, the 
Commission will provide the submitter with notice of the request. The 
Commission may also provide notice when it has reason to believe that 
third-party materials 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, beyond those objections articulated in 
its application for nonpublic treatment pursuant to Sec.  3007.10 of 
this chapter, 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 publication of the Commission's decision.

[FR Doc. E9-26144 Filed 11-4-09; 8:45 am]
BILLING CODE 7710-FW-P