33388 Federal Register / Vol. 74, No. 132 / Monday, July 13, 2009 / Proposed Rules 

1Memorandum for the Heads of Executive 

Departments and Agencies, January 21, 2009 (74 FR 

4683 (January 26, 2009)). 

2Office of the Attorney General, Memorandum 

for Heads of Executive Departments and Agencies, 

March 19, 2009. 

federally owned lands administered by 

the National Park Service along the 

river, within Grand Canyon National 

Park: 

(1) Commercial use of the Colorado 

River within Grand Canyon National 

Park must be authorized by the National 

Park Service through a permit, contract, 

or other written agreement. Each 

commercial river trip must designate a 

trip leader who is responsible for 

ensuring that all trip participants 

comply with the terms and conditions 

of the authorizing instrument. 

(2) Noncommercial use of the 

Colorado River within Grand Canyon 

National Park, including research by 

any agency, entity, or person except the 

National Park Service, must be 

authorized by a permit issued by the 

Superintendent. The permit holder is 

deemed to be the trip leader and is 

responsible for ensuring that all trip 

participants comply with the terms and 

conditions of the permit. 

(3) A river trip is commercial if any 

participant receives money or other 

compensation for organizing, outfitting, 

or guiding the trip. A river trip is 

noncommercial if: 

(i) There is a bona fide sharing of 

expenses among trip participants; and 

(ii) No participant receives any money 

or other compensation for organizing, 

outfitting, or guiding the trip. 

(4) At any time the Superintendent 

may limit the number of permits, 

contracts, and other written agreements 

issued or may amend the terms and 

conditions of those permits, contracts, 

and other written agreements to ensure 

public safety or to protect park 

resources. 

(5) From Lees Ferry (River Mile 0) to 

Separation Canyon (approximately 

River Mile 239.5): 

(i) No one may operate a vessel 

engaging in predominately upstream 

travel; 

(ii) No one may operate a vessel 

powered by a motor or motors whose 

total horsepower exceeds 55; 

(iii) Every person aboard a vessel 

must wear a personal floatation device 

approved by the United States Coast 

Guard for the specific activity in which 

the person is engaged; and 

(iv) One additional personal floatation 

device must be carried on each vessel 

for every ten persons on board. 

(6) All solid human waste must be 

removed from the park and disposed of 

in the manner prescribed by the 

Superintendent. 

(7) Fire may be kindled only on 

beaches in an elevated metal fire pan 

that contains the fire. All fires must be 

completely extinguished with water 

before the river trip participants leave 

the area. All ash and charcoal must be 

removed from the park. 

(8) The following areas are closed to 

camping: 

(i) The banks of the Colorado River 

from the mouth of the Paria River to 

Navajo Bridge; 

(ii) Red Wall Cavern; 

(iii) The banks of the Colorado River 

from the Black Bridge to 0.25 miles 

below the mouth of Pipe Creek; 

(iv) The Elves Chasm drainage from 

Royal Arch to the Colorado River; 

(v) The Deer Creek drainage from Deer 

Creek Falls to the Colorado River; 

(vi) The Havasu Creek drainage from 

the boundary between the park and the 

Havasupai Indian reservation to the 

Colorado River; and 

(vii) Any other areas closed to 

camping by the Superintendent. 

(9) The Superintendent may 

temporarily limit, restrict, or terminate 

access to or use of areas after taking into 

consideration public health and safety, 

natural and cultural resource protection, 

and other management activities and 

objectives. 

* * * * * 

Will Shafroth, 

Acting Assistant Secretary, Fish and Wildlife 

and Parks. 

[FR Doc. E9–16482 Filed 7–10–09; 8:45 am] 

BILLING CODE 4312–ED–P 

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. 

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 http:// 

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

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 

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3See Docket No. RM2008–1, Final Rules 

Establishing Appropriate Confidentiality 

Procedures, June 19, 2009. 74 FR 30938 (June 29, 

2009). 

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 sectionby-section analysis. 

Finally, the Commission references its 

rules governing the treatment of nonpublic 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. 

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 

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33390 Federal Register / Vol. 74, No. 132 / Monday, July 13, 2009 / Proposed Rules 

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. 

§ 3001.42 [Removed] 

2. Remove § 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. 

§ 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 http:// 

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. 

§ 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. 

§ 3004.10 Public records. 

(a) Except as provided in § 3004.11 

and in § 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. 

§ 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; 

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33392 Federal Register / Vol. 74, No. 132 / Monday, July 13, 2009 / Proposed Rules 

(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. 

§ 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 http:// 

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 § 3004.10 relating to any 

matter or proceeding before the 

Commission. 

§ 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 http:// 

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, http:// 

www.prc.gov. 

§ 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. 

§ 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. 

§ 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 § 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. 

§ 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 http:// 

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 § 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. 

§ 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. 

§ 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. 

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(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 § 3004.21(b)(1), the 

Commission may grant requests for 

expedited processing at its discretion. 

§ 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. 

§ 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. 

§ 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 machinereadable. 

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. 

§ 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 

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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. 

§ 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 §§ 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 § 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. 

§ 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. 

§ 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) 

(§ 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. 

§ 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. 

§ 3004.70 Submission of business 

information. 

(a) Overlap with treatment of nonpublic 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 nonpublic treatment as described in 

§ 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 

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