Proposed Rule2024-08715
Freedom of Information Act
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 25, 2024
Issuing agencies
Postal Regulatory Commission
Abstract
The Notice of Proposed Rulemaking seeks comment on a proposal to amend the Commission's Freedom of Information Act (FOIA) regulations. The proposal is designed to improve readability by reorganizing and rephrasing existing content in a more accessible manner. Additionally, the proposal would better align the Commission's existing FOIA regulations with the practices of other agencies subject to the FOIA, as necessarily adapted to the Commission's size and area of regulatory oversight. Finally, the proposal includes amendments to clarify and amplify the information given to the public and improve the efficiency of the Commission's FOIA administration. This document informs the public of the filing, invites public comment, and takes other administrative steps.
Full Text
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<title>Federal Register, Volume 89 Issue 81 (Thursday, April 25, 2024)</title>
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[Federal Register Volume 89, Number 81 (Thursday, April 25, 2024)]
[Proposed Rules]
[Pages 31670-31677]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-08715]
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POSTAL REGULATORY COMMISSION
39 CFR Part 3006
[Docket No. RM2024-5; Order No. 7052]
RIN 3211-AA38
Freedom of Information Act
AGENCY: Postal Regulatory Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Notice of Proposed Rulemaking seeks comment on a proposal
to amend the Commission's Freedom of Information Act (FOIA)
regulations. The proposal is designed to improve readability by
reorganizing and rephrasing existing content in a more accessible
manner. Additionally, the proposal would better align the Commission's
existing FOIA regulations with the practices of other agencies subject
to the FOIA, as necessarily adapted to the Commission's size and area
of regulatory oversight. Finally, the proposal includes amendments to
clarify and amplify the information given to the public and improve the
efficiency of the Commission's FOIA administration. This document
informs the public of the filing, invites public comment, and takes
other administrative steps.
DATES: Comments are due: May 23, 2024.
ADDRESSES: Submit comments electronically via the Commission's Filing
Online system at <a href="https://www.prc.gov">https://www.prc.gov</a>. Those who cannot submit comments
electronically should contact the person identified in the FOR FURTHER
INFORMATION CONTACT section by telephone for advice on filing
alternatives. The Rule Summary can be found on the Commission's Rule
Summary Page at <a href="https://www.prc.gov/rule-summary-page">https://www.prc.gov/rule-summary-page</a>.
FOR FURTHER INFORMATION CONTACT: David A. Trissell, General Counsel, at
202-789-6820.
SUPPLEMENTARY INFORMATION:
I. Background
II. Basis of Proposed Rules
III. Proposed Rules
I. Background
The Commission is an independent Federal agency that regulates the
United States Postal Service (``Postal Service''). The Commission's
mission is to ensure transparency and accountability of the Postal
Service and to foster a vital and efficient universal mail system. The
Commission is subject to the FOIA. The Commission is also a micro
agency with fewer than 100 employees. Year to year, the bulk of the
FOIA requests received by the Commission are intended for the Postal
Service and the requester is therefore directed to the Postal Service,
as a best practice. The Commission's existing FOIA regulations appear
in existing 39 CFR part 3006.
II. Basis of the Proposed Rules
Based on experience with the existing FOIA regulations, the
Commission proposes amendments that would improve readability, align
the Commission's existing FOIA regulations with the practices of other
agencies subject to the FOIA (with appropriate adaptions for the
Commission's size and area of regulatory oversight), improve the
efficiency of the Commission's FOIA administration, and clarify and
amplify the information provided to the public.
To improve readability, the Commission proposes to organize the
material currently appearing in existing 39 CFR part 3006, by grouping
related material (individual sections of the existing regulations)
under three new subparts. The proposed order of the subparts seeks to
provide the public with information in a more easily accessible manner.
Sections and subparts are organized to provide the most general
material first, which likely will be of interest to the widest
audience.
The Commission also proposes amendments that would better align
content with the practices of other agencies subject to the FOIA (as
necessarily adapted to the Commission's size and area of regulatory
oversight), improve the efficiency of the Commission's FOIA
administration, and amplify the usefulness of the information provided
to the public.
[[Page 31671]]
Accordingly, much of the proposed content is modeled upon the sample
language appearing in the U.S. Department of Justice, Office of
Information Policy's Template for Agency FOIA Regulations.
III. Proposed Rules
List of Subjects in 39 CFR Part 3006
Administrative practice and procedure, Freedom of information,
Reporting and recordkeeping requirements, Sunshine Act.
For the reasons stated in the preamble, the Commission proposes to
amend 39 CFR part 3006 as follows:
PART 3006--PUBLIC RECORDS AND FREEDOM OF INFORMATION ACT
0
1. The authority citation for part 3006 continues to read as follows:
Authority: 5 U.S.C. 552; 39 U.S.C. 407, 503, 504.
0
2. Revise part 3006 to read as follows:
PART 3006--PUBLIC RECORDS AND FREEDOM OF INFORMATION ACT
Subpart A--General Provisions
Sec.
3006.100 Applicability and scope.
3006.101 Commission policy.
3006.102 Proactive disclosures.
3006.103 Reading room.
3006.104 Chief Freedom of Information Act Officer.
3006.105 Freedom of Information Act Public Liaison.
3006.106 Commission procedure when served a subpoena.
Subpart B--Procedures for Freedom of Information Act Requests
Sec.
3006.200 Procedures for submitting requests.
3006.201 Timing of responses to requests.
3006.202 Responses to requests.
3006.203 Appeals.
3006.204 Relationship among the Freedom of Information Act, the
Privacy Act, and the Commission's procedures for according
appropriate confidentiality.
3006.205 Consultations, referrals, and coordinations.
3006.206 Submission of non-public materials by a person other than
the Postal Service.
Subpart C--Fees for Freedom of Information Act Requests
Sec.
3006.300 Definitions applicable to this subpart.
3006.301 Request category.
3006.302 General provisions.
3006.303 Fee schedule.
3006.304 Procedure for assessing and collecting fees.
Subpart A--General Provisions
Sec. 3006.100 Applicability and scope.
(a) The rules in this part apply to requests for records under the
Freedom of Information Act (FOIA), 5 U.S.C. 552. These rules should be
read in conjunction with the text of the FOIA and the Uniform Freedom
of Information Act Fee Schedule and Guidelines published by the Office
of Management and Budget (OMB Guidelines).
(b) Requests made by individuals for records about themselves under
the Privacy Act of 1974, 5 U.S.C. 552a, are processed in accordance
with the Commission's Privacy Act regulations appearing in part 3005 of
this chapter and Sec. 3006.204.
Sec. 3006.101 Commission policy.
(a) The Commission shall be proactive and timely in identifying and
posting public records and other frequently requested records to its
website.
(b) It is the stated policy of the Commission that FOIA requests
shall be administered with a clear presumption of openness. The
Commission will only withhold information if it reasonably foresees
that disclosure would harm an interest protected by a FOIA exemption,
such as information specifically exempted from disclosure by statute
(for example 39 U.S.C. 410(c)), or disclosure is otherwise prohibited
by law.
(c) This Commission policy does not create any right enforceable in
court.
Sec. 3006.102 Proactive disclosures.
(a) Except as provided in Sec. 3006.101(b) and in part 3011 of
this chapter, Commission records, required by the FOIA to be made
available, will be made available on the Commission's website, <a href="http://www.prc.gov">http://www.prc.gov</a>.
(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 website, <a href="http://www.prc.gov">http://www.prc.gov</a>.
Sec. 3006.103 Reading room.
(a) The Commission maintains an electronic reading room at <a href="http://www.prc.gov">http://www.prc.gov</a>.
(b) The records available for public inspection 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 relating to any matter or proceeding before the Commission.
(c) The Commission shall make available, in an electronic form,
records previously released under FOIA and which the Commission
determines are or are likely to become of significant public interest.
(d) Commission records that have been requested three or more times
will be made available on the Commission's website, <a href="http://www.prc.gov">http://www.prc.gov</a>.
Sec. 3006.104 Chief Freedom of Information Act Officer.
The Commission designates the General Counsel 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. The Chief FOIA Officer (and any individual(s)
designated by the Chief FOIA Officer to communicate with FOIA
requesters) may be contacted via email at <a href="/cdn-cgi/l/email-protection#f5b3babcb4b5c994d59d879093c8" http: prc.gov">prc.gov</a>">FOIA@<a href="http://prc.gov">prc.gov</a></a> or telephone at
202-789-6800.
Sec. 3006.105 Freedom of Information Act Public Liaison.
The Commission designates the Director of the Office of Public
Affairs and Government Relations or the individual's 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 email at <a href="/cdn-cgi/l/email-protection#ce9e9c8de39e8f899c8ef2afeea6bcaba8f3" http: prc.gov">prc.gov</a>">PRC-PAGR@<a href="http://prc.gov">prc.gov</a></a> or telephone at 202-789-6800.
Sec. 3006.106 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
General Counsel. Service of such a subpoena shall immediately be
reported to the General Counsel with a statement of all relevant facts.
The General Counsel will thereupon enter such order or give such
instructions as it deems advisable.
Subpart B--Procedures for Freedom of Information Act Requests
Sec. 3006.200 Procedures for submitting requests.
(a) Electronic submission requirements. A request will receive the
quickest possible response if it is submitted electronically. An
electronic request may be submitted via the Commission's online FOIA
request form that is accessible through the Commission's website
(<a href="http://www.prc.gov">http://www.prc.gov</a>), emailing <a href="/cdn-cgi/l/email-protection#7d3b32343c3d411c5d150f181b40" http: prc.gov">prc.gov</a>">FOIA@<a href="http://prc.gov">prc.gov</a></a>, or the web portal at
http://
[[Page 31672]]
www.foia.gov/. Each electronic request must:
(1) Reasonably describe the records sought,
(2) Identify the request category under Sec. 3006.301, and
(3) Include the requester's name, daytime telephone number, and a
valid email or mailing address to receive records and written
communications from the Commission regarding the request.
(b) Hard copy submission requirements. A requester may also submit
a request for records via hard copy. Each hard copy request must:
(1) Be in writing,
(2) Be clearly identified as ``Freedom of Information Act Request''
both in the text of the request and on the envelope,
(3) Be submitted to the Commission's office (901 New York Avenue
NW, Suite 200, Washington, DC 20268-0001),
(4) Reasonably describe the records sought, and
(5) Include the requester's name, daytime telephone number, and a
valid email or mailing address to receive records and written
communications from the Commission regarding the request.
(c) Content of request. Each request must describe the records
sought in sufficient detail to enable Commission personnel to locate
them with a reasonable amount of effort. Whenever possible, the request
should include specific information about each record sought that might
assist the Commission in responding to the request, such as the type of
record (e.g., contract, report, memorandum, etc.); the title or docket
number of a specific document or report; the topic or subject matter;
the name of the office and/or employees most likely to possess the
record; the date or general timeframe of the record's creation; and any
details related to the purpose of the record. Requests for email
records should specify the likely senders and recipients, keywords, and
a range of dates. Before submitting requests, a requester may contact
the Chief FOIA Officer (or the individual's designee) or the FOIA
Public Liaison to discuss the records sought and to receive assistance
in describing the records. The request may also specify the requester's
preferred method of communication (telephone, email, or mailing
address) and the preferred form or format (including electronic
formats) of the requested records.
(d) Improper requests. A request that does not reasonably describe
the records sought or does not comply with the published rules
regarding the procedures to be followed for submitting a request will
be deemed to be an improper FOIA request. If the Commission does not
receive the additional information needed that reasonably describes the
records to enable their location by the Commission with a reasonable
amount of effort, then the Commission will administratively close the
file.
(1) If after receiving a request, the Commission determines that it
is improper, the Chief FOIA Officer or the individual's designee will
provide one written notification to the requester using the contact
information included in the request. The notification will inform the
requester of all the following:
(i) The reason(s) why the request is improper;
(ii) The additional information needed from the requester that
would reasonably describe the records to enable their location by the
Commission with a reasonable amount of effort;
(iii) The Commission will not be able to comply with the request
unless the Commission receives such additional information in writing
within the specified timeframe and if the Commission does not receive a
written response containing the additional information needed within
the specified timeframe, then it will presume that the requester is no
longer interested in the records and will administratively close the
file on the request;
(iv) The preferred method for the requester to provide the
additional information is by emailing <a href="/cdn-cgi/l/email-protection#afe9e0e6eeef93ce8fc7ddcac992" http: prc.gov">prc.gov</a>">FOIA@<a href="http://prc.gov">prc.gov</a></a>;
(v) The requester may also provide the additional information by
mailing or by hand delivery during regular business hours (which are
from 8 a.m. to 4:30 p.m. Eastern Time, except for Saturdays, Sundays,
and Federal holidays) to the Office of Secretary and Administration,
Postal Regulatory Commission, 901 New York Avenue NW, Suite 200,
Washington, DC 20268-0001); and
(vi) The contact information for the Chief FOIA Officer (or the
individual's designee) and the FOIA Public Liaison, each of whom is
available to assist the requester in reasonably describing the records
sought.
(2) If the requester provides the additional information needed
that reasonably describes the records to enable their location by the
Commission with a reasonable amount of effort by the timeframe
specified in the notification, then the Commission will confirm receipt
of the information and process the request.
(3) After administrative closure, if the Commission receives the
additional information needed that reasonably describes the records to
enable their location by the Commission with a reasonable amount of
effort, then the Commission will notify the requester that the request
will be processed as a new request.
(e) Expedited processing. At any time, a requester that has
satisfied all applicable requirements of paragraphs (a) through (c) of
this section may seek expedited processing of a request or an
administrative appeal. To seek expedited processing, the requester
must:
(1) Include ``Expedited Freedom of Information Act Request'' or
``Expedited Freedom of Information Act Appeal'' in the body of the
submission;
(2) For any hard copy submission, include ``Expedited Freedom of
Information Act Request'' or ``Expedited Freedom of Information Act
Appeal'' on the envelope;
(3) Demonstrate a compelling need as defined in 5 U.S.C.
552(a)(6)(E)(v); and
(4) Certify the statement of compelling need to be true and correct
to the best of the requester's knowledge and belief. The Commission has
discretion to waive the certification requirement.
Sec. 3006.201 Timing of responses to requests.
(a) In general. Requests will ordinarily be responded to according
to their order of receipt.
(b) Multitrack processing. (1) Unless expedited processing has been
granted, the Commission places each request in simple or complex tracks
based on the amount of work and time involved in processing the
request. Factors considered in assigning a request into the complex
track may include one or more of the following:
(i) The request involves voluminous documents;
(ii) The complexity of the material;
(iii) The request involves record searches at multiple facilities
or locations;
(iv) The request requires consultation among the Commission or
other agencies; or
(v) The number of open requests submitted by the same requester.
(2) Within each track, the Commission processes requests in the
order in which they are received. When appropriate, the Chief FOIA
Officer or the individual's designee will notify the requester of
placing a request in the ``Complex'' track and provide the requester
with an opportunity to limit the scope of the request. If the requester
limits the scope of the request, it may result in faster processing.
(c) Expedited processing. (1) Requests and appeals shall be
processed on an expedited basis whenever it is determined that they
involve the following:
[[Page 31673]]
(i) Circumstances in which the lack of expedited processing could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(ii) An urgency to inform the public about an actual or alleged
Federal Government activity, if made by a person who is primarily
engaged in disseminating information.
(2) Within 10 calendar days of the receipt of a request for
expedited processing, the Chief FOIA Officer or the individual's
designee will notify the requester of the decision whether to grant or
deny expedited processing. If expedited processing is granted, the
request shall be given priority, placed in the processing track for
expedited requests, and shall be processed as soon as practicable. If a
request for expedited processing is denied, the Chief FOIA Officer or
the individual's designee will inform the requester of the denial in
writing, the right to appeal the denial to the Commission in writing,
and the procedures for appealing the denial. 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.
(3) Where a compelling need is not shown in an expedited request as
specified in Sec. 3006.200(e), the Commission may grant the request
for expedited processing at its discretion.
(d) Unusual circumstances. Whenever the statutory time limit for
processing a request cannot be met because of ``unusual
circumstances'', as defined in 5 U.S.C. 552(a)(6)(B)(iii), and the
Commission extends the time limit on that basis, the Commission shall,
before the expiration of the 20 business day period to respond, notify
the requester in writing of the unusual circumstances involved and of
the date by which processing of the request can be expected to be
completed. If an extension will exceed 10 business days, the Commission
will:
(1) Provide the requester with an opportunity to modify the request
or arrange an alternative timeframe for processing; and
(2) Make its FOIA Public Liaison available to the requester and
apprise the requester of their right to seek dispute resolution
services from the Office of Government Information Services.
(e) Aggregating requests. For the purposes of satisfying unusual
circumstances under the FOIA, the Commission may aggregate requests in
cases where it reasonably appears that multiple requests, submitted
either by a single requester or by a group of requesters acting in
concert, constitute a single request that would otherwise involve
unusual circumstances. Multiple requests that involve unrelated matters
shall not be aggregated.
Sec. 3006.202 Responses to requests.
(a) In general. To the extent practicable and unless the request
indicates a different preferred method of communication, the Commission
will communicate with the requester electronically (such as via email).
In determining which records are responsive to a request, the
Commission will include only records in its possession and control on
the date that it begins its search. If any other date is used, the
Commission shall inform the requester of that date. A record that is
excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c)
is not considered responsive to the request.
(b) Acknowledgments of requests. The Commission shall acknowledge
the request and assign it an individualized tracking number if it will
take longer than 10 days (excluding Saturdays, Sundays, and legal
holidays) to process. The acknowledgment must include a brief
description of the records sought to allow requesters to keep track of
their requests more easily.
(c) Grants of requests. Once the Commission makes a determination
to grant a request in full or in part, the Chief FOIA Officer or the
individual's designee shall notify the requester in writing. The
Commission also shall inform the requester of any fees charged and
shall disclose the requested records to the requester promptly upon
payment of any applicable fees. The Commission must inform the
requester of the availability of the FOIA Public Liaison to offer
assistance.
(d) Adverse determinations of requests. If the Commission makes an
adverse determination denying a request in any respect, then the Chief
FOIA Officer or the individual's designee shall notify the requester of
that determination in writing. Adverse determinations, or denials of
requests, include decisions that: the requested record is exempt, in
whole or in part; the request does not reasonably describe the records
sought; the information requested is not a record subject to the FOIA;
the requested record does not exist, cannot be located, or has been
destroyed; or the requested record is not readily reproducible in the
form or format sought by the requester. Adverse determinations also
include denials involving fees or fee waiver matters or denials of
requests for expedited processing.
(e) Content of denials. The denial shall be signed by the Chief
FOIA Officer or the individual's designee and shall include:
(1) The name and title or position of the person responsible for
the denial;
(2) A brief statement of the reasons for the denial, including any
FOIA exemption applied by the Commission in denying the request;
(3) An estimate of the volume of any records or information
withheld, such as the number of pages or some other reasonable form of
estimation, although such an estimate is not required if the volume is
otherwise indicated by deletions marked on records that are disclosed
in part or if providing an estimate would harm an interest protected by
an applicable exemption;
(4) A statement that the denial may be appealed under Sec.
3006.203, and a description of the requirements; and
(5) A statement notifying the requester of the assistance available
from the Commission's FOIA Public Liaison and the dispute resolution
services offered by the Office of Government Information Services.
(f) Markings on released documents. Markings on released documents
must be clearly visible to the requester. Records disclosed in part
shall be marked to show the amount of information deleted and the
exemption under which the deletion was made unless doing so would harm
an interest protected by an applicable exemption. The location of the
information deleted shall also be indicated on the record, if
technically feasible.
(g) Use of record exclusions. (1) If the Commission identifies
records that may be subject to exclusion from the requirements of the
FOIA pursuant to 5 U.S.C. 552(c), the Commission must confer with the
Department of Justice, Office of Information Policy (OIP), to obtain
approval to apply the exclusion.
(2) Upon invoking an exclusion, the Commission must maintain an
administrative record of the process of invocation and approval of
exclusion by OIP.
Sec. 3006.203 Appeals.
(a) Discretionary review. The Commission (on its own initiative)
may review any decision of the Chief FOIA Officer or the individual's
designee within 90 calendar days.
(b) Requirements for making an appeal. A requester may appeal an
adverse decision on their FOIA request rendered by the Commission by
submitting a hard copy to the Commission's office (901 New York Avenue
NW, Suite 200, Washington, DC
[[Page 31674]]
20268-0001) or by emailing <a href="/cdn-cgi/l/email-protection#53151c1a12136f32733b2136356e" http: prc.gov">prc.gov</a>">FOIA@<a href="http://prc.gov">prc.gov</a></a>. The requester must make the
appeal in writing and to be considered timely it must be postmarked, or
in the case of electronic submissions, transmitted, within 90 calendar
days after the date of the Commission's response. To facilitate
handling, the requester must mark both the appeal letter and envelope
or the subject line of the electronic transmission ``Freedom of
Information Act Appeal.'' The appeal must include, as applicable:
(1) A copy of the request, of any notification of denial or other
action, and of any other related correspondence;
(2) The FOIA tracking number assigned to the request;
(3) A description of the action (or failure to act) which is being
challenged;
(4) If challenging specific redactions made to responsive records,
a statement identifying the specific redactions being challenged;
(5) A statement of the relief sought; and
(6) A statement of the reasons why the requester believes the
action or failure to act is erroneous.
(c) Adjudication of appeals. (1) The decision of the Commission
constitutes the final decision on the issue being appealed. The
Commission will give prompt consideration to an appeal for expedited
processing of a request. All other decisions normally will be made
within 20 days (excluding Saturdays, Sundays, and legal holidays) from
the time of the receipt by the Commission. The 20-business day response
period may be extended by the Commission for a period not to exceed an
additional 10 business days when reasonably necessary to permit the
proper consideration of an appeal, under one or more of the ``unusual
circumstances'', as defined in 5 U.S.C. 552(a)(6)(B)(iii). The
aggregate number of additional business days used, however, may not
exceed 10 business days.
(2) An appeal ordinarily will not be adjudicated if the request
becomes a matter of FOIA litigation.
(3) On receipt of any appeal involving classified information, the
Commission must take appropriate action to ensure compliance with
applicable classification rules.
(d) Decisions on appeals. A decision on an appeal must be made in
writing. A decision that upholds the adverse determination in whole or
in part will contain a statement that identifies the reasons for the
affirmance, including any FOIA exemptions applied. The decision will
provide the requester with notification of the statutory right to file
a lawsuit and will inform the requester of the mediation services
offered by the Office of Government Information Services of the
National Archives and Records Administration as a non-exclusive
alternative to litigation. If the adverse determination is remanded or
modified on appeal, the requester will be notified in writing and the
Chief FOIA Officer or the individual's designee will further process
the request in accordance with that appellate decision and respond
directly to the requester. If not prohibited by or under law, the
Commission may direct the disclosure of a record even though its
disclosure is not required by law or regulation.
(e) Engaging in dispute resolution services provided by OGIS.
Dispute resolution is a voluntary process. If the Commission agrees to
participate in the dispute resolution services provided by OGIS, it
will actively engage as a partner to the process in an attempt to
resolve the dispute.
(f) When an appeal is required. Before seeking judicial review of
an adverse determination rendered by the Commission on a FOIA request,
a requester generally must first submit a timely administrative appeal.
Sec. 3006.204 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 the individual's 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 3005 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.
Except when the Postal Service submits materials to the Commission in
connection with activities under 39 U.S.C. 407(b)(2)(A), in all other
instances that the Postal Service submits materials to the Commission
that the Postal Service reasonably believes to be exempt from public
disclosure, the Postal Service shall follow the procedures described in
part 3011, subpart B of this chapter.
(1) A request made pursuant to FOIA for Postal Service records
shall be referred to the Postal Service; and
(2) A request made pursuant to part 3011 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 record submitted by a person other than the Postal
Service. The Commission maintains records of a confidential nature
submitted by persons other than the Postal Service as non-public
materials.
(1) A request made pursuant to FOIA for records submitted by a
person other than the Postal Service shall adhere to the applicable
procedures of Sec. 3006.205. If such a FOIA request is not referred to
a different Federal agency pursuant to Sec. 3006.205(b), the
Commission shall consider it in light of all applicable exemptions and
in accordance with the following procedures:
(i) If such materials are designated as non-public, the Commission
shall follow the procedures appearing in Sec. 3006.206(b) through (d)
in determining the FOIA request; or
(ii) In all other instances, the Commission shall determine the
FOIA request after notifying the person of the FOIA request and
providing the person with an opportunity to respond within 7 days of
the date of the notice under the following circumstances:
(A) The records sought contain confidential commercial information
that may be protected from disclosure under 5 U.S.C. 552(b)(4); and
(B) The Commission determines that it may be required to disclose
the records, provided that at least one of the following applies:
(1) The requested information has been designated in good faith by
the submitter as information considered protected from disclosure under
5 U.S.C. 552(b)(4); or
(2) The Commission has a reason to believe that the requested
information may be protected from disclosure under
[[Page 31675]]
5 U.S.C. 552(b)(4), but has not yet determined whether the information
is protected from disclosure.
(2) A request made pursuant to part 3011 of this chapter for
records designated as non-public by a person other than the Postal
Service shall be considered under the applicable standards set forth in
that part.
Sec. 3006.205 Consultations, referrals, and coordinations.
(a) Consultations. If records originated with the Commission but
contain within them information of significance to another Federal
agency or office, the Commission will typically consult with that other
entity prior to making a release determination.
(b) Referrals. In addition to referring all requests made pursuant
to FOIA for Postal Service records to the Postal Service as specified
by Sec. 3006.204(d)(1), if the Commission believes that a different
Federal agency is best able to determine whether to disclose the
record, the Commission will typically refer responsibility for
responding to the request regarding that record to that agency.
Ordinarily, the agency that originated the record is presumed to be the
best agency to make the disclosure determination. Whenever the
Commission refers any part of the responsibility for responding to a
request to another agency, the Commission will notify the requester of
the referral, including the name of the agency and that agency's FOIA
contact information.
(c) Coordinations. The standard referral procedure is not
appropriate where disclosure of the identity of the Federal agency to
which the referral would be made could harm an interest protected by an
applicable exemption, such as the exemptions that protect personal
privacy or national security interests. For example, if a non-law
enforcement agency responding to a request for records on a living
third party locates within its files records originating with a law
enforcement agency, and if the existence of that law enforcement
interest in the third party was not publicly known, then to disclose
that law enforcement interest could cause an unwarranted invasion of
the personal privacy of the third party. Similarly, if the Commission
locates within its files material originating with an Intelligence
Community agency, and the involvement of that agency in the matter is
classified and not publicly acknowledged, then to disclose or give
attribution to the involvement of that Intelligence Community agency
could cause national security harms. In such instances, in order to
avoid harm to an interest protected by an applicable exemption, the
Commission will coordinate with the originating agency to seek its
views on disclosure of the record. The Commission then will notify the
requester of the release determination for the record that is the
subject of the coordination.
(d) Classified information. On receipt of any request involving
classified information, the Commission will determine whether the
information is currently and properly classified in accordance with
applicable classification rules. Whenever a request involves a record
containing information that has been classified or may be appropriate
for classification by another agency under any applicable executive
order concerning the classification of records, the Commission must
refer the responsibility for responding to the request regarding that
information to the agency that classified the information, or that
should consider the information for classification. Whenever an
agency's record contains information that has been derivatively
classified (for example, when it contains information classified by
another agency), the Commission must refer the responsibility for
responding to that portion of the request to the agency that classified
the underlying information.
(e) Timing of responses to consultations and referrals. All
consultations and referrals received by the Commission will be handled
according to the date that the first agency received the perfected FOIA
request.
(f) Agreements regarding consultations and referrals. The
Commission may establish agreements with other agencies to eliminate
the need for consultations or referrals with respect to particular
types of records.
Sec. 3006.206 Submission of non-public materials by a person other
than the Postal Service.
(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 shall follow
the procedures described in part 3011, subpart B of this chapter,
except when the submitter submits materials to the Commission in
connection with activities under 39 U.S.C. 407(b)(2)(A).
(b) Notice of request. Except as provided in Sec. 3006.204(d), if
a FOIA request seeks materials designated as non-public 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
materials submitted by a person other than the Postal Service are
possibly exempt from disclosure and 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 non-public treatment pursuant to Sec. 3011.201 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.
Subpart C--Fees for Freedom of Information Act Requests
Sec. 3006.300 Definitions applicable to this subpart.
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,
[[Page 31676]]
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. 3006.301 Request category.
(a) Fees. 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 the individual's
own records in a system of records will be charged fees as provided
under the Commission' s Privacy Act regulations in part 3005 of this
chapter.
Sec. 3006.302 General provisions.
(a) The Commission may charge search fees even if no records are
found or if the records found are exempt from disclosure.
(b) Except in the case of commercial use requesters, the first 100
pages of duplication and the first 2 hours of search time are provided
without charge.
(1) A page for these purposes is a letter- or legal-size sheet, or
the equivalent amount of information in a medium other than paper copy.
(2) Search time for these purposes refers to manual searching; if
the search is performed by computer, the 2 hours provided without
charge will be equal to 2 hours' salary of the person performing the
search.
(c) No requester will be charged a fee when the Commission
determines that the cost of collecting the fee would equal or exceed
the fee itself. In determining whether cost of collection would equal
or exceed the fee, the allowance for 2 hours' search or 100 pages of
duplication will be made before comparing the remaining fee and the
cost of collection.
(d) Records will be provided without charge or at a reduced charge
if disclosure of the information is in the public interest because it
is likely to contribute significantly to public understanding of the
operations or activities of the government and is not primarily in the
commercial interest of the requester.
(e) No requester will be charged a fee after any search or response
which occurs after the applicable time limits as described in
Sec. Sec. 3006.202 and 3006.203, unless:
(1) The Commission extends the time limit for its response due to
unusual circumstances, pursuant to Sec. 3006.201(d), and the
Commission completes its response within the extension of time provided
under that section; or
(2) The Commission extends the time limit for its response due to
unusual circumstances and more than 5,000 pages are necessary to
respond to the request and the Commission has discussed with the
requester how they could effectively limit the scope of the request or
made at least three good faith attempts to do so; or
(3) A court has determined that exceptional circumstances exist and
excused the Commission from responding by court order.
(f) The Commission may, however, charge fees for review, and in
some cases duplication, for a partial grant of a request while it
reviews records that may be exempt and may be responsive to the
request, so long as the partial grant is made within the applicable
time limits.
Sec. 3006.303 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. 3006.302(d),
fees may be
[[Page 31677]]
waived at the discretion of the Commission.
Sec. 3006.304 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. 3006.201) 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.
By the Commission.
Erica A. Barker,
Secretary.
[FR Doc. 2024-08715 Filed 4-24-24; 8:45 am]
BILLING CODE 7710-FW-P
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</html>Indexed from Federal Register on April 25, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.