Daily Rules, Proposed Rules, and Notices of the Federal Government
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.
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.
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
To align the Commission's FOIA policies with the President's vision for a more open and accountable government, the Commission makes several changes to part 3004. First, the Commission adds proposed rule 3004.2, announcing the “presumption of openness” to be applied to any requests under FOIA, and stating that it proactively posts public records on its Web site in advance of any public request. Second, the Commission adds proposed rule 3004.43(c), which allows for a partial grant of a request, rather than a denial, when the Commission cannot make a full disclosure. Third, the Commission edits the language in proposed rule 3004.43 and requires, when a request is denied in whole or in part, an explanation of the basis for withholding the records and a description of the foreseeable harm.
To make the information pertaining to FOIA contained in part 3004 easier to find, the proposed amendment divides the regulations into several smaller individual regulations. For example, proposed rule 3004.6 Fees is separated into five regulations. Paragraph (a) of section 3004.6 becomes proposed rule 3004.50 Fees—definitions as used in this subpart. The information in paragraph (b) is relocated to proposed rule 3004.52 Fees—general provisions, and the information in paragraph (c)(1) is moved to proposed rule 3004.51 Fees—category of requests. Paragraph (c)(2) becomes proposed rule 3004.53 Fee schedule. Miscellaneous information currently in sections 3004.6(b), (c)(2)(i) and (f) is consolidated in proposed rule 3004.52 Fees—general provisions. Finally, paragraphs (d) and (e) are relocated to proposed rule 3004.54 Procedure for assessing and collecting fees. The substance of the regulations being divided is not modified, although the existing text is simplified. Similar minor editing is employed throughout the proposed rules and noted in the section-by-section analysis.
Finally, the Commission references its rules governing the treatment of non-public materials in several sections.
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.
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
4. Reply comments may be filed no later than 45 days from the date of publication of this notice in the
5. The Secretary shall arrange for publication of this Notice in the
Administrative practice and procedure, Confidential business information, Postal Service.
Administrative practice and procedure, Archives and records, Freedom of information, Organization, Privacy, Reporting and recordkeeping requirements.
By the Commission.
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:
1. The authority citation for Part 3001 continues to read as follows:
39 U.S.C. 404(d) 503; 3661.
2. Remove § 3001.42 in its entirety.
3. Part 3004 is revised to read as follows:
5 U.S.C. 552; 39 U.S.C. 503.
(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
(c) Section 3004.10 identifies records that the Commission has determined to be public.
(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.
(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.
(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;
(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.
(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
(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.
(a) Decisions, advisory opinions, orders and public reports will be made available to the public by posting on the Commission's Web site at
(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
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.
(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.
(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.
(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).
(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.
(a) An electronic request for records must:
(1) Be made via the Commission's online FOIA request form at
(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.
(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.
(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
(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.
(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.
(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.
(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.
(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.
(a) The level of fee charged depends on the category of requester.
(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.
(a) Fees will be calculated as follows:
(b) Fees may be waived at the discretion of the Commission.
(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.
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