[Federal Register Volume 73, Number 126 (Monday, June 30, 2008)]
[Proposed Rules]
[Pages 36807-36819]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-14549]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 73, No. 126 / Monday, June 30, 2008 / 
Proposed Rules  

[[Page 36807]]



ELECTION ASSISTANCE COMMISSION

11 CFR Chapter II

[Docket No. EAC-2008-0024]
RIN 3265-AA00


Freedom of Information, Government in the Sunshine, and Privacy 
Act Requirements

AGENCY: United States Election Assistance Commission (EAC).

ACTION: Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: The U.S. Election Assistance Commission is proposing 
administrative regulations to implement the Freedom of Information Act, 
the Government in the Sunshine Act, and the Privacy Act.

DATES: You must submit comments on or before August 29, 2008.

ADDRESSES: You may submit comments, identified by docket number, by any 
of the following methods. Please submit your comments via only one of 
the methods described.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     E-mail: Send comments to [email protected] with ``Comments 
for [Insert Docket Number Here]'' in the subject line.
     Fax: Send to ``EAC Regulations'' at (202) 566-3128. 
Comments sent by fax must be limited to 6 pages. This limitation is 
necessary to assure access to the facsimile machine.
     Mail: Send to ``EAC Regulations'' at U.S. Election 
Assistance Commission, 1225 New York Avenue, Suite 1100, Washington, DC 
20005. Comments sent by mail must be unbound, be on paper no larger 
than 8.5 by 11; and be submitted in duplicate. 
Mailed comments will not accepted in electronic form (floppy disk, CD, 
etc.).
     Hand Delivery/Courier: Deliver to Suite 1100, 1225 New 
York Avenue, Washington, DC 20005 between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays. Comments submitted by hand 
delivery must be unbound, be on paper no larger than 8.5'' by 11''; and 
be submitted in duplicate. Comments sent by courier or hand delivery 
will not be accepted in electronic form (floppy disk, CD, etc.).
    Instructions: All submissions must include the agency name and 
docket number for this rulemaking. Please also identify comments on 
regulatory text by subpart and section. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see the Public Participation heading below. Note that all 
comments received will be publicly posted, including any personal 
information provided. Please see the Privacy Act heading below. The EAC 
will post comments without change unless the comment contains profanity 
or material that is prohibited from disclosure by law.
    Docket: For access to the docket to read comments received, go to 
http://www.regulations.gov at any time or to Suite 1100 at 1225 New 
York Avenue, NW., Washington, DC, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays.
    Privacy Act: Anyone is able to search comments received by the name 
of the individual submitting the comment (or signing the comment, if 
submitted on behalf of an association, business, labor union, etc.).
    Public participation: The electronic docket is available 24 hours 
each day, 365 days each year. If you want us to notify you that we 
received your comments, please include a self-addressed, stamped 
envelope or postcard or print the acknowledgement page that appears 
after submitting comments on-line.
    EAC will file in the public docket all comments received, subject 
to the limitations in this notice. EAC will consider all comments 
received on or before the closing date for comments; and may consider 
comments filed late, to the extent practicable. The EAC may, however, 
issue a final rule at any time after the close of the comment period.

FOR FURTHER INFORMATION CONTACT: Tamar Nedzar, Attorney, U.S. Election 
Assistance Commission, 1225 New York Avenue, NW., Suite 1100, 
Washington, DC 20005. Telephone (202) 566-3100.

SUPPLEMENTARY INFORMATION: 

Preamble Table of Contents

    The following is an outline of the preamble.

I. Legal Basis for the Rulemaking
II. Discussion of the Proposed Rulemaking
III. Rulemaking Analyses and Notices

I. Legal Basis for the Rulemaking

    This rulemaking action is taken in response to the Freedom of 
Information Act (FOIA), 5 U.S.C. 552, as amended; the Government in the 
Sunshine Act (Sunshine Act), 5 U.S.C. 552b; and the Privacy Act, 5 
U.S.C. 552a, as amended. The U.S. Election Assistance Commission (EAC) 
is a federal agency, and is required to promulgate regulations to 
implement the FOIA, the Sunshine Act, and the Privacy Act. The FOIA 
requires each federal agency to publish certain information in the 
Federal Register, to make available for public inspection and copying 
certain other information, and to make available certain information to 
any members of the public upon specific request for that information. 
The FOIA stipulates that an agency must promulgate regulations, 
pursuant to notice and public comment, specifying the schedule of fees 
applicable to the processing of requests for information. The 
Government in the Sunshine Act requires meetings of a federal agency 
headed by a collegial body, a majority of whose members are appointed 
by the President with the advice and consent of the Senate, to be open 
to public observation. The EAC is a collegial body subject to the Act. 
The Act specifies certain exemptions from the open meeting requirement, 
and the procedures that an agency must follow to conduct or to close a 
meeting. The Sunshine Act requires publication in the Federal Register 
and opportunity for public comment of regulations to implement the 
policies of the Act. The Privacy Act creates requirements that apply to 
systems of records pertaining to individuals that are established, 
maintained, or controlled by a federal agency, and prescribes rights 
and limits to access to such records. The Privacy Act requires 
publication in the Federal Register for public comment of agency 
policies concerning systems of records maintained by the agency.

II. Discussion of the Proposed Rulemaking

    The United States Election Assistance Commission was created by 
Congress in the Help America Vote Act of 2002. The

[[Page 36808]]

Commission's primary function is to serve as a national clearinghouse 
and resource for information on and procedures for federal elections. 
The EAC conducts studies on election administration and makes those 
studies available to the public. The EAC also has adopted Voluntary 
Voting System Guidelines; administers a voting system testing and 
certification program; allocates election-related federal funding to 
the States; and carries out administrative duties under the National 
Voter Registration Act of 1993 (the Motor Voter Law), including 
developing and maintaining a mail voter registration application form 
for elections to federal office.
    The EAC is committed to operating transparently, competently, and 
subject to public scrutiny and accountability. To help implement these 
goals, the EAC is proposing regulations to implement three important 
federal statutes addressing access to information about the EAC and its 
activities--the Freedom of Information Act, as amended, including 
recent amendments found in the OPEN Government Act of 2007; the 
Government in the Sunshine Act; and the Privacy Act.
    Most of the regulatory requirements that the EAC is proposing are 
specified in detail by the FOIA Act, the Sunshine Act, and the Privacy 
Act. In addition, the EAC is modeling the three sets of regulatory 
requirements it is proposing on similar regulations previously adopted 
by other federal agencies. Thus, many of the provisions in today's 
rules are identical to or closely resemble the requirements adopted by 
other federal agencies, and as such represent regulatory ``best 
practices'' on the topics of FOIA, open government, and protection of 
the privacy of information about individuals.
    At a few points the EAC also has adopted certain unique or new 
provisions, to ensure that the rules as proposed meet current statutory 
requirements and reflect the practices of the Commission. The EAC is 
requesting comment in particular on the following provisions:

FOIA

    Definition of Representative of the News Media: The Freedom of 
Information Act and implementing regulations contain special 
requirements for the treatment of requests for information from 
representatives of the news media. In Sec.  9405.2 of the proposed 
rule, the EAC is proposing a definition of ``representative of the news 
media'' that reflects amendments to the Freedom of Information Act 
adopted by Congress in the ``Openness Promotes Effectiveness in our 
National Government Act of 2007,'' also known as the ``OPEN Government 
Act of 2007'' signed by the President on December 31, 2007. These 
provisions were intended to address the increased role of electronic 
media as part of the news media. The proposed definition includes as a 
potential representative of the news media a ``web log'' defined as ``a 
publicly available Web site, usually maintained by an individual, with 
regular entries of commentary, descriptions of events, or other 
material.''
    FOIA Officials: Section 9405.3 of the proposed rule provides for 
the designation of a Chief Freedom of Information Act Officer and FOIA 
Public Liaison Officers, as required by section 10 of the ``OPEN 
Government Act of 2007.'' These officials are intended to provide a 
clear point of contact for the public in dealing with the EAC on FOIA 
matters.
    Time limits for agencies to act on requests: In Sec.  9405.7(c), 
the EAC is proposing time limits for action on FOIA requests that 
reflect the requirements established in section 6 of the ``OPEN 
Government Act of 2007.'' The proposed rule provides that the EAC will 
determine within 20 working days after receipt of a FOIA request 
whether to comply with the request; the EAC may make one request for 
additional information from the requester and interrupt the 20-day 
period while waiting for the clarification; the EAC will decide within 
20 working days on appeals by requesters from EAC's decisions not to 
release the requested information; and the 20-day periods will be 
extended only in unusual circumstances.
    Fee provisions: In Sec.  9405.9 of the proposed rule, the EAC has 
designed the fee provisions to be consistent with the ``Uniform Freedom 
of Information Act Fee Schedule and Guidelines'' established by the 
Office of Management and Budget (52 FR 10017, March 27, 1987). Fees are 
based on the actual direct cost of conducting searches for requested 
records. When manual searches are necessary, the EAC will charge at the 
salary rates of the employees making the search, calculated as their 
basic pay plus 16 percent, as authorized by the OMB Guidelines. Records 
will be duplicated at the rate of $0.15 per page for basic duplication; 
the actual direct costs of production will be charged for creation of 
computer tapes or printouts and other methods of reproduction.

Government in the Sunshine Act

    The proposed regulation generally tracks the requirements of the 
Government in the Sunshine Act and implementing regulations adopted by 
other federal agencies. It also has been drafted to ensure that it 
accurately reflects current means of communication and the practices of 
the EAC. Thus, the definition of ``meeting'' in Sec.  9407.2 of the 
proposed rule specifies that a deliberation ``conducted through 
telephone or similar communications equipment in which all persons 
participating can hear each other shall be considered a meeting.'' To 
help ensure that this provision does not limit public access to 
meetings, Sec.  9407.3(d) of the proposed rule provides that when open 
meetings are conducted by telephone or similar communications 
equipment, the Commission will make an effort to provide sufficient 
access to the public. The proposed rule also provides that ``meeting'' 
does not include ``a process of notation voting by circulated 
memorandum for the purpose of expediting consideration of official 
Commission business.''

Privacy

    The proposed regulation generally tracks the requirements of the 
Privacy Act and implementing regulations adopted by other federal 
agencies. To ensure consistency among the EAC's administrative 
regulations, Sec.  9410.10 establishes fees for the cost of searching 
for and reproducing records that parallel the fees established in Sec.  
9405.9 of the proposed FOIA regulations.

III. Regulatory Analyses and Notices

Regulatory Flexibility Act, as amended

    The Regulatory Flexibility Act, as amended by the Small Business 
Regulatory Enforcement Fairness Act (SBREFA) of 1996 (5 U.S.C. 601 et 
seq.) generally requires an agency to prepare a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements under the Administrative Procedure Act or any other 
statute, unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
government jurisdictions. The EAC has considered the effects of this 
proposed regulatory action on small entities and certifies that these 
proposed rules will not have a significant impact on a substantial 
number of small entities. This rulemaking proposal would require 
applicants for information to submit a

[[Page 36809]]

letter to the EAC describing in adequate detail the information 
requested. The cost to a requester in terms of labor, supplies, and 
postage will be small. In addition, a requester may be required to pay 
the actual cost of identifying and copying the information. However, in 
most cases this cost is also expected to be small, and the proposed 
rules provide that it may be waived under certain specified 
circumstances. The average number of requesters is expected to be 
small. The EAC's past experience indicates that about 30 FOIA requests 
will be received annually, and a proportion of those will not be from 
small entities. The EAC also does not anticipate significant numbers of 
requests under the Sunshine Act or the Privacy Act regulations. 
Currently, the EAC only maintains 2 systems of records. Accordingly, 
the EAC's consideration of the economic impacts of the requirements on 
small entities has led it to certify that this proposed rule would not 
have a significant economic impact on a substantial number of small 
entities.

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 2 U.S.C. 
1532) requires each agency to assess the effects of its regulatory 
actions on State, local, and tribal governments and the private sector. 
Any agency promulgating a rule likely to result in a federal mandate 
requiring expenditures by a State, local, or tribal government or by 
the private sector of $120.7 million or more in any one year must 
prepare a written statement incorporating various assessments, 
estimates, and descriptions that are delineated in the Act. The EAC has 
determined that these proposed rules would create no unfunded mandates 
because they require no expenditures by a State, local, or tribal 
government and will not have an impact of $120.7 million or more in any 
one year.

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by 
SBREFA, provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. If the rule meets the definition of a 
major rule, as defined in SBREFA, the Comptroller General must provide 
a report to Congress and the rule may not take effect until 60 days 
after it has been published in the Federal Register. The current action 
is a Notice of Proposed Rulemaking and is not a major rule. No actions 
are required under the Congressional Review Act.

National Environmental Policy Act

    The EAC analyzed these rules for the purpose of the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and 
determined that this action includes no circumstances that would have 
any effect on the quality of the environment. The proposed rules 
pertain solely to the dissemination of information. Thus, these actions 
do not require an environmental assessment or an environmental impact 
statement.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
the EAC to consider the impact of paperwork and other information 
collection burdens imposed on the public. These proposed rules do not 
impose any reporting or recordkeeping requirements. They pertain solely 
to the dissemination of information under the FOIA; access to 
information about meetings and the decision-making process of the EAC; 
and dissemination of information about what information is maintained 
about identifiable individuals by the EAC and how they may gain access 
to and correct or amend information about them.

Executive Order 12630 (Taking of Private Property)

    These proposed rules would not affect a taking of private property 
or otherwise have taking implications under Executive Order 12630, 
``Governmental Actions and Interference with Constitutionally Protected 
Property Rights.''

Executive Order 12988 (Civil Justice Reform)

    These proposed rules meet applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988, ``Civil Justice Reform,'' to minimize 
litigation, eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (April 23, 1997, 62 FR 19885), requires 
that agencies issuing economically significant rules, which also 
concern an environmental health or safety risk that an agency has 
reason to believe may disproportionately affect children, must include 
an evaluation of the environmental health and safety effects of the 
regulation on children. Section 5 of Executive Order 13045 directs an 
agency to submit for a covered regulatory action an evaluation of its 
environmental health or safety effects on children. The EAC has 
determined that these proposed rules are not covered regulatory actions 
as defined under Executive Order 13045. This determination is based 
upon the fact that these proposed rules are not economically 
significant under Executive Order 12866, because the changes proposed 
would not have an impact of $100 million or more in any one year, and 
do not constitute an environmental health risk or safety risk that 
would disproportionately affect children.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on federal programs and activities do 
not apply to this rulemaking.

Executive Order 13211 (Energy Supply, Distribution, or Use)

    The EAC has analyzed these proposed rules under Executive Order 
13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.'' This proposal is not a 
significant energy action within the meaning of section 4(b) of the 
Executive Order. This proposal involves internal procedures of and 
dissemination of information about the EAC, is not economically 
significant, and will not have a significant adverse effect on the 
supply, distribution, or use of energy.

List of Subjects

11 CFR Part 9405

    Administrative practice and procedure, Confidential business 
information, Freedom of information, Government employees.

11 CFR Part 9407

    Administrative practice and procedure, Government employees.

11 CFR Part 9410

    Administrative practice and procedure, Freedom of information, 
Government employees.
    In consideration of the foregoing, EAC proposes to amend title 11, 
Code of Federal Regulations, by adding chapter II, consisting of parts 
9405, 9407, and 9410, to read as follows:

[[Page 36810]]

CHAPTER II--ELECTION ASSISTANCE COMMISSION

PART 9405--PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM 
OF INFORMATION ACT

Sec.
9405.1 Purpose and scope.
9405.2 Definitions.
9405.3 Policy on disclosure of records.
9405.4 Availability of records.
9405.5 Categories of exemptions.
9405.6 Discretionary release of exempt records.
9405.7 Requests for records.
9405.8 Appeals of denials of requests for records.
9405.9 Fees in general.
9405.10 Fees to be charged--categories of requesters.
9405.11 Miscellaneous fee provisions.
9405.12 Waiver or reduction of charges.

    Authority: 5 U.S.C. 552, as amended.


Sec.  9405.1  Purpose and scope.

    The regulations in this part implement the provisions of the 
Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended, with 
respect to the availability of records for inspection and copying.


Sec.  9405.2  Definitions.

    As used in this part, the term--
    Chief FOIA Officer means the person designated under Sec.  
9405.3(d) who has Commission-wide responsibility for the efficient and 
appropriate compliance with the FOIA.
    Commercial use request means a FOIA request from or on behalf of a 
person who seeks information for a use or purpose that furthers his/her 
commercial, trade, or profit interests, which can include furthering 
those interests through litigation. The FOIA Officer will determine, 
whenever reasonably possible, the use to which a requester will put the 
requested documents. Where the FOIA Officer has reasonable cause to 
doubt the use for which the requester claims to have made the FOIA 
request or where that use is not clear from the FOIA request itself, 
the FOIA Officer will seek additional clarification before assigning 
the request to a specific category.
    Commission means the U.S. Election Assistance Commission, 
established by the Help America Vote Act of 2002, 42 U.S.C. 15301 et 
seq.
    Commissioner means an individual appointed to the Commission by the 
President and confirmed by the Senate under section 203 of the Help 
America Vote Act of 2002, 42 U.S.C. 15323.
    Direct costs means those expenditures which the Commission actually 
incurs in searching for, duplicating, and, in the case of commercial 
use requesters, reviewing documents to respond to a FOIA request. 
Direct costs include, but are not limited to, the salary of the 
employee performing the work (the basic rate of pay for the employee 
plus 16 percent of that basic rate to cover benefits) and the cost of 
operating duplicating equipment. Direct costs do not include overhead 
expenses, such as the cost of space and heating or lighting the 
facility in which the records are stored.
    Duplication means the process of making a copy of a document 
necessary to respond to a FOIA request. Examples of the form such 
copies can take include, but are not limited to, paper copy, microform, 
audio-visual materials, or machine readable documentation (e.g., 
magnetic tape, DVD, or CD). The Commission will honor a requester's 
specified preference of form or format of disclosure if the records 
requested are reasonably reproducible with reasonable efforts in the 
requested form or format.
    Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institute of graduate higher education, an institution of 
professional education, and an institution of vocational education, 
which operates a program or programs of scholarly research.
    Executive Director means the Executive Director of the Commission 
or his or her designee.
    FOIA means Freedom of Information Act, 5 U.S.C. 552, as amended.
    FOIA Officer means a person designated by the Chief FOIA Officer 
under Sec.  9405.3(d) to carry out day-to-day implementation of the 
FOIA activities of the Commission.
    FOIA Public Liaison means a person designated by the Chief FOIA 
Officer under Sec.  9405.3(d) to assist in the resolution of any 
disputes between the requester and the Commission.
    FOIA request means to seek the release of records under 5 U.S.C. 
552, as amended.
    General Counsel means the General Counsel of the Commission or his 
or her designee.
    Non-commercial scientific institution means an organization that is 
not operated on a commercial basis and which is operated solely for the 
purpose of conducting scientific research, the results of which are not 
intended to promote any particular product or industry.
    Record means any information that would be a Commission record 
subject to the requirements of this part when maintained by the 
Commission in any format, including, but not limited to, an electronic 
format. Record includes information that is maintained for the 
Commission by an entity under Government contract for the purposes of 
records management.
    Representative of the news media means any person or entity that 
gathers information of potential interest to a segment of the public, 
uses editorial skills to turn the raw materials into a distinct work, 
and distributes that work to an audience. As used in this paragraph, 
``news'' means information that is about current events or that would 
be of current interest to the public. Examples of news media entities 
include, but are not limited to, television or radio stations 
broadcasting to the public at large, web logs, and publishers of 
periodicals (but only in those instances in which these entities can 
qualify as disseminators of news, as defined in this paragraph) who 
make their products available for purchase or subscription by the 
general public. As used in this paragraph, a ``web log'' means a 
publicly available Web site, usually maintained by an individual, with 
regular entries of commentary, descriptions of events, or other 
material. A freelance journalist may be regarded as working for a news 
media entity and therefore, considered a representative of the news 
media if that person can demonstrate a solid basis for expecting 
publication by a news organization (whether or not the journalist is 
actually employed by the entity). A publication contract would present 
a solid basis for such an expectation. The Commission may also consider 
the past publication record of the requester in making this 
determination.
    Requester is any person who submits a FOIA request to the 
Commission for release of a record under 5 U.S.C. 552, as amended.
    Review means the process of examining a document located in 
response to a commercial use request to determine whether any portion 
of the document located is exempt from disclosure. Review also refers 
to processing any document for disclosure, i.e., doing all that is 
necessary to excise exempt portions of the document or otherwise 
prepare the document for release. Review time includes time spent 
considering any formal objection to disclosure made by a business 
submitter requesting confidential treatment but does not include time 
spent resolving general legal or policy issues regarding the 
application of exemptions.
    Search means all time spent reviewing, manually or by automated 
means, Commission records for the purpose of locating those records 
that

[[Page 36811]]

are responsive to a FOIA request, including, but not limited to, page-
by-page or line-by-line identification of material within documents and 
also includes reasonable efforts to locate and retrieve information 
from records maintained in electronic form or format. Search time does 
not include review of material to determine whether the material is 
exempt from disclosure.


Sec.  9405.3  Policy on disclosure of records.

    (a) The Commission will make the fullest possible disclosure of 
records to the public, consistent with the rights of individuals to 
privacy, the rights of individuals and other entities with respect to 
trade secret and commercial or financial information entitled to 
privileged and confidential treatment, and the need for the Commission 
to promote free internal policy deliberations and to pursue its 
official activities without undue disruption.
    (b) All Commission records shall be available to the public unless 
they are specifically exempt under this part.
    (c) In the interest of efficiency and economy, the Commission's 
preference is to furnish records to requesters in electronic format, 
when possible.
    (d) To carry out this policy, the Commission shall designate a 
Chief Freedom of Information Act Officer (Chief FOIA Officer). The 
Chief FOIA Officer shall designate one or more Commission officials, as 
appropriate, as FOIA Public Liaison and/or as FOIA Officers. A FOIA 
Public Liaison shall serve as a supervisory official to whom a FOIA 
requester can raise questions about the service the FOIA requester has 
received. A FOIA Officer shall have the authority, subject to the 
direction and supervision of the Chief FOIA Officer, the requirements 
of this part, and the FOIA, to make decisions concerning disclosure of 
records to the public.


Sec.  9405.4  Availability of records.

    (a) The FOIA and its provisions apply only to existing Commission 
records; the FOIA does not require the creation of new records.
    (b) In accordance with 5 U.S.C. 552(a)(2), the Commission shall 
make the following materials available for public inspection and 
copying:
    (1) Statements of policy and interpretation that have been adopted 
by the Commission but have not been published in the Federal Register;
    (2) Administrative staff manuals and instructions to staff that 
affect a member of the public;
    (3) Copies of all records, regardless of form or format, that have 
been released to any person under this paragraph and that, because of 
their nature or subject matter, the Commission determines have become 
or are likely to become the subject of subsequent requests for 
substantially the same records; and
    (4) A general index of the records referred to in paragraph (b)(3) 
of this section.
    (c) In accordance with 5 U.S.C. 552(a)(3), the Commission shall 
make available, upon proper request, all non-exempt Commission records, 
or portions of records, not previously made public under 5 U.S.C. 
552(a)(1) and (a)(2).
    (d) The Commission shall maintain and make available current 
indexes and supplements providing identifying information regarding any 
matter issued, adopted, or promulgated after July 4, 1967. These 
indexes and supplements shall be published and made available on at 
least a quarterly basis for public distribution unless the Commission 
determines by Notice in the Federal Register that publication would be 
unnecessary, impracticable, or not feasible due to budgetary 
considerations. Nevertheless, copies of any index or supplement shall 
be made available upon request at a cost not to exceed the direct cost 
of duplication.
    (e) If documents or files contain both disclosable and non-
disclosable information, the non-disclosable information will be 
deleted and the disclosable information released, unless the 
disclosable portions cannot be reasonably segregated from the other 
portions in a manner which will allow meaningful information to be 
disclosed.
    (f) All records created in the process of implementing provisions 
of 5 U.S.C. 552 will be maintained by the Commission in accordance with 
the authority granted by the National Archives and Records Service of 
the General Services Administration.
    (g) The Commission encourages the public to explore the information 
available on the Commission's Web site, located at http://www.eac.gov.


Sec.  9405.5  Categories of exemptions.

    (a) No FOIA requests under 5 U.S.C. 552 shall be denied release 
unless the record contains, or its disclosure would reveal, matters 
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 are, in fact, properly classified under such 
Executive Order;
    (2) Related solely to the internal personnel rules and practices of 
the Commission;
    (3) Specifically exempted from disclosure by statute, provided that 
such statute:
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (4) Trade secrets and commercial or financial information obtained 
from a person that are privileged or confidential. Such information 
includes confidential business information which concerns or relates to 
the trade secrets, processes, operations, style of works, or apparatus, 
or to the production, sales, shipments, purchases, transfers, 
identification of customers, inventories, or amount of source of 
income, profits, losses, or expenditures of any person, firm, 
partnership, corporation, or other organization, if the disclosure is 
likely to have the effect of either impairing the Commission's ability 
to obtain such information as is necessary to perform its statutory 
functions or causing substantial harm to the competitive position of 
the person, firm, partnership, corporation, or other organization from 
which the information was obtained, unless the Commission is required 
by law to disclose such information. For purposes of this section, 
trade secret means a secret, commercially valuable plan, formula, 
process, or device that is used for the making, preparing, compounding, 
or processing of trade commodities and that can be said to be the end 
product of either innovation or substantial effort. Examples of trade 
secrets may include, but are not limited to, plans, schematics, 
specifications of materials used in production, source code used to 
develop software, technical descriptions of manufacturing process, 
quality control methodology, and test results. The following procedures 
shall be used for submitting business information in confidence:
    (i) Clearly mark any portion of any data or information being 
submitted that in the submitter's opinion is a trade secret or 
commercial and financial information that the submitter is claiming 
should be treated as privileged and confidential and submit such data 
or information separately from other material being submitted to the 
Commission;
    (ii) A request for confidential treatment shall be addressed to the 
Chief FOIA Officer, U.S. Election Assistance Commission, 1225 New York 
Avenue, NW., Suite 1100, Washington, DC 20005 and shall indicate 
clearly on the envelope that it is a request for confidential 
treatment.
    (iii) With each submission of, or offer to submit, business 
information which a

[[Page 36812]]

submitter desires to be treated as confidential under paragraph (a)(4) 
of this section, the submitter shall provide the following, which may 
be disclosed to the public:
    (A) A written description of the nature of the subject information 
and a justification for the request for its confidential treatment, and
    (B) A certification in writing under oath that substantially 
identical information is not available to the public.
    (iv) Approval or denial of requests shall be made only by the Chief 
FOIA Officer or his or her designees. A denial shall be in writing, 
shall specify the reason for the denial, and shall advise the submitter 
of the right to appeal to the Commission.
    (v) For good cause shown, the Commission may grant an appeal from a 
denial by the Chief FOIA Officer or his or her designee if the appeal 
is filed within 15 days after receipt of the denial. An appeal shall be 
addressed to the Chief FOIA Officer, U.S. Election Assistance 
Commission, 1225 New York Avenue, NW., Suite 1100, Washington, DC 20005 
and shall clearly indicate that it is a confidential submission appeal. 
An appeal will be decided within 20 days after its receipt (excluding 
Saturdays, Sundays, and legal holidays) unless an extension, stated in 
writing with the reasons therefore, has been provided to the person 
making the appeal.
    (vi) Any business information submitted in confidence and 
determined to be entitled to confidential treatment shall be maintained 
in confidence by the Commission and not disclosed except as required by 
law. In the event that any business information submitted to the 
Commission is not entitled to confidential treatment, the submitter 
will be permitted to withdraw the tender unless it is the subject of a 
request under the FOIA or of judicial discovery proceedings.
    (5) Interagency or intra-agency memoranda or letters that would not 
be available by law to a party 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;
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information:
    (i) Could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) Would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, or foreign agency or 
authority or any private institution that furnished information on a 
confidential basis, and, in the case of a record or information 
compiled by a criminal law enforcement authority in the course of a 
criminal investigation, or by an agency conducting a lawful national 
security intelligence investigation, information furnished by a 
confidential source;
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (b) Any portion of a record that reasonably can be segregated from 
the balance of the record shall be provided to any individual 
requesting such record after deletion of the portions which are exempt. 
The amount of information deleted and the exemption under which the 
deletion is made shall be indicated on the released portion of the 
record, unless including that indication would harm an interest 
protected by an exemption in paragraph (a) of this section under which 
the deletion is made. If technically feasible, the amount of the 
information deleted shall be indicated at the place in the record where 
such deletion is made.
    (c) If a requested record is one of another government agency or 
deals with subject matter to which a government agency other than the 
Commission has exclusive or primary responsibility, the request for 
such a record shall be promptly referred by the Commission to that 
agency for disposition or guidance as to disposition.
    (d) Nothing in this part authorizes withholding of information or 
limiting the availability of records to the public, except as 
specifically provided; nor is this part authority to withhold 
information from Congress.


Sec.  9405.6  Discretionary release of exempt records.

    The Commission may, in its discretion, release requested records 
despite the applicability of the exemptions in Sec.  9405.5, if it 
determines that it is in the public interest and that the rights of 
third parties would not be prejudiced. The Executive Director will have 
the authority to determine that requested records may be released 
despite otherwise applicable exemptions.


Sec.  9405.7  Requests for records.

    (a) Requests for copies of Commission records under the FOIA shall 
be made in writing and addressed to the Chief FOIA Officer, U.S. 
Election Assistance Commission, 1225 New York Avenue, NW., Suite 1100, 
Washington, DC 20005. The request shall reasonably describe the records 
sought with sufficient specificity with respect to names, dates, and 
subject matter to permit the records to be located. A requester will be 
promptly advised if the records cannot be located on the basis of the 
description given and that further identifying information must be 
provided before the request can be satisfied.
    (b) Requests for Commission records and copies thereof shall 
specify the preferred form or format (including electronic formats) of 
the response. The Commission shall accommodate requesters as to form or 
format if the record is readily available in that form or format. When 
requesters do not specify the form or format of the response, the 
Commission shall respond in the form or format in which the document is 
most accessible to the Commission. In the interest of efficiency and 
economy, the Commission's preference is to furnish records to 
requesters in electronic format, whenever possible.
    (c) The Commission shall determine within 20 working days after 
receipt of a request, or 20 working days after an appeal is granted, 
whether to comply with such request, unless in unusual circumstances 
the time is extended. The 20-day period shall commence on the date on 
which the request was first received by the appropriate component of 
the Commission, but in any event, not later than 10 days after the 
request is first received by the component of the Commission designated 
to receive requests under this part. The 20-day period shall not be 
tolled by the Commission except--
    (1) The Commission may make one request of the requester for 
information and toll the 20-day period while it is awaiting such 
information that it has reasonably requested from the requester.
    (2) If it is necessary to clarify with the requester issues 
regarding fee assessment.
    (3) Under paragraphs (c)(1) or (2) of this section, the 
Commission's receipt of the requester's response to the Commission's 
request for information or clarification ends the tolling period.

[[Page 36813]]

    (d) In the event the time is extended under paragraph (c) of this 
section, the requester shall be notified of the reasons for the 
extension and the date on which a determination is expected to be made. 
An extension may be made if it is--
    (1) Necessary to locate records or transfer them from physically 
separate facilities; or
    (2) Necessary to search for, collect, and appropriately examine a 
large quantity of separate and distinct records that are the subject of 
a single request; or
    (3) Necessary for consultation with another agency that has a 
substantial interest in the determination of the request.
    (e) If the Commission determines that an extension of time is 
necessary to respond to a request satisfying the unusual circumstances 
specified in paragraph (c) of this section, the Commission shall so 
notify the requester and give the requester an opportunity to limit the 
scope of the request so that it may be processed within the time limit 
prescribed in paragraph (c) of this section or arrange with the 
Commission an alternative time frame for processing the request or a 
modified request.
    (f) The Commission may aggregate and process as a single request 
requests by the same requester, or a group of requesters acting in 
concert, if the Commission reasonably believes that the requests 
actually constitute a single request that would otherwise satisfy the 
unusual circumstances specified in paragraph (c) of this section, and 
the requests involve clearly related matters.
    (g) The Commission will process requests under the FOIA based on 
the order they are received.
    (h) The Commission shall consider requests for the expedited 
processing of requests in cases where the requester demonstrates a 
compelling need for such processing.
    (1) The term ``compelling need'' means, with respect to a request 
made by a person primarily engaged in disseminating information, 
urgency to inform the public concerning actual or alleged Federal 
government activity.
    (2) Requesters for expedited processing must include in their 
requests a statement setting forth the basis for the claim that a 
``compelling need'' exists for the requested information, certified by 
the requester to be true and correct to the best of his or her 
knowledge and belief.
    (3) The Commission shall determine whether to grant a request for 
expedited processing and notify the requester of such determination 
within 10 days of receipt of the request. Denials of requests for 
expedited processing may be appealed as set forth in Sec.  9405.8. The 
Commission shall expeditiously determine any such appeal. As soon as 
practicable, the Commission shall process the documents responsive to a 
request for which expedited processing is granted.
    (i) Any person denied access to records by the Commission shall be 
notified immediately of the denial, including the reasons for the 
decision and notified of his or her right to appeal the adverse 
determination to the Commission.
    (j) The date of receipt of a request under this part shall be the 
date on which the Chief FOIA Officer actually receives the request.
    (k) Each request received by the Chief FOIA Officer will be 
assigned an individualized tracking number. Requesters may call (866) 
747-1471 and, using the tracking number, obtain information about the 
request, including the date on which the Commission originally received 
the request and an estimated date on which the Commission will complete 
action on the request.


Sec.  9405.8  Appeals of denials of requests for records.

    (a) Any person who has been notified under Sec.  9405.7(i) that 
his/her request for inspection of a record or for a copy of a record 
has been denied, or who has received no response within 20 working days 
(or within such extended period as is permitted under Sec.  9405.7(d)) 
after the request has been received by the Commission, or who has 
received no response within 20 days after a request for expedited 
processing has been received by the Commission, may appeal the adverse 
determination or the failure to respond by requesting the Commission to 
direct that the record be made available or that the expedited 
processing shall occur.
    (b) The appeal request shall be in writing, shall clearly and 
prominently state on the envelope or other cover and at the top of the 
first page ``FOIA Appeal,'' and shall identify the record in the form 
in which it was originally requested.
    (c) The appeal request should be delivered or addressed to the 
Chief FOIA Officer, U.S. Election Assistance Commission, 1225 New York 
Avenue NW., Suite 1100, Washington, DC 20005.
    (d) The requester may state facts and cite legal or other 
authorities as he or she deems appropriate in support of the appeal 
request.
    (e) The Commission will make a determination with respect to any 
appeal within 20 working days after receipt of the appeal (or within 
such extended period as is permitted under Sec.  9405.7). If, on 
appeal, the denial of the request for a record or a copy is in whole or 
in part upheld, the Commission shall advise the requester of the denial 
and shall notify him or her of the provisions for judicial review of 
that determination as set forth in 5 U.S.C. 552(a)(4).
    (f) Because of the risk of misunderstanding inherent in oral 
communications, the Commission will not entertain any appeal from an 
alleged denial or failure to comply with an oral request. Any person 
who has orally requested a copy of a record that he or she believes to 
have been improperly denied should resubmit the request in writing as 
set forth in Sec.  9405.7.


Sec.  9405.9  Fees in general.

    (a) Generally. The Commission will charge fees that recoup the full 
allowable direct costs it incurs. The Commission will use the most 
efficient and least costly means to comply with requests for 
documentation.
    (b) Manual searches for records. The Commission will charge fees at 
the salary rate(s) (basic pay plus 16 percent) of the employee(s) 
making the search.
    (c) Computer searches for records. The Commission will charge the 
actual direct cost of operating the central processing unit (CPU) for 
that portion of operating time that is directly attributable to 
searching for records responsive to a FOIA request and operator/
programmer salary apportionable to the search.
    (d) Review of records. Only requesters who are seeking documents 
for commercial use may be charged for time spent reviewing records to 
determine whether they are exempt from mandatory disclosure. Charges 
may be assessed only for the initial review (i.e. the review undertaken 
the first time the Commission analyzes the applicability of a specific 
exemption to a particular record or portion of a record). Records or 
portions of records withheld in full under an exemption that is 
subsequently determined not to apply may be reviewed again to determine 
the applicability of other exemptions not previously considered. The 
costs for such a subsequent review are assessable. The Commission will 
charge at the salary rate(s) (basic pay plus 16 percent) of the 
employee(s) reviewing records.
    (e) Duplication of records. Records will be duplicated at a rate of 
fifteen (15) cents per page. For copies prepared by computers, such as 
tapes, CDs, DVDs, or printouts, the Commission shall charge the actual 
cost, including

[[Page 36814]]

operator time, of production. For other methods of reproduction or 
duplication, the Commission will charge the actual direct costs of 
producing the document(s). If the Commission estimates that duplication 
charges are likely to exceed $25, it shall notify the requester of the 
estimated amount of fees, unless the requester has indicated in advance 
a willingness to pay fees as high as those anticipated. Such a notice 
shall offer a requester the opportunity to confer with agency personnel 
with the object of reformulating the request to meet his or her needs 
at a lower cost.
    (f) Other charges. The Commission will recover the full costs of 
providing services such as those enumerated below when it provides them 
in response to a direct request for such services:
    (1) Certifying that records are true copies; or
    (2) Sending records by special methods such as express mail.
    (g) Payment of fees. Remittance shall be in the form either of a 
personal check or bank draft drawn on a bank in the United States or a 
postal money order. Remittance shall be made payable to the order of 
the Treasury of the United States and mailed to the Chief FOIA Officer, 
U.S. Election Assistance Commission, 1225 New York Avenue NW., Suite 
1100, Washington, DC 20005.
    (h) Receipt of fees. A receipt for fees paid will be given upon 
request. Refund of fees paid for services actually rendered will not be 
made.
    (i) Restrictions on assessing fees. The Commission shall not assess 
search fees or duplication fees under this paragraph if the Commission 
fails to comply with any time limit in these regulations. The 
Commission will not charge fees to any requester, including commercial 
use requesters, if the cost of collecting a fee would be equal to or 
greater than the fee itself. With the exception of requesters seeking 
documents for a commercial use, the Commission will not charge fees for 
the first 100 pages of duplication and the first two hours of search 
time.
    (1) The elements to be considered in determining the ``cost of 
collecting a fee'' are the administrative costs of receiving and 
recording a requester's remittance and processing the fee for deposit 
in the Treasury Department's special account.
    (2) For purposes of these restrictions on assessment of fees, the 
word ``pages'' means paper copies of 8.5'' x 11'' or 11'' x 14.'' Thus, 
requesters are not entitled to 100 computer disks, for example.
    (3) For purposes of these restrictions on assessment of fees, the 
term ``search time'' means manual search. To apply this term to 
searches made by computer, the Commission will determine the hourly 
cost of operating the CPU and the operator's hourly salary plus 16 
percent. When the cost of such search (including operator time and the 
cost of operating the computer to process a request) equals the 
equivalent dollar amount of two hours of salary of the person 
performing the search (i.e. the operator), the Commission will begin 
assessing charges for computer search.


Sec.  9405.10  Fees to be charged--categories of requesters.

    There are four categories of FOIA requesters: Commercial use 
requesters; educational and non-commercial scientific institutions; 
representatives of the news media; and all other requesters.
    (a) Commercial use requesters. When the Commission receives a 
request for documents for commercial use, it will assess charges that 
recover the full direct costs of searching for, reviewing for release, 
and duplicating the record sought. Commercial use requesters are 
neither entitled to two hours of free search time nor 100 free pages of 
duplication. The Commission may recover the cost of searching for and 
reviewing records even if there is ultimately no disclosure of records 
(see Sec.  9405.11(b)).
    (b) Educational and non-commercial scientific institution 
requesters. The Commission shall provide documents to requesters in 
this category for the cost of reproduction alone, excluding charges for 
the first 100 pages. To be eligible for inclusion in this category, 
requesters must show that the record is being made as authorized by and 
under the auspices of a qualifying institution and that the records are 
not sought for a commercial use but are sought in the furtherance of 
scholarly (if the request is from an educational institution) or 
scientific (if the request is from a non-commercial scientific 
institution) research.
    (c) Representatives of the news media. The Commission shall provide 
documents to requesters in this category for the cost of reproduction 
alone, excluding charges for the first 100 pages. To be eligible for 
inclusion in this category, the requester must fit the definition of a 
representative of the news media as stated in Sec.  9405.2, and the 
request must not be made for commercial use. For purposes of this 
paragraph, a request for records supporting the news dissemination 
function of the requester shall not be considered to be a request that 
is for commercial use.
    (d) All other requesters. The Commission shall charge requesters 
who do not fit into any of the categories above fees that recover the 
full reasonable direct cost of searching for and reproducing records 
that are responsive to the request, except that the first 100 pages of 
reproduction and the first two hours of search time shall be furnished 
without charge.


Sec.  9405.11  Miscellaneous fee provisions.

    (a) Charging Interest--notice and rate. The Commission may begin 
assessing interest charges on an unpaid bill starting on the 31st day 
following the day on which the billing was sent. The fact that the fee 
has been received by the Commission within the 30-day grace period, 
even if it is not processed, will suffice to stay the accrual of 
interest. Interest will be at the rate prescribed in section 3717 of 
title 31 of the United States Code and will accrue from the date of the 
billing.
    (b) Charges for unsuccessful search. The Commission may assess 
charges for time spent searching, even if it fails to locate the 
records or if the records located are determined to be exempt from 
disclosure. If the Commission estimates that search charges are likely 
to exceed $25, it shall notify the requester of the estimated amount of 
fees, unless the requester has indicated in advance his willingness to 
pay fees as high as those anticipated. Such a notice shall offer the 
requester the opportunity to confer with agency personnel with the 
object of reformulating the request to meet his or her needs at a lower 
cost.
    (c) Aggregating requests. A requester may not file multiple 
requests at the same time, each seeking portions of a document or 
documents, solely in order to avoid payment of fees. When the 
Commission reasonably believes that a requester or a group of 
requestors acting in concert has submitted requests that constitute a 
single request involving clearly related matters, the Commission may 
aggregate those requests and charge accordingly. One element to be 
considered in determining whether a belief would be reasonable is the 
time period over which the requests have occurred.
    (d) Advance payments. The Commission may not require a requester to 
make an advance payment (i.e., payment before work is commenced or 
continued on a request) unless:
    (1) The Commission estimates or determines that allowable charges 
that a requester may be required to pay are likely to exceed $250. 
Then, the Commission will notify the requester of the likely cost and 
obtain satisfactory

[[Page 36815]]

assurance of full payment where the requester has a history of prompt 
payment of FOIA fees or require an advance payment of an amount up to 
the full estimated charges in the case of requesters with no history of 
payment; or
    (2) A requester has previously failed to pay a fee charged in a 
timely fashion (i.e., within 30 days of the date of the billing). Then, 
the Commission may require the requester to:
    (i) Pay the full amount owed plus any applicable interest as 
provided above or demonstrate that he or she has, in fact, paid the 
fee, and
    (ii) Make an advance payment of the full amount of the estimated 
fee before the agency begins to process a new request or a pending 
request from that requester.
    (3) When the Commission acts under paragraphs (d)(1) or (2) of this 
section, the administrative time limits prescribed in 5 U.S.C. 
552(a)(6) will begin only after the Commission has received payments 
described in paragraphs (d)(1) and (2) of this section.
    (e) Effect of Debt Collection Act of 1982. The Commission shall 
comply with the provisions of the Debt Collection Act, including 
disclosure to consumer reporting agencies and use of collection 
agencies, where appropriate, to encourage repayment.


Sec.  9405.12  Waiver or reduction of charges.

    Records responsive to a request will be furnished without charge 
when the Chief FOIA Officer determines, based on all available 
information, that disclosure of the requested 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.

 PART 9407--IMPLEMENTATION OF THE GOVERNMENT IN THE SUNSHINE ACT

Sec.
9407.1 Purpose and scope.
9407.2 Definitions.
9407.3 Open meetings.
9407.4 Notice of meetings.
9407.5 Closed meetings.
9407.6 Procedures for closing meetings.
9407.7 Recordkeeping requirements.
9407.8 Public availability of records.

    Authority: 5 U.S.C. 552b.


Sec.  9407.1  Purpose and scope.

    This part contains the regulations of the U.S. Election Assistance 
Commission implementing the Government in the Sunshine Act (5 U.S.C. 
552b). Consistent with the Act, it is the policy of the Commission that 
the public is entitled to the fullest practicable information regarding 
its decision making processes. This part sets forth the basic 
responsibilities of the Commission with regard to this policy and 
offers guidance to members of the public who wish to exercise the 
rights established by the Act. These regulations also fulfill the 
requirement of 5 U.S.C. 552b(g) that each agency subject to the Act 
promulgates regulations to implement the open meeting requirements of 
paragraphs (b) through (f) of section 552b.


Sec.  9407.2  Definitions.

    As used in this part, the term--
    Commission means the U.S. Election Assistance Commission, 
established by the Help America Vote Act of 2002, 42 U.S.C. 15301 et 
seq.
    Commissioner means an individual appointed to the Commission by the 
President and confirmed by the Senate under section 203 of the Help 
America Vote Act of 2002, 42 U.S.C. 15323.
    Executive Director means the Executive Director of the Commission 
or his or her designee.
    General Counsel means the General Counsel of the Commission or his 
or her designee.
    Meeting means the deliberations of at least three Commissioners 
where such deliberations determine or result in the joint conduct or 
disposition of official Commission business. A deliberation conducted 
through telephone or similar communications equipment in which all 
persons participating can hear each other shall be considered a 
meeting. For the purposes of this section, ``joint conduct'' does not 
include situations where the requisite number of members is physically 
present in one place but not conducting agency business as a body. In 
addition, the term ``meeting'' does not include a process of notation 
voting by circulated memorandum for the purpose of expediting 
consideration of official Commission business. The term ``meeting'' 
also does not include deliberations on whether to:
    (1) Schedule a meeting;
    (2) Hold a meeting with less than seven days notice, as provided in 
Sec.  9407.4(e);
    (3) Change the subject matter of a publicly announced meeting or 
the determination of the Commission to open or close a meeting or 
portions of a meeting to public observation, as provided in Sec.  
9407.4(f);
    (4) Change the time or place of an announced meeting, as provided 
in Sec.  9407.4(g);
    (5) Close a meeting or portions of a meeting, as provided in Sec.  
9407.5; or
    (6) Withhold from disclosure information pertaining to a meeting or 
portions of a meeting, as provided in Sec.  9407.5.
    Public observation means attendance by one or more members of the 
public at a meeting of the Commission but does not include 
participation in the meeting.
    Public participation means the presentation or discussion of 
information, raising of questions, or other manner of involvement in a 
meeting of the Commission by one or more members of the public in a 
manner that contributes to the disposition of Commission business.


Sec.  9407.3  Open meetings.

    (a) The Commissioners shall not jointly conduct, determine, or 
dispose of agency business other than in accordance with this section.
    (b) Except as otherwise provided in this part, every portion of 
every Commission meeting shall be open to public observation.
    (c) No additional right to participate in Commission meetings is 
granted to any person by this part. Meetings of the Commission, or 
portions of a meeting, shall be open to public participation only when 
an announcement to that effect is issued under Sec.  9407.4(b)(4) . 
Public participation shall be conducted in an orderly, non-disruptive 
manner and in accordance with any procedures as the chairperson of the 
meeting may establish. Public participation may be terminated at any 
time for any reason.
    (d) When holding open meetings, the Commission shall make a 
diligent effort to provide appropriate space, sufficient visibility, 
and adequate acoustics to accommodate the public attendance anticipated 
for the meeting. When open meetings are conducted through telephone or 
similar communications equipment, the Commission shall make an effort 
to provide sufficient access to the public in a manner which allows the 
public to clearly hear, see, or otherwise follow the proceedings. The 
meeting room or other forum selected shall be sufficient to accommodate 
a reasonable number of interested members of the public. The Commission 
shall ensure that public meetings are held at a reasonable time and are 
readily accessible to individuals with disabilities.
    (e) Members of the public attending open Commission meetings may 
use small electronic audio recording devices to record the proceedings. 
The use of any other recording equipment and cameras requires advance 
coordination with and notice to the Commission's Communications Office. 
The chair or acting chair of the Commission may

[[Page 36816]]

prohibit, at any time, the use of any recording equipment during a 
public meeting if he or she determines that such recording would 
disrupt the orderly conduct of the meeting.


Sec.  9407.4  Notice of meetings.

    (a) Except as otherwise provided in this section, the Commission 
shall make a public announcement at least seven days prior to a 
meeting.
    (b) The public announcement shall include:
    (1) The time and place of the meeting;
    (2) The subject matter of the meeting;
    (3) Whether the meeting is to be open, closed, or portions of a 
meeting will be closed;
    (4) Whether public participation will be allowed; and
    (5) The name and telephone number of the person who will respond to 
requests for information about the meeting.
    (c) The public announcement requirement shall be implemented by:
    (1) Publishing the announcement on the Commission's Web site; and
    (2) Distributing the announcement to affected government entities 
and persons and organizations that the Executive Director determines 
may have an interest in the subject matter of the meeting.
    (d) The announcement will be submitted for publication in the 
Federal Register immediately following the public posting and 
distribution noted in paragraph (c) of this section.
    (e) A meeting may be held with less than seven days' notice if a 
majority of the Commission determines by recorded vote that the 
business of the Commission so requires. The Commission shall make a 
public announcement to this effect at the earliest practicable time. 
The announcement shall include the information required by paragraph 
(b) of this section and shall be issued in accordance with those 
procedures set forth in paragraphs (c) and (d) of this section that are 
practicable given the available period of time.
    (f) The subject matter of an announced meeting or the determination 
of the Commission to open or close a meeting or portions of a meeting 
to public observation may be changed only if:
    (1) A majority of the Commissioners determine by a recorded vote 
that agency business so requires and that no earlier announcement of 
the change was possible,
    (2) The Commission publicly announces the change and the vote of 
each Commissioner upon such change at the earliest practicable time.
    (3) The announcement of the change noted in paragraph (f)(2) of 
this section is issued in accordance with those procedures set forth in 
paragraphs (c) and (d) of this section that are practicable given the 
available period of time.
    (g) The time or place of an announced meeting may be changed only 
if a public announcement of the change is made at the earliest 
practicable time. The announcement shall be issued in accordance with 
those procedures set forth in paragraphs (c) and (d) of this section 
that are practicable given the available period of time.


Sec.  9407.5  Closed meetings.

    (a) A meeting or portions of a meeting may be closed and 
information pertaining to such meeting or portions of a meeting may be 
withheld from the public only if the Commission determines that such 
meeting or portions of a meeting or the disclosure of such information 
is likely to:
    (1) Disclose matters that are:
    (i) Specifically authorized under criteria established by an 
Executive Order to be kept secret in the interest of national defense 
or foreign policy, and
    (ii) To be properly classified under that Executive Order;
    (2) Relate solely to the internal personnel rules and practices of 
the Commission;
    (3) Disclose matters specifically exempted from disclosure by 
statute (other than the Freedom of Information Act, 5 U.S.C. 552) 
provided that the statute:
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (4) Disclose the trade secrets and commercial or financial 
information obtained from a person and privileged or confidential;
    (5) Involve either accusing any person of a crime or formally 
censuring any person;
    (6) Disclose information of a personal nature, if disclosure would 
constitute a clearly unwarranted invasion of personal privacy;
    (7) Disclose either investigatory records compiled for law 
enforcement purposes or information which, if written, would be 
contained in such records but only to the extent that the production of 
the records or information would:
    (i) Interfere with enforcement proceedings,
    (ii) Deprive a person of a right to either a fair trial or an 
impartial adjudication,
    (iii) Constitute an unwarranted invasion of personal privacy,
    (iv) Disclose the identity of a confidential source or sources and, 
in the case of a record compiled either by a criminal law enforcement 
authority in the course of a criminal investigation or by an agency 
conducting a lawful national security intelligence investigation, 
confidential information furnished only by the confidential source or 
sources,
    (v) Disclose investigative techniques and procedures, or
    (vi) Endanger the life or physical safety of law enforcement 
personnel;
    (8) Disclose information contained in or related to examination, 
operating, or condition reports prepared by, on behalf of, or for the 
use of an agency responsible for the regulation or supervision of 
financial institutions;
    (9) Disclose information the premature disclosure of which would be 
likely to significantly frustrate implementation of a proposed action 
of the Commission. This exception shall not apply in any instance where 
the Commission has already disclosed to the public the content or 
nature of the proposed action or where the Commission is required by 
law to make such disclosure on its own initiative prior to taking final 
action on the proposal; or
    (10) Specifically concern the issuance of a subpoena by the 
Commission; or the participation of the Commission in a civil action or 
proceeding, an action in a foreign court or international tribunal, or 
an arbitration; or the initiation, conduct, or disposition by the 
Commission of a particular case of formal adjudication under the 
procedures in 5 U.S.C. 554 or otherwise involving a determination on 
the record after opportunity for a hearing.
    (b) Before a meeting or portions of a meeting may be closed to 
public observation, the Commission shall determine, notwithstanding the 
exemptions set forth in paragraph (a) of this section, whether the 
public interest requires that the meeting or portions of a meeting be 
open consistent with Federal law. The Commission may open a meeting or 
portions of a meeting that could be closed under paragraph (a) of this 
section if the Commission finds it to be in the public interest to do 
so and the disclosure is not otherwise prohibited by Federal law.


Sec.  9407.6  Procedures for closing meetings.

    (a) A meeting or portions of a meeting may be closed and 
information

[[Page 36817]]

pertaining to a meeting or portions of a meeting may be withheld under 
Sec.  9407.5(a) only when a majority of the members of the Commission 
vote to take the action.
    (b) A separate vote of the Commissioners shall be taken with 
respect to each meeting or portion of a meeting proposed to be closed 
and with respect to information which is proposed to be withheld. A 
single vote may be taken with respect to a series of meetings or 
portions of a meeting that are proposed to be closed, so long as each 
meeting or portion of a meeting in the series involves the same 
particular matter and is scheduled to be held no more than 30 days 
after the initial meeting in the series. The vote of each participating 
Commission member shall be recorded, and no proxies shall be allowed.
    (c) A person whose interests may be directly affected by a portion 
of a meeting may request in writing that the Commission close that 
portion of the meeting for any of the reasons referred to in Sec.  
9407.5(a) (5), (6), or (7) . Upon the request of a Commissioner, a 
recorded vote shall be taken whether to close such meeting or a portion 
of a meeting.
    (d) Before the Commission may hold a meeting that is closed, in 
whole or part, a certification shall be obtained from the General 
Counsel that, in his or her opinion, the meeting may properly be 
closed. The certification shall be in writing and shall state each 
applicable exemption provision from Sec.  9407.5(a).
    (e) Within one day of a vote taken under this section, the 
Commission shall make publicly available a written copy of such vote 
reflecting the vote of each Commissioner.
    (f) In the case of the closure of a meeting or portions thereof, 
the Commission shall make publicly available within one day of the vote 
on such action a full written explanation of the reasons for the 
closing with a list of all persons expected to attend the meeting and 
their affiliation.


Sec.  9407.7  Recordkeeping requirements.

    (a) The Commission shall maintain either a complete transcript or 
electronic recording of the proceedings of each meeting.
    (b) In the case of either a meeting or portions of a meeting closed 
to the public under Sec.  9407.5(a)(8) or (10), the Commission shall 
maintain a complete transcript, an electronic recording, or a set of 
minutes of the proceedings. If minutes are maintained, they shall fully 
and clearly describe all matters discussed and shall provide a full and 
accurate summary of any actions taken and the reasons for which such 
actions were taken, including a description of the views expressed on 
any item and a record reflecting the vote of each Commissioner. All 
documents considered in connection with any action shall be identified 
in the minutes.
    (c) The transcript, electronic recording, or copy of the minutes of 
a meeting shall disclose the identity of each speaker.
    (d) The Commission shall maintain a complete verbatim copy of the 
transcript, a complete electronic recording, or a complete copy of the 
minutes of the proceedings of each meeting for at least two years, or 
for one year after the conclusion of any Commission proceeding with 
respect to which the meeting was held, whichever occurs later.


Sec.  9407.8  Public availability of records.

    The Commission shall make available to the public the transcript, 
electronic recording, or minutes of a meeting, except for items of 
discussion or testimony that relate to matters the Commission has 
determined to contain information that may be withheld under Sec.  
9407.5(a). This information shall be made available as soon as 
practicable after each meeting on the Commission's Web site. Otherwise, 
requests to receive or review transcripts, electronic recordings, or 
minutes of a meeting should be addressed to the Communications 
Director, U.S. Election Assistance Commission, 1225 New York Avenue, 
Suite 1100, Washington, DC 20005. Copies of a transcript, a 
transcription of the electronic recording, or the minutes of a meeting 
(except for items of discussion or testimony that relate to matters 
withheld under Sec.  9407.5) shall be furnished at cost to any person 
upon written request pursuant to the requirements of 11 CFR 9405.

PART 9410--IMPLEMENTATION OF THE PRIVACY ACT OF 1974

Sec.
9410.1 Purpose and scope.
9410.2 Definitions.
9410.3 Procedures for requests pertaining to individual records in a 
record system.
9410.4 Times, places, and requirements for identification of 
individuals making requests.
9410.5 Disclosure of requested information to individuals.
9410.6 Request for correction or amendment to record.
9410.7 Commission review of request for correction or amendment of 
record.
9410.8 Appeal of initial adverse determination on amendment or 
correction.
9410.9 Disclosure of record to person other than the individual to 
whom it pertains.
9410.10 Fees.
9410.11 Penalties.

    Authority: 5 U.S.C. 552a.


Sec.  9410.1  Purpose and scope.

    (a) This part sets forth rules that inform the public as to what 
information is maintained by the U.S. Election Assistance Commission 
about identifiable individuals and that inform those identifiable 
individuals how they may gain access to and correct or amend 
information about them.
    (b) The regulations in this part carry out the requirements of the 
Privacy Act of 1974 (Pub. L. 93-579) and in particular 5 U.S.C. 552a as 
added by that Act.
    (c) The regulations in this part apply only to records disclosed or 
requested under the Privacy Act of 1974 and not to requests for 
information made under 5 U.S.C. 552, the Freedom of Information Act, or 
requests for reports and statements filed with the Election Assistance 
Commission which are public records and available for inspection and 
copying.


Sec.  9410.2  Definitions.

    As used in this part, the term--
    Commission means the U.S. Election Assistance Commission, 
established by the Help America Vote Act of 2002, 42 U.S.C. 15301 et 
seq.
    Commissioner means an individual appointed to the Commission by the 
President and confirmed by the Senate under section 203 of the Help 
America Vote Act of 2002, 42 U.S.C. 15323.
    Individual means a citizen of the United States or an alien 
lawfully admitted for permanent residence.
    Maintain includes maintain, collect, use, or disseminate.
    Record means any item, collection, or grouping of information about 
an individual that is maintained by the Commission including, but not 
limited to, his or her education, financial transactions, medical 
history, and criminal or employment history and that contains his or 
her name or the identifying number, symbol, or other identifying 
information particularly assigned to the individual, such as finger or 
voice print or a photograph.
    Systems of records means a group of any records under the control 
of the Commission from which information is retrieved by the name of 
the individual or by some identifying number, symbol, or other 
identifying information particularly assigned to the individual.

[[Page 36818]]

Sec.  9410.3  Procedures for requests pertaining to individual records 
in a record system.

    (a) Any individual may request the Commission to inform him or her 
whether a particular record system named by the individual contains a 
record pertaining to him or her. The request may be made in person or 
in writing at the location of the record system and to the person 
specified in the notice describing that record system.
    (b) An individual, who believes that the Commission maintains 
records pertaining to him or her but cannot determine which record 
system contains those records, may request assistance by mail or in 
person from the Executive Director, U.S. Election Assistance 
Commission, 1225 New York Avenue, Suite 1100, Washington, DC 20005 
during the hours of 9 a.m. to 5:30 p.m.
    (c) Requests under paragraphs (a) or (b) of this section shall be 
acknowledged by the Commission within 15 working days from the date of 
receipt of the request. If the Commission is unable to locate the 
information requested under paragraphs (a) or (b) of this section, it 
shall so notify the individual within 15 working days after receipt of 
the request. The notification may request additional information to 
assist the Commission in locating the record, or it may advise the 
individual that no record or document exists about that individual.


Sec.  9410.4  Times, places, and requirements for identification of 
individuals making requests.

    (a) After being informed by the Commission that a record system 
contains a record pertaining to him or her, an individual may request 
that the Commission disclose that record in the manner described in 
this section. Each request for the disclosure of a record or a copy of 
a record it shall be made in person or by written correspondence to the 
U.S. Election Assistance Commission, 1225 New York Avenue, Suite 1100, 
Washington, DC 20005 and to the person identified in the notice 
describing the systems of records. Requests can also be made by 
specifically authorized agents or by parents or guardians of 
individuals.
    (b) Each individual requesting the disclosure of a record or copy 
of a record shall furnish the following information with his or her 
request:
    (1) The name of the record system containing the record;
    (2) Proof as described in paragraph (c) of this section that he or 
she is the individual to whom the requested record relates; and
    (3) Any other information required by the notice describing the 
record system.
    (c) Proof of identity as required by paragraph (b)(2) of this 
section shall be provided as described in paragraphs (c) (1) and (c)(2) 
of this section. Requests made by an agent, parent, or guardian shall 
be in accordance with the procedures described in Sec.  9410.9.
    (1) Requests made in writing shall include a statement affirming 
the individual's identity, signed by the individual and either 
notarized or witnessed by two persons (including witnesses' addresses). 
If the individual appears before a notary, he or she shall submit 
adequate proof of identification in the form of a driver's license, 
birth certificate, passport, or other identification acceptable to the 
notary. If the statement is witnessed, it shall include a sentence 
above the witnesses' signatures that they personally know the 
individual or that the individual has submitted proof of his or her 
identification to their satisfaction. In cases involving records of 
extreme sensitivity, the Commission may determine that the 
identification is not adequate and may request the individual to submit 
additional proof of identification.
    (2) If the request is made in person, the requester shall submit 
proof of identification similar to that described in paragraph (c)(1) 
of this section, acceptable to the Commission.


Sec.  9410.5  Disclosure of requested information to individuals.

    (a) Upon submission of proof of identification as required by Sec.  
9410.4, the Commission shall allow the individual to see and/or obtain 
a copy of the requested record or shall send a copy of the record to 
the individual by registered mail. If the individual requests to see 
the record, the Commission may make the record available either at the 
location where the record is maintained or at a place more suitable to 
the requestor, if possible. The record shall be made available as soon 
as possible, but in no event later than 15 working days after proof of 
identification. The individual may have a person or persons of his or 
her own choosing accompany him or her when the record is disclosed.
    (b) The Commission must furnish each record requested by an 
individual under this part in a form intelligible to that individual.
    (c) If the Commission denies access to a record to an individual, 
he or she shall be advised of the reason for the denial and advised of 
the right to judicial review.
    (d) Upon request, an individual will be provided access to the 
accounting of disclosures from his or her record under the same 
procedures as provided above and in Sec.  9410.4.


Sec.  9410.6  Request for correction or amendment to record.

    (a) Any individual who has reviewed a record pertaining to him or 
her that was furnished under this part may request that the Commission 
correct or amend all or any part of that record.
    (b) Each individual requesting a correction or amendment shall send 
or provide in person the written request to the Commission through the 
person who furnished the record.
    (c) Each request for a correction or amendment of a record shall 
contain the following information:
    (1) The name of the individual requesting the correction or 
amendment;
    (2) The name of the system of records in which the record sought to 
be amended is maintained;
    (3) The location of the system of records from which the individual 
record was obtained;
    (4) A copy of the record sought to be amended or corrected or a 
sufficiently detailed description of that record;
    (5) A statement of the material in the record that the individual 
desires to correct or amend; and
    (6) A statement of the basis for the requested correction or 
amendment including any material that the individual can furnish to 
substantiate the reasons for the correction or amendment sought.


Sec.  9410.7  Commission review of request for correction or amendment 
of record.

    (a) The Commission shall, not later than 10 working days after the 
receipt of the request for a correction or amendment of a record under 
Sec.  9410.6, acknowledge receipt of the request and inform the 
individual whether additional information is required before the 
correction or amendment can be considered.
    (b) If no additional information is required, within 10 working 
days from receipt of the request, the Commission shall either make the 
requested correction or amendment or notify the individual of its 
refusal to do so, including in the notification the reasons for the 
refusal and the appeal procedures provided in Sec.  9410.8.
    (c) The Commission shall make each requested correction or 
amendment to a record if that correction or amendment will negate 
inaccurate, irrelevant, untimely, or incomplete information in the 
record.
    (d) The Commission shall inform prior recipients of a record of any

[[Page 36819]]

amendment or correction or notation of dispute of the individual's 
record if an accounting of the disclosure was made. The individual may 
request a list of prior recipients if an accounting of the disclosure 
was made.


Sec.  9410.8  Appeal of initial adverse determination on amendment or 
correction.

    (a) Any individual whose request for a correction or amendment has 
been denied in whole or in part may appeal that decision to the 
Commissioners no later than 180 days after the adverse decision is 
rendered.
    (b) The appeal shall be in writing and shall contain the following 
information:
    (1) The name of the individual making the appeal;
    (2) Identification of the record sought to be amended;
    (3) The record system in which that record is contained;
    (4) A short statement describing the amendment sought; and
    (5) The name and location of the Commission official who initially 
denied the correction or amendment.
    (c) Not later than 30 working days after the date on which the 
Commission receives the appeal, the Commissioners shall complete their 
review of the appeal and make a final decision thereon. However, for 
good cause shown, the Commissioners may extend that 30-day period. If 
the Commissioners extend the period, the individual requesting the 
review shall be promptly notified of the extension and the anticipated 
date of a decision.
    (d) After review of an appeal, the Commission shall send a written 
notice to the requestor containing the following information:
    (1) The decision and, if the denial is upheld, the reasons for the 
decision;
    (2) The right of the requestor to institute a civil action in a 
Federal District Court for judicial review of the decision; and
    (3) The right of the requestor to file with the Commission a 
concise statement setting forth the reasons for his or her disagreement 
with the Commission's denial of the correction or amendment. The 
Commission shall make this statement available to any person to whom 
the record is later disclosed, together with a brief statement, if 
appropriate, of the Commission's reasons for denying the requested 
correction or amendment. The Commission shall also send a copy of the 
statement to prior recipients of the individual's record if an 
accounting of the disclosures was made.


Sec.  9410.9  Disclosure of record to person other than the individual 
to whom it pertains.

    (a) Any individual who desires to have a record covered by this 
part disclosed to or mailed to another person may designate such person 
and authorize the person to act as his or her agent for that specific 
purpose. The authorization shall be in writing, signed by the 
individual, and notarized or witnessed as provided in Sec.  9410.4(c).
    (b) The parent of any minor individual or the legal guardian of any 
individual who has been declared by a court of competent jurisdiction 
to be incompetent due to physical or mental incapacity or age may act 
on behalf of that individual in any matter covered by this part. A 
parent or guardian who desires to act on behalf of such an individual 
shall present suitable evidence of parentage or guardianship, by birth 
certificate, certified copy of a court order, or similar documents, and 
proof of the individual's identity in a form that complies with Sec.  
9410.4(c).
    (c) An individual to whom a record is to be disclosed in person 
under this part may have a person or persons of his or her own choosing 
accompany him or her when the record is disclosed.


Sec.  9410.10  Fees.

    (a) The Commission shall not charge an individual for the cost of 
making a search for a record or the cost of reviewing the record. When 
the Commission makes a copy of a record as a necessary part of the 
process of disclosing the record to an individual, the Commission shall 
not charge the individual for the cost of making that copy. When the 
Commission makes a copy of a record in response to a request from an 
individual, the Commission may charge the individual for the reasonable 
cost of making the copy.
    (b) If an individual requests that the Commission furnish a copy of 
the record, the Commission shall charge the individual for the cost of 
making the copy. The fee that the Commission has established for making 
a copy is fifteen (15) cents per page.


Sec.  9410.11  Penalties.

    Any person who makes a false statement in connection with any 
request for a record or an amendment or correction thereto under this 
part is subject to the penalties prescribed in 18 U.S.C. 494 and 495 
and 5 U.S.C. 552a(i)(3).

Thomas R. Wilkey,
Executive Director, U.S. Election Assistance Commission.
[FR Doc. E8-14549 Filed 6-27-08; 8:45 am]
BILLING CODE 6820-KF-P