Proposed Rule2023-04978
Non-Public Materials
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 13, 2023
Issuing agencies
Postal Regulatory Commission
Abstract
The Commission is proposing revisions to existing rules on non-public materials and revisions to existing rules on the Freedom of Information Act (FOIA). This document informs the public of the filing, invites public comment, and takes other administrative steps.
Full Text
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<title>Federal Register, Volume 88 Issue 48 (Monday, March 13, 2023)</title>
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[Federal Register Volume 88, Number 48 (Monday, March 13, 2023)]
[Proposed Rules]
[Pages 15343-15346]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-04978]
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POSTAL REGULATORY COMMISSION
39 CFR Parts 3006 and 3011
[Docket No. RM2023-6; Order No. 6451]
RIN 3211-AA35
Non-Public Materials
AGENCY: Postal Regulatory Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Commission is proposing revisions to existing rules on
non-public materials and revisions to existing rules on the Freedom of
Information Act (FOIA). This document informs the public of the filing,
invites public comment, and takes other administrative steps.
DATES: Comments are due: April 6, 2023.
ADDRESSES: Submit comments electronically via the Commission's Filing
Online system at <a href="http://www.prc.gov">http://www.prc.gov</a>. Those who cannot submit comments
electronically should contact the person identified in the FOR FURTHER
INFORMATION CONTACT section by telephone for advice on filing
alternatives.
FOR FURTHER INFORMATION CONTACT: David A. Trissell, General Counsel, at
202-789-6820.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Basis of the Proposed Rules
III. Proposed Rules
I. Background
In conducting the foreign policy of the United States with respect
to international postal services and international delivery services,
the Secretary of State must coordinate with applicable government
agencies, including the Commission, under 39 U.S.C. 407(b)(2)(A). Such
coordination about foreign affairs requires timely, free, and frank
flow of information between government agencies. The Secretary of State
exercises ``primary authority for the conduct of foreign policy with
respect to international postal services and international delivery
services.'' 39 U.S.C. 407(b)(2)(A). In exercising this authority, the
Secretary of State ``shall coordinate with other agencies as
appropriate'' and ``shall give full consideration to the authority
vested by law or Executive order in the Postal Regulatory Commission.''
Id. Flowing from this authority, the U.S. Department of State (DOS)
coordinates continuous and frequent information sharing among the
relevant government agencies. As a routine part of this
intragovernmental coordination, the agencies share materials with each
other that may contain information that should be accorded non-public
treatment.
In other contexts, such exchange of non-public materials might
implicate the Commission's existing regulations in 39 CFR part 3011 of
this chapter that govern procedures when any submitter provides non-
public materials to the Commission and seeks non-public treatment, and
when a third party seeks access to or disclosure of such non-public
materials. It might also implicate the Commission's existing
regulations in 39 CFR part 3006 of this chapter that govern procedures
regarding FOIA requests for Commission records.
II. Basis of the Proposed Rules
After experience with its rules, the Commission is concerned that
the existing regulations on non-public materials might not set
sufficiently clear expectations about those regulations' interaction
with Executive Branch policy-making processes. Absent such clarity,
Executive Branch stakeholders might be wary of engaging in the free
flow of information between relevant parties during the DOS
coordination activities under 39 U.S.C. 407(b)(2)(A) aimed at advising
on U.S. foreign postal policy in a timely manner. To assure the free
flow of information and streamline the Commission regulations that may
impact activities under the coordination of the DOS, the Commission
proposes to
[[Page 15344]]
explicitly exempt non-public materials submitted to the Commission in
connection with the coordination activities under 39 U.S.C.
407(b)(2)(A) from its rules in 39 CFR part 3011 of this chapter.
Relatedly, the Commission also proposes clarifying revisions to its
rules in 39 CFR part 3006 of this chapter regarding FOIA requests.
The Commission's authority to regulate certain non-public materials
provided by the Postal Service stems from 39 U.S.C. 504(g). Section
504(g) is triggered if the Postal Service determines that any material
it provides to the Commission under a subpoena issued under 39 U.S.C.
504(f), or otherwise at the request of the Commission in connection
with any proceeding or other purpose under Title 39, contains non-
public information. 39 U.S.C. 504(g)(1). After the Postal Service
provides such a determination to the Commission, the Commission then
has specific authority under 39 U.S.C. 504(g)(3) to regulate the public
disclosure of or access to such non-public materials. See 39 U.S.C.
504(g)(3). The scope of 39 U.S.C. 504(g)(1) plainly does not apply to
the Commission's receipt of non-public materials provided by government
agencies other than the Postal Service in connection with the
coordination activities under 39 U.S.C. 407(b)(2)(A). It also does not
apply to the Commission's receipt of non-public materials provided by
the Postal Service in connection with the coordination activities under
39 U.S.C. 407(b)(2)(A), because the Postal Service would provide such
materials voluntarily or at the request of the coordinating authority
(i.e., the DOS) rather than pursuant to a Commission subpoena or
otherwise at the request of the Commission in connection with a
proceeding. Therefore, it is consistent with 39 U.S.C. 504(g) to exempt
non-public materials received by the Commission from any person in
connection with the coordination activities under 39 U.S.C.
407(b)(2)(A) from the rules in 39 CFR part 3011 of this chapter.
The Commission's authority to regulate non-public materials
provided by the Postal Service outside the context of 39 U.S.C. 504(g)
and any materials provided by any other person stems from 39 U.S.C.
503. This provision grants the Commission general authority to take
actions, such as issuing rules and regulations, that are ``necessary
and proper'' to carry out its ``functions and obligations'' under Title
39 of the United States Code. 39 U.S.C. 503. Therefore, the Commission
has broad discretion to determine the boundary of its regulations'
applicability to materials outside the context of 39 U.S.C. 504(g).
In addition, the Commission's role in the coordination activities
as part of the foreign postal policy deliberative process under 39
U.S.C. 407(b)(2)(A) is subordinate to the DOS's leadership and
decision-making authority. The Commission's receipt of non-public
materials in this context is different from a Commission request for
information in a regulatory proceeding over which the Commission
presides. To facilitate the swift exchange of information among all
agencies involved in the deliberative process and harmonize Commission
application of the statute, the Commission deems it reasonable to
explicitly provide that non-public materials submitted in this specific
context are exempt from the requirements of 39 CFR part 3011 of this
chapter.
IV. Proposed Rules
Proposed Sec. 3006.30(d). Proposed Sec. 3006.30(d) is revised to
exempt non-public materials submitted by the Postal Service to the
Commission in connection with activities under 39 U.S.C. 407(b)(2)(A)
from the applicability of the rules in 39 CFR part 3011 of this
chapter.
Proposed Sec. 3006.30(e)(1). Proposed Sec. 3006.30(e)(1) is
revised to state that if the Commission receives a FOIA request for
records submitted by a person other than the Postal Service, the
Commission shall adhere to the applicable procedures of the proposed
Sec. 3006.35, and if the Commission does not refer such a FOIA request
to another Federal agency pursuant to proposed Sec. 3006.35(b), the
Commission shall consider the FOIA request in light of all applicable
exemptions, after notifying the submitter of the FOIA request and
providing the submitter with an opportunity to respond.
Proposed Sec. 3006.35. Proposed Sec. 3006.35 is added to detail
the procedures that the Commission should follow for consultation,
referral, and coordination with other Federal agencies with regard to
certain FOIA requests, and for FOIA requests that involve classified
information. It also provides for the timing of responses to FOIA
consultations and referrals received by the Commission, and the
Commission's ability to establish agreements with other agencies to
eliminate the need for consultations or referrals for particular types
of records.
Proposed Sec. 3006.70(a). Proposed Sec. 3006.70(a) is revised to
exempt a person other than the Postal Service from following the
procedures described in subpart B of 39 CFR part 3011 of this chapter
when the person submits non-public materials to the Commission in
connection with activities under 39 U.S.C. 407(b)(2)(A).
Proposed Sec. 3011.100(c). Proposed Sec. 3011.100(c) is added to
exempt non-public materials submitted by any person to the Commission
in connection with activities under 39 U.S.C. 407(b)(2)(A) from the
applicability of the rules in 39 CFR part 3011 of this chapter, with
three exceptions. First, certain persons shall adhere to the
requirements of Sec. 3011.302 regarding the non-dissemination, use,
and care of the non-public materials provided to the Commission in
connection with activities under 39 U.S.C. 407(b)(2)(A). Second, any
person that discovers that non-public materials provided to the
Commission in connection with activities under 39 U.S.C. 407(b)(2)(A)
have been inadvertently included within materials that are accessible
to the public shall follow the procedures of Sec. 3011.205. Third,
non-public materials provided to the Commission in connection with
activities under 39 U.S.C. 407(b)(2)(A) are construed to exclude each
of the following: (i) non-public materials provided by the Postal
Service to the Commission pursuant to a subpoena; (ii) non-public
materials filed in response to an information request; (iii) non-public
materials filed in compliance with any applicable Postal Service
reporting required under 39 CFR part 3050 or part 3055 of this chapter;
and (iv) non-public materials filed in a Commission docket.
Proposed Sec. 3011.103(a). Proposed Sec. 3011.103(a) is revised
to clarify that the inadvertent failure of a submitter to concomitantly
provide all documents required by existing Sec. 3011.200(a) does not
prevent the Commission from according appropriate confidentiality to
non-public information contained with any materials provided to the
Commission.
By the Commission.
Mallory Richards,
Attorney-Advisor.
List of Subjects
39 CFR Part 3006
Administrative practice and procedure, Freedom of information,
Reporting and recordkeeping requirements.
39 CFR Part 3011
Administrative practice and procedure, Confidential business
information.
For the reasons stated in the preamble, the Commission proposes to
[[Page 15345]]
amend chapter III of title 39 of the Code of the Federal Regulations as
follows:
PART 3006--PUBLIC RECORDS AND FREEDOM OF INFORMATION ACT
0
1. The authority citation for part 3006 is revised to read as follows:
Authority: 5 U.S.C. 552; 39 U.S.C. 407, 503, 504.
0
2. Amend Sec. 3006.30 by revising paragraphs (d) and (e) to read as
follows:
Sec. 3006.30 Relationship among the Freedom of Information Act, the
Privacy Act, and the Commission's procedures for according appropriate
confidentiality.
* * * * *
(d) Requesting a Postal Service record. The Commission maintains
custody of records that are both Commission and Postal Service records.
Except when the Postal Service submits materials to the Commission in
connection with activities under 39 U.S.C. 407(b)(2)(A), in all other
instances that the Postal Service submits materials to the Commission
that the Postal Service reasonably believes to be exempt from public
disclosure, the Postal Service shall follow the procedures described in
part 3011, subpart B of this chapter.
(1) A request made pursuant to FOIA for Postal Service records
shall be referred to the Postal Service; and
(2) A request made pursuant to part 3011 of this chapter for
records designated as non-public by the Postal Service shall be
considered under the applicable standards set forth in that part.
(e) Requesting a record submitted under seal by a person other than
the Postal Service. The Commission maintains records of a confidential
nature submitted by persons other than the Postal Service as non-public
materials.
(1) A request made pursuant to FOIA for records submitted by a
person other than the Postal Service shall adhere to the applicable
procedures of Sec. 3006.35 and if not referred to a different Federal
agency pursuant to Sec. 3006.35(b), shall be considered in light of
all applicable exemptions, after notifying the person of the FOIA
request and providing the person with an opportunity to respond; and
(2) A request made pursuant to part 3011 of this chapter for
records designated as non-public by a person other than the Postal
Service shall be considered under the applicable standards set forth in
that part.
0
3. Add Sec. 3006.35 to read as follows:
Sec. 3006.35 Consultation, referral, and coordination.
(a) Consultation. If records originated with the Commission but
contain within them information of significance to another Federal
agency or office, the Commission will typically consult with that other
entity prior to making a release determination.
(b) Referral. In addition to referring all requests made pursuant
to FOIA for Postal Service records to the Postal Service as specified
by Sec. 3006.30(d)(1), if the Commission believes that a different
Federal agency is best able to determine whether to disclose the
record, the Commission will typically refer responsibility for
responding to the request regarding that record to that agency.
Ordinarily, the agency that originated the record is presumed to be the
best agency to make the disclosure determination. Whenever the
Commission refers any part of the responsibility for responding to a
request to another agency, the Commission will notify the requester of
the referral, including the name of the agency and that agency's FOIA
contact information.
(c) Coordination. The standard referral procedure is not
appropriate where disclosure of the identity of the Federal agency to
which the referral would be made could harm an interest protected by an
applicable exemption, such as the exemptions that protect personal
privacy or national security interests. For example, if a non-law
enforcement agency responding to a request for records on a living
third party locates within its files records originating with a law
enforcement agency, and if the existence of that law enforcement
interest in the third party was not publicly known, then to disclose
that law enforcement interest could cause an unwarranted invasion of
the personal privacy of the third party. Similarly, if the Commission
locates within its files material originating with an Intelligence
Community agency, and the involvement of that agency in the matter is
classified and not publicly acknowledged, then to disclose or give
attribution to the involvement of that Intelligence Community agency
could cause national security harms. In such instances, in order to
avoid harm to an interest protected by an applicable exemption, the
Commission will coordinate with the originating agency to seek its
views on disclosure of the record. The Commission then will notify the
requester of the release determination for the record that is the
subject of the coordination.
(d) Classified information. On receipt of any request involving
classified information, the Commission will determine whether the
information is currently and properly classified in accordance with
applicable classification rules. Whenever a request involves a record
containing information that has been classified or may be appropriate
for classification by another agency under any applicable executive
order concerning the classification of records, the Commission must
refer the responsibility for responding to the request regarding that
information to the agency that classified the information, or that
should consider the information for classification. Whenever an
agency's record contains information that has been derivatively
classified (for example, when it contains information classified by
another agency), the Commission must refer the responsibility for
responding to that portion of the request to the agency that classified
the underlying information.
(e) Timing of responses to consultations and referrals. All
consultations and referrals received by the Commission will be handled
according to the date that the first agency received the perfected FOIA
request.
(f) Agreements regarding consultations and referrals. The
Commission may establish agreements with other agencies to eliminate
the need for consultations or referrals with respect to particular
types of records.
0
4. Amend Sec. 3006.70 by revising paragraph (a) to read as follows:
Sec. 3006.70 Submission of non-public materials by a person other
than the Postal Service.
(a) Overlap with treatment of non-public materials. Any person who
submits materials to the Commission (submitter) that the submitter
reasonably believes to be exempt from public disclosure shall follow
the procedures described in part 3011, subpart B of this chapter,
except when the submitter submits materials to the Commission in
connection with activities under 39 U.S.C. 407(b)(2)(A).
* * * * *
PART 3011--NON-PUBLIC MATERIALS PROVIDED TO THE COMMISSION
0
5. The authority citation for part 3011 is revised to read as follows:
Authority: 39 U.S.C. 407, 503, 504.
0
6. Amend Sec. 3011.100 by adding paragraph (c) to read as follows:
Sec. 3011.100 Applicability and scope.
* * * * *
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(c) Exemption. Except for the circumstances described in paragraphs
(c)(1) through (c)(3) of this section, the rules in this part do not
apply to any non-public materials (and the non-public information
contained therein) provided to the Commission by any person in
connection with activities under 39 U.S.C. 407(b)(2)(A).
(1) The following persons shall adhere to the requirements of Sec.
3011.302 regarding the non-dissemination, use, and care of the non-
public materials (and the non-public information contained therein)
provided to the Commission in connection with activities under 39
U.S.C. 407(b)(2)(A).
(i) Members of the Commission;
(ii) Commission employees; and
(iii) Non-employees who have executed appropriate non-disclosure
agreements (such as contractors, attorneys, or subject matter experts)
assisting the Commission in carrying out its duties.
(2) Any person that discovers that non-public materials provided to
the Commission in connection with activities under 39 U.S.C.
407(b)(2)(A) have been inadvertently included within materials that are
accessible to the public shall follow the procedures of Sec. 3011.205.
(3) Non-public materials provided to the Commission in connection
with activities under 39 U.S.C. 407(b)(2)(A) are construed to exclude
each of the following:
(i) Non-public materials provided by the Postal Service to the
Commission pursuant to a subpoena issued in accordance with part 3013
of this chapter;
(ii) Non-public materials filed in response to an information
request issued in accordance with Sec. 3010.170 of this chapter;
(iii) Non-public materials filed in compliance with any applicable
Postal Service reporting required under part 3050 or part 3055 of this
chapter; and
(iv) Non-public materials filed in a Commission docket.
0
7. Amend Sec. 3011.103 by revising paragraph (a) to read as follows:
Sec. 3011.103 Commission action to determine non-public treatment.
(a) The inadvertent failure of a submitter to concomitantly provide
all documents required by Sec. 3011.200(a) does not prevent the
Commission from according appropriate confidentiality to non-public
information contained with any materials provided to the Commission.
Information requests as described in Sec. 3010.170 of this chapter,
preliminary notices, or interim orders may be issued to help the
Commission determine the non-public treatment, if any, to be accorded
to the materials claimed by any person to be non-public.
* * * * *
[FR Doc. 2023-04978 Filed 3-10-23; 8:45 am]
BILLING CODE 7710-FW-P
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</html>Indexed from Federal Register on March 13, 2023.
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