Rule2023-12109
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
June 7, 2023
Effective
July 7, 2023
Issuing agencies
Postal Regulatory Commission
Abstract
The Commission adopts amendments to rules relating to non- public materials and the Freedom of Information Act (FOIA).
Full Text
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<title>Federal Register, Volume 88 Issue 109 (Wednesday, June 7, 2023)</title>
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[Federal Register Volume 88, Number 109 (Wednesday, June 7, 2023)]
[Rules and Regulations]
[Pages 37152-37155]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-12109]
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POSTAL REGULATORY COMMISSION
39 CFR Parts 3006 and 3011
[Docket No. RM2023-6; Order No. 6530]
RIN 3211-AA35
Non-Public Materials
AGENCY: Postal Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Commission adopts amendments to rules relating to non-
public materials and the Freedom of Information Act (FOIA).
DATES: Effective July 7, 2023.
ADDRESSES: For additional information, Order No. 6530 can be accessed
electronically through the Commission's website at <a href="https://www.prc.gov">https://www.prc.gov</a>.
FOR FURTHER INFORMATION CONTACT: David A. Trissell, General Counsel, at
202-789-6820.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Basis and Purpose of Final Rules
III. Final Rules
I. Background
On March 3, 2023, the Commission issued a notice of proposed
rulemaking that proposed amendments to its rules to exempt non-public
materials submitted to the Commission in connection with activities
under 39 U.S.C. 407(b)(2)(A) from the rules in 39 CFR part 3011, and
amendments to certain rules pertaining to FOIA requests in 39 CFR part
3006.\1\ The Commission initiated Docket No. RM2023-6 to consider the
proposed amendments to 39 CFR parts 3006 and 3011, invited interested
persons to submit comments, and appointed a Public Representative.
Order No. 6451 at 19. On April 6, 2023, the Commission received
comments filed by four parties: the Postal Service,\2\ the U.S. Chamber
of Commerce (COC),\3\ the Lexington Institute (LI),\4\ and the Public
Representative.\5\
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\1\ Notice of Proposed Rulemaking Regarding Materials Provided
to the Commission in Connection With Activities Under 39 U.S.C.
407(b)(2)(A), March 3, 2023, at 2 (Order No. 6451).
\2\ Comments of the United States Postal Service, April 6, 2023
(Postal Service Comments).
\3\ Comments of U.S. Chamber of Commerce, April 6, 2023 (COC
Comments).
\4\ Comments of the Lexington Institute, April 6, 2023 (LI
Comments).
\5\ Public Representative's Comments Concerning Notice of
Proposed Rulemaking, April 6, 2023 (PR Comments).
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II. Basis and Purpose of Final Rules
All four commenters support the amendments proposed in Order No.
6451. See Postal Service Comments at 2; COC Comments at 2; LI Comments
at 2; PR Comments at 1. In addition to supporting the proposed
amendments, they have various suggestions for the Commission to
consider for the final rules. After reviewing the comments, the
Commission adopts the amended rules as proposed in Order No 6451, with
revisions in the final Sec. 3006.30(e) to provide greater clarity with
respect to the procedures for FOIA requests for records submitted by a
person other than the Postal Service.
The Postal Service suggests that the Commission expand the scope of
the final rules beyond the 39 U.S.C. 407(b)(2)(A) context to include
non-public materials submitted to the Commission in Executive Branch
interagency deliberations generally and in proceedings to which the
Commission's ex parte rules do not apply. Postal Service Comments at 3-
7. The Commission declines to do so because Postal Service's suggested
expansion is beyond the scope of this rulemaking. The scope of this
rulemaking as articulated throughout Order No. 6451 is narrowly focused
on the non-public materials provided to the Commission in connection
with the coordination activities under 39 U.S.C. 407(b)(2)(A). The
Commission notes it could further amend the regulations in the future
if necessary, and notes that any interested person may file a petition
requesting that the Commission consider such a rule change. 39 CFR
3010.201(b)(1).
The Public Representative suggests that there may be less formal
circumstances in the 39 U.S.C. 407(b)(2)(A) context, in which non-
public materials could be construed as being informally requested by
the Commission from the Postal Service, a scenario that the proposed
rulemaking does not cover. PR Comments at 5. The Commission notes her
concern is hypothetical in nature and she does not present any concrete
improvement in the final rules. The Commission further takes note of
her suggestion that the Commission could further amend the regulations
in the future if necessary. See id. at 5.
COC suggests that the Postal Service is not a participant in the
coordination activities under 39 U.S.C. 407(b)(2)(A) (in contrast with
their participation in the liaison activities under 39 U.S.C.
407(b)(2)(D)) and no materials submitted by the Postal Service can be
considered to be 39 U.S.C. 407(b)(2)(A) materials. COC Comments at 2-3.
The Commission declines to consider this issue in this docket.
Potential distinctions between 39 U.S.C. 407(b)(2)(A) and 39 U.S.C.
407(b)(2)(D) are issues beyond the scope of this rulemaking, and
adopting the Commission's proposal does not rest upon differentiating
between them. Regardless, the Commission reiterates that its proposal
(and the underlying legal authority and rationale articulated for
adopting it) encompass materials provided to the Commission in
connection with activities under 39 U.S.C. 407(b)(2)(A). See generally
Order No. 6451. Accordingly, the Commission rejects the narrow
interpretation that the proposed rules should not apply to any
materials submitted by the Postal Service to the Commission in
connection with the coordination activities under 39 U.S.C.
407(b)(2)(A).
COC and LI both raise concerns for the possibility of decreased
transparency. COC Comments at 4; LI Comments at 2. The Commission notes
that their concern is hypothetical in nature at this time. In addition,
they do not specify any information or materials that are transparent
now under existing rules but would no longer be transparent when the
proposal is implemented. Moreover, they do not suggest any concrete
rule changes to address their transparency concern. The Commission
believes that the crucial and present need to ensure the free flow of
information in the interagency deliberative process outweighs any
hypothetical reduced transparency. In addition, the pathway through
FOIA requests under 39 CFR part 3006 remains open. Finally, proposed
Sec. 3011.100(c)(3) provides that if any non-public materials
submitted to the Commission in connection with activities under 39
U.S.C. 407(b)(2)(A) are also provided via one of the
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enumerated four methods, then that production responsive to a subpoena
or filing would be subject to the requirements in 39 CFR part 3011,
including the access and public disclosure rules in 39 CFR part 3011,
subparts C and D. Order No. 6451 at 11-12.
The Public Representative requests two clarifications for the
proposed amendments in the FOIA rules in 39 CFR part 3006. First, she
requests the Commission to clarify whether the proposed Sec.
3006.30(d)(1) and (e)(1) apply to all records (both public and non-
public) submitted by the Postal Service or any other person,
respectively, and not merely to non-public records as stated in the
existing regulation. PR Comments at 6. The Commission clarifies that
the proposed Sec. 3006.30(d)(1) and (e)(1) apply to all records (both
public and non-public), because FOIA applies to all records and not
merely non-public records. See 5 U.S.C. 552(f)(2)(A); 39 CFR 3006.2(b).
The Commission notes that the existing heading for Sec. 3006.30(e)
(``Requesting a record submitted under seal by a person other than the
Postal Service'') will no longer be accurate for the amended rules.
Therefore, in the final rules, the Commission shall revise the heading
for final Sec. 3006.30(e) to delete the phrase ``under seal.''
Second, the Public Representative requests the Commission to
clarify whether the notification procedures in the existing Sec.
3006.70(b)-(d) apply to requests for all records (designated as non-
public or otherwise) submitted by a person other than the Postal
Service, or whether the seemingly more limited notification process in
the proposed Sec. 3006.30(e)(1) apply only to requests for records not
designated as non-public. PR Comments at 6-7. The Commission clarifies
that the notification procedures in the existing Sec. 3006.70(b)-(d)
apply only to requests for records designated as non-public, as denoted
by the consistent reference to ``non-public materials'' throughout the
existing Sec. 3006.70. The Commission further clarifies that the more
limited notification process in the proposed Sec. 3006.30(e)(1) is
intended to apply only to requests for records submitted by a person
other than the Postal Service in instances in which Sec. 3006.70 does
not apply. Proposed Sec. 3006.30(e)(1) does not overlap with the
existing Sec. 3006.70(b)-(d), because Sec. 3006.30(e)(1) and
3006.70(b)-(d) come into operation only after the Commission determines
that referral to another Federal agency under newly added Sec.
3006.35(b) is not appropriate, and they detail procedures for two
different types of FOIA requests (existing Sec. 3006.70 pertains to
FOIA requests for materials designated as non-public, and proposed
Sec. 3006.30(e)(1) pertains to FOIA requests in all other instances).
In the final Sec. 3006.30(e)(1), the Commission amends the rule to
clarify the bifurcated procedures for these two types of FOIA requests
if the Commission determines that referral to another Federal agency
under Sec. 3006.35(b) is not appropriate. In addition, in the final
Sec. 3006.30(e)(1)(ii), the Commission finds it reasonable to provide
an identical deadline for the submitter to respond to the FOIA request
in these circumstances as it does in existing Sec. 3006.70(c), i.e.,
within seven days of the date of the notice.
IV. Final Rules
The Commission adopts finale rules to exempt non-public materials
submitted to the Commission in connection with activities under 39
U.S.C. 407(b)(2)(A) from the rules in 39 CFR part 3011, and to revise
certain rules pertaining to FOIA requests in 39 CFR part 3006.
By the Commission.
Erica A. Barker,
Secretary.
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 amends
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 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. If such a FOIA request is not referred to
a different Federal agency pursuant to Sec. 3006.35(b), the Commission
shall consider it in light of all applicable exemptions and in
accordance with the following procedures:
(i) If such materials are designated as non-public, the Commission
shall follow the procedures appearing in Sec. 3006.70(b)-(d) in
determining the FOIA request; or
(ii) In all other instances, the Commission shall determine the
FOIA request after notifying the person of the FOIA request and
providing the person with an opportunity to respond within seven days
of the date of the notice under the following circumstances:
(A) The records sought contain confidential commercial information
that may be protected from disclosure under 5 U.S.C. 552(b)(4); and
(B) The Commission determines that it may be required to disclose
the records, provided that at least one of the following applies:
(1) The requested information has been designated in good faith by
the submitter as information considered protected from disclosure under
5 U.S.C. 552(b)(4); or
(2) The Commission has a reason to believe that the requested
information may be protected from disclosure under 5 U.S.C. 552(b)(4),
but has not yet determined whether the information is protected from
disclosure; 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
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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.
* * * * *
(c) Exemption. Except for the circumstances described in paragraphs
(c)(1) through (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
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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. 2023-12109 Filed 6-6-23; 8:45 am]
BILLING CODE 7710-FW-P
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