Non-Public Materials, 15343-15346 [2023-04978]
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Federal Register / Vol. 88, No. 48 / Monday, March 13, 2023 / Proposed Rules
strengthened federalism. The Executive
order relies on processes developed by
State and local governments for
coordination and review of proposed
Federal financial assistance.
This document provides early
notification of our specific plans and
actions for this program.
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Regulatory Flexibility Act Certification
The Secretary certifies that this
proposed regulatory action would not
have a significant economic impact on
a substantial number of small entities.
The U.S. Small Business Administration
Size Standards define proprietary
institutions as small businesses if they
are independently owned and operated,
are not dominant in their field of
operation, and have total annual
revenue below $7,000,000. Nonprofit
institutions are defined as small entities
if they are independently owned and
operated and not dominant in their field
of operation. Public institutions are
defined as small organizations if they
are operated by a government
overseeing a population below 50,000.
The small entities that this proposed
regulatory action would affect are LEAs.
Of the impacts we estimate accruing to
grantees or eligible entities, all are
voluntary. Therefore, we do not believe
that the proposed priority and
requirements would significantly
impact small entities beyond the
potential for increasing the likelihood of
their applying for, and receiving, a
competitive grant from the Department.
Paperwork Reduction Act
The proposed priority and
requirements contain information
collection requirements that do not
require the Office of Management and
Budget’s approval for the information
collection, since the Department
anticipates less than 9 applicants for
this targeted and specialized program.
According to section 1320.3(c) of the
Paperwork Reduction Act (PRA), ‘‘the
‘‘collection of information’’ includes the
obtaining of information by or for an
agency by means of identical questions
imposed on ten or more persons.’’
Accessible Format: On request to the
program contact person listed under FOR
FURTHER INFORMATION CONTACT,
individuals with disabilities can obtain
this document in an accessible format.
The Department will provide the
requestor with an accessible format that
may include Rich Text Format (RTF) or
text format (txt), a thumb drive, an MP3
file, braille, large print, audiotape, or
compact disc, or other accessible format.
Electronic Access to This Document:
The official version of this document is
the document published in the Federal
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Register. You may access the official
edition of the Federal Register and the
Code of Federal Regulations at
www.govinfo.gov. At this site you can
view this document, as well as all other
documents of the Department published
in the Federal Register, in text or
Portable Document Format (PDF). To
use PDF you must have Adobe Acrobat
Reader, which is available free at the
site.
You may also access documents of the
Department published in the Federal
Register by using the article search
feature at www.federalregister.gov.
Specifically, through the advanced
search feature at this site, you can limit
your search to documents published by
the Department.
James F. Lane,
Senior Advisor, Office of the Secretary,
Delegated the Authority to Perform the
Functions and Duties of the Assistant
Secretary, Office of Elementary and
Secondary Education.
[FR Doc. 2023–04974 Filed 3–10–23; 8:45 am]
BILLING CODE 4000–01–P
POSTAL REGULATORY COMMISSION
39 CFR Parts 3006 and 3011
[Docket No. RM2023–6; Order No. 6451]
RIN 3211–AA35
Non-Public Materials
Postal Regulatory Commission.
Notice of proposed rulemaking.
AGENCY:
ACTION:
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.
SUMMARY:
Submit comments
electronically via the Commission’s
Filing Online system at https://
www.prc.gov. 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.
ADDRESSES:
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
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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 nonpublic 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
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Federal Register / Vol. 88, No. 48 / Monday, March 13, 2023 / Proposed Rules
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 nonpublic 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
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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 § 3006.30(d). Proposed
§ 3006.30(d) is revised to exempt nonpublic 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 § 3006.30(e)(1). Proposed
§ 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 § 3006.35,
and if the Commission does not refer
such a FOIA request to another Federal
agency pursuant to proposed
§ 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 § 3006.35. Proposed
§ 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 § 3006.70(a). Proposed
§ 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
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chapter when the person submits nonpublic materials to the Commission in
connection with activities under 39
U.S.C. 407(b)(2)(A).
Proposed § 3011.100(c). Proposed
§ 3011.100(c) is added to exempt nonpublic 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 § 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
§ 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) nonpublic 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 § 3011.103(a). Proposed
§ 3011.103(a) is revised to clarify that
the inadvertent failure of a submitter to
concomitantly provide all documents
required by existing § 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
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Federal Register / Vol. 88, No. 48 / Monday, March 13, 2023 / Proposed Rules
amend chapter III of title 39 of the Code
of the Federal Regulations as follows:
PART 3006—PUBLIC RECORDS AND
FREEDOM OF INFORMATION ACT
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.
2. Amend § 3006.30 by revising
paragraphs (d) and (e) to read as follows:
■
§ 3006.30 Relationship among the
Freedom of Information Act, the Privacy
Act, and the Commission’s procedures for
according appropriate confidentiality.
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(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 § 3006.35
and if not referred to a different Federal
agency pursuant to § 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.
■ 3. Add § 3006.35 to read as follows:
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§ 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 § 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
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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.
■ 4. Amend § 3006.70 by revising
paragraph (a) to read as follows:
§ 3006.70 Submission of non-public
materials by a person other than the Postal
Service.
(a) Overlap with treatment of nonpublic 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).
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PART 3011—NON–PUBLIC
MATERIALS PROVIDED TO THE
COMMISSION
5. The authority citation for part 3011
is revised to read as follows:
■
Authority: 39 U.S.C. 407, 503, 504.
6. Amend § 3011.100 by adding
paragraph (c) to read as follows:
■
§ 3011.100
Applicability and scope.
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Federal Register / Vol. 88, No. 48 / Monday, March 13, 2023 / Proposed Rules
(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 nonpublic 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 § 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
§ 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 § 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.
■ 7. Amend § 3011.103 by revising
paragraph (a) to read as follows:
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§ 3011.103 Commission action to
determine non-public treatment.
(a) The inadvertent failure of a
submitter to concomitantly provide all
documents required by § 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 § 3010.170 of this chapter,
preliminary notices, or interim orders
may be issued to help the Commission
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determine the non-public treatment, if
any, to be accorded to the materials
claimed by any person to be non-public.
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[FR Doc. 2023–04978 Filed 3–10–23; 8:45 am]
BILLING CODE 7710–FW–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 170
[EPA–HQ–OPP–2022–0133; FRL–8528–03–
OCSPP]
RIN 2070–AK92
Pesticides; Agricultural Worker
Protection Standard; Reconsideration
of the Application Exclusion Zone
Amendments
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to reinstate
certain requirements that were amended
in 2020 regarding the application
exclusion zone (AEZ) requirements of
the Agricultural Worker Protection
Standard (WPS). EPA has reconsidered
the amended AEZ requirements and has
determined that several aspects of the
AEZ provisions, such as those regarding
the applicability of the AEZ and
distance determination criteria, should
be revised to reinstate previous
requirements that are protective of
public health and to limit exposure for
those who may be near ongoing
pesticide applications.
DATES: Comments must be received on
or before May 12, 2023.
ADDRESSES: Submit your comments,
identified by docket identification (ID)
number EPA–HQ–OPP–2022–0133,
through the Federal eRulemaking Portal
at https://www.regulations.gov. Follow
the online instructions for submitting
comments. Do not submit electronically
any information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Additional
instructions on commenting and visiting
the docket, along with more information
about dockets generally, is available at
https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT:
Carolyn Schroeder, Pesticide ReEvaluation Division, Office of Pesticide
Programs, Environmental Protection
Agency, 1200 Pennsylvania Ave. NW,
Washington, DC 20460–0001; telephone
number: (202) 566–2376; email address:
schroeder.carolyn@epa.gov.
SUMMARY:
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SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Does this action apply to me?
You may be potentially affected by
this action if you work in or employ
persons working in crop production
agriculture where pesticides are
applied. The following list of North
American Industrial Classification
System (NAICS) codes is not intended
to be exhaustive, but rather provides a
guide to help readers determine whether
this document applies to them.
Potentially affected entities may
include:
• Agricultural Establishments (NAICS
code 111000);
• Nursery and Tree Production
(NAICS code 111421);
• Timber Tract Operations (NAICS
code 113110);
• Forest Nurseries and Gathering of
Forest Products (NAICS code 113210);
• Farm Workers (NAICS codes 11511,
115112, and 115114);
• Pesticide Handling on Farms
(NAICS code 115112);
• Farm Labor Contractors and Crew
Leaders (NAICS code 115115);
• Pesticide Handling in Forestry
(NAICS code 115310);
• Pesticide Manufacturers (NAICS
code 325320);
• Farm Worker Support
Organizations (NAICS codes 813311,
813312, and 813319);
• Farm Worker Labor Organizations
(NAICS code 813930); and
• Crop Advisors (NAICS codes
115112, 541690, 541712).
If you have any questions regarding
the applicability of this action to a
particular entity, consult the technical
person listed under FOR FURTHER
INFORMATION CONTACT.
B. What is the Agency’s authority for
taking this action?
This action is issued under the
authority of the Federal Insecticide,
Fungicide, and Rodenticide Act
(FIFRA), 7 U.S.C. 136 through 136y,
particularly sections 136a(d), 136i, and
136w.
C. What action is the Agency taking?
EPA is proposing to revise certain
AEZ requirements of the WPS that were
amended by EPA in a final rule
published on October 30, 2020 (85 FR
68760) (‘‘2020 AEZ Rule’’) (Ref. 1). As
further explained in Unit II.A.4., the
effective date of the 2020 AEZ Rule is
currently stayed pursuant to a court
order; that is, the 2020 AEZ Rule has not
yet taken effect. EPA proposes to revise
the AEZ requirements by rescinding the
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]]>Agencies
[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 [www.gpo.gov]
[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 https://www.prc.gov. 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
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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
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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.
* * * * *
[[Page 15346]]
(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.
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[FR Doc. 2023-04978 Filed 3-10-23; 8:45 am]
BILLING CODE 7710-FW-P
