Non-Public Materials, 37152-37155 [2023-12109]

Agencies

• POSTAL REGULATORY COMMISSION

[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 [www.gpo.gov]
[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 https://www.prc.gov.

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

[[Page 37153]]

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

[[Page 37154]]

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.
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[FR Doc. 2023-12109 Filed 6-6-23; 8:45 am]
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