[Federal Register Volume 83, Number 34 (Tuesday, February 20, 2018)]
[Proposed Rules]
[Pages 7338-7355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-03287]



[[Page 7337]]

Vol. 83

Tuesday,

No. 34

February 20, 2018

Part III





 Postal Regulatory Commission





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39 CFR Parts 3001, 3004, 3007





 Non-Public Information; Proposed Rule

  Federal Register / Vol. 83 , No. 34 / Tuesday, February 20, 2018 / 
Proposed Rules  

[[Page 7338]]


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POSTAL REGULATORY COMMISSION

39 CFR Parts 3001, 3004, 3007

[Docket No. RM2018-3; Order No. 4403]


Non-Public Information

AGENCY: Postal Regulatory Commission.

ACTION: Proposed rulemaking.

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SUMMARY: The Commission is proposing to amend its existing rules 
relating to non-public materials. The proposed rules ensure appropriate 
transmission and protection of non-public materials, maintain 
appropriate transparency, and modernize practice before the Commission. 
The Commission invites public comment on the proposed rules.

DATES: Comments are due: March 23, 2018.

ADDRESSES: Submit comments electronically via the Commission's Filing 
Online system at http://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. Introduction
II. Background
III Summary of the Proposed Changes
IV. Section-by-Section Analysis of the Proposed Changes to 39 CFR 
Part 3007
V. Section-by-Section Analysis of the Proposed Changes to 39 CFR 
Part 3001
VI. Section-by-Section Analysis of the Proposed Changes to 39 CFR 
Part 3004
VII. Administrative Actions
VIII. Ordering Paragraphs

I. Introduction

    The Postal Regulatory Commission (Commission) establishes a 
rulemaking docket to consider amending the Commission's rules relating 
to non-public information.
    In 2009, the Commission adopted rules in 39 CFR part 3007 
establishing a procedure for non-public treatment of certain materials 
filed by the Postal Service and other persons under 39 U.S.C. 503 and 
504.\1\ Practice before the Commission has developed since 2009. 
Therefore, this rulemaking proposes to replace, in their entirety, the 
existing rules appearing in 39 CFR part 3007. Additionally, the 
Commission proposes to amend and move its rules regarding information 
requests to 39 CFR part 3001, subpart E. Further, the Commission 
proposes to update two rules appearing in 39 CFR part 3004 concerning 
the application of the Freedom of Information Act (FOIA) \2\ to 
materials that are provided to the Commission with the reasonable 
belief that the materials are exempt from public disclosure. The 
proposed rules appear after the signature of this Order.
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    \1\ Docket No. RM2008-1, Order No. 225, Final Rule Establishing 
Appropriate Confidentiality Procedures, June 19, 2009.
    \2\ 5 U.S.C. 552.
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II. Background

    The receipt, protection, and evaluation of non-public information 
are essential to the Commission's ability to carry out its regulatory 
duties under title 39 of the United States Code. For instance, to 
obtain approval for a competitive negotiated service agreement (NSA), 
the Postal Service must file commercially sensitive information with 
the Commission relating to customer identity; costs, revenues, and 
volumes; non-published rates; and certain technical details. This 
information allows the Commission to evaluate if the proposed NSA 
complies with the applicable statutory and regulatory requirements. 
Recognizing that public disclosure of certain information may be 
commercially harmful to the Postal Service, other persons, or both, 
existing 39 CFR part 3007 permits the filing of commercially sensitive 
information to be non-public (also known as ``sealed'' or ``under 
seal''). At the same time, acknowledging the need for transparency, 
existing 39 CFR part 3007 provides for procedures to allow for a person 
to request that non-public materials be disclosed to the public (also 
known as ``unsealed''). Moreover, existing 39 CFR part 3007 provides 
for procedures to allow for persons to request access to non-public 
materials, subject to protective conditions, in order to meaningfully 
participate in Commission proceedings.
    Since the Commission adopted 39 CFR part 3007 in 2009, practice 
before the Commission has developed. For instance, proficiency with 
submitting documents online in a secure manner has improved. Also, 
since 2009, the Commission has received increasing amounts of non-
public material, which may contain the proprietary material of the 
Postal Service, other persons, or both. For instance, the number of 
NSAs has increased significantly from 2009 to the present. In FY 2009, 
there were 23 Competitive domestic products consisting of NSAs in 
effect; in FY 2016, there were 568 Competitive domestic products 
consisting of NSAs in effect.\3\
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    \3\ Docket No. ACR2009, Annual Compliance Determination, March 
29, 2010, at 118; Docket No. ACR2016, Annual Compliance 
Determination, March 28, 2017, at 81.
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    Also, the rules appearing in existing 39 CFR part 3007 focus on 
circumstances in which the non-public material is filed by the Postal 
Service in formal Commission proceedings that are assigned a docket 
designation. Although that is the case in most circumstances, persons 
other than the Postal Service have also provided non-public materials 
directly to the Commission. For instance, after obtaining access to 
non-public materials, persons have used that data and information in 
their own submissions made under seal.\4\ Additionally, persons have 
submitted their own proprietary material under seal.\5\
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    \4\ See, e.g., Docket No. RM2016-12, Notice of Filing of UPS-LR-
RM2016-12/1, UPS-LR-RM2016-12/NP1, and Application for Nonpublic 
Treatment, October 17, 2016.
    \5\ See, e.g., Docket No. MT2016-1, Application of Pitney Bowes 
Inc. for Non-public Treatment of Response to Notice of Inquiry, May 
12, 2016.
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    These developments have added complexity and necessitated the 
changes and clarifications proposed in these rules. Therefore, to 
better reflect modern practice, the Commission proposes to revise 
existing 39 CFR part 3007, which contains rules relating to non-public 
materials provided to the Commission. These proposed changes take into 
account a number of considerations including:
     Ensuring appropriate levels of protection and secure 
transmission of non-public materials,
     Maintaining appropriate levels of transparency,
     Reducing the barriers to submit non-public materials and 
participate meaningfully in Commission proceedings,
     Facilitating prompt Commission adjudication of unresolved 
motions relating to non-public materials,
     Requiring the provision of information adequate to 
determine the appropriate level of non-public treatment (if any), and
     Improving the organization and understandability of the 
rules.
    Additionally, the Commission proposes amending and moving rules 
relating to information requests, which are contained in the existing 
Sec. Sec.  3007.2 and 3007.3, to a proposed 39 CFR part 3001, subpart 
E. Also, the Commission proposes to modernize the content of these 
rules to better reflect developments in Commission practice.
    Further, the Commission proposes conforming changes to the

[[Page 7339]]

Commission's FOIA rules appearing in 39 CFR part 3004.

III. Summary of Proposed Changes

    To improve organization and clarity, the Commission proposes to 
divide 39 CFR part 3007 into four subparts. The proposed division into 
four subparts reorders most of the content appearing in existing 39 CFR 
part 3007. Further, the Commission proposes to move rules related to 
information requests appearing in existing Sec. Sec.  3007.2 and 3007.3 
to proposed subpart E of 39 CFR part 3001. Therefore, to achieve a 
simple and logical progression, the Commission proposes to delete the 
existing 39 CFR part 3007 and insert the proposed rules.
    Proposed subpart A of 39 CFR part 3007 contains general provisions. 
Proposed subparts B, C, and D of 39 CFR part 3007 identify the three 
major pathways to interact with the rules relating to non-public 
materials. Proposed subpart B of 39 CFR part 3007 contains rules 
applicable to submitting non-public materials and seeking non-public 
treatment. Proposed subpart C of 39 CFR part 3007 contains rules 
applicable to seeking access to non-public materials. Proposed subpart 
D of 39 CFR part 3007 contains rules applicable to seeking public 
disclosure of non-public materials.
    In addition to the proposed division of 39 CFR part 3007 into four 
subparts, the Commission proposes other organizational improvements, 
which include splitting, deleting, or combining existing rules. For 
instance, existing Sec.  3007.10 contains four paragraphs describing 
the requirements for the submission of non-public materials in their 
redacted (public) and unredacted (non-public) forms. The requirements 
pertaining to the redacted version appear in existing Sec.  3007.10(b) 
and (c); the requirements pertaining to the unredacted version appear 
in existing Sec.  3007.10(a) and (d). To improve clarity and 
organization, the Commission proposes two separate rules regarding the 
submission of the redacted version (proposed Sec.  3007.202), and the 
unredacted version (proposed Sec.  3007.203).
    On the other hand, proposed Sec. Sec.  3007.301 and 3007.304 
dispense with the division for access requests that pertain to general 
proceedings versus access requests that pertain to Annual Compliance 
Determination-related proceedings appearing in existing Sec. Sec.  
3007.40, 3007.41, 3007.42, 3007.50, 3007.51, and 3007.52. Because the 
procedures involved do not vary if the access request involves general 
proceedings versus compliance proceedings, this proposed change 
simplifies the rules.
    The Commission proposes to delete unnecessary rules in some 
instances. For example, the Commission dispenses with the use of the 
defined term ``authorized representative'' appearing in existing Sec.  
3007.1(a) because the term adds unnecessary complexity to the rules and 
does not precisely reflect the language of 39 U.S.C. 504(f)(1) and (2). 
The Chairman of the Commission is the presiding officer in proceedings 
conducted by the Commission en banc. The Chairman may also specifically 
designate a Commissioner or employee as a presiding officer to preside 
at hearings or conferences. 39 CFR 3001.5(e).
    Proposed 39 CFR part 3007 makes linguistic updates aimed to improve 
clarity and precision. For instance, ``third party'' is used in 
existing 39 CFR part 3007 to refer to an individual or entity other 
than the Postal Service. Proposed 39 CFR part 3007 replaces ``third 
party'' with ``person other than the Postal Service'' throughout 
proposed 39 CFR part 3007 to better reflect this intent. This proposed 
change also better conforms with the usage of ``person'' and ``party,'' 
which are defined terms in existing 39 CFR part 3001. Person includes 
natural persons (individuals) and legal persons (entities). 39 CFR 
3001.5(f). Party includes the Postal Service as well as certain other 
persons (complainants, appellants, and intervenors). 39 CFR 3001.5(g).
    The Commission reviews the proposed rules in each proposed subpart 
below.

A. General Provisions

    The Commission proposes to amend 39 CFR part 3007 to reflect that 
it contains procedures to submit, request access to, or seek public 
disclosure of non-public materials provided to the Commission by the 
Postal Service or any other person. The proposed amendments also 
reflect that 39 CFR part 3007 applies regardless whether non-public 
materials are provided to the Commission through a filing that would 
otherwise be governed under Sec. Sec.  3001.9 and 3001.10 of this 
chapter, which prescribe procedural requirements for filing of a 
written document that is required or authorized by statute, rule, 
regulation, order of the Commission, or direction of the presiding 
officer.
    Section 504(g) of title 39 provides the Commission with authority 
to promulgate rules applicable to non-public materials provided by the 
Postal Service--regardless whether those non-public materials are 
provided through a filing.\6\ Because 39 U.S.C. 504(g) is silent as to 
the treatment of materials provided by persons other than the Postal 
Service, the Commission relies on its general authority under 39 U.S.C. 
503 to promulgate rules applicable to non-public materials submitted by 
other persons. See 39 U.S.C. 503. Rules governing the treatment of non-
public materials provided by persons other than the Postal Service are 
necessary for the Commission to carry out its functions under the 
Postal Accountability and Enhancement Act. Protection of such person's 
non-public materials is necessary to avoid inflicting competitive harm 
and impairing the ability of the Commission to obtain voluntary 
information from those persons.
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    \6\ Section 504(g) applies ``[i]f the Postal Service determines 
that any document or other matter it provides to the Postal 
Regulatory Commission . . . at the request of the Commission in 
connection with any proceeding or other purpose under this title, 
contains information which is described in section 410(c) [of title 
39], or exempt from public disclosure under section 552(b) of title 
5.'' 39 U.S.C. 504(g)(1).
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    Therefore, within the general provisions appearing in proposed 
subpart A of 39 CFR part 3007, the Commission proposes to explain the 
applicability of the rules (proposed Sec.  3007.100) and to modify the 
defined terms (proposed Sec.  3007.101). These proposed changes enable 
the procedures ensuring the secure transmission and confidential 
treatment of non-public materials appearing in proposed subpart B of 39 
CFR part 3007 to apply to non-public materials regardless of who 
provides them to the Commission. The proposed changes also enable the 
public to request access or seek public disclosure of such materials 
through motions practice in accordance with proposed subparts C and D 
of 39 CFR part 3007.
    The Commission observes that non-public materials may also be 
requested under FOIA in accordance with the procedures appearing in 
Sec. Sec.  3004.30(d) (applicable to requests for records originating 
with the Postal Service) or 3004.30(e) (applicable to requests for 
records originating with third parties). The rules appearing in 
proposed subpart D of 39 CFR part 3007 are an alternative procedural 
mechanism to request public disclosure of materials that were provided 
to the Commission and claimed to be non-public.\7\ The Commission may 
not deny a FOIA request simply because the materials are claimed to be 
non-public as defined under proposed Sec.  3007.101(a). See

[[Page 7340]]

Order No. 322 at 7. When a submitter makes a claim for non-public 
treatment, the materials claimed to be non-public will be accorded a 
presumption of non-public treatment. See proposed Sec.  3007.102(a). 
However, no claim for non-public treatment has been ``accepted'' by the 
Commission unless the Commission makes a determination of non-public 
status, either in response to a motion or sua sponte. See Order No. 
322, at 7; see also proposed Sec.  3007.103. The Commission further 
observes that when deciding whether to disclose materials claimed to be 
non-public, balancing the interests of the parties in accordance with 
39 CFR part 3007 offers no less protection than applying the exemptions 
under FOIA. See Order No. 322 at 7.
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    \7\ See Docket No. RM2009-6, Order Establishing Procedures for 
the Freedom of Information Act, October 23, 2009, at 7 (Order No. 
322).
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    FOIA sets forth nine categories of information that are exempt from 
public disclosure. Two categories are particularly applicable to the 
types of information that is provided to the Commission and claimed to 
be non-public. First, 5 U.S.C. 552(b)(4) exempts ``trade secrets and 
commercial or financial information obtained from a person and 
privileged or confidential.'' Second, 5 U.S.C. 552(b)(3) exempts 
information that is specifically exempted by another statutory 
provision, such as 39 U.S.C. 410(c)(2). Section 410(c)(2) of title 39 
provides that the Postal Service shall not be required to disclose 
``information of a commercial nature, including trade secrets, whether 
or not obtained from a person outside the Postal Service, which under 
good business practice would not be publicly disclosed.'' These 
categories align with the types of information protected under 39 
U.S.C. 504(g).\8\
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    \8\ Section 504(g) applies ``[i]f the Postal Service determines 
that any document or other matter it provides to the Postal 
Regulatory Commission . . . contains information which is described 
in section 410(c) of this title, or exempt from public disclosure 
under section 552(b) of title 5.'' 39 U.S.C. 504(g)(1).
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    Proposed subpart A of 39 CFR part 3007 also incorporates several 
rules appearing in existing 39 CFR part 3007 concerning the treatment 
of non-public materials (proposed Sec.  3007.102), types of Commission 
action to determine the non-public treatment to accord to materials 
that are claimed to be non-public (proposed Sec.  3007.103), and the 
standard for determining whether to publicly disclose non-public 
materials (proposed Sec.  3007.104).

B. Submitting Non-Public Materials and Seeking Non-Public Treatment

    Proposed subpart B of 39 CFR part 3007 contains provisions 
applicable to submitting non-public materials and seeking non-public 
treatment. The applicable procedures are unified to reflect their 
applicability to all submitters, regardless whether the materials are 
submitted by the Postal Service or other persons (proposed Sec.  
3007.200). The Commission proposes to set forth modernized and 
streamlined procedures and requirements for the application for non-
public treatment (proposed Sec.  3007.201), redacted version of the 
non-public materials (proposed Sec.  3007.202), and unredacted version 
of the non-public materials (proposed Sec.  3007.203). These proposed 
procedures would better accommodate the increasing volume of non-public 
material and technological advances in secure transmission.
    The Commission retains and clarifies the protections available for 
any person with a proprietary interest in non-public materials that are 
submitted by someone else to the Commission (proposed Sec.  3007.204). 
The Commission also proposes to add a rule to address instances in 
which non-public materials are inadvertently filed in a public document 
(proposed Sec.  3007.205).

C. Seeking Access to Non-Public Materials

    Proposed subpart C of 39 CFR part 3007 contains provisions 
applicable to seeking access to non-public materials, subject to 
protective conditions. The Commission proposes rules that set forth who 
may have access and how such access may be obtained (proposed 
Sec. Sec.  3007.300 and 3007.301). The Commission also clarifies the 
obligations of a person who has obtained access to non-public 
materials. The Commission sets forth proposed rules applicable to the 
non-dissemination, use, and care of non-public materials (proposed 
Sec.  3007.302), the potential sanctions for violating protective 
conditions (proposed Sec.  3007.303), the procedural requirements 
associated with terminating and amending access (proposed Sec.  
3007.304), and the procedural requirements associated with producing 
non-public materials in non-Commission proceedings (proposed Sec.  
3007.305).
    The Commission also proposes to move the three template forms 
appearing in existing Appendix A to part 3007, which aid persons 
seeking or certifying the termination of access to non-public 
materials, to proposed Appendix A to subpart C of part 3007. Changes 
are proposed to conform the content of these three template forms to 
the proposed rules and to improve readability.

D. Seeking Public Disclosure of Non-Public Materials

    Proposed subpart D of 39 CFR part 3007 contains provisions 
applicable to seeking public disclosure of non-public materials--that 
is, requesting that the non-public treatment not be accorded to the 
materials. The Commission proposes a rule setting forth the procedure 
for a person to request that non-public materials be disclosed to the 
public through a motion (proposed Sec.  3007.400). The Commission 
proposes to create a rule to address the administration and public 
disclosure of materials for which non-public treatment has expired 
after the passage of 10 years (proposed Sec.  3007.401).

E. Information Requests

    The Commission proposes to move material appearing in existing 
Sec. Sec.  3007.2 and 3007.3, which relate to information requests, out 
of 39 CFR part 3007. Information requests may pertain to public or non-
public material. Therefore, the Commission proposes to move these 
procedural requirements to 39 CFR part 3001 in a new proposed subpart 
E. The Commission also proposes revisions to modernize these procedures 
to better reflect current practice before the Commission.

F. Conforming Changes to 39 CFR Part 3004

    The Commission proposes to make conforming changes to reflect that 
the submission procedures appearing in subpart B of 39 CFR part 3007 
apply to all instances in which materials that are provided to the 
Commission with the reasonable belief that the materials are exempt 
from public disclosure.

IV. Section-by-Section Analysis of the Proposed Changes to 39 CFR Part 
3007

    As described below, the Commission proposes to amend 39 CFR part 
3007 by replacing the existing heading and text of the rules.
    Proposed heading identified in 39 CFR part 3007. The Commission 
proposes to revise the heading to reflect that 39 CFR part 3007 applies 
to non-public materials provided to the Commission rather than merely 
the treatment of non-public material filed by the Postal Service.

A. Proposed Subpart A of Part 3007--General Provisions

    Proposed subpart A of part 3007. The Commission proposes to add 
subpart A to 39 CFR part 3007 containing general provisions.
    Proposed Sec.  3007.100 Applicability. Proposed Sec.  3007.100 
identifies that proposed 39 CFR part 3007 applies

[[Page 7341]]

when: (1) The Postal Service claims that any materials it provides to 
the Commission contain non-public information; (2) any other person 
claims that any materials provided to the Commission contain non-public 
information; (3) the Commission is determining what type and degree of 
confidential treatment should be accorded to the materials claimed to 
be non-public; or (4) the Commission is determining what protective 
conditions should apply to those accessing non-public materials.
    Proposed Sec.  3007.101 Definitions. Proposed Sec.  3007.101(a) is 
based on the definition of non-public materials appearing in existing 
Sec.  3007.1(b).
    Proposed Sec.  3007.101(a) modifies the existing definition of non-
public materials to reflect the inclusion of materials that are claimed 
to contain information that is described in 39 U.S.C. 410(c) or exempt 
from public disclosure under 5 U.S.C. 552(b). Such information is 
protectable if provided by the Postal Service to the Commission 
pursuant to 39 U.S.C. 504(g)(1), 3652(f)(1), or 3654(f)(1). Such 
information is defined as non-public materials under existing Sec.  
3007.1(b) if the claim for non-public treatment is made by the Postal 
Service. This proposed change reflects the Commission's practice to 
treat such information as non-public material regardless of who submits 
the materials and regardless of who makes the claim for non-public 
treatment. This proposed change clarifies that non-public information 
includes commercially sensitive information, whether it belongs to the 
Postal Service or any other person.\9\
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    \9\ Such information is protectable under 5 U.S.C. 552(b)(4), 
which exempts from public disclosure ``trade secrets and commercial 
or financial information obtained from a person and privileged or 
confidential.''
    Further, if the information is provided by the Postal Service, 
then the information is also protectable under 5 U.S.C. 552(b)(3) 
and 39 U.S.C. 410(c)(2). Section 552(b)(3) of title 5 exempts from 
public disclosure information that is specifically exempted by 
another statutory provision, such as 39 U.S.C. 410(c)(2). Section 
410(c)(2) of title 39 provides that the Postal Service shall not be 
required to disclose ``information of a commercial nature, including 
trade secrets, whether or not obtained from a person outside the 
Postal Service, which under good business practice would not be 
publicly disclosed.''
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    Proposed Sec.  3007.101(a) adds that materials cease to be non-
public (except for inadvertent public filings corrected in accordance 
with proposed Sec.  3007.205) if the person making the submission 
publicly discloses the materials, subject to the consent of each 
affected person with a proprietary interest in the materials (if 
applicable). This proposed change is made to reflect that consensual 
voluntary public disclosure of materials that were initially claimed to 
be non-public has been used to resolve issues of whether public or non-
public treatment should apply in some instances. This proposed change 
also protects the interests of a person other than the submitter that 
has a proprietary interest in the materials in those instances where 
the interests of the person making the submission may not be the same 
as the interests of another person other than the submitter that has a 
proprietary interest in the materials.
    Proposed Sec.  3007.101(b) provides a definition for the term 
submitter. The usage of this term helps to unify several procedural 
rules that apply to the Postal Service and any other person that 
provides non-public materials to the Commission. Consistent with Sec.  
3001.5(f) of this chapter, this proposed rule uses person to include 
both a natural person (individual) and a legal person (entity).\10\
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    \10\ 39 CFR 3001.5(f) provides ``Person means an individual, a 
partnership, corporation, trust, unincorporated association, public 
or private organization, or governmental agency.''
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    Proposed Sec.  3007.102 Treatment of non-public materials. Proposed 
Sec.  3007.102(a) incorporates existing Sec.  3007.23, which informs 
the reader that the Commission will not disclose or allow access to 
non-public materials, except as provided by 39 CFR part 3007, and adds 
a cross-reference to the Commission's FOIA provisions described in 39 
CFR part 3004. Proposed Sec.  3007.102(b) retains the content of 
existing Sec.  3007.60.
    Proposed Sec.  3007.103 Commission action to determine non-public 
treatment. Proposed Sec.  3007.103 informs the reader about and 
provides examples of the types of action that the Commission may take 
after receiving non-public materials. Proposed Sec.  3007.103 informs 
the reader that the Commission may seek additional information to 
determine the non-public treatment, if any, to be given. Consistent 
with practice, proposed Sec.  3007.103 identifies examples such as the 
issuance of information requests, preliminary notices, or interim 
orders. Proposed Sec.  3007.103 also states that the Commission may 
issue an order containing a description of the non-public treatment 
granted and timeframe for which non-public treatment is accorded (if 
any). Proposed Sec.  3007.103 also states that the Commission may amend 
the non-public treatment accorded (if any). For example, an amendment 
may occur if a person files a motion for disclosure under proposed 
Sec.  3007.400 or Sec.  3007.401. Proposed Sec.  3007.103 also provides 
that issuance of the order or amendment may occur without a motion.
    The procedures described in proposed Sec.  3007.103 remain 
consistent with existing Sec.  3007.32(a). The process contained in 
existing Sec.  3007.32(b) through (d) is eliminated because if a 
preliminary notice is issued, it shall specify the time allotted for 
response and reply (if any).
    Proposed Sec.  3007.104 Standard for public disclosure of non-
public materials. Proposed Sec.  3007.104 incorporates the content 
appearing in existing Sec.  3007.33. Proposed Sec.  3007.104(a) 
modifies the language appearing in existing Sec.  3007.33(a) because 
the existing rule did not appear to contemplate situations where 
materials containing Postal Service non-public information were 
submitted by another person (such as a person granted access to non-
public Postal Service materials) or were provided by the Postal Service 
outside of a filing. Proposed Sec.  3007.104(b) modifies the content of 
existing Sec.  3007.33(b) by replacing the reference to ``a third 
party'' to more precisely reflect that rule applies to material that is 
claimed to be non-public because it contains the proprietary 
information of any person other than the Postal Service.

B. Proposed Subpart B of Part 3007--Submitting Non-Public Materials and 
Seeking Non-Public treatment

    Proposed subpart B of part 3007. The Commission proposes to add 
subpart B to 39 CFR part 3007 containing rules applicable to submitting 
non-public materials to the Commission and seeking non-public treatment 
of those materials.
    Proposed Sec.  3007.200 General requirements for submitting non-
public materials and seeking non-public treatment. Proposed Sec.  
3007.200 explains the process to provide non-public materials to the 
Commission applicable to all submitters. Proposed Sec.  3007.200(a) 
requires the provision of three things on the same business day--an 
application for non-public treatment, a redacted version of the non-
public materials, and an unredacted version of the non-public 
materials. Consistent with existing practice, the application for non-
public treatment and the redacted version of the non-public materials 
are public documents. Consistent with existing practice, the unredacted 
version of the non-public materials shall be submitted under seal. 
Proposed Sec.  3007.200(a) unifies aspects of the content of existing

[[Page 7342]]

Sec. Sec.  3007.10, 3007.20(a), 3007.21(a), and 3007.22(a).
    Proposed Sec.  3007.200(a) also addresses situations that are not 
adequately addressed in the existing rules. Existing Sec. Sec.  
3007.20(a) and 3007.21(a) require the Postal Service to file an 
application whenever it files non-public material. However, the 
existing rules do not clearly address the procedural requirements 
applicable if the Postal Service submits non-public material to the 
Commission outside of a filing made in accordance with Sec. Sec.  
3001.9 and 3001.10 of this chapter. Such submissions are permissible, 
subject to the Commission's ex parte policy appearing in 39 CFR part 
3008. Requiring that the Postal Service submit an application for non-
public treatment, a redacted version of the non-public materials, and 
an unredacted version of the non-public materials would facilitate the 
Commission's determination of non-public treatment (if any) that should 
be accorded to those materials and would better ensure that 
confidential treatment is properly accorded to those non-public 
materials. Moreover, those proposed requirements would facilitate the 
Commission's resolution of motions practice related to those materials.
    Moreover, although existing Sec.  3007.22(a) sets forth the 
requirements of an application made by a third party, that existing 
rule appears to contemplate situations where a person other than the 
Postal Service files an application for non-public treatment of a 
Postal Service filing that contains the person's non-public 
information. This option is preserved under proposed Sec.  3007.204. 
However, the existing rules are silent regarding whether a person other 
than the Postal Service that submits non-public materials (either by 
formal filing or by informal submission) must include an application. 
Existing Sec.  3004.70(a) reflects that a third party submitting 
materials claimed to be non-public to the Commission ``may'' lodge an 
application for non-public treatment. Requiring the submission of an 
application by any submitter of non-public materials would promote 
fairness and would facilitate the Commission's determination of the 
type and degree of non-public treatment (if any) that should be 
accorded to those materials.
    Proposed Sec.  3007.200(b) requires that before submitting non-
public materials to the Commission, each submitter contact any affected 
person who may have a proprietary interest in non-public materials. 
This proposed rule expands the application of existing Sec.  3007.20(b) 
to Postal Service submissions made outside formal filings and to 
submissions made by persons other than the Postal Service. The proposed 
change would better ensure the protection of an affected person's 
proprietary material by giving the affected person an opportunity to 
file an application for non-public treatment and address its 
confidentiality concerns directly with the Commission.
    Proposed Sec.  3007.201 Application for non-public treatment. 
Proposed Sec.  3007.201(a) retains the same burden of persuasion 
appearing in existing Sec.  3007.21(b) and expands it to apply to all 
submitters.
    Proposed Sec.  3007.201(b) sets forth the required contents of an 
application. Existing Sec. Sec.  3007.21 and 3007.22 require slightly 
different content requirements based on whether the application is made 
by the Postal Service or any other person. Proposed Sec.  3007.201(b) 
makes the requirements uniform. In addition to simplifying the 
procedural rules, this better ensures that the Commission will receive 
adequate justification of an application. The information sought will 
aid the Commission's determination of the non-public treatment, if any, 
to be accorded to the materials.
    The proposed uniform content requirements appearing in proposed 
Sec.  3007.201(b)(1), (3) through (8) remains substantially the same as 
existing Sec.  3007.21(c)(1), (3) through (8). Proposed Sec.  
3007.201(b)(1), (3) through (8) contain changes to improve clarity and 
update cross-references.
    Proposed Sec.  3007.201(b)(2) is based on existing Sec.  
3007.21(c)(2), which requires the Postal Service to identify any third 
party known to have a proprietary interest in the materials or a 
designated Postal Service employee to notify each affected third-party 
(if identification of the third party is sensitive). Proposed Sec.  
3007.201(b)(2) applies this requirement to all applications (even if 
made by a person other than the Postal Service) and modifies this 
requirement as follows.
    Proposed Sec.  3007.201(b)(2) requires the application to identify 
a foundational fact--whether the submitter, any person other than the 
submitter, or both have an interest in the non-public materials. This 
proposed change would improve transparency, especially for persons 
seeking access or public disclosure of the non-public materials. This 
proposed change is reflective of the growing complexity related to the 
non-public materials submitted to the Commission. In simple scenarios, 
the non-public material belongs solely to the submitter. In more 
complex instances, the non-public material is a reproduction of the 
proprietary information of a business partner of the submitter or non-
public material to which the submitter has granted access. Scenarios 
that are even more complex exist when the submitter manipulates the 
proprietary information of another person and comingles it with the 
submitter's own proprietary information.
    Depending on whether the proprietary interest of the submitter, any 
person other than the submitter, or both is implicated, the application 
must provide contact information for an individual designee of the 
submitter pursuant to Sec.  3007.201(b)(2)(i), each person other than 
the submitter pursuant to Sec.  3007.201(b)(2)(ii), or both pursuant to 
Sec.  3007.201(b)(2)(iii).
    If the submitter's interest is implicated, proposed Sec.  
3007.201(b)(2)(i) requires that the application identify an individual 
(such as an employee, executive, or attorney) designated by the 
submitter to accept actual notice of a motion related to the non-public 
materials or notice of the pendency of a subpoena or order requiring 
production of the materials.
    If the proprietary interest of any person other than the submitter 
is implicated, proposed Sec.  3007.201(b)(2)(ii) requires that the 
application identify each affected person. Consistent with existing 
Sec.  3007.21(c)(2), the application need not identify each affected 
person (other than the submitter) if identification would be sensitive. 
The application also need not identify each affected person (other than 
the submitter) if identification would be impracticable. This proposed 
change reflects situations not contemplated by existing Sec.  
3007.21(c)(2), such as if multiple persons speaking multiple languages 
were affected.\11\ Consistent with existing Sec.  3007.21(c)(2), if 
each affected person is not identified, the submitter shall identify an 
individual designated by the submitter to provide notice to each 
affected person. Moreover, if the submitter does not identify each 
affected person, whether that identification were asserted to be 
sensitive or impractical, proposed Sec.  3007.201(b)(2)(ii) requires 
that the application provide an explanation. This proposed change 
better ensures that the sensitivity or impracticability exceptions to 
identifying each affected person would not be overused and would be 
consistent with the past instances of when impracticability was

[[Page 7343]]

asserted as a basis not to identify each affected person.
---------------------------------------------------------------------------

    \11\ See, e.g., Docket No. R2017-1, Notice of the United States 
Postal Service of Filing USPS-LR-R2017-1/NP1, October 12, 2016, 
Attachment 1 at 2 n.2.
---------------------------------------------------------------------------

    If the proprietary interest of both the submitter and another 
person are implicated, proposed Sec.  3007.201(b)(2)(iii) requires the 
application to comply with the requirements of both Sec.  
3007.201(b)(2)(i) and (ii). Proposed Sec.  3007.201(b)(2)(iii) permits 
the submitter to designate the same individual to serve as the 
designated point of contact on behalf of the submitter and any other 
affected person whose identification is asserted to be sensitive or 
impracticable. Designating the same individual would likely reduce the 
burden on the submitter and any person attempting to contact the 
designee.
    Proposed Sec.  3007.201(c) allows incorporation by reference to 
streamline applications that support the submission of non-public 
materials that have previously been claimed to be non-public by a prior 
application. Incorporation by reference may be particularly appropriate 
if a person granted access to non-public materials submitted by another 
person reproduces or otherwise uses those non-public materials in a 
submission to the Commission. In such instances, referring back to the 
original application would likely be sufficient to meet the burden of 
persuasion, identify the persons with a proprietary interest in the 
non-public materials, and reduce the burden involved in drafting the 
application. Proposed Sec.  3007.201(c) imposes requirements to ensure 
that the prior application is clearly identified, which facilitates 
evaluation of the prior application by the members of the public and 
the Commission. Any application that incorporates by reference a prior 
application that is accessible through the Commission's website (http://www.prc.gov) must provide the date, docket number, and name of the 
filer of the prior application. In all other circumstances, the 
application must attach the document that is being incorporated by 
reference.
    Proposed Sec.  3007.202 Redacted version of the non-public 
materials. Proposed Sec.  3007.202 provides the requirements applicable 
to the submission of the redacted (public) version of the non-public 
materials.
    Consistent with existing Sec.  3007.10(c), proposed Sec.  
3007.202(a) explains that submitters must graphically redact (blackout) 
the material that is claimed to be non-public. Proposed Sec.  
3007.202(a) also incorporates the prohibition on excessive redactions 
(blacking out material that is not non-public), which appears in 
existing Sec.  3007.10(b), and expands its applicability to all 
submitters. This proposed rule will promote fairness and improve 
transparency.
    Proposed Sec.  3007.202(b) incorporates the requirement that the 
Postal Service justify the use of any other redaction method and 
specifically identify the alterations made to the document, which 
appears in existing Sec.  3007.10(c), and expands its applicability to 
all submitters so as to promote fairness and improve transparency. 
Proposed Sec.  3007.202(b) modifies existing requirements, in Sec.  
3007.10(c), to justify the use of another redaction method, stating 
with particularity the competitive harm associated with using the 
blackout method, to also allow the application to state with 
particularity the practical difficulty associated with using the 
blackout method. Based on experience under the existing rules, the 
Commission expects that the use of a redaction method other than the 
blackout method will continue to be rare.
    Consistent with existing Sec.  3007.10(b), proposed Sec.  
3007.202(c) provides that electronic versions of redacted materials 
must be filed in a searchable format. Proposed Sec.  3007.202(c) 
permits the use of a non-searchable format only if accompanied by a 
certification that providing a searchable format would be 
impracticable. Based on experience under the existing rules, the 
Commission expects that such an occasion would occur rarely as most 
non-public materials are filed in .doc, .pdf, .xls, or similar formats.
    Proposed Sec.  3007.203 Unredacted version of the materials. 
Proposed Sec.  3007.203 sets forth the manner for submission of the 
unredacted version of the non-public materials.
    Consistent with existing Sec.  3007.10(d), proposed Sec.  
3007.203(a) requires that upon submitting the unredacted version of the 
non-public materials, each page or portion of a paper or electronic 
version be marked in a manner reasonably calculated to alert custodians 
to the confidential nature of the materials. Consistent with existing 
Sec.  3007.10(a), proposed Sec.  3007.203(a) also reflects that non-
public materials may not be submitted through the Filing Online method 
accessible through the Commission's public website (http://www.prc.gov). This is a public website and does not allow for the 
submission of non-public documents to the Commission.
    Proposed Sec.  3007.203(b) sets forth additional requirements 
pertaining to the filing of the unredacted version of the non-public 
materials. Proposed Sec.  3007.203(b) applies in lieu of Sec. Sec.  
3001.9 and 3001.10 of this chapter, which prescribe procedural 
requirements for filing of a written document that is required or 
authorized by statute, rule, regulation, order of the Commission, or 
direction of the presiding officer. Such filings made in accordance 
with Sec. Sec.  3001.9 and 3001.10 of this chapter (either using the 
Filing Online method accessible through the Commission's public website 
or via hand delivery) are available to the public. Therefore, proposed 
Sec.  3007.203(b) sets forth how such filings shall be performed for 
the unredacted versions of the non-public materials.
    Proposed Sec.  3007.203(b)(1) requires filing of the unredacted 
version of the non-public materials in sealed envelopes marked 
``Confidential. Do Not Post on Web,'' consistent with existing Sec.  
3007.10(a). Existing Sec.  3007.10(a) requires filing of both 
electronic (via compact disc (CD) or digital video disc (DVD)) and hard 
copy (paper) versions of the non-public materials. To reduce the 
burden, proposed Sec.  3007.203(b)(1) allows the filer to provide only 
the electronic version. If it is impracticable to submit the electronic 
version, proposed Sec.  3007.203(b)(1) permits the filer to provide the 
paper version instead.
    The Commission is exploring the use of an alternative system to 
allow secure online transmission of non-public materials. This 
alternative system would significantly increase speed and reduce the 
overall burden, especially for submissions that are frequent, 
voluminous, or both. Therefore, proposed Sec.  3007.203(b)(2) sets 
forth the requirements associated with use of any alternative system 
approved by the Commission. Proposed Sec.  3007.203(b)(2) provides that 
the Secretary has the authority to approve the use of a secure 
alternative system to file non-public materials online. It also states 
that no other system may be used to file non-public materials online. 
It also provides the Secretary with authority to set forth any minimum 
requirements associated with using an alternative system. If a filer 
fails to comply with any of the Secretary's requirements, the Secretary 
would have discretion to impose requirements specific to a particular 
filer. The Secretary may also revoke a filer's eligibility to use the 
alternative system and to require the filer to provide non-public 
materials in accordance with proposed Sec.  3007.203(b)(1).
    Proposed Sec.  3007.204 Protections for any other person with a 
proprietary interest. Proposed Sec.  3007.204 incorporates existing 
Sec.  3007.20(c), which informs the reader that any

[[Page 7344]]

person other than the submitter with a proprietary interest in non-
public materials filed with the Commission may lodge an application for 
non-public treatment. Proposed Sec.  3007.204 expands the applicability 
of this requirement to involve submissions made outside of filings and 
illustrates the procedural mechanisms by which an affected person may 
raise confidentiality concerns with the Commission.
    Proposed Sec.  3007.205 Non-public materials inadvertently filed 
publicly. Proposed Sec.  3007.205 pertains to instances in which a 
person discovers that information that could have been filed non-
publicly is contained within a public filing made in accordance with 
Sec. Sec.  3001.9 and 3001.10 of this chapter. Proposed Sec.  3007.205 
instructs the person to notify Dockets by telephone to remove the non-
public material from the publicly available material. The person must 
file an application for non-public treatment and the non-public 
materials within one business day of this request to Dockets. Proposed 
Sec.  3007.205 states that the Secretary has the discretion to impose 
additional filing requirements on any filer that repeatedly invokes 
this rule. The Commission expects this proposed rule will be invoked 
rarely. The Commission website is public and the Commission expects 
that filers will transmit documents using a reasonable degree of care 
for any non-public information. This proposed rule outlines a process 
to minimize exposure of sensitive information that may occur due to a 
filer's error.

C. Proposed Subpart C of Part 3007--Seeking Access to Non-Public 
Materials

    Proposed subpart C of part 3007. The Commission proposes to add 
subpart C to 39 CFR part 3007 containing rules applicable to seeking 
access to non-public materials. These rules allow non-public materials 
to remain under seal and allow specific persons to access the materials 
subject to protective conditions.
    Proposed Sec.  3007.300 Eligibility for access to non-public 
materials. Proposed Sec.  3007.300(a) incorporates existing Sec.  
3007.24(a), which provides that non-public materials may be disclosed 
to Commission and reviewing court personnel. Proposed Sec.  3007.300(a) 
adds clarifying language to indicate that such disclosure may be made 
without the need for issuance of an order.
    Proposed Sec.  3007.300(b) codifies the standard of ineligibility 
for access that was included in the sample Statement of Protective 
Conditions provided in existing Appendix A to part 3007. Proposed Sec.  
3007.300(b) provides that persons involved in competitive decision-
making shall not be granted access to non-public materials and defines 
the terms consistent with the language appearing in existing Appendix A 
to part 3007. Codifying this standard in the proposed rules, rather 
than only in the Statement of Protective Conditions, will enhance 
uniformity and protection against competitive harm without impeding the 
ability to participate in Commission proceedings.
    Proposed Sec.  3007.300(c) mirrors existing Sec.  3007.24(b) by 
explaining the circumstances and cross-referencing the relevant 
provision for other persons to obtain access (via proposed Sec.  
3007.301). Existing Sec. Sec.  3007.40(a) and 3007.50(a) provide that a 
person may request access to non-public materials during a proceeding 
or relevant to compliance under 39 U.S.C. 3653. Through past practice, 
the Commission has determined that 3007.50(a) applies while a 39 U.S.C. 
3653 compliance proceeding (proceedings using the designation ``Docket 
No. ACR'') is pending.\12\ Proposed Sec.  3007.300(c) unifies existing 
Sec. Sec.  3007.40(a) and 3007.50(a) to apply to an access request made 
for the purpose of aiding participation in a pending Commission 
proceeding (including a compliance proceeding). Consistent with past 
practice, proposed Sec.  3007.300(c) also expands the scope to allow a 
person to seek access for the purpose of aiding the initiation of a 
proceeding before the Commission.\13\ Any person seeking to view non-
public materials for other purposes may file a motion for disclosure 
pursuant to proposed Sec.  3007.400 or Sec.  3007.401 or a FOIA request 
under 39 CFR part 3004.
---------------------------------------------------------------------------

    \12\ See, e.g., Docket No. MT2016-1, Order No. 3319, Order 
Authorizing Market Test of Global eCommerce Marketplace (GEM) 
Merchant, May 25, 2016, at 24 n.41; Docket Nos. MC2014-3 and CP2014-
3, Order No. 2047, Order Denying Motion Requesting Access to Non-
public Materials, April 11, 2014 (denying as premature a motion for 
access seeking non-public pricing information and estimated volumes 
and costs to determine compliance of the NSA at issue because the 
motion was filed before the filing of the applicable Annual 
Compliance Report).
    \13\ See, e.g., Docket No. ACR2014, United Parcel Service, 
Inc.'s Motion Requesting Continued Access to Non-public Materials 
Under Protective Conditions, March 27, 2015, at 2.
---------------------------------------------------------------------------

    Proposed Sec.  3007.301 Motion for access to non-public materials. 
Proposed Sec.  3007.301 concerns requests for access to non-public 
materials. This proposed rule combines the material of existing 
Sec. Sec.  3007.40, 3007.42, 3007.50, and 3007.52, which have separate 
access rules for non-public materials based on whether or not the 
person seeking access seeks to use the materials in a compliance 
proceeding or other type of proceeding. Because this distinction does 
not produce a material difference in procedures, the Commission 
proposes to unify this content for simplicity.
    Proposed Sec.  3007.301(a) combines language appearing in existing 
Sec. Sec.  3007.40 and 3007.50, which instruct the person seeking 
access to file a motion. Proposed Sec.  3007.301(a) also adds an 
instruction that any part of the motion revealing non-public 
information must be filed under seal.
    Proposed Sec.  3007.301(a) also adds instructions pertaining to the 
docket in which the motion must be filed. The motion must be filed in 
the docket in which the non-public materials sought were filed or are 
intended to be used, if such a docket (open or closed) exists. The 
Commission expects that an existing docket (open or closed) would 
accommodate most, and quite likely all, motions for access filed. 
However, if no docket (open or closed) meeting either of those 
conditions exists, then the motion shall be filed in the G docket for 
the applicable fiscal year.
    Presently, any document filed with the Commission that is not 
associated with specific docket designation is by default categorized 
as a periodic report.\14\ The Commission creates the G docket 
designation to serve as the administrative default designation. If the 
Commission determines that it is more convenient, expeditious, or 
otherwise appropriate to resolve any issue arising in a G docket in a 
different docket(s), the Commission may consolidate or sever 
proceedings. 39 CFR 3001.14.
---------------------------------------------------------------------------

    \14\ Existing docket designations are: A (Post office appeals), 
ACR (Annual Compliance Review), C (complaint), CP (competitive 
products), IM (international mail), MC (mail classification), MT 
(market test), N (nature of service), PI (public inquiries), R 
(rate), RM (rulemaking), SS (special study), and T (tax).
---------------------------------------------------------------------------

    The Commission expects that the filing of a motion for access in a 
G docket would be rare--limited to situations in which the materials 
sought were not filed in an existing docket (open or closed) and the 
movant proposes to use the materials to initiate a Commission 
proceeding. Any movant considering filing in a G docket should 
telephone Dockets personnel to discuss whether a more appropriate 
docket exists.
    Proposed Sec.  3007.301(b) sets forth the content requirements for 
the motion based on the material appearing in existing Sec. Sec.  
3007.40(a) and 3007.50(a). Proposed Sec.  3007.301(b)(1) requires 
identification of the non-public documents for which access is sought. 
Consistent with existing Sec. Sec.  3007.40(a)(1) and 3007.50(a)(1), 
proposed

[[Page 7345]]

Sec.  3007.301(b)(2) requires a detailed statement justifying the 
access request.
    Proposed Sec.  3007.301(b)(2) also specifies the minimum 
information necessary to justify the request, which may vary if the 
movant proposes to use the materials in a pending Commission proceeding 
or to initiate a Commission proceeding.
    Proposed Sec.  3007.301(b)(2)(i) pertains to using the materials in 
a pending Commission proceeding. In this instance, the motion must 
identify all proceedings in which the movant proposes to use the 
materials and how those materials are relevant to those proceedings. 
This proposed rule is designed to provide additional guidance to 
movants regarding the justification required for access requests. Also, 
because in past practice, parties have sought to use non-public 
materials in multiple dockets, this proposed rule is designed so as to 
ensure that adequate justification is provided relating to each docket 
at issue.
    Proposed Sec.  3007.301(b)(2)(ii) pertains to using the materials 
to aid initiation of a proceeding before the Commission. In that 
instance, the justification required must describe the subject of the 
proposed proceeding, how the materials sought are relevant to that 
proceeding, and the expected timeframe to initiate that proceeding. 
This proposed rule is designed to provide additional guidance to 
movants regarding the justification required in these instances.
    Proposed Sec.  3007.301(b)(3) remains consistent with existing 
requirements, in Sec. Sec.  3007.40(a)(2) and 3007.50(a)(2), to list 
relevant affiliations.
    Proposed Sec.  3007.301(b)(4) requires the movant to indicate 
whether actual notice has been provided to each person identified in 
the application under Sec.  3007.201(b)(2). This proposed change will 
make it clear whether the expedited deadline for a response under 
proposed Sec.  3007.301(c) applies.
    If the motion states that actual notice has been provided to any 
person, the motion should identify the individual receiving actual 
notice, the date and approximate time, and the method of notification. 
This proposed identification requirement should help to protect the 
interests of the submitter and any person with a proprietary interest. 
Moreover, this proposed identification requirement should help to 
resolve motions seeking non-public materials that were submitted years 
ago--for instance, if there is a successor to the individual designated 
in the application.
    If the motion states that actual notice has been provided to any 
person, the motion should also state whether the movant is authorized 
to represent that the motion (in whole or in part) has been resolved or 
is contested by such person. This proposed change would expedite the 
resolution of motions where it is represented that motion is 
uncontested (in whole or in part).
    Proposed Sec.  3007.301(b)(5) requires attachment of a description 
of protective conditions executed by the movant's attorney or non-
attorney representative. Proposed Sec.  3007.301(b)(6) requires 
attachment of an executed certification to comply with protective 
conditions from each person (and any individual working on behalf of 
that person) for whom access is sought. Both of these requirements may 
be satisfied by using the proposed template Protective Conditions 
Statement and Certification to Comply with Protective Conditions 
included in Proposed Appendix A to subpart C of part 3007.
    Proposed Sec.  3007.301(c) sets the response period at 3 business 
days if there has been actual notice. In all other circumstances, the 
response period remains 7 calendar days. These response timeframes 
remains consistent with existing Sec. Sec.  3007.40(b) and 3007.50(b).
    Proposed Sec.  3007.301(d) remains consistent with existing 
Sec. Sec.  3007.40(c) and 3007.50(c) regarding reply.
    Proposed Sec.  3007.301(e) sets forth information related to the 
Commission's ruling. Consistent with past practice, proposed Sec.  
3007.301(e) explains that the Commission may rule on an uncontested 
access motion at any time after receiving the motion.\15\ Consistent 
with past practice, proposed Sec.  3007.301(e) provides that the 
Commission may rule on an unresolved access motion at any time after 
the response period has expired. Proposed Sec.  3007.301(e) sets forth 
the standard for the Commission ruling, which remains consistent with 
the standard appearing in existing Sec. Sec.  3007.42 and 3007.52. 
Proposed Sec.  3007.301(e) states that access shall begin after 
issuance of the order setting forth all protective conditions.
---------------------------------------------------------------------------

    \15\ See, e.g., Docket Nos. ACR2016 and RM2017-1, Order No. 
3757, Order Granting Unopposed Motion for Access, January 24, 2017 
(granting access one day after filing of the motion, which contained 
a representation that the motion was unopposed).
---------------------------------------------------------------------------

    Proposed Sec.  3007.302 Non-dissemination, use, and care of non-
public materials. Proposed Sec.  3007.302 sets forth the duties of 
persons granted access to non-public materials in Commission 
proceedings. Proposed Sec.  3007.302(a) remains consistent with 
existing Sec.  3007.62(a) by prohibiting dissemination of non-public 
materials to any person not granted access by the Commission under 
proposed Sec. Sec.  3007.300 (Commission and reviewing court personnel) 
or 3007.301 (persons granted access by order of the Commission). 
Proposed Sec.  3007.302(b) remains consistent with existing Sec.  
3007.25(a) by limiting the use of non-public materials to only the 
purpose for which the non-public materials are supplied. Proposed Sec.  
3007.302(c) is based on the prohibition on allowing unauthorized 
persons to have access to the materials, which appears in existing 
Sec.  3007.25(b). Proposed Sec.  3007.302(c) also incorporates the 
standard of care appearing in existing Appendix A to part 3007, which 
requires a person granted access to non-public materials to use 
reasonable care to prevent the unauthorized disclosure of non-public 
materials.
    Proposed Sec.  3007.303 Sanctions for violating protective 
conditions. Proposed Sec.  3007.303(a) remains consistent with existing 
Sec.  3007.62(a) relating to the sanctions for violations of the order 
granting access subject to protective conditions. Proposed Sec.  
3007.303(b) adapts the language of existing Sec.  3007.62(b). Existing 
Sec.  3007.62(b) refers only to the Postal Service. To reflect that 
parties other than the Postal Service may be adversely affected by 
violations of protective conditions, proposed Sec.  3007.303(b) states 
that the Commission's rules do not impair the ability of any person, 
including the Postal Service, to pursue other remedies available under 
the law related to violations of an order granting access subject to 
protective conditions.
    Proposed Sec.  3007.304 Termination and amendment of access to non-
public materials. Proposed Sec.  3007.304(a) combines the material 
appearing in existing Sec. Sec.  3007.41 and 3007.51, which relate to 
the termination of access to non-public materials. Existing Sec. Sec.  
3007.41 and 3007.51 divide the rules applicable to termination of 
access depending on whether the non-public materials at issue are 
relevant to general proceedings or compliance proceedings. Proposed 
Sec.  3007.304(a) treats termination procedures consistently in both 
instances.
    Proposed Sec.  3007.304(a)(1) remains consistent with the 
timeframes for the termination of access described in existing 
Sec. Sec.  3007.41(a)(1) and 3007.51(a)(1).
    Proposed Sec.  3007.304(a)(2) remains consistent with the 
procedural requirements upon termination described in existing 
Sec. Sec.  3007.41(c) and 3007.51(c). Proposed Sec.  3007.304(a)(2) 
provides that the applicable non-public materials must be destroyed or 
returned

[[Page 7346]]

to the Commission and notification of compliance must be filed with the 
Commission. As described below, the Commission proposes revisions to 
the applicable template form to be filed with the Commission upon 
termination of access in Appendix A to subpart C of part 3007.
    Proposed Sec.  3007.304(b) sets forth the procedure for a person to 
seek amendment of any protective conditions. This proposed rule aims to 
facilitate prompt resolution of common issues such as seeking access 
for additional time (as encompassed under existing Sec. Sec.  
3007.41(b) and 3007.51(b)) or for an additional employee or consultant.
    Proposed Sec.  3007.305 Producing non-public materials in non-
Commission proceedings. Proposed Sec.  3007.305 clarifies existing 
Sec.  3007.61.
    Proposed Sec.  3007.305(a) retains the existing 2-day notification 
requirement, in Sec.  3007.61(a), imposed upon any person who is the 
target of a subpoena or order to produce non-public materials that were 
obtained in a Commission proceeding. Existing Sec.  3007.61(a) requires 
the target to notify the Postal Service and does not adequately address 
situations in which the materials were submitted by or claimed to be 
non-public by a person other than the Postal Service. Therefore, 
proposed Sec.  3007.305(a) requires the target to notify all persons 
identified in the underlying application for non-public treatment 
pursuant to proposed Sec.  3007.201(b)(2). The proposed change better 
serves the purpose of this rule, which is to give the affected person 
the opportunity to object to the production or to seek a protective 
order or other relief.
    Proposed Sec.  3007.305(b) clarifies the language of existing Sec.  
3007.61(b). Proposed Sec.  3007.305(b) requires a good faith effort to 
obtain protective conditions at least as effective as those ordered by 
the Commission regarding the disclosure of non-public materials in non-
Commission proceedings.
    Proposed Sec.  3007.305(c) clarifies the language of existing Sec.  
3007.61(c). Proposed Sec.  3007.305(c) provides that unless overridden 
in a non-Commission proceeding, the protective conditions ordered by 
the Commission will remain in effect.
    Proposed Appendix A to subpart C of part 3007--Template Forms. 
Existing Appendix A to part 3007 contains three template forms relating 
to seeking or terminating access to non-public materials. The 
Commission proposes to move this content to subpart C, which pertains 
to access to non-public materials. To better reflect its content, the 
Commission proposes to update the heading identified in existing 
Appendix A to part 3007, ``Statement of Compliance with Protective 
Conditions,'' to ``Template Forms.''
    Revisions are proposed to the content of each proposed template 
form to conform with the changes to the rules appearing in proposed 39 
CFR part 3007 and to improve readability. The first proposed template 
form is a Protective Conditions Statement to aid compliance with 
proposed Sec.  3007.301(b)(5), which requires attachment of a 
description of protective conditions to a motion for access to non-
public materials. The second proposed template form is a Certification 
to Comply with Protective Conditions to aid compliance with proposed 
Sec.  3007.301(b)(6), which requires attachment of a certification to 
comply with protective conditions executed by each person (and any 
individual working on behalf of that person) seeking access to non-
public materials. The third proposed template form is a Certification 
of Compliance with Protective Conditions and Termination of Access to 
aid compliance with proposed Sec.  3007.304(a)(2), which requires the 
filing of certifications executed by each person (and any individual 
working on behalf of that person) granted access to non-public 
materials upon the termination of access.

D. Proposed Subpart D of Part 3007--Seeking Public Disclosure of Non-
Public Materials

    Proposed subpart D of part 3007. The Commission proposes to add 
subpart D to 39 CFR part 3007 containing rules applicable to seeking 
public disclosure of non-public materials.
    Proposed Sec.  3007.400 Motion for disclosure of non-public 
materials. Proposed Sec.  3007.400 applies to situations when a person 
seeks to challenge the non-public treatment claimed for materials--that 
is, to have the materials disclosed to the public, also known as 
``unsealed.''
    Proposed Sec.  3007.400(a) specifies that this rule applies to 
materials for which the non-public status remains active--either 
because the non-public status has not expired or has been extended by 
order of the Commission.
    Proposed Sec.  3007.400(b) explains that a request to have non-
public materials unsealed shall be made by motion and sets forth the 
contents of a motion. Consistent with existing Sec.  3007.31(a), the 
motion must explain why the materials should be made public and address 
any pertinent rationale(s) provided in the application for non-public 
treatment. Also, consistent with existing Sec.  3007.31(a), the motion 
may not publicly disclose the information that is designated as non-
public pending resolution of the motion.
    Proposed Sec.  3007.400(b) requires the movant to indicate whether 
actual notice has been provided to all persons identified in the 
application under Sec.  3007.201(b)(2). This proposed change will make 
it clear whether the expedited deadline for a response under proposed 
Sec.  3007.400(c) applies.
    If the motion states that actual notice has been provided to any 
person, the motion should identify the individual receiving actual 
notice, the date and approximate time, and the method of notification. 
This proposed identification requirement should help to protect the 
interests of the submitter and any person with a proprietary interest. 
Moreover, this proposed identification requirement should help to 
resolve motions seeking non-public materials that were submitted years 
ago--for instance, if there is a successor to the individual designated 
in the application.
    If the motion states that actual notice has been provided to all 
identified persons, the motion should also state whether the movant is 
authorized to represent that the motion (in whole or in part) has been 
resolved or is contested by such persons. This proposed change would 
facilitate expedited resolution of motions where it is represented that 
motion is uncontested (in whole or in part) and particularly when a 
person other than the submitter has a proprietary interest in the non-
public materials. The Commission observes that in accordance with 
proposed Sec.  3007.101(a), a motion for public disclosure can be 
avoided if all persons identified pursuant to Sec.  3007.201(b)(2) 
consent to allowing the submitter to file the materials at issue 
publicly. The Commission observes that in accordance with proposed 
Sec.  3007.101(a), a motion for public disclosure can be avoided if all 
persons identified pursuant to Sec.  3007.201(b)(2) consent to allowing 
the submitter to file the materials at issue publicly.
    Proposed Sec.  3007.400(b) also adds instructions pertaining to the 
docket in which the motion must be filed. The motion must be filed in 
the docket in which the non-public materials sought were filed or are 
intended to be used, if such a docket (open or closed) exists. However, 
if no docket (open or closed) meeting either of those conditions 
exists, then the motion shall be filed in the G docket for the 
applicable fiscal year. Any movant considering filing in a G docket 
should telephone Dockets

[[Page 7347]]

personnel to discuss whether a more appropriate docket exists.
    Proposed Sec.  3007.400(c) imposes an expedited response deadline 
for motions if there has been actual notice. If there has been actual 
notice, proposed Sec.  3007.400(c) sets the response period at 3 
business days. In all other circumstances, the response period remains 
7 calendar days, consistent with existing Sec. Sec.  3007.40(b) and 
3007.50(b). This proposed change should encourage movants to provide 
actual notice and thereby streamline motions practice.
    Proposed Sec.  3007.400(d) remains consistent with existing 
Sec. Sec.  3007.40(c) and 3007.50(c) regarding reply.
    Proposed Sec.  3007.400(e) reflects that the Commission will 
continue to accord non-public treatment to the material while the 
motion is pending.
    Proposed Sec.  3007.400(f) sets forth information related to the 
Commission's ruling. Proposed Sec.  3007.400(f) remains consistent with 
existing Sec.  3007.31(d), which explains the timing for the Commission 
ruling. Proposed Sec.  3007.400(f) adds that if there has been actual 
notice and the motion is uncontested, the Commission may rule before 
the response period expires. Proposed Sec.  3007.400(f) remains 
consistent with existing Sec.  3007.33, which explains the standards 
for the Commission ruling.
    Proposed Sec.  3007.401 Materials for which non-public treatment 
has expired. Proposed Sec.  3007.401 applies to materials for which 
non-public treatment has expired. Consistent with existing Sec.  
3007.30, proposed Sec.  3007.401(a) provides that non-public status 
shall expire after the passage of 10 years, unless otherwise provided 
by the Commission.\16\
---------------------------------------------------------------------------

    \16\ In many dockets, the Postal Service asks the Commission to 
protect certain non-public information from public disclosure 
indefinitely. See, e.g., Docket Nos. MC2011-1 and CP2011-2, Order 
No. 563, Order Approving Express Mail Contract 9 Negotiated Service 
Agreement, October 20, 2010, at 6-7. The Commission has consistently 
denied requests for indefinite protection. See id.
---------------------------------------------------------------------------

    The existing rules do not set forth the mechanism for the handling 
of materials when non-public treatment has expired. Proposed Sec.  
3007.401(b) through (f) provide the procedural mechanisms to take 
effect after 10 years have passed. Proposed Sec.  3007.401(b) through 
(f) take into account the need for transparency, sound records 
management practices, and adequate protection of the commercial 
interests of affected persons, including the Postal Service.
    Proposed Sec.  3007.401(b) provides that any person may file a 
motion requesting the disclosure of materials for which non-public 
treatment has expired. Proposed Sec.  3007.401(b) explains the content 
of such a motion. This motion must identify the materials requested and 
date(s) that materials were originally submitted under seal. Proposed 
Sec.  3007.401(b) provides that the motion may not publicly disclose 
the information that is designated as non-public pending resolution of 
the motion. Proposed Sec.  3007.401(b) informs the reader that all 
documents are treated in accordance with the Commission's record 
retention schedule, which may reduce the availability of some non-
public information.
    Proposed Sec.  3007.401(b) requires the movant to indicate whether 
actual notice has been provided to all persons identified in the 
application under Sec.  3007.201(b)(2). This proposed change will make 
it clear whether the expedited deadline for a response under proposed 
Sec.  3007.401(c) applies.
    If the motion states that actual notice has been provided to any 
person, the motion should identify the individual receiving actual 
notice, the date and approximate time, and the method of notification. 
This proposed identification requirement should help to protect the 
interests of the submitter and any person with a proprietary interest. 
Moreover, this proposed identification requirement should help to 
resolve motions seeking non-public materials that were submitted over 
10 years ago and there is a successor to the individual designated in 
the application.
    If the motion states that actual notice has been provided to any 
persons, the motion should also state whether the movant is authorized 
to represent that the motion (in whole or in part) has been resolved or 
is contested by such persons. This proposed change would facilitate 
expedited resolution of motions where it is represented that motion is 
uncontested (in whole or in part) and particularly when a person other 
than the submitter has a proprietary interest in the non-public 
materials. The Commission observes that in accordance with proposed 
Sec.  3007.101(a), a motion for public disclosure can be avoided if all 
persons identified pursuant to Sec.  3007.201(b)(2) consent to allowing 
the submitter to file the materials at issue publicly.
    Proposed Sec.  3007.401(b) also adds instructions pertaining to the 
docket in which the motion must be filed. The motion must be filed in 
the docket in which the non-public materials sought were filed or are 
intended to be used, if such a docket (open or closed) exists. However, 
if no docket (open or closed) meeting either of those conditions 
exists, then the motion shall be filed in the G docket for the 
applicable fiscal year. Any movant considering filing in a G docket 
should telephone Dockets personnel to discuss whether a more 
appropriate docket exists.
    Proposed Sec.  3007.401(c) provides for the timing and content 
requirements pertaining to any response opposing the motion. Proposed 
Sec.  3007.401(c) imposes the expedited response deadline for motions 
if there has been actual notice. If there has been actual notice, 
proposed Sec.  3007.401(c) sets the response period at 3 business days. 
In all other circumstances, the response period remains 7 calendar 
days. This proposed change should encourage movants to provide actual 
notice and thereby streamline motions practice. A response opposing the 
motion must request an extension of non-public status by including an 
application for non-public treatment compliant with proposed Sec.  
3007.201 and include specific facts supporting any assertion that 
commercial injury exists 10 years after the original filing under seal.
    Proposed Sec.  3007.401(d) permits a reply to be filed within 7 
calendar days of the response.
    Proposed Sec.  3007.401(e) states that the information designated 
as non-public will be accorded non-public treatment pending resolution 
of the motion.
    Proposed Sec.  3007.401(f) sets forth the timing and standard of 
the ruling. If there has been actual notice and the motion is 
uncontested, the Commission may rule before the response period 
expires. In all other circumstances, a motion may be granted any time 
after the response period described in proposed Sec.  3007.401(c) 
expires. A motion may be denied any time after the reply period 
described in proposed Sec.  3007.401(d) expires. The standard to 
balance the interests of the parties shall remain consistent with 
proposed Sec.  3007.104.

V. Section-by-Section Analysis of the Proposed Changes to 39 CFR Part 
3001

    Proposed subpart E of part 3001. The Commission proposes to add 
subpart E to existing 39 CFR part 3001.
    Existing Sec. Sec.  3007.2 and 3007.3, which relate to information 
requests, are included in existing 39 CFR part 3007, which relates to 
non-public information. Information requests are not limited to 
situations involving non-public materials. Therefore, the Commission 
proposes to move the procedural requirements relating to information 
requests to the Commission's rules of practice and procedure under 
existing 39 CFR part 3001. To minimize disruption associated with 
moving these

[[Page 7348]]

rules to existing 39 CFR part 3001, the Commission proposes to add 
proposed subpart E to 39 CFR part 3001. Proposed subpart E to 39 CFR 
part 3001 contains two rules applicable to information requests.
    Proposed Sec.  3001.100 Applicability and scope. The first sentence 
of proposed Sec.  3001.100(a) mirrors the first sentence of existing 
Sec.  3007.2, which informs the reader that the Commission may require 
that the Postal Service provide certain information that is likely to 
materially assist the Commission in fulfilling its statutory 
responsibilities. Consistent with existing Sec.  3007.3(b), the second 
sentence of proposed Sec.  3001.100(a) informs the reader that the 
Commission may request that persons other than the Postal Service 
provide certain information that is likely to materially assist the 
Commission in fulfilling its statutory responsibilities. Proposed Sec.  
3001.100(b) is based on the second sentence of existing Sec.  3007.2 
and includes a non-exhaustive list of the types of information that may 
be sought in an information request. Proposed Sec.  3001.100(b) is 
intended to encompass information, documents, and things in whatever 
form that is likely to materially assist the Commission in fulfilling 
its statutory responsibilities.
    Proposed Sec.  3001.101 Information request. Proposed Sec.  
3001.101(a) combines existing Sec.  3007.3(a) and (b). Proposed Sec.  
3001.101(a) provides that an information request may be directed to the 
Postal Service as well as other persons and describes the contents of 
an information request. Proposed Sec.  3001.101(a) dispenses with the 
defined term ``authorized representative'' and instead specifies that 
an information request may be issued by the Commission, the Chairman of 
the Commission, or the presiding officer, consistent with existing 
practice and 39 U.S.C. 504(f)(2). Consistent with existing practice, 
proposed Sec.  3001.101(a) provides that the issuance of an information 
request is discretionary.
    Proposed Sec.  3001.101(b) is based on existing Sec.  3007.3(c). 
Proposed Sec.  3001.101(b) provides that a request to issue an 
information request shall be via a motion listing the proposed 
questions and justifying the request. Proposed Sec.  3001.101(b) 
codifies that the Commission, the Chairman of the Commission, or the 
presiding officer may issue an information request at any time after 
the motion. Any or all of the proposed questions may be included or 
modified in the information request.

VI. Section-by-Section Analysis of the Proposed Changes to 39 CFR part 
3004

    Proposed Sec.  3004.30 Relationship among the Freedom of 
Information Act, the Privacy Act, and the Commission's procedures for 
according appropriate confidentiality. The Commission proposes to amend 
paragraph (d) of the existing rule to reflect that in all instances in 
which the Postal Service submits materials to the Commission that it 
reasonably believes to be exempt from public disclosure, the Postal 
Service shall follow the submission procedures appearing in subpart B 
of 39 CFR part 3007. The Commission also proposes to amend paragraph 
(e) of the existing rule to dispense with the use of the term ``third 
party'' to refer to a person other than the Postal Service.
    Proposed Sec.  3004.70 Submission of non-public materials by a 
person other than the Postal Service. The Commission also proposes to 
amend the heading identified in the existing rule to dispense with the 
use of the term ``third party'' to refer to a person other than the 
Postal Service. The Commission proposes to amend paragraph (a) of the 
existing rule to reflect that any other person providing materials to 
the Commission that it reasonably believes to be exempt from public 
disclosure shall follow the submission procedures appearing in subpart 
B of 39 CFR part 3007. The Commission also proposes to amend paragraph 
(b) of the existing rule to dispense with the use of the term ``third 
party'' to refer to a person other than the Postal Service. The 
Commission also proposes to amend paragraph (c) of the existing rule so 
as to update the cross-reference to the provision containing the 
requirements for an application for non-public treatment from existing 
Sec.  3007.10 to proposed Sec.  3007.201.

VII. Administrative Actions

    The Commission establishes Docket No. RM2018-3 for consideration of 
matters raised by this Order. Additional information concerning this 
rulemaking may be accessed via the Commission's website at http://www.prc.gov. Interested persons may submit comments no later than March 
23, 2018. Pursuant to 39 U.S.C. 505, James Waclawski is designated as 
an officer of the Commission (Public Representative) to represent the 
interests of the general public in this proceeding.

VIII. Ordering Paragraphs

    It is ordered:
    1. The Commission establishes Docket No. RM2018-3 for consideration 
of the matters raised by this Order.
    2. Interested persons may submit comments no later than March 23, 
2018.
    3. Pursuant to 39 U.S.C. 505, the Commission appoints James 
Waclawski to serve as an officer of the Commission (Public 
Representative) to represent the interests of the general public in 
this proceeding.
    4. The Secretary shall arrange for publication of this Order in the 
Federal Register.

    By the Commission.
Stacy L. Ruble,
Secretary.

List of Subjects

39 CFR Part 3001

    Administrative practice and procedure, Confidential business 
information, Freedom of information, Sunshine Act.

39 CFR Part 3004

    Administrative practice and procedure, Freedom of information, 
Reporting and recordkeeping requirements.

39 CFR Part 3007

    Administrative practice and procedure, Confidential business 
information.

    For the reasons stated in the preamble, the Commission proposes to 
amend chapter III of title 39 of the Code of Federal Regulations as 
follows:

PART 3001--RULES OF PRACTICE AND PROCEDURE

0
1. The authority citation for part 3001 continues to read as follows:

    Authority: 39 U.S.C. 404(d); 503; 504; 3661.

0
2. Add subpart E to read as follows:

Subpart E--Information Requests

Sec.
3001.100 Applicability and scope.
3001.101 Information request.


Sec.  3001.100  Applicability and scope.

    (a) Applicability. The Commission may require the Postal Service to 
provide any information, documents, and things in its possession or 
control, or any information, documents, and things that it can obtain 
through reasonable effort and expense, that are likely to materially 
assist the Commission in its conduct of proceedings, in its preparation 
of reports, or in performance of its functions under title 39 of the 
U.S. Code. The Commission may request that any other person provide any 
information, documents, and things in its possession or control, or any

[[Page 7349]]

information, documents, and things that it can obtain through 
reasonable effort and expense, that are likely to materially assist the 
Commission in its conduct of proceedings, in its preparation of 
reports, or in performance of its functions under title 39 of the U.S. 
Code.
    (b) Scope. Information, documents, and things include, but are not 
limited to, things such as explanations, confirmations, factual 
descriptions, data, and documents. Examples include writings; notes; 
graphs; charts; spreadsheets and underlying formulae; erased, 
fragmented, or damaged data; data compilations or tables; emails; 
drawings; photographs; and images--stored in any medium from which 
information can be obtained either directly or, if necessary, after 
translation into a reasonably usable form.


Sec.  3001.101  Information request.

    (a) An information request may be issued at the discretion of the 
Commission, the Chairman of the Commission, or the presiding officer 
seeking that the Postal Service or any other person provide 
information, data, or things covered by Sec.  3001.100. An information 
request shall describe the documents, information, and things sought, 
briefly explain the reason for the request, and specify a date on which 
the response(s) shall be due.
    (b) Any person may request the issuance of an information request 
by filing a motion. The motion shall list the information, data, or 
things sought; explain the reasons the Commission should make the 
information request, and justify why the information sought is relevant 
and material to the Commission's duties under title 39 of the U.S. 
Code. At any time after the motion is filed, the Commission, the 
Chairman of the Commission, or the presiding officer may issue an 
information request that includes all or some of the proposed questions 
or modifies the proposed questions.

PART 3004--PUBLIC RECORDS AND FREEDOM OF INFORMATION ACT

0
3. The authority citation for part 3004 continues to read as follows:

    Authority: 5 U.S.C. 552; 39 U.S.C. 503.

0
4. Amend Sec.  3004.30 by revising paragraph (d) introductory text and 
paragraph (e) to read as follows:


Sec.  3004.30  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. 
In all 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 subpart B of part 3007 of this chapter.
* * * * *
    (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 designated as non-
public by a person other than the Postal Service shall be considered in 
light of all applicable exemptions; and
    (2) A request made pursuant to part 3007 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
5. Amend Sec.  3004.70, by revising the section heading and paragraphs 
(a), (b), and (c) to read as follows:


Sec.  3004.70  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 subpart B of part 3007 of this chapter.
    (b) Notice of request. Except as provided in Sec.  3004.30(d), if a 
FOIA request seeks materials designated as nonpublic materials, the 
Commission will provide the submitter with notice of the request. The 
Commission may also provide notice when it has reason to believe that 
materials submitted by a person other than the Postal Service are 
possibly exempt from disclosure and may fall within the scope of any 
FOIA request.
    (c) Objections to disclosure. A submitter may file written 
objections to the request specifying all grounds for withholding the 
information under FOIA within 7 days of the date of the notice. If the 
submitter fails to respond to the notice, the submitter will be 
considered to have no objection, beyond those objections articulated in 
its application for nonpublic treatment pursuant to Sec.  3007.201 of 
this chapter, to the disclosure of the information.
* * * * *
0
7. Revise part 3007 to read as follows:

PART 3007--NON-PUBLIC MATERIALS PROVIDED TO THE COMMISSION

Subpart A--General Provisions
Sec.
3007.100 Applicability.
3007.101 Definitions.
3007.102 Treatment of non-public materials.
3007.103 Commission action to determine non-public treatment.
3007.104 Standard for public disclosure of non-public materials.
Subpart B--Submitting Non-public Materials and Seeking Non-public 
Treatment
3007.200 General requirements for submitting non-public materials 
and seeking non-public treatment.
3007.201 Application for non-public treatment.
3007.202 Redacted version of the non-public materials.
3007.203 Unredacted version of the non-public materials.
3007.204 Protections for any other person with a proprietary 
interest.
3007.205 Non-public materials inadvertently filed publicly.
Subpart C--Seeking Access to Non-public Materials
3007.300 Eligibility for access to non-public materials.
3007.301 Motion for access to non-public materials.
3007.302 Non-dissemination, use, and care of non-public materials.
3007.303 Sanctions for violating protective conditions.
3007.304 Termination and amendment of access to non-public 
materials.
3007.305 Producing non-public materials in non-Commission 
proceedings.
Appendix A to subpart C of part 3007--Template Forms
Subpart D--Seeking Public Disclosure of Non-public Materials
3007.400 Motion for disclosure of non-public materials.
3007.401 Materials for which non-public treatment has expired.

    Authority: 39 U.S.C. 503, 504.

Subpart A--General Provisions


Sec.  3007.100  Applicability.

    The rules in this part implement provisions in 39 U.S.C. 504(g). 
These rules apply whenever:
    (a) The Postal Service claims that any document or other matter 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

[[Page 7350]]

39 of the U.S. Code, contains non-public material;
    (b) Any other person claims that any document or other matter 
provided to the Commission contains non-public material;
    (c) The Commission is determining the appropriate degree of 
confidentiality to be accorded information identified by the Postal 
Service or any other person to contain non-public material in 
accordance with these rules; or
    (d) The Commission is determining how to ensure appropriate 
confidentiality for non-public materials furnished to the Postal 
Service or any other person in accordance with these rules.


Sec.  3007.101  Definitions.

    (a) Non-public materials means any information, documents, and 
things provided to the Commission that are claimed to be exempt from 
disclosure by the Postal Service pursuant to 39 U.S.C. 504(g), 3652(f) 
or 3654(f), or claimed to be protectable under Federal Rule of Civil 
Procedure 26(c) by any person other than the Postal Service with a 
proprietary interest in the materials. Non-public materials includes 
any information, documents, and things submitted to the Commission that 
are claimed to contain information that is described in 39 U.S.C. 
410(c) or exempt from public disclosure under 5 U.S.C. 552(b). Non-
public materials cease to be non-public if the status has expired or 
been terminated by the Commission pursuant to this part. Except as 
provided by Sec.  3007.205, non-public materials cease to be non-public 
if the submitter publicly discloses the materials with the consent of 
each affected person with a propriety interest in the materials (if 
applicable).
    (b) Submitter means any natural or legal person, including the 
Postal Service, that provides non-public materials to the Commission 
and seeks non-public treatment in accordance with the rules of this 
part.


Sec.  3007.102  Treatment of non-public materials.

    (a) Except as described in part 3007 or part 3004 of this chapter, 
the Commission will not disclose or grant access to non-public 
materials.
    (b) To accord appropriate confidentiality to non-public materials 
during any stage of a proceeding before the Commission, or in 
connection with any other purpose under title 39 of the U.S. Code, the 
Commission may, based on Federal Rule of Civil Procedure 26(c):
    (1) Prohibit the public disclosure of the non-public materials;
    (2) Specify terms for public disclosure of the non-public 
materials;
    (3) Order a specific method for disclosing the non-public 
materials;
    (4) Restrict the scope of the disclosure of the non-public 
materials as they relate to certain matters;
    (5) Restrict who may access the non-public materials;
    (6) Require that a trade secret be revealed only in a specific and 
limited manner or to limited or specified persons; and
    (7) Order other relief as appropriate including sealing a 
deposition or part of a proceeding.


Sec.  3007.103  Commission action to determine non-public treatment.

    Information requests as described in subpart E of part 3001 of this 
chapter, preliminary notices, or interim orders may be issued to help 
the Commission determine the non-public treatment, if any, to be given 
to the materials. Upon motion by any person, or on its own motion, the 
Commission may issue an order containing a description of and timeframe 
for the non-public treatment, if any, to be given to materials claimed 
by any person to be non-public. The Commission may amend the non-public 
treatment, if any, to be given to the materials at any time by order.


Sec.  3007.104  Standard for public disclosure of non-public materials.

    (a) In determining whether to publicly disclose materials claimed 
by the Postal Service to be non-public, the Commission shall balance 
the nature and extent of the likely commercial injury identified by the 
Postal Service against the public interest in maintaining the financial 
transparency of a government entity competing in commercial markets.
    (b) In determining whether to publicly disclose materials in which 
the Commission determines any person other than the Postal Service has 
a proprietary interest, the Commission shall balance the interests of 
the parties based on Federal Rule of Civil Procedure 26(c).

Subpart B--Submitting Non-public Materials and Seeking Non-public 
Treatment


Sec.  3007.200  General requirements for submitting non-public 
materials and seeking non-public treatment.

    (a) Whenever providing non-public materials to the Commission, the 
submitter shall provide the following on the same business day: An 
application for non-public treatment that clearly identifies all non-
public materials and describes the circumstances causing them to be 
submitted to the Commission in accordance with Sec.  3007.201, a 
redacted (public) version of the non-public materials in accordance 
with Sec.  3007.202, and an unredacted (sealed) version of the non-
public materials in accordance with Sec.  3007.203.
    (b) Before submitting non-public materials to the Commission, if 
the submitter has reason to believe that any other person has a 
proprietary interest in the non-public materials, the submitter shall 
inform each affected person of the nature and scope of the submission 
to the Commission, including the pertinent docket designation(s) (if 
applicable) and that the affected person may address any 
confidentiality concerns directly with the Commission.


Sec.  3007.201  Application for non-public treatment.

    (a) Burden of persuasion. An application for non-public treatment 
shall fulfill the burden of persuasion that the material designated as 
non-public should be withheld from the public.
    (b) Contents of application. An application for non-public 
treatment shall include a specific and detailed statement setting forth 
the information specified in paragraphs (b)(1) through (8) of this 
section:
    (1) The rationale for claiming that the materials are non-public, 
including the specific statutory provision(s) supporting the claim, and 
an explanation justifying application of the provision(s) to the 
materials.
    (2) A statement of whether the submitter, any other person, or both 
have a proprietary interest in the non-public materials, and the 
identification(s) specified in paragraphs (b)(2)(i) through (iii) of 
this section (whichever is applicable). For purposes of this paragraph, 
identification means the name, phone number, and email address of an 
individual.
    (i) If the submitter has a proprietary interest in the materials, 
identification of an individual designated by the submitter to accept 
actual notice of a motion related to the non-public materials or notice 
of the pendency of a subpoena or order requiring production of the 
materials.
    (ii) If any person other than the submitter has a proprietary 
interest in the materials, identification of each person who is known 
to have a proprietary interest in the materials. If such an 
identification is sensitive or impracticable, an explanation shall be 
provided along with the identification of an individual designated by 
the

[[Page 7351]]

submitter to provide notice to each affected person.
    (iii) If both the submitter and any other person have a proprietary 
interest in the non-public materials, identification in accordance with 
both paragraphs (b)(2)(i) and (ii) of this section shall be provided. 
The submitter may designate the same individual to fulfill the 
requirements of paragraphs (b)(2)(i) and (ii) of this section.
    (3) A description of the materials claimed to be non-public in a 
manner that, without revealing the materials at issue, would allow the 
Commission to thoroughly evaluate the basis for the claim that the 
materials are non-public.
    (4) Particular identification of the nature and extent of the harm 
alleged and the likelihood of each harm alleged to result from 
disclosure.
    (5) At least one specific hypothetical, illustrative example of 
each alleged harm.
    (6) The extent of the protection from public disclosure alleged to 
be necessary.
    (7) The length of time for which non-public treatment is alleged to 
be necessary with justification thereof.
    (8) Any other relevant factors or reasons to support the 
application.
    (c) Incorporation by reference. If the material designated as non-
public has been previously claimed to be non-public material by a prior 
application for non-public treatment, the submitter may incorporate by 
reference the prior application. Any application that incorporates by 
reference a prior application that is accessible through the 
Commission's website (http://www.prc.gov) shall state the date, docket 
number, and the name of the filer of the prior application. In all 
other circumstances, the application that incorporates by reference a 
prior application shall attach the prior application.


Sec.  3007.202  Redacted version of the non-public materials.

    (a) Except as allowed under paragraph (b) of this section, the 
submitter shall use the graphical redaction (blackout) method for all 
redacted materials. The submitter shall blackout only the material that 
is claimed to be non-public.
    (b) The submitter shall justify using any other redaction method. 
The application for non-public treatment shall state with particularity 
the competitive harm or practical difficulty alleged to result from 
using the blackout method. The submitter shall specifically identify 
any alterations made to the unredacted version, including the location 
and number of lines or pages removed.
    (c) If electronic, the redacted version shall be filed in a 
searchable format, unless the submitter certifies that doing so would 
be impracticable.


Sec.  3007.203  Unredacted version of the non-public materials.

    (a) Each page, item, and thing, or portion thereof, of the 
unredacted version of the materials for which non-public treatment is 
sought shall be marked in a manner reasonably calculated to alert 
custodians to the confidential nature of the materials. The Filing 
Online method accessible through the Commission's website (http://www.prc.gov) described under Sec. Sec.  3001.9 and 3001.10 of this 
chapter may not be used to submit the unredacted version of non-public 
materials.
    (b) In lieu of Sec. Sec.  3001.9 and 3001.10 of this chapter, the 
filing of the unredacted version of the non-public materials shall be 
made in accordance with the following requirements concerning the 
filing process, form, and number of copies.
    (1) Except if using an alternative system approved by the 
Commission under paragraph (b)(2) of this section, the unredacted 
version of the non-public materials shall be filed in a sealed envelope 
clearly marked ``Confidential. Do Not Post on Web'' to the Office of 
Secretary and Administration, Postal Regulatory Commission, 901 New 
York Avenue NW, Suite 200, Washington, DC 20268-0001. Two copies of the 
unredacted version of the non-public materials shall be filed using an 
electronic format such as compact discs (CDs) or digital video discs 
(DVDs) that shall be clearly marked ``Confidential. Do Not Post on 
Web.'' The non-public materials may not be password protected. 
Spreadsheets shall display the formulas used and their links to related 
spreadsheets. All workpapers or data shall be filed in a form, and be 
accompanied by sufficient explanation and documentation, to allow them 
to be replicated using a publicly available PC application. If making 
an electronic unredacted version of the non-public materials is 
impracticable, two hard copies (paper) versions of the non-public 
materials may be filed.
    (2) On behalf of the Commission, the Secretary has authority to 
approve the use of a secure alternative system to file non-public 
materials. The Secretary may set forth any minimum requirements 
associated with using an alternative system. If a filer using the 
alternative system fails to comply with any of the Secretary's 
requirements, the Secretary has discretion to revoke the filer's 
eligibility to use the alternative system or impose requirements 
specific to the filer as necessary to ensure secure transmission of 
non-public materials.


Sec.  3007.204  Protections for any other person with a proprietary 
interest.

    Any other person with a proprietary interest in materials that have 
been or will be submitted to the Commission may address any 
confidentiality concerns directly with the Commission by seeking non-
public treatment in accordance with the requirements of this subpart, 
responding to a motion for access to non-public materials in accordance 
with the requirements of subpart C of this part, or responding to a 
motion for disclosure of non-public materials in accordance with the 
requirements of subpart D of this part.


Sec.  3007.205  Non-public materials inadvertently filed publicly.

    Any filer or person with a proprietary interest that discovers the 
inclusion of materials that could have been filed non-publicly within a 
public filing made in accordance with Sec. Sec.  3001.9 and 3001.10 of 
this chapter shall telephone Dockets personnel immediately to request 
that the non-public material be removed from the publicly available 
material. Upon receipt of that telephone request, Dockets personnel 
will remove from the publicly available material that material for 
which non-public treatment is being requested until the end of the next 
business day in order to provide the filer or person with a proprietary 
interest an opportunity to file an application for non-public treatment 
and the non-public materials in accordance with the requirements of 
this subpart. If any filer makes repeated use of this rule, the 
Secretary has discretion to impose additional requirements on this 
filer as necessary to ensure secure filing of non-public materials.

Subpart C--Seeking Access to Non-public Materials


Sec.  3007.300  Eligibility for access to non-public materials.

    (a) The following persons may access non-public materials without 
an order issued pursuant to Sec.  3007.301(e):
    (1) Members of the Commission;
    (2) Commission employees, including Public Representatives, 
carrying out their official responsibilities;
    (3) Contractors, attorneys, or other non-employee subject matter 
experts assisting the Commission in carrying out its duties;
    (4) Reviewing courts and their staffs;

[[Page 7352]]

    (5) Court reporters, stenographers, or persons operating audio or 
video recording equipment for such court reporters or stenographers at 
hearings or depositions.
    (b) No person involved in competitive decision-making for any 
individual or entity that might gain competitive advantage from using 
non-public materials shall be granted access to non-public materials. 
Involved in competitive decision-making includes consulting on 
marketing or advertising strategies, pricing, product research and 
development, product design, or the competitive structuring and 
composition of bids, offers or proposals. It does not include rendering 
legal advice or performing other services that are not directly in 
furtherance of activities in competition with an individual or entity 
having a proprietary interest in the protected material.
    (c) Any person not described in paragraph (a) or (b) of this 
section may request access to non-public materials as described in 
Sec.  3007.301, for the purpose of aiding participation in a pending 
Commission proceeding (including compliance proceedings) or aiding the 
initiation of a proceeding before the Commission.


Sec.  3007.301  Motion for access to non-public materials.

    (a) Filing requirements. A request for access to non-public 
materials shall be made by filing a motion with the Commission. Any 
part of the motion revealing non-public materials shall be filed in 
accordance with subpart B of this part. The motion shall be filed in 
the docket in which the materials were filed or in the docket in which 
the materials will be used; in all other circumstances, the motion 
shall be filed in the G docket for the applicable fiscal year.
    (b) Content requirements. The motion shall:
    (1) Identify the particular non-public documents to which the 
movant seeks access;
    (2) Include a detailed statement justifying the request for access:
    (i) if access is sought to aid participation in any pending 
Commission proceeding, the motion shall identify all proceedings 
(including compliance proceedings) in which the movant proposes to use 
the materials and how those materials are relevant to those 
proceedings, or
    (ii) if access is sought to aid initiation of a proceeding before 
the Commission, the motion shall describe the subject of the proposed 
proceeding, how the materials sought are relevant to that proposed 
proceeding, and when the movant anticipates initiating the proposed 
proceeding;
    (3) List all relevant affiliations, including employment or other 
relationship (including agent, consultant or contractor) with the 
movant, and whether the movant is affiliated with the delivery 
services, communications or mailing industries;
    (4) Specify if actual notice of the motion has been provided to 
each person identified in the application pursuant to Sec.  
3007.201(b)(2). If the motion states that actual notice has been 
provided, the motion shall identify the individual(s) to whom actual 
notice was provided, the date(s) and approximate time(s) of actual 
notice, the method(s) of actual notice (by telephone conversation, 
face-to-face conversation, or an exchange of telephone or email 
messages), and whether the movant is authorized to represent that the 
motion (in whole or in part) has been resolved or is contested by the 
submitter or any other affected person;
    (5) Attach a description of protective conditions completed and 
signed by the movant's attorney or non-attorney representative, who may 
use and modify the template Protective Conditions Statement in Appendix 
A to this subpart; and
    (6) Attach a certification to comply with protective conditions 
executed by each person (and any individual working on behalf of that 
person) seeking access, who may use and modify the template 
Certification to Comply with Protective Conditions in Appendix A to 
this subpart.
    (c) Response. If actual notice of the motion was provided in 
advance of the filing to each person identified pursuant to Sec.  
3007.201(b)(2) by telephone conversation, face-to-face conversation, or 
an exchange of telephone or email messages, a response to the motion is 
due within 3 business days of the filing of the motion, unless the 
Commission otherwise provides. In all other circumstances, a response 
to the motion is due within 7 calendar days of filing the motion, 
unless the Commission otherwise provides.
    (d) Reply. No reply to a response shall be filed, unless the 
Commission otherwise provides.
    (e) Commission ruling. The Commission may enter an order at any 
time after receiving a motion if the movant states that: Actual notice 
has been given to each persons identified pursuant to Sec.  
3007.201(b)(2) and that the movant is authorized to represent that the 
motion is uncontested. In all other circumstances, the Commission will 
enter an order determining if access will be granted after the response 
period described in paragraph (c) of this section has expired. If no 
opposition to the motion has been filed by the submitter or any other 
person with a proprietary interest before the expiration of the 
response period described in paragraph (c) of this section, the 
Commission may issue an order granting access, subject to the agreed 
protective conditions. In determining whether to grant access to non-
public materials, the Commission shall balance the balance the 
interests of the parties based on Federal Rule of Civil Procedure 
26(c). If access is granted, access shall commence following the 
issuance of the appropriate order setting forth all protective 
conditions.


Sec.  3007.302  Non-dissemination, use, and care of non-public 
materials.

    (a) No person who has been granted access to non-public materials 
in accordance with Sec.  3007.300 or Sec.  3007.301 may disseminate the 
materials in whole or in part to any person not allowed access pursuant 
to Sec.  3007.300 or Sec.  3007.301.
    (b) Persons with access to non-public materials under Sec.  
3007.300 or Sec.  3007.301 shall use non-public materials only for the 
purposes for which the non-public materials are supplied.
    (c) Persons with access to non-public materials under Sec.  
3007.300 or Sec.  3007.301 shall protect the non-public materials from 
any person not granted access under Sec.  3007.300 or Sec.  3007.301 by 
using the same degree of care, but no less than a reasonable degree of 
care, to prevent the unauthorized disclosure of these materials as 
those persons, in the ordinary course of business, would be expected to 
use to protect their own proprietary material or trade secrets and 
other internal, confidential, commercially sensitive, and privileged 
information.


Sec.  3007.303  Sanctions for violating protective conditions.

    (a) If a person who has been granted access to non-public materials 
under Sec.  3007.301 violates the terms of the order granting access, 
the Commission shall impose sanctions on the person who violated the 
order, the persons or entities on whose behalf the person was acting, 
or both. The sanctions may include:
    (1) Dismissing the proceeding in whole or in part;
    (2) Ruling by default against the person who violated the order or 
the persons or entities on whose behalf the person was acting; and

[[Page 7353]]

    (3) Such other sanctions, as deemed appropriate by the Commission.
    (b) This rule does not prevent any person, including the Postal 
Service, whose interests are damaged by the violation of an order 
granting access subject to protective conditions, from pursuing any 
remedies available under the law against the person who violated the 
order, the persons or entities on whose behalf the person was acting, 
or both.


Sec.  3007.304  Termination and amendment of access to non-public 
materials.

    (a) Termination of access. (1) Except as provided in paragraph (b) 
of this section, access to non-public materials granted under Sec.  
3007.301 terminates either when the Commission issues the final order 
or report concluding the proceeding(s) in which the participant who 
filed the motion seeking access represented that the non-public 
materials would be used, or when the person granted access withdraws or 
is otherwise no longer involved in the proceeding(s), whichever occurs 
first. For purposes of this paragraph, an order or report is not 
considered final until after the possibility of judicial review 
expires.
    (2) Upon termination of access, all non-public materials, and any 
duplicates, in the possession of each person (and any individual 
working on behalf of that person) granted access shall be destroyed or 
returned to the Commission. The participant who filed the motion 
seeking access shall file with the Commission a notice of termination 
of access and attach a certification of compliance with protective 
conditions executed by each person (and any individual working on 
behalf of that person) granted access to the non-public materials. The 
template Certification of Compliance with Protective Conditions and 
Termination of Access in Appendix A to this subpart may be used and 
modified to comply with this requirement.
    (b) Amendment of Access. Any person may file a motion seeking to 
amend any protective conditions related to access of non-public 
materials, including extending the timeframe for which access is 
granted or expanding the persons to whom access is to be granted, in 
accordance with Sec.  3007.301.


Sec.  3007.305  Producing non-public materials in non-Commission 
proceedings.

    (a) If a court or other administrative agency issues a subpoena or 
orders production of non-public materials that a person obtained under 
protective conditions ordered by the Commission, the target of the 
subpoena or order shall, within 2 days of receipt of the subpoena or 
order, notify each person identified pursuant to Sec.  3007.201(b)(2) 
of the pendency of the subpoena or order to allow time to object to 
that production or to seek a protective order or other relief.
    (b) Any person that has obtained non-public materials under 
protective conditions ordered by the Commission and seeks to disclose 
the non-public materials in a court or other administrative proceeding 
shall make a good faith effort to obtain protective conditions at least 
as effective as those set forth in the Commission order establishing 
the protective conditions.
    (c) Unless overridden by the reviewing court or other 
administrative agency, protective conditions ordered by the Commission 
will remain in effect.

Appendix A to Subpart C of Part 3007--Template Forms

Protective Conditions Statement

    ___(name of submitter of non-public materials) requests 
confidential treatment of non-public materials identified as___(non-
confidential description of non-public materials) (hereinafter 
``these materials'') in Commission Docket No(s).__(designation of 
docket(s) in which these materials were filed).
    __(name of participant filing motion) (hereinafter ``the 
movant'') requests access to these materials related 
to__(designation of docket(s) or description of proposed 
proceeding(s) in which these materials are to be used) (hereinafter 
``this matter'').
    The movant has provided to each person seeking access to these 
materials:
    [cir] this Protective Conditions Statement,
    [cir] the Certification to Comply with Protective Conditions,
    [cir] the Certification of Compliance with Protective Conditions 
and Termination of Access; and
    [cir] the Commission's rules applicable to access to non-public 
materials filed in Commission proceedings (subpart C of part 3007 of 
the U.S. Code of Federal Regulations).
    Each person (and any individual working on behalf of that 
person) seeking access to these materials has executed a 
Certification to Comply with Protective Conditions by signing in ink 
or by typing/s/before his or her name in the signature block. The 
movant attaches the Protective Conditions Statement and the executed 
Certification(s) to Comply with Protective Conditions to the motion 
for access filed with the Commission.
    The movant and each person seeking access to these materials 
agree to comply with the following protective conditions:
    1. In accordance with 39 CFR 3007.303, the Commission may impose 
sanctions on any person who violates these protective conditions, 
the persons or entities on whose behalf the person was acting, or 
both.
    2. In accordance with 39 CFR 3007.300(b), no person involved in 
competitive decision-making for any individual or entity that might 
gain competitive advantage from using these materials shall be 
granted access to these materials. Involved in competitive decision-
making includes consulting on marketing or advertising strategies, 
pricing, product research and development, product design, or the 
competitive structuring and composition of bids, offers or 
proposals. It does not include rendering legal advice or performing 
other services that are not directly in furtherance of activities in 
competition with an individual or entity having a proprietary 
interest in the protected material.
    3. In accordance with 39 CFR 3007.302(a), a person granted 
access to these materials may not disseminate these materials in 
whole or in part to any person not allowed access pursuant to 39 CFR 
3007.300(a) (Commission and court personnel) or 3007.301 (other 
persons granted access by Commission order) except in compliance 
with:
    a. Specific Commission order,
    b. Subpart B of 39 CFR 3007 (procedure for filing these 
materials in Commission proceedings), or
    c. 39 CFR 3007.305 (production of these materials in a court or 
other administrative proceeding).
    4. In accordance with 39 CFR 3007.302(b) and (c), all persons 
granted access to these materials:
    a. must use these materials only related to this matter; and
    b. must protect these materials from any person not authorized 
to obtain access under 39 CFR 3007.300 or 3007.301 by using the same 
degree of care, but no less than a reasonable degree of care, to 
prevent the unauthorized disclosure of these materials as those 
persons, in the ordinary course of business, would be expected to 
use to protect their own proprietary material or trade secrets and 
other internal, confidential, commercially sensitive, and privileged 
information.
    5. The duties of each person granted access to these materials 
apply to all:
    a. Disclosures or duplications of these materials in writing, 
orally, electronically, or otherwise, by any means, format, or 
medium;
    b. Excerpts from, parts of, or the entirety of these materials;
    c. Written materials that quote or contain these materials; and
    d. Revised, amended, or supplemental versions of these 
materials.
    6. All copies of these materials will be clearly marked as 
``Confidential'' and bear the name of the person granted access.
    7. Immediately after access has terminated pursuant to 39 CFR 
3007.304(a)(1), each person (and any individual working on behalf of 
that person) who has obtained a copy of these materials must execute 
the Certification of Compliance with Protective Conditions and 
Termination of Access. In compliance with 39 CFR 3007.304(a)(2), the 
movant will attach the executed Certification(s) of Compliance with 
Protective Conditions and Termination of Access to the notice of 
termination of access filed with the Commission.
    8. Each person granted access to these materials consents to 
these or such other conditions as the Commission may approve.

[[Page 7354]]

Respectfully submitted,

(signature of representative)

/s/--------------------------------------------------------------------

(print name of representative)
(address line 1 of representative)
(address line 2 of representative)
(telephone number of representative)
(email address of representative)
(choose the appropriate response)
Attorney/Non-Attorney Representative
for--------------------------------------------------------------------
(name of the movant)
    You may delete the instructional text to complete this form. 
This form may be filed as an attachment to the motion for access to 
non-public materials under 39 CFR 3007.301(b)(5).
    [cir] I have read and understand the Protective Conditions 
Statement and this Certification to Comply with Protective 
Conditions;
    [cir] I am eligible to receive access to these materials because 
I am not involved in competitive decision-making for any individual 
or entity that might gain competitive advantage from using these 
materials; and
    [cir] I will comply with all protective conditions established 
by the Commission.

(signature of individual receiving access)

/s/--------------------------------------------------------------------

(print name of individual receiving access)
(title of individual receiving access)
(employer of individual receiving access)
(name of the participant filing the motion)
(date)
    You may delete the instructional text to complete this form. 
This form may be filed as an attachment to the motion for access to 
non-public materials under 39 CFR 3007.301(b)(6).

Certification of Compliance with Protective Conditions and Termination 
of Access

    ___(name of submitter of non-public materials) requests 
confidential treatment of non-public materials identified 
as____(non-confidential description of non-public materials) 
(hereinafter ``these materials'') filed in Commission Docket 
No(s).___(designation of docket(s) in which these materials were 
filed).
    The Commission granted the request by___(name of participant 
filing notice) to grant me access to these materials to use related 
to___(designation of docket(s) or description of proposed 
proceeding(s) in which these materials are to be used) (hereinafter 
``this matter'').
    I certify that:
    [cir] I accessed, maintained, and used these materials in 
accordance with the protective conditions established by the 
Commission;
    [cir] Effective___(date), my access to these materials was 
terminated; and
    [cir] Effective___(date), I no longer have any of these 
materials or any duplicates.
(signature of individual granted access)

/s/--------------------------------------------------------------------

(print name of individual granted access)
(title of individual granted access)
(employer of individual granted access)
(name of participant filing notice)
(date)
    You may delete the instructional text to complete this form. 
This form should be filed as an attachment to the notice of 
termination of access to non-public materials under 39 CFR 
3007.304(a)(2).

Subpart D--Seeking Public Disclosure of Non-public Materials


Sec.  3007.400  Motion for disclosure of non-public materials.

    (a) Application of this rule. This rule applies to non-public 
material during the initial duration of non-public status, up to 10 
years, and any non-public material for which the Commission enters an 
order extending the duration of that status under Sec.  3007.401(a).
    (b) Motion for disclosure of non-public materials. Any person may 
file a motion with the Commission requesting that non-public materials 
be publicly disclosed. Any part of the motion revealing non-public 
materials shall be filed in accordance with subpart B of this part. The 
motion shall justify why the non-public materials should be made public 
and specifically address any pertinent rationale(s) provided in the 
application for non-public treatment. The motion shall specify whether 
actual notice of the motion has been provided to each person identified 
in the application pursuant to Sec.  3007.201(b)(2). If the motion 
states that actual notice has been provided, the motion shall identify 
the individual(s) to whom actual notice was provided, the date(s) and 
approximate time(s) of actual notice, the method(s) of actual notice 
(by telephone conversation, face-to-face conversation, or an exchange 
of telephone or email messages), and whether the movant is authorized 
to represent that the motion (in whole or in part) has been resolved or 
is contested by the submitter or any other affected person. The motion 
shall be filed in the docket in which the materials were filed or in 
the docket in which the materials will be used; in all other 
circumstances, the motion shall be filed in the G docket for the 
applicable fiscal year.
    (c) Response. If actual notice of the motion was provided in 
advance of the filing to each person identified pursuant to Sec.  
3007.201(b)(2) by telephone conversation, face-to-face conversation, or 
an exchange of telephone or email messages, a response to the motion is 
due within 3 business days of the filing of the motion, unless the 
Commission otherwise provides. In all other circumstances, a response 
to the motion is due within 7 calendar days of filing the motion, 
unless the Commission otherwise provides.
    (d) Reply. No reply to a response shall be filed, unless the 
Commission otherwise provides.
    (e) Non-public treatment pending resolution. Pending the 
Commission's resolution of the motion, information designated as non-
public will be accorded non-public treatment.
    (f) Commission ruling. The Commission may enter an order at any 
time after receiving a motion if the movant states that: Actual notice 
has been given to each person identified pursuant to Sec.  
3007.201(b)(2) and that the movant is authorized to represent that the 
motion is uncontested. In all other circumstances, the Commission will 
enter an order determining what non-public treatment, if any, will be 
given to the materials after the response period described in paragraph 
(c) of this section has expired. The determination of the Commission 
shall balance the interests of the parties as described in Sec.  
3007.104.


Sec.  3007.401  Materials for which non-public treatment has expired.

    (a) Expiration of non-public treatment. Ten years after the date of 
submission to the Commission, non-public materials shall lose non-
public status unless otherwise provided by the Commission.
    (b) Motion for Disclosure of Materials for Which Non-Public 
Treatment has Expired. Any person may file a motion requesting that 
materials for which non-public treatment has expired under paragraph 
(a) of this section be publicly disclosed. Any part of the motion 
revealing non-public materials shall be filed in accordance with 
subpart B of this part. The motion shall identify the materials 
requested and date(s) that materials were originally submitted under 
seal. The motion shall specify whether actual notice of the motion has 
been provided to each person identified in the application pursuant to 
Sec.  3007.201(b)(2). If the motion states that actual notice has been 
provided, the motion shall identify the individual(s) to whom actual 
notice was provided, the date(s) and approximate time(s) of actual 
notice, the method(s) of actual notice (by telephone conversation, 
face-to-face conversation, or an exchange of telephone or email 
messages), and whether the movant is authorized to represent that the 
motion (in whole or in part) has been resolved or is contested by the 
submitter or any other affected person. The motion shall be filed in 
the docket in which the materials were filed or in the docket in which 
the materials will be used; in all other circumstances, the motion 
shall be filed in the G docket for the applicable

[[Page 7355]]

fiscal year. All documents are treated in accordance with the 
Commission's record retention schedule, which may reduce the 
availability of some non-public information.
    (c) Response. If actual notice of the motion was provided in 
advance of the filing to each person identified pursuant to Sec.  
3007.201(b)(2) by telephone conversation, face-to-face conversation, or 
an exchange of telephone or email messages, a response to the motion is 
due within 3 business days of the filing of the motion, unless the 
Commission otherwise provides. In all other circumstances, a response 
to the motion is due within 7 calendar days of the filing of the 
motion, unless the Commission otherwise provides. Any response opposing 
the motion shall request an extension of non-public status by including 
an application for non-public treatment compliant with Sec.  3007.201. 
This extension application shall also include specific facts in support 
of any assertion that commercial injury exists despite the passage of 
10 years pursuant to paragraph (a) of this section or the timeframe 
established by Commission order under Sec.  3007.104.
    (d) Reply. Within 7 calendar days of the filing of a response, any 
person (including the movant) may file a reply, unless the Commission 
otherwise provides.
    (e) Non-public treatment pending resolution. Pending the resolution 
of the motion by the Commission, information designated as non-public 
will be accorded non-public treatment.
    (f) Ruling. The Commission may grant the motion at any time after 
receiving a motion if the movant states that: actual notice has been 
given to each person identified pursuant to Sec.  3007.201(b)(2) and 
that the movant is authorized to represent that the motion is 
uncontested. In all other circumstances, the Commission may grant the 
motion at any time after the response period described in paragraph (c) 
of this section has expired. The Commission may deny the motion and 
enter an order extending the duration of non-public status at any time 
after the reply period described in paragraph (d) of this section has 
expired. The determination of the Commission shall balance the 
interests of the parties as described in Sec.  3007.104.

[FR Doc. 2018-03287 Filed 2-16-18; 8:45 am]
 BILLING CODE 7710-FW-P