[Federal Register Volume 83, Number 116 (Friday, June 15, 2018)]
[Proposed Rules]
[Pages 27933-27936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-12858]



39 CFR Parts 265 and 266

Production or Disclosure of Material or Information

AGENCY: Postal Service\TM\.

ACTION: Proposed rule.


SUMMARY: The Postal Service proposes to amend its Freedom of 
Information Act (FOIA) and Privacy Act regulations. These changes would 
improve clarity, make technical corrections, and create a definition of 
``information of a commercial nature'' as it pertains to the Postal 
Reorganization Act's provisions concerning disclosure of information 
under the Freedom of Information Act.

DATES: Comments must be received on or before July 16, 2018.

ADDRESSES: Mail or deliver written comments to: Associate General 
Counsel and Chief Ethics & Compliance Officer, 475 L'Enfant Plaza SW, 
Room 6000, Washington, DC 20260-1135. Email and faxed comments are not 
accepted. You may inspect and photocopy all written comments, by 
appointment only, at USPS[reg] Headquarters Library, 475 L'Enfant Plaza 
SW, 11th Floor North, Washington, DC 20260. These records are available 
for review on Monday through Friday, 9 a.m.-4 p.m., by calling 202-268-

FOR FURTHER INFORMATION CONTACT: Ruth B. Stevenson, Attorney, Federal 
Compliance, [email protected], 202-268-6627.

[[Page 27934]]

SUPPLEMENTARY INFORMATION: The Postal Service proposes to amend 39 CFR 
part 265 to make technical corrections to conform to the FOIA and to 
establish a definition of information of a commercial nature. The 
amendments to Sections 265.1 and 265.3 correct citations. The amendment 
to Section 265.6 adds paragraph (e)(2) so as to conform to the FOIA 
Improvement Act of 2016. (130 Stat. 544). The amendment to Section 
265.9 eliminates an internal cross reference to the CFR by stating the 
dollar amount to be charged by Postal Service personnel when reviewing 
records in response to a FOIA request. The amendments to Section 265.14 
establish a definition of ``information of a commercial nature'' to 
comply with applicable case law and to provide examples of the type of 
information that may be commercial in nature. Section 265.14 is further 
amended to clarify that the Postal Service will release change of 
address information submitted by a business. It is further amended to 
limit the disclosure of change of address information submitted by 
domestic violence shelters. Finally, the Postal Service proposes to 
amend 39 CFR part 266 to conform with Privacy Act provisions pertaining 
to disclosure of information and to define a court of competent 

List of Subjects

39 CFR Part 265

    Administrative practice and procedure, Courts, Freedom of 
information, Government employees.

39 CFR Part 266


    For the reasons stated in the preamble, the Postal Service proposes 
to amend 39 CFR chapter I as follows:


1. The authority citation for part 265 continues to read as follows:

    Authority:  5 U.S.C. 552; 5 U.S.C. App. 3; 39 U.S.C. 401, 403, 
410, 1001, 2601; Pub. L. 114-185.

2. Amend Sec.  265.1 to revise paragraph (a)(1) to read as follows:

Sec.  265.1   General provisions.

    (a) * * *
    (1) This subpart contains the regulations that implement the 
Freedom of Information Act (FOIA), 5 U.S.C. 552, insofar as the Act 
applies to the Postal Service. These rules should be read in 
conjunction with the text of the FOIA and the Uniform Freedom of 
Information Act Fee Schedule and Guidelines published by the Office of 
Management and Budget (OMB Guidelines). The Postal Service FOIA 
Requester's Guide, an easy-to-read guide for making Postal Service FOIA 
requests, is available at http://about.usps.com/who-we-are/foia/welcome.htm.
* * * * *
3. Amend Sec.  265.3 to revise paragraphs (d) and (e) to read as 

Sec.  265.3   Procedure for submitting a FOIA request.

* * * * *
    (d) First-party requests. A requester who is making a request for 
records about himself must provide verification of identity sufficient 
to satisfy the component as to his identity prior to release of the 
record. For Privacy Act-protected records, the requester must further 
comply with the procedures set forth in 39 CFR 266.5.
    (e) Third-party requests. Where a FOIA request seeks disclosure of 
records that pertain to a third party, a requester may receive greater 
access by submitting a written authorization signed by that individual 
authorizing disclosure of the records to the requester, or by 
submitting proof that the individual is deceased (e.g., a copy of a 
death certificate or an obituary). As an exercise of administrative 
discretion, each component can require a requester to supply a 
notarized authorization, a declaration, a completed Privacy Waiver as 
set forth in 39 CFR 266.5(b)(2)(iii), or other additional information 
if necessary in order to verify that a particular individual has 
consented to disclosure.
* * * * *
4. Amend Sec.  265.6 to add paragraph (e)(2) to read as follows:

Sec.  265.6   Responses to requests.

* * * * *
    (e) * * *
    (2) Any component invoking an exclusion must maintain an 
administrative record of the process of invocation and approval of 
exclusion by OIP.
5. Amend Sec.  265.9 to revise paragraph (c)(3) to read as follows:

Sec.  265.9   Fees.

* * * * *
    (c) * * *
    (3) Review. Commercial-use requesters shall be charged review fees 
at the rate of $21.00 for each half hour by personnel reviewing the 
records. Review fees shall be assessed in connection with the initial 
review of the record, i.e., the review conducted by a component to 
determine whether an exemption applies to a particular record or 
portion of a record. No charge will be made for review at the 
administrative appeal stage of exemptions applied at the initial review 
stage. However, if a particular exemption is deemed to no longer apply, 
any costs associated with a component's re-review of the records in 
order to consider the use of other exemptions may be assessed as review 
* * * * *
6. Amend Sec.  265.14 to revise paragraphs (b), (d)(1), and (d)(2) to 
read as follows:

Sec.  265.14   Rules concerning specific categories of records.

* * * * *
    (b) Information not subject to mandatory public disclosure. Certain 
types of information are exempt from mandatory disclosure under 
exemptions contained in the Freedom of Information Act and in 39 U.S.C. 
410(c). The Postal Service will exercise its discretion, in accordance 
with the policy stated in Sec.  265.1(c), as implemented by 
instructions issued by the Records Office with the approval of the 
General Counsel in determining whether the public interest is served by 
the inspection or copying of records that are:
    (1) Related solely to the internal personnel rules and practices of 
the Postal Service.
    (2) Trade secrets, or privileged or confidential commercial or 
financial information, obtained from any person.
    (3) 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. 
Information is of a commercial nature if it relates to commerce, trade, 
profit, or the Postal Service's ability to conduct itself in a 
businesslike manner.
    (i) When assessing whether information is commercial in nature, the 
Postal Service will consider whether the information:
    (A) Relates to products or services subject to economic 
competition, including, but not limited to, ``competitive'' products or 
services as defined in 39 U.S.C. 3631 and by regulations and decisions 
of the Postal Regulatory Commission, an inbound international service, 
or an outbound international service for which rates or service 
features are treated as nonpublic in regulatory filings;
    (B) Relates to the Postal Service's activities that are analogous 
to a private business in the marketplace;

[[Page 27935]]

    (C) Would be of potential benefit to individuals or entities in 
economic competition with the Postal Service, its customers, suppliers, 
affiliates, or business partners or could be used to cause harm to a 
commercial interest of the Postal Service, its customers, suppliers, 
affiliates, or business partners;
    (D) Is proprietary or includes conditions or protections on 
distribution and disclosure, is subject to a nondisclosure agreement, 
or a third party has otherwise expressed an interest in protecting such 
information from disclosure;
    (E) Is the result of negotiations, agreements, contracts or 
business deals between the Postal Service and a business entity; or
    (F) Relates primarily to the Postal Service's governmental 
functions or its activities as a provider of basic public services.
    (ii) No one factor is determinative. Rather, each factor should be 
considered in conjunction with the other factors and the overall 
character of the particular information. Some examples of commercial 
information include, but are not limited to:
    (A) Information related to methods of handling valuable registered 
    (B) Records of money orders except as provided in Section 509.3 of 
the Domestic Mail Manual.
    (C) Technical information concerning postage meters and prototypes 
submitted for Postal Service approval prior to leasing to mailers.
    (D) Quantitative data, whether historical or current, reflecting 
the number of postage meters or PC postage accounts.
    (E) Reports of market surveys conducted by or under contract on 
behalf of the Postal Service.
    (F) Records indicating carrier or delivery lines of travel.
    (G) Information which, if publicly disclosed, could materially 
increase procurement costs.
    (H) Information which, if publicly disclosed, could compromise 
testing or examination materials.
    (I) Service performance data on competitive services.
    (J) Facility specific volume, revenue, and cost information.
    (K) Country-specific international mail volume and revenue data.
    (L) Non-public international volume, revenue and cost data.
    (M) Pricing and negotiated terms in bilateral arrangements with 
foreign postal operators.
    (N) Information identifying USPS business customers.
    (O) Financial information in or the identities of parties to 
Negotiated Service Agreements or Package Incentive Agreements.
    (P) Negotiated terms in contracts.
    (Q) Negotiated terms in leases.
    (R) Geolocation data.
    (S) Proprietary algorithms or software created by the Postal 
    (T) Sales performance goals, standards, or requirements.
    (U) Technical information or specifications concerning mail 
processing equipment.
* * * * *
    (d) * * *
    (1) Change of address. The new address of any specific business or 
organization that has filed a permanent change of address order (by 
submitting PS Form 3575, a hand written order, or an electronically 
communicated order) will be furnished to any person upon request. If a 
domestic violence shelter has filed a letter on official letterhead 
from a domestic violence coalition stating:
    (i) That such domestic violence coalition meets the requirements of 
42 U.S.C. 10410; and
    (ii) That the organization filing the change of address is a 
domestic violence shelter, the new address shall not be released except 
pursuant to applicable routine uses. The new address of any individual 
or family that has filed a permanent or temporary change of address 
order will be furnished only in those circumstances stated at paragraph 
(d)(5) of this section. Disclosure will be limited to the address of 
the specifically identified individual about whom the information is 
requested (not other family members or individuals whose names may also 
appear on the change of address order). The Postal Service reserves the 
right not to disclose the address of an individual for the protection 
of the individual's personal safety. Other information on PS Form 3575 
or copies of the form will not be furnished except in those 
circumstances stated at paragraphs (d)(5)(i), (d)(5)(iii), or 
(d)(5)(iv) of this section.
    (2) Name and address of permit holder. The name and address of the 
holder of a particular bulk mail permit, permit imprint or similar 
permit (but not including postage meter licenses), and the name of any 
person applying for a permit on behalf of a holder will be furnished to 
any person upon request. For the name and address of a postage meter 
license holder, see paragraph (d)(3) of this section. (Lists of permit 
holders may not be disclosed to members of the public. See paragraph 
(e)(1) of this section.)
* * * * *


7. The authority citation for part 266 continues to read as follows:

    Authority:  5 U.S.C. 552a; 39 U.S.C. 401.

8. Amend Sec.  266.3 to revise the introductory text of paragraph (a), 
paragraphs (a)(1)(iii) and (a)(3), (b)(1) introductory text, (b)(1)(i), 
(b)(1)(iii), (b)(2) introductory text, (b)(2)(iii), (b)(2)(xi), and the 
paragraph heading of (b)(5) to read as follows:

Sec.  266.3   Collection and disclosure of information about 

    (a) This section governs the collection of information about 
individuals, as defined in the Privacy Act of 1974, throughout the 
United States Postal Service and across its operations;
* * * * *
    (3) The Postal Service will maintain no record describing how an 
individual exercises rights guaranteed by the First Amendment unless 
expressly authorized by statute or by the individual about whom the 
record is maintained or unless pertinent to and within the scope of an 
authorized law enforcement activity.
* * * * *
    (b) * * *
    (1) Limitations. The Postal Service will not disclose information 
about an individual unless reasonable efforts have been made to assure 
that the information is accurate, complete, timely and relevant to the 
extent provided by the Privacy Act and unless:
    (i) The individual to whom the record pertains has requested in 
writing, or with the prior written consent of the individual to whom 
the record pertains, that the information be disclosed, unless the 
individual would not be entitled to access to the record under the 
Postal Reorganization Act, the Privacy Act, or other law;
* * * * *
    (iii) The disclosure is in accordance with paragraph (b)(2) of this 
    (2) Conditions of Disclosure. Disclosure of personal information 
maintained in a system of records may be made:
* * * * *
    (iii) For a routine use as contained in the system of records 
notices published in the Federal Register;
* * * * *
    (xi) Pursuant to the order of a court of competent jurisdiction. A 
court of competent jurisdiction is defined in Article III of the United 
States Constitution including, but not limited to any United States 
District Court, any United States or Federal Court of

[[Page 27936]]

Appeals, the United States Court of Federal Claims, and the United 
States Supreme Court. For purposes of this section, state courts are 
not courts of competent jurisdiction.
* * * * *
    (5) Employment status. * * *
* * * * *

Ruth Stevenson,
Attorney, Federal Compliance.
[FR Doc. 2018-12858 Filed 6-14-18; 8:45 am]