[Federal Register Volume 88, Number 48 (Monday, March 13, 2023)]
[Proposed Rules]
[Pages 15343-15346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04978]


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POSTAL REGULATORY COMMISSION

39 CFR Parts 3006 and 3011

[Docket No. RM2023-6; Order No. 6451]
RIN 3211-AA35


Non-Public Materials

AGENCY: Postal Regulatory Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Commission is proposing revisions to existing rules on 
non-public materials and revisions to existing rules on the Freedom of 
Information Act (FOIA). This document informs the public of the filing, 
invites public comment, and takes other administrative steps.

DATES: Comments are due: April 6, 2023.

ADDRESSES: Submit comments electronically via the Commission's Filing 
Online system at 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. Background
II. Basis of the Proposed Rules
III. Proposed Rules

I. Background

    In conducting the foreign policy of the United States with respect 
to international postal services and international delivery services, 
the Secretary of State must coordinate with applicable government 
agencies, including the Commission, under 39 U.S.C. 407(b)(2)(A). Such 
coordination about foreign affairs requires timely, free, and frank 
flow of information between government agencies. The Secretary of State 
exercises ``primary authority for the conduct of foreign policy with 
respect to international postal services and international delivery 
services.'' 39 U.S.C. 407(b)(2)(A). In exercising this authority, the 
Secretary of State ``shall coordinate with other agencies as 
appropriate'' and ``shall give full consideration to the authority 
vested by law or Executive order in the Postal Regulatory Commission.'' 
Id. Flowing from this authority, the U.S. Department of State (DOS) 
coordinates continuous and frequent information sharing among the 
relevant government agencies. As a routine part of this 
intragovernmental coordination, the agencies share materials with each 
other that may contain information that should be accorded non-public 
treatment.
    In other contexts, such exchange of non-public materials might 
implicate the Commission's existing regulations in 39 CFR part 3011 of 
this chapter that govern procedures when any submitter provides non-
public materials to the Commission and seeks non-public treatment, and 
when a third party seeks access to or disclosure of such non-public 
materials. It might also implicate the Commission's existing 
regulations in 39 CFR part 3006 of this chapter that govern procedures 
regarding FOIA requests for Commission records.

II. Basis of the Proposed Rules

    After experience with its rules, the Commission is concerned that 
the existing regulations on non-public materials might not set 
sufficiently clear expectations about those regulations' interaction 
with Executive Branch policy-making processes. Absent such clarity, 
Executive Branch stakeholders might be wary of engaging in the free 
flow of information between relevant parties during the DOS 
coordination activities under 39 U.S.C. 407(b)(2)(A) aimed at advising 
on U.S. foreign postal policy in a timely manner. To assure the free 
flow of information and streamline the Commission regulations that may 
impact activities under the coordination of the DOS, the Commission 
proposes to

[[Page 15344]]

explicitly exempt non-public materials submitted to the Commission in 
connection with the coordination activities under 39 U.S.C. 
407(b)(2)(A) from its rules in 39 CFR part 3011 of this chapter. 
Relatedly, the Commission also proposes clarifying revisions to its 
rules in 39 CFR part 3006 of this chapter regarding FOIA requests.
    The Commission's authority to regulate certain non-public materials 
provided by the Postal Service stems from 39 U.S.C. 504(g). Section 
504(g) is triggered if the Postal Service determines that any material 
it provides to the Commission under a subpoena issued under 39 U.S.C. 
504(f), or otherwise at the request of the Commission in connection 
with any proceeding or other purpose under Title 39, contains non-
public information. 39 U.S.C. 504(g)(1). After the Postal Service 
provides such a determination to the Commission, the Commission then 
has specific authority under 39 U.S.C. 504(g)(3) to regulate the public 
disclosure of or access to such non-public materials. See 39 U.S.C. 
504(g)(3). The scope of 39 U.S.C. 504(g)(1) plainly does not apply to 
the Commission's receipt of non-public materials provided by government 
agencies other than the Postal Service in connection with the 
coordination activities under 39 U.S.C. 407(b)(2)(A). It also does not 
apply to the Commission's receipt of non-public materials provided by 
the Postal Service in connection with the coordination activities under 
39 U.S.C. 407(b)(2)(A), because the Postal Service would provide such 
materials voluntarily or at the request of the coordinating authority 
(i.e., the DOS) rather than pursuant to a Commission subpoena or 
otherwise at the request of the Commission in connection with a 
proceeding. Therefore, it is consistent with 39 U.S.C. 504(g) to exempt 
non-public materials received by the Commission from any person in 
connection with the coordination activities under 39 U.S.C. 
407(b)(2)(A) from the rules in 39 CFR part 3011 of this chapter.
    The Commission's authority to regulate non-public materials 
provided by the Postal Service outside the context of 39 U.S.C. 504(g) 
and any materials provided by any other person stems from 39 U.S.C. 
503. This provision grants the Commission general authority to take 
actions, such as issuing rules and regulations, that are ``necessary 
and proper'' to carry out its ``functions and obligations'' under Title 
39 of the United States Code. 39 U.S.C. 503. Therefore, the Commission 
has broad discretion to determine the boundary of its regulations' 
applicability to materials outside the context of 39 U.S.C. 504(g).
    In addition, the Commission's role in the coordination activities 
as part of the foreign postal policy deliberative process under 39 
U.S.C. 407(b)(2)(A) is subordinate to the DOS's leadership and 
decision-making authority. The Commission's receipt of non-public 
materials in this context is different from a Commission request for 
information in a regulatory proceeding over which the Commission 
presides. To facilitate the swift exchange of information among all 
agencies involved in the deliberative process and harmonize Commission 
application of the statute, the Commission deems it reasonable to 
explicitly provide that non-public materials submitted in this specific 
context are exempt from the requirements of 39 CFR part 3011 of this 
chapter.

IV. Proposed Rules

    Proposed Sec.  3006.30(d). Proposed Sec.  3006.30(d) is revised to 
exempt non-public materials submitted by the Postal Service to the 
Commission in connection with activities under 39 U.S.C. 407(b)(2)(A) 
from the applicability of the rules in 39 CFR part 3011 of this 
chapter.
    Proposed Sec.  3006.30(e)(1). Proposed Sec.  3006.30(e)(1) is 
revised to state that if the Commission receives a FOIA request for 
records submitted by a person other than the Postal Service, the 
Commission shall adhere to the applicable procedures of the proposed 
Sec.  3006.35, and if the Commission does not refer such a FOIA request 
to another Federal agency pursuant to proposed Sec.  3006.35(b), the 
Commission shall consider the FOIA request in light of all applicable 
exemptions, after notifying the submitter of the FOIA request and 
providing the submitter with an opportunity to respond.
    Proposed Sec.  3006.35. Proposed Sec.  3006.35 is added to detail 
the procedures that the Commission should follow for consultation, 
referral, and coordination with other Federal agencies with regard to 
certain FOIA requests, and for FOIA requests that involve classified 
information. It also provides for the timing of responses to FOIA 
consultations and referrals received by the Commission, and the 
Commission's ability to establish agreements with other agencies to 
eliminate the need for consultations or referrals for particular types 
of records.
    Proposed Sec.  3006.70(a). Proposed Sec.  3006.70(a) is revised to 
exempt a person other than the Postal Service from following the 
procedures described in subpart B of 39 CFR part 3011 of this chapter 
when the person submits non-public materials to the Commission in 
connection with activities under 39 U.S.C. 407(b)(2)(A).
    Proposed Sec.  3011.100(c). Proposed Sec.  3011.100(c) is added to 
exempt non-public materials submitted by any person to the Commission 
in connection with activities under 39 U.S.C. 407(b)(2)(A) from the 
applicability of the rules in 39 CFR part 3011 of this chapter, with 
three exceptions. First, certain persons shall adhere to the 
requirements of Sec.  3011.302 regarding the non-dissemination, use, 
and care of the non-public materials provided to the Commission in 
connection with activities under 39 U.S.C. 407(b)(2)(A). Second, any 
person that discovers that non-public materials provided to the 
Commission in connection with activities under 39 U.S.C. 407(b)(2)(A) 
have been inadvertently included within materials that are accessible 
to the public shall follow the procedures of Sec.  3011.205. Third, 
non-public materials provided to the Commission in connection with 
activities under 39 U.S.C. 407(b)(2)(A) are construed to exclude each 
of the following: (i) non-public materials provided by the Postal 
Service to the Commission pursuant to a subpoena; (ii) non-public 
materials filed in response to an information request; (iii) non-public 
materials filed in compliance with any applicable Postal Service 
reporting required under 39 CFR part 3050 or part 3055 of this chapter; 
and (iv) non-public materials filed in a Commission docket.
    Proposed Sec.  3011.103(a). Proposed Sec.  3011.103(a) is revised 
to clarify that the inadvertent failure of a submitter to concomitantly 
provide all documents required by existing Sec.  3011.200(a) does not 
prevent the Commission from according appropriate confidentiality to 
non-public information contained with any materials provided to the 
Commission.

    By the Commission.
Mallory Richards,
Attorney-Advisor.

List of Subjects

39 CFR Part 3006

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

39 CFR Part 3011

    Administrative practice and procedure, Confidential business 
information.

    For the reasons stated in the preamble, the Commission proposes to

[[Page 15345]]

amend chapter III of title 39 of the Code of the Federal Regulations as 
follows:

PART 3006--PUBLIC RECORDS AND FREEDOM OF INFORMATION ACT

0
1. The authority citation for part 3006 is revised to read as follows:

    Authority:  5 U.S.C. 552; 39 U.S.C. 407, 503, 504.
0
2. Amend Sec.  3006.30 by revising paragraphs (d) and (e) to read as 
follows:

Sec.  3006.30  Relationship among the Freedom of Information Act, the 
Privacy Act, and the Commission's procedures for according appropriate 
confidentiality.

* * * * *
    (d) Requesting a Postal Service record. The Commission maintains 
custody of records that are both Commission and Postal Service records. 
Except when the Postal Service submits materials to the Commission in 
connection with activities under 39 U.S.C. 407(b)(2)(A), in all other 
instances that the Postal Service submits materials to the Commission 
that the Postal Service reasonably believes to be exempt from public 
disclosure, the Postal Service shall follow the procedures described in 
part 3011, subpart B of this chapter.
    (1) A request made pursuant to FOIA for Postal Service records 
shall be referred to the Postal Service; and
    (2) A request made pursuant to part 3011 of this chapter for 
records designated as non-public by the Postal Service shall be 
considered under the applicable standards set forth in that part.
    (e) Requesting a record submitted under seal by a person other than 
the Postal Service. The Commission maintains records of a confidential 
nature submitted by persons other than the Postal Service as non-public 
materials.
    (1) A request made pursuant to FOIA for records submitted by a 
person other than the Postal Service shall adhere to the applicable 
procedures of Sec.  3006.35 and if not referred to a different Federal 
agency pursuant to Sec.  3006.35(b), shall be considered in light of 
all applicable exemptions, after notifying the person of the FOIA 
request and providing the person with an opportunity to respond; and
    (2) A request made pursuant to part 3011 of this chapter for 
records designated as non-public by a person other than the Postal 
Service shall be considered under the applicable standards set forth in 
that part.
0
3. Add Sec.  3006.35 to read as follows:


Sec.  3006.35  Consultation, referral, and coordination.

    (a) Consultation. If records originated with the Commission but 
contain within them information of significance to another Federal 
agency or office, the Commission will typically consult with that other 
entity prior to making a release determination.
    (b) Referral. In addition to referring all requests made pursuant 
to FOIA for Postal Service records to the Postal Service as specified 
by Sec.  3006.30(d)(1), if the Commission believes that a different 
Federal agency is best able to determine whether to disclose the 
record, the Commission will typically refer responsibility for 
responding to the request regarding that record to that agency. 
Ordinarily, the agency that originated the record is presumed to be the 
best agency to make the disclosure determination. Whenever the 
Commission refers any part of the responsibility for responding to a 
request to another agency, the Commission will notify the requester of 
the referral, including the name of the agency and that agency's FOIA 
contact information.
    (c) Coordination. The standard referral procedure is not 
appropriate where disclosure of the identity of the Federal agency to 
which the referral would be made could harm an interest protected by an 
applicable exemption, such as the exemptions that protect personal 
privacy or national security interests. For example, if a non-law 
enforcement agency responding to a request for records on a living 
third party locates within its files records originating with a law 
enforcement agency, and if the existence of that law enforcement 
interest in the third party was not publicly known, then to disclose 
that law enforcement interest could cause an unwarranted invasion of 
the personal privacy of the third party. Similarly, if the Commission 
locates within its files material originating with an Intelligence 
Community agency, and the involvement of that agency in the matter is 
classified and not publicly acknowledged, then to disclose or give 
attribution to the involvement of that Intelligence Community agency 
could cause national security harms. In such instances, in order to 
avoid harm to an interest protected by an applicable exemption, the 
Commission will coordinate with the originating agency to seek its 
views on disclosure of the record. The Commission then will notify the 
requester of the release determination for the record that is the 
subject of the coordination.
    (d) Classified information. On receipt of any request involving 
classified information, the Commission will determine whether the 
information is currently and properly classified in accordance with 
applicable classification rules. Whenever a request involves a record 
containing information that has been classified or may be appropriate 
for classification by another agency under any applicable executive 
order concerning the classification of records, the Commission must 
refer the responsibility for responding to the request regarding that 
information to the agency that classified the information, or that 
should consider the information for classification. Whenever an 
agency's record contains information that has been derivatively 
classified (for example, when it contains information classified by 
another agency), the Commission must refer the responsibility for 
responding to that portion of the request to the agency that classified 
the underlying information.
    (e) Timing of responses to consultations and referrals. All 
consultations and referrals received by the Commission will be handled 
according to the date that the first agency received the perfected FOIA 
request.
    (f) Agreements regarding consultations and referrals. The 
Commission may establish agreements with other agencies to eliminate 
the need for consultations or referrals with respect to particular 
types of records.
0
4. Amend Sec.  3006.70 by revising paragraph (a) to read as follows:


Sec.  3006.70  Submission of non-public materials by a person other 
than the Postal Service.

    (a) Overlap with treatment of non-public materials. Any person who 
submits materials to the Commission (submitter) that the submitter 
reasonably believes to be exempt from public disclosure shall follow 
the procedures described in part 3011, subpart B of this chapter, 
except when the submitter submits materials to the Commission in 
connection with activities under 39 U.S.C. 407(b)(2)(A).
* * * * *

PART 3011--NON-PUBLIC MATERIALS PROVIDED TO THE COMMISSION

0
5. The authority citation for part 3011 is revised to read as follows:

    Authority:  39 U.S.C. 407, 503, 504.

0
6. Amend Sec.  3011.100 by adding paragraph (c) to read as follows:


Sec.  3011.100  Applicability and scope.

* * * * *

[[Page 15346]]

    (c) Exemption. Except for the circumstances described in paragraphs 
(c)(1) through (c)(3) of this section, the rules in this part do not 
apply to any non-public materials (and the non-public information 
contained therein) provided to the Commission by any person in 
connection with activities under 39 U.S.C. 407(b)(2)(A).
    (1) The following persons shall adhere to the requirements of Sec.  
3011.302 regarding the non-dissemination, use, and care of the non-
public materials (and the non-public information contained therein) 
provided to the Commission in connection with activities under 39 
U.S.C. 407(b)(2)(A).
    (i) Members of the Commission;
    (ii) Commission employees; and
    (iii) Non-employees who have executed appropriate non-disclosure 
agreements (such as contractors, attorneys, or subject matter experts) 
assisting the Commission in carrying out its duties.
    (2) Any person that discovers that non-public materials provided to 
the Commission in connection with activities under 39 U.S.C. 
407(b)(2)(A) have been inadvertently included within materials that are 
accessible to the public shall follow the procedures of Sec.  3011.205.
    (3) Non-public materials provided to the Commission in connection 
with activities under 39 U.S.C. 407(b)(2)(A) are construed to exclude 
each of the following:
    (i) Non-public materials provided by the Postal Service to the 
Commission pursuant to a subpoena issued in accordance with part 3013 
of this chapter;
    (ii) Non-public materials filed in response to an information 
request issued in accordance with Sec.  3010.170 of this chapter;
    (iii) Non-public materials filed in compliance with any applicable 
Postal Service reporting required under part 3050 or part 3055 of this 
chapter; and
    (iv) Non-public materials filed in a Commission docket.
0
7. Amend Sec.  3011.103 by revising paragraph (a) to read as follows:


Sec.  3011.103  Commission action to determine non-public treatment.

    (a) The inadvertent failure of a submitter to concomitantly provide 
all documents required by Sec.  3011.200(a) does not prevent the 
Commission from according appropriate confidentiality to non-public 
information contained with any materials provided to the Commission. 
Information requests as described in Sec.  3010.170 of this chapter, 
preliminary notices, or interim orders may be issued to help the 
Commission determine the non-public treatment, if any, to be accorded 
to the materials claimed by any person to be non-public.
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[FR Doc. 2023-04978 Filed 3-10-23; 8:45 am]
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