31258 Federal Register / Vol. 83, No. 128 / Tuesday, July 3, 2018 / Rules and Regulations 

1 5 U.S.C. 552. 

2Notice of Proposed Rulemaking Relating to NonPublic Information, February 13, 2018 (Order No. 

4403). The Notice of Proposed Rulemaking Relating 

to Non-Public Information was published in the 

Federal Register; see 83 FR 7338 (February 20, 

2018). 

3 Initial Comments of the United States Postal 

Service, March 23, 2018 (Postal Service Comments); 

Public Representative Comments in Response to 

Notice of Proposed Rulemaking Concerning NonPublic Information, March 23, 2018 (PR Comments); 

Comments of United Parcel Service, Inc. on Notice 

of Proposed Rulemaking Relating to Non-Public 

Information, March 23, 2018 (UPS Comments). 

4Aside from the issues related to the expiration 

of non-public treatment, UPS did not recommend 

any other changes to the proposed rules. See 

generally UPS Comments. 

POSTAL REGULATORY COMMISSION 

39 CFR Parts 3001, 3004, and 3007 

[Docket No. RM2018–3; Order No. 4679] 

Non-Public Information 

AGENCY: Postal Regulatory Commission. 

ACTION: Final rule. 

SUMMARY: The Commission is adopting 

final rules relating to non-public 

materials. The final rules ensure 

appropriate transmission and protection 

of non-public materials, maintain 

appropriate transparency, and 

modernize practice before the 

Commission. 

DATES: Effective August 2, 2018. 

FOR FURTHER INFORMATION CONTACT: 

David A. Trissell, General Counsel, at 

202–789–6820. 

SUPPLEMENTARY INFORMATION: 

Regulatory History 

83 FR 7338 (Feb. 20, 2018) 

Table of Contents 

I. Introduction 

II. Procedural History 

III. Response to Significant Comments and 

Explanation of Changes 

IV. Section-by-Section Analysis of the Final 

Changes to 39 CFR part 3001 

V. Section-by-Section Analysis of the Final 

Changes to 39 CFR part 3004 

VI. Section-by-Section Analysis of the Final 

Changes to 39 CFR part 3007 

VII. Regulatory Flexibility Act Analysis 

VIII. Ordering Paragraphs 

I. Introduction 

In this Order, the Commission adopts 

final rules relating to non-public 

information. The final rules adopted by 

this Order replace, in their entirety, the 

existing rules appearing in 39 CFR part 

3007. Additionally, the final rules 

amend and move the existing rules 

regarding information requests to 39 

CFR part 3001, subpart E. Further, the 

final rules update two rules appearing 

in existing 39 CFR part 3004 concerning 

the application of the Freedom of 

Information Act (FOIA) 1 to materials 

that are provided to the Commission 

with the reasonable belief that the 

materials are exempt from public 

disclosure. The final rules appear after 

the signature of this Order in 

Attachment A. 

II. Procedural History 

On February 13, 2018, the 

Commission issued the notice of 

proposed rulemaking (NPR), setting 

forth a proposed revision and 

reorganization of its rules relating to 

non-public information.2 The NPR also 

appointed an officer of the Commission 

to represent the interests of the general 

public (Public Representative) and 

provided an opportunity for public 

comment. Order No. 4403 at 36–37. On 

March 23, 2018, the Commission 

received comments from the Postal 

Service, the Public Representative, and 

United Parcel Service, Inc. (UPS).3

III. Response to Significant Comments 

and Explanation of Changes 

A. Overview 

The Commission has carefully 

considered all comments that it 

received. Generally, the three 

commenters express support for the 

Commission’s efforts to streamline and 

simplify procedures as well as to 

reorganize and update the existing rules. 

See Postal Service Comments at 1; PR 

Comments at 1–2, UPS Comments at 

8–9. The Commission appreciates these 

remarks. 

Additionally, the commenters provide 

instructive perspectives on specific 

proposed rules. Notably, the 

commenters alert the Commission to 

areas that would benefit from additional 

clarification. All three commenters 

provide comments regarding the 

expiration of non-public treatment 

appearing in proposed § 3007.401. See 

Postal Service Comments at 8–11; PR 

Comments at 2, 4–6; UPS Comments at 

1–7, 9–10. The Postal Service and the 

Public Representative also suggest rule 

changes affecting other issues.4 Aside 

from the issues related to the expiration 

of non-public treatment, the issues 

raised by the Public Representative do 

not overlap with the issues raised by the 

Postal Service. Both the Postal Service 

and the Public Representative provide 

‘‘redline’’ revisions to the NPR’s 

proposed rules. Postal Service 

Comments, Appendix (Postal Service 

Appendix); PR Comments at 17–49. 

The Commission appreciates the time 

and effort of the commenters in 

preparing their filings, and their 

comments have contributed to an 

improved set of final rules. The final 

rules appearing after the signature of 

this Order incorporate suggestions 

offered by commenters, particularly 

with respect to improving precision and 

clarity; however, the substance of the 

rules and their effect on interested 

persons remains the same as the rules 

proposed in the NPR. 

Accordingly, section III.B. reviews all 

issues raised by the three commenters 

related to the expiration of non-public 

treatment, provides analysis, and 

describes the resulting changes made to 

the proposed rules. Section III.C. 

reviews all other changes proposed by 

the Postal Service, provides analysis, 

and describes the resulting changes 

made to the proposed rules. Section 

III.D. reviews all other changes 

proposed by the Public Representative, 

provides analysis, and describes the 

resulting changes made to the proposed 

rules. Sections IV–VI provide the lineby-line discussion of the changes 

between the existing rules and the final 

rules (as adopted) for each affected part 

of the Code of Federal Regulations. 

Section VII provides the analysis 

required under the Regulatory 

Flexibility Act. The final rules appear 

after the signature of this Order in 

Attachment A. 

B. Review of Comments Concerning the 

Expiration of Non-Public Treatment 

(Proposed § 3007.401) 

The following discussion summarizes 

all changes proposed by the Postal 

Service, the Public Representative, and 

UPS concerning the expiration of nonpublic treatment, provides analysis, and 

describes the resulting changes made to 

the proposed rules. 

1. Comments 

Generally, the Postal Service supports 

the procedure set forth in proposed 

§ 3007.401(b)–(f). Postal Service 

Comments at 8–9. The Postal Service 

observes that many of the persons other 

than the Postal Service that have a 

proprietary interest in non-public 

information submitted by the Postal 

Service ‘‘lack familiarity with the 

Commission’s regulations as well as the 

resources to vigilantly watch for and 

react to upcoming deadlines that would 

place their commercially sensitive data 

at risk.’’ Id. at 9. The Postal Service 

asserts that this observation is 

appropriately addressed by proposed 

§ 3007.401(b), which requires the person 

seeking public disclosure of the 

materials at issue to take the first step 

in the process for the Commission to 

determine whether to disclose the 

materials to the public. Id. 


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5 Id. at 9–10 (quoting Docket No. RM2008–1, 

Initial Comments of the United States Postal 

Service, September 25, 2008, at 18 (Docket No. 

RM2008–1 Initial Postal Service Comments)). 

Referring to its 2008 comments in the 

initial rulemaking promulgating existing 

39 CFR part 3007, the Postal Service 

renews its objection to the default 

expiration period being set at 10 years.5

Noting that many of its customers have 

remained the same over the years, the 

Postal Service asserts that the nonpublic status of customer-specific 

information should not expire after 10 

years. Postal Service Comments at 10. 

The Postal Service asserts ‘‘this 10-year 

period is significantly shorter than the 

appropriate period for protection of 

nonpublic materials recognized in other 

contexts.’’ Id. The Postal Service 

contends that this is exemplified by the 

FOIA’s provision of a time limit for only 

one of its nine exemptions (the 25-year 

time limit on the deliberative process 

privilege). Id. (quoting 5 U.S.C. 

552(b)(5)). The Postal Service 

recommends changing the proposed 

rules to permit a longer initial period of 

time for which non-public status 

generally applies (such as 25 years) and 

to exempt the non-public status of 

customer-specific information from 

expiration. Postal Service Comments at 

10. The Postal Service suggests changes 

to proposed §§ 3007.400(a) and 

3007.401(a) in accordance with this 

recommendation. Id. at 10–11; Postal 

Service Appendix at xxiii–xxiv. 

The Postal Service also suggests a 

procedural change to the response 

deadline appearing in proposed 

§ 3007.401(c). Postal Service Comments 

at 11. The Postal Service asks to 

dispense with the expedited response 

deadline (3 business days rather than 7 

calendar days) proposed for instances in 

which actual notice is given. Id. Stating 

that ‘‘[b]ecause it is unlikely that there 

would be great urgency to obtain 

materials that were filed at least 10 

years before the request,’’ the Postal 

Service recommends that the response 

deadline be set at 7 calendar days, 

regardless whether actual notice is 

given. Id. The Postal Service suggests 

deleting text appearing in proposed 

§ 3007.401(c) in accordance with its 

recommendation. Postal Service 

Appendix at xxv–xxvi. 

The Public Representative objects that 

the procedure set forth in proposed 

§ 3007.401(b)–(f), requiring a motion 

and continuing non-public treatment 

pending its resolution, effectively 

negates the provision that non-public 

materials shall lose their non-public 

status 10 years after submission. PR 

Comments at 5. He asserts that proposed 

§ 3007.401(b)–(f) unfairly shifts the 

burden to the person seeking the 

materials. Id. He characterizes proposed 

§ 3007.401(b)–(f) as an unexplained and 

major policy shift. Id. at 6. He contends 

that a motion should not be necessary 

and that the burden should remain with 

the submitter to request that non-public 

status be extended. Id. at 5. He 

questions whether it may be more 

effective and less administratively 

burdensome to review a limited number 

of requests for extension versus a 

potentially unlimited number of 

requests for disclosure that may lack a 

real interest in the materials at issue. Id. 

at 5, n.8. He suggests that the 

Commission can post materials to its 

website upon the expiration of 

protective conditions, on its own or 

upon receiving an informal request. Id. 

at 6. He provides sample language to 

make materials for which non-public 

treatment has expired available to the 

public through a written request to the 

Secretary of the Commission. Id. at 47. 

UPS similarly objects to proposed 

§ 3007.401(b)–(f), asserting that the 

proposed rule creates a default 

condition of maintaining nondisclosure, even after 10 years. UPS 

Comments at 5. UPS characterizes 

proposed § 3007.401(b)–(f) as preventing 

disclosure unless the person seeking 

disclosure meets the burden to 

affirmatively seek disclosure and 

obtains Commission approval. Id. at 4. 

UPS cautions that this procedure may 

incentivize excessive redaction so as to 

hinder the success of a motion for 

disclosure of materials for which nonpublic treatment has expired. Id. at 5. 

Acknowledging that it does not disagree 

that certain information (such as 

customer-specific data) should remain 

sealed for an extended period, UPS 

suggests that after 10 years, disclosure of 

other data should be either automatic or 

place the burden of justification on the 

person seeking extended non-public 

status. Id. UPS suggests that the 

Commission promulgate a rule setting 

forth a framework including the timing 

of disclosure for different types of nonpublic information and the level of 

disclosure. Id. at 5–6. 

UPS objects to the mechanism 

contained in proposed § 3007.401(b) as 

excessively burdensome stating that the 

proposed rule requires the movant to 

specify whether notice was provided to 

persons with a potential proprietary 

interest (including the dates, times, and 

methods of notice) and to provide 

detailed justifications for disclosure. Id. 

at 6. UPS further characterizes this 

mechanism related to actual notice as 

burdensome if multiple persons with 

proprietary interests are implicated, 

noting that Universal Postal Union 

(UPU) data covers over 190 countries. 

Id. 

UPS also objects to proposed 

§ 3007.401(f)’s use of the applicable 

standard appearing in proposed 

§ 3007.104 (balancing test), which UPS 

characterizes as negating the purpose of 

the 10-year expiration period. Id. 

Instead, UPS recommends that nonpublic materials generally be disclosed 

to the public after 10 years and be 

published on a regular schedule, unless 

it is demonstrated that such publication 

will result in material harm. Id. UPS 

asserts that material harm is the 

appropriate burden of proof to justify 

extension of non-public treatment ‘‘as a 

regulated entity with monopoly powers 

competing with the private sector 

should be held to transparency 

standards beyond those imposed on 

third parties and outside organizations.’’ 

Id. at 7. 

2. Commission Analysis 

The comments reflect a number of 

concerns with respect to proposed 

§ 3007.401, which pertains to materials 

for which non-public treatment has 

expired. For the reasons discussed 

below, the Commission retains the basic 

process in final § 3007.401: The default 

expiration period remains 10 years; the 

person seeking the materials for which 

non-public treatment has expired 

triggers the process by filing a formal 

document in a Commission docket; 

there is an opportunity for response and 

reply filings by any interested person; 

and the Commission uses the applicable 

standard appearing in final § 3007.104 

to determine whether to publicly 

disclose the materials at issue. The 

Commission restates that it is 

maintaining the 10-year default period 

for protecting non-public materials, and 

that these regulation changes are not 

intended to extend or expand that 

default period of protection. As 

discussed below, the Commission 

makes minor modifications in order to 

simplify the procedure and better 

distinguish this process to seek public 

disclosure of materials for which nonpublic treatment has expired from the 

process to seek public disclosure of 

materials for which non-public 

treatment remains active under final 

§ 3007.400. The changes include a 

terminology change from ‘‘motion’’ to 

‘‘request,’’ the inclusion of a template 

request form in final Appendix A to 

subpart D of 39 CFR part 3007, and the 

deletion of all provisions related to the 

giving of actual notice. 

All three commenters express their 

views on whether the person seeking 

the materials for which non-public 


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treatment has expired or the person 

seeking extended non-public treatment 

should take the first step in the 

Commission’s process of determining 

whether to publicly disclose such 

materials. The process appearing in 

proposed § 3007.401 begins with the 

person seeking public disclosure 

formally identifying the materials 

sought, provides an opportunity for 

response and reply by any interested 

person, and concludes with a 

Commission order determining the nonpublic status of the materials. Generally, 

the Postal Service supports the process 

appearing in proposed § 3007.401. 

Postal Service Comments at 8–9. On the 

other hand, both the Public 

Representative and UPS favor an 

automatic disclosure approach. PR 

Comments at 5–6; UPS Comments at 3– 

4. The Public Representative observes 

that the Commission can adopt a default 

procedure of automatic disclosure after 

10 years (such as through posting to the 

Commission’s public website), unless a 

person obtains extended non-public 

treatment in advance. PR Comments at 

6. Similarly, UPS indicates that it 

assumed that the Commission would 

automatically disclose non-public 

materials after the passage of 10 years. 

UPS Comments at 3–4. 

The existing rules were silent on the 

mechanism for administration of 

materials for which non-public 

treatment had expired. Broadly, the 

Commission considered two default 

approaches: (1) Automatic disclosure 

(posting to the Commission’s public 

website, unless a person obtains 

extended non-public treatment in 

advance); or (2) making materials 

available upon request (with an 

opportunity for interested persons to 

object and seek extended non-public 

treatment). The difference between the 

two approaches comes down to whether 

the person taking the first step in the 

Commission’s process of determining 

whether to publicly disclose the 

materials should be the person seeking 

public disclosure or the person seeking 

extended non-public treatment. 

The Commission agrees with the 

Postal Service that the proposed rule 

‘‘appropriately requir[es] the parties 

who seek public disclosure, not the 

parties with a proprietary interest in the 

information, to take the first step in the 

Commission’s process of determining 

whether to publicly disclose materials.’’ 

Postal Service Comments at 9. The key 

issue is the level of attention to the 

expiration of non-public status in 

Commission dockets. As the Postal 

Service observes, many of the persons 

other than the Postal Service that have 

a proprietary interest in non-public 

information submitted by the Postal 

Service may lack the resources to 

affirmatively monitor and timely 

respond to automated deadlines that 

would expose their proprietary 

information to public view. See id. 

Affected persons that may have a 

proprietary interest include customers, 

suppliers, PC postage providers, and 

foreign postal operators. Id. at 12–13. As 

the Postal Service further explains, it 

has engaged in the practice of providing 

one-time notice (rather than for each 

submission) using standard language 

contained in a contract, letter, or UPU 

circular. Id. at 13. Under these 

circumstances, a process that would 

require affected persons with a 

proprietary interest to seek extended 

non-public treatment in advance of the 

10-year expiration, without any pending 

request for the materials at issue, may 

not adequately protect the substantive 

rights of such affected persons. 

Accordingly, the Commission maintains 

its conclusion that the first step in the 

process should be taken by the person 

seeking the materials. This conclusion, 

and the final rules adopted in this 

Order, take into account the need for 

transparency, sound records 

management practices, and according 

adequate protection to the commercial 

interests of affected persons, including 

the Postal Service. See Order No. 4403 

at 32. 

The process and content requirements 

are designed to mitigate against the 

Public Representative’s concerns 

regarding a potentially unlimited 

number of requests for disclosure that 

may lack a real interest in the materials 

at issue. See PR Comments at 5, n.8. The 

process requires the person seeking the 

materials to take the first step: Formally 

file a document that identifies the 

materials sought and the date(s) of the 

original sealed submission. To better aid 

compliance with this content 

requirement, a template form is 

provided in final Appendix A to subpart 

D of 39 CFR part 3007 for use and 

modification. The additional steps in 

the process—the opportunity (but not a 

requirement) to file a response and a 

reply—may be indicative of the level of 

interest in the materials. Moreover, the 

Postal Service has sought indefinite 

protection of non-public materials in its 

initial application for non-public 

treatment in many dockets. See Order 

No. 4403 at 32 n.16. Accordingly, a 

procedure involving automatic 

disclosure after 10 years (unless an 

extended non-public treatment is sought 

and granted in advance) may result in 

a potentially large number of requests 

for extension (and potentially premature 

ones). 

UPS raises a concern about excessive 

redactions. The Commission 

acknowledges that excessive redactions 

are improper and negatively affect the 

public interest in transparency. UPS 

expresses concern that the process 

appearing in proposed § 3007.401 may 

incentivize excessive redactions to 

obscure the non-public information and 

reduce the likelihood that a person 

seeking public disclosure after the 

passage of 10 years will be successful. 

However, the Commission observes that 

an automatic disclosure policy may also 

negatively affect the public interest in 

transparency by chilling the voluntary 

submission of non-public information. 

Moreover, adequate procedural 

mechanisms exist in the final rules to 

address excessive redactions. Final 

§ 3007.202 expressly provides that only 

the information that is claimed to be 

non-public shall be blacked out. It is 

also important to observe that members 

of the general public have the ability to 

request access to the materials under 

final § 3007.301 and that Public 

Representatives are granted access 

under final § 3007.300(a)(2). Further, 

any person may challenge the level of 

redaction earlier than 10 years through 

a motion for public disclosure under 

final § 3007.400. 

While the Commission maintains the 

requirement that the person seeking the 

materials take the first step, the 

Commission adopts minor changes in 

final § 3007.401 to clarify that the 

intended content requirements 

associated with filing a formal 

document to seek materials for which 

non-public treatment has expired are 

lower than that requirements associated 

with filing a motion under final 

§ 3007.400 to seek the public disclosure 

of materials for which non-public status 

remains active. UPS and the Public 

Representative appear to interpret the 

proposed rule as unfairly shifting the 

burden to the person seeking the 

materials. See UPS Comments at 5; PR 

Comments at 5. Part of this 

misunderstanding appears to lie within 

a misinterpretation of the content 

requirements pertaining to what the 

person seeking materials for which nonpublic treatment has expired must file 

with the Commission. To clarify this 

issue, the Commission provides a 

discussion of the distinction between 

the rules applicable to materials for 

which the non-public status remains 

active versus materials for which nonpublic treatment has expired. Based on 

its review of the comments, the 

Commission also adopts revisions to the 


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6Proposed § 3007.200(a) expanded on existing 

§ 3007.21(a), which applied only to Postal Service 

filings, to all submissions of non-public materials. 

See Order No. 4403 at 14–15. 

7Proposed § 3007.201(a) expanded on existing 

§ 3007.21(b), which applied only to Postal Service 

filings, to all submissions of non-public materials. 

See Order No. 4403 at 15. 

8Proposed § 3007.201(b) expanded on existing 

§ 3007.21(c), which applied only to Postal Service 

filings, to all submissions of non-public materials. 

See Order No. 4403 at 15–16. 

9This is consistent with the Commission’s longstanding practice under existing § 3007.23. See 

Order No. 4403 at 12; see also Docket No. RM2008– 

1, Second Notice of Proposed Rulemaking to 

Establish a Procedure for According Appropriate 

Confidentiality, March 20, 2009, at 17 (Order No. 

194). 

final rule to make these distinctions 

more clear. 

By way of background, under 

proposed § 3007.200(a), whenever nonpublic materials are provided to the 

Commission, an application for nonpublic treatment must also be submitted 

that clearly identifies all non-public 

materials and describes the 

circumstances causing them to be 

submitted to the Commission.6

Moreover, under proposed 

§ 3007.201(a), the application, in 

addition to demonstrating that the 

materials at issue are of a type and 

nature eligible for non-public treatment, 

must contain all of the information and 

arguments to fulfill the burden of 

persuasion that the materials designated 

as non-public should be withheld from 

the public.7 Under proposed 

§ 3007.201(b), the application must 

include a ‘‘specific and detailed 

statement’’ containing (among other 

things) particular identification of the 

nature and extent of harm alleged and 

the likelihood of such harm.8 Under 

proposed § 3007.102(a), the Commission 

preliminarily treats those materials as 

non-public.9

The Commission’s long-standing 

practice, retained under proposed 

§ 3007.103, is that it does not accept any 

rationale for non-public treatment given 

in the application for non-public 

treatment unless the Commission makes 

a determination of non-public status, 

which may occur in response to a 

motion by an interested person or sua 

sponte. See Order No. 4403 at 7. Either 

procedure concludes with the issuance 

of a Commission order determining the 

non-public treatment to be accorded (if 

any) under the applicable standard 

described in proposed § 3007.104. 

For materials for which the nonpublic status remains active (either 

because the non-public status has not 

expired or has been extended by order 

of the Commission), proposed 

§ 3007.400(b) presents the requirements 

that must be met by those seeking 

public disclosure. By contrast, the 

burden to seek the public disclosure of 

materials for which non-public 

treatment has expired is lower. UPS 

characterizes proposed § 3007.401(b) as 

requiring that the person seeking the 

materials ‘‘provide detailed 

justifications for why the materials 

should be made public.’’ UPS 

Comments at 6. Proposed § 3007.400(b), 

the rule applicable to materials for 

which the non-public status remains 

active, does require the filing of 

justification for why the materials 

should be made public, which must 

specifically address any pertinent 

rationale(s) provided in the application 

for non-public treatment. See Order No. 

4403 at 29–30. However, proposed 

§ 3007.401(b), the rule applicable to 

materials for which non-public status 

has expired, does not impose such a 

content requirement. See id. at 32–33. 

Similarly, the Public Representative 

focuses on the usage of the term 

‘‘motion’’ in objecting to proposed 

§ 3007.401(b). PR Comments at 5–6. He 

suggests that instead ‘‘an informal 

request (something short of a motion)’’ 

be required. Id. at 6. These comments 

indicate that the final rules would 

benefit from more clear distinctions 

between the content requirements 

applicable under §§ 3007.400(b) and 

3007.401(b). The Commission had 

intended that the formal filing of a 

motion for public disclosure under 

proposed § 3007.401(b) would be the 

procedural trigger for determining 

whether to publicly disclose materials 

for which non-public treatment has 

expired. The word ‘‘motion’’ was used 

in proposed § 3007.401(b)–(f) to 

correspond with the Commission’s 

practice that a motion (either by an 

interested person or by the Commission 

acting on its own) would trigger the 

process for the Commission to 

determine non-public status. The 

Commission acknowledges that the use 

of parallel language between 

§§ 3007.400(b) and 3007.401(b) may 

have resulted in confusion regarding the 

substantive contents of that triggering 

filing under proposed § 3007.401(b). To 

minimize confusion, the Commission 

adopts a change in terminology from 

‘‘motion,’’ to ‘‘request’’ in final 

§ 3007.401(b)–(f). To further clarify the 

Commission’s intent of minimal content 

requirements for such a request, a 

template request form is provided in 

final Appendix A to subpart D of 39 

CFR part 3007 for use and modification. 

Notably, in expressing their 

opposition to proposed § 3007.401, UPS 

and the Public Representative do not 

appear to consider the content 

requirements imposed on the filing of a 

response opposing public disclosure 

under proposed § 3007.401(c). See UPS 

Comments at 3–7; PR Comments at 4– 

6. UPS characterizes proposed 

§ 3007.401(f)’s use of the balancing test 

standard as negating the purpose of 

having a 10-year expiration provision. 

UPS Comments at 6. The Commission 

disagrees with this characterization. 

Proposed § 3007.401(c) provides that 

any response opposing public 

disclosure shall seek an extension of 

non-public status by including an 

application for non-public treatment 

compliant with proposed § 3007.201. 

Order No. 4403 at 33–34. In addition to 

meeting the requirements imposed by 

proposed § 3007.201 (including the 

burden of persuasion that the materials 

should be withheld from the public), 

proposed § 3007.401(c) requires this 

extension application to include 

specific facts supporting any assertion 

of commercial injury after the passage of 

10 years. Id. at 34. This requirement is 

the very purpose of having the 10-year 

default period—the setting of a point in 

time to evaluate if the facts underlying 

the initial application’s claim for nonpublic treatment have become stale. 

Further, a proponent of disclosure will 

have the opportunity to reply to any 

new arguments raised under proposed 

§ 3007.401(d). Such a procedure allows 

any updates pertinent to the balancing 

test to be evaluated. The formal request 

filed under final § 3007.401(b) will 

trigger that process. 

With respect to that process, all three 

commenters express views in favor of 

simplifying the process appearing in 

proposed § 3007.401. Therefore, the 

Commission maintains that process 

generally, with some changes aimed to 

streamline the procedure. 

The Commission generally agrees 

with the suggestion by the Public 

Representative to reduce the procedural 

complexity involved in the proposed 

procedure related to seeking materials 

for which non-public treatment has 

expired. See PR Comments at 6. 

Ultimately, a change in terminology 

throughout final § 3007.401(b)–(f) from 

‘‘motion,’’ to ‘‘request’’ minimizes 

complexity. Also, to better convey the 

exact content requirements of a request, 

a template form is provided in final 

Appendix A to subpart D of 39 CFR part 

3007 for use and modification to comply 

with final § 3007.401(b). It is useful to 

have such requests formally filed in 

dockets so as to provide near immediate 

notice of the request to the Postal 

Service and make the request (and any 

responses and replies filed) available to 

the public for viewing. Therefore, the 

requirement to formally file the request 

in a docket and the associated docketing 


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10The Commission disagrees with UPS’s 

characterization of proposed § 3007.401(b) as 

excessively burdensome. See UPS Comments at 6. 

Proposed § 3007.401(b) did not require that actual 

notice be given (or attempted); it provided a 

mechanism to better isolate those instances in 

which the expedited response deadline appearing 

in proposed § 3007.401(c) would apply. Order No. 

4403 at 32. The related proposed requirement 

appearing in proposed § 3007.401(b), to provide 

additional information, would apply only if it was 

stated that actual notice was given. See id. at 33. 

The deletion of the expedited response appearing 

in proposed § 3007.401(c) renders these 

requirements unnecessary. 

11Order No. 194 at 24–25; Docket No. RM2008– 

1, Final Rule Establishing Appropriate 

Confidentiality Procedures, June 19, 2009, at 13 

(Order No. 225). 

instructions are retained in final 

§ 3007.401(b). 

Based on review of the comments 

received relating to instances of actual 

notice and a potential expedited 

response deadline, the Commission 

deletes such procedural requirements in 

the final rule in the interest of 

simplicity. 

The Commission acknowledges the 

Postal Service’s observation that ‘‘it is 

unlikely that there would be great 

urgency to obtain materials that were 

filed at least 10 years before the 

request.’’ Postal Service Comments at 

11. After the passage of 10 years, the 

difference between 3 business days 

versus 7 calendars is less significant to 

the requestor (in contrast to examples 

when the information at issue is more 

recent and its usefulness to participants 

is more time-sensitive). Also, the 

additional response time may be 

beneficial to the submitter and any 

person with a proprietary interest, given 

the need to re-familiarize themselves 

with the materials 10 years later. 

Further, having a single response 

deadline is simpler for participants. 

Therefore, the Commission dispenses 

with the expedited response deadline 

appearing in proposed § 3007.401(c). 

Given this determination, there is no 

compelling reason to keep the related 

proposed requirements appearing in 

proposed § 3007.401(b) (requiring 

specification if actual notice was given, 

and if so stated, requiring additional 

information) and proposed § 3007.401(f) 

(stating that the Commission may grant 

public disclosure any time after 

receiving a request representing that 

actual notice was given and the request 

was uncontested). The deletions 

simplify the procedural requirements 

relating to the disclosure of materials for 

which non-public treatment has 

expired. UPS also objected to the 

provisions appearing in proposed 

§ 3007.401(b) for other reasons.10

UPS suggests using a different 

substantive standard to determine 

whether to publicly disclose materials 

for which non-public treatment has 

expired. UPS suggests that the 

Commission adopt a policy of automatic 

disclosure at the 10-year mark absent a 

showing that public disclosure will 

result in ‘‘material harm.’’ UPS 

Comments at 6–7. The Commission 

appreciates UPS’s comment as an effort 

to convey that any rationale for 

extended non-public treatment provided 

in an extension application that lacks 

adequate factual support should not be 

accepted. However, the applicable 

balancing test under final § 3007.104, 

taking into account the passage of time 

(which may render the harms alleged in 

the original application stale), 

adequately encompasses this concern. 

The comments from the Postal Service 

and UPS also suggest changes to the 

proposed rules relating to the retention 

of the 10-year timeframe. The 

Commission declines to adopt changes 

to the proposed rules for the following 

reasons. 

The Commission rejects the Postal 

Service’s suggestion to set 25 years as 

the new default timeframe for expiration 

of non-public status. The Postal 

Service’s observation that the FOIA sets 

a time limit of 25 years pertaining to 

information protectable under the 

deliberative process privilege is not 

persuasive. Generally in practice before 

the Commission, the types of 

information for which non-public 

treatment is sought involve issues 

pertaining to commercial injury, as 

contemplated by 39 U.S.C. 504(g)(3)(A). 

It is important to reconfirm that the final 

rules adopted in this Order do not alter 

the Commission’s long-standing practice 

that it does not interpret ‘‘likely 

commercial injury’’ so narrowly as to 

exclude harm associated with other 

interests, such as the deliberative 

process. Order No. 194 at 11. In any 

event, the 10-year default period does 

not prejudice the ability of the Postal 

Service to seek extended protection, if 

circumstances warrant. The 10-year 

default period was set to ‘‘serve 

administrative convenience and sound 

records management practices while 

adequately protecting the commercial 

interest of the Postal Service.’’ 11 The 

Commission has not been presented 

with a rationale to disturb this earlier 

informed judgment. 

The Commission also rejects the 

suggestion by the Postal Service to 

codify a rule providing for indefinite 

non-public treatment of customerspecific information. See Postal Service 

Comments at 10. Multiple orders state 

that ‘‘[t]he Commission has consistently 

denied requests for indefinite 

protection.’’ Order No. 4403 at 32 n.16. 

In any event, the 10-year default period 

does not prejudice the ability of the 

Postal Service to seek extended 

protection, if circumstances warrant. 

Finally, the Commission rejects the 

alternative suggested by UPS to set forth 

the timing and level of disclosure for 

different types of non-public 

information. See UPS Comments at 5–6. 

The Commission appreciates the effort 

by UPS to try to develop an advance 

framework for evaluating these issues. 

In promulgating proposed 

§ 3007.401(b)–(f), the Commission does 

not prejudge whether any information 

categorically would (or would not) 

require extended non-public status. The 

suggestion by UPS to consider setting 

forth different timing requirements 

based on whether the data was related 

to the Annual Compliance Report (ACR) 

or a negotiated service agreement (NSA) 

is not particularly useful to evaluating 

whether harm is still likely to occur. 

Data provided in connection with the 

ACR encompasses many forms, 

including NSA data. The suggestion by 

UPS to take into account distinctions 

based on level of granularity of the 

disclosure (such as whether the 

information at issue is specific to a 

customer, product, or class) may be 

relevant to the fact-specific analysis of 

the particular information at issue. 

Therefore, the Commission does not 

find that a persuasive rationale has been 

provided to depart from its general 

premise that non-public status shall 

expire after the passage of 10 years, 

unless otherwise provided by the 

Commission. However, the Commission 

adopts changes to facilitate procedures 

for publically disclosing such material 

that are more clear and simple. 

3. Changes to the Proposed Rules 

Each line-by-line change to the 

proposed rules made in response to the 

comments related to the expiration of 

non-public treatment is reviewed below. 

Editorial changes made solely to 

improve global consistency, clarity, or 

precision are also reviewed below 

where applicable to final § 3007.401(b)– 

(f). The following changes to the 

proposed rules appear in the final rules. 

Final § 3007.401(b). All references to 

‘‘motion’’ are replaced with ‘‘request.’’ 

Usage of the word ‘‘materials’’ is 

replaced with ‘‘information’’ for 

precision in the second sentence. A 

sentence is added to notify the reader 

that completing and filing the template 

form appearing in final Appendix A to 

subpart D of 39 CFR part 3007 will 

satisfy the content requirements 

appearing in paragraph (b). The content 

requirements pertaining to whether or 


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not actual notice has been given are 

deleted. 

Final § 3007.401(c). The expedited 

response deadline applicable to 

instances when actual notice has been 

given is deleted. All references to 

‘‘motion’’ are replaced with ‘‘request.’’ 

In one instance, the word ‘‘request’’ as 

used as a verb is replaced with ‘‘seek’’ 

to better distinguish between the usage 

of ‘‘request’’ as a noun to refer to the 

formal filing made under paragraph (b). 

In the last sentence, the word ‘‘exists’’ 

is replaced with ‘‘is likely to occur if the 

information contained in the materials 

is publicly disclosed’’ for precision 

because no injury would exist until the 

information contained in the materials 

is publicly disclosed. Also, in the last 

sentence, both cross-references are 

deleted because they are unnecessary. 

Final § 3007.401(d). The word 

‘‘movant’’ is replaced with ‘‘requestor.’’ 

Final § 3007.401(e). The word 

‘‘motion’’ is replaced with ‘‘request.’’ 

Final § 3007.401(f). All references to 

‘‘motion’’ are replaced with ‘‘request.’’ 

The references to the expedited 

response deadline are deleted. In the 

last sentence, the phrase ‘‘balance the 

interests of the parties as’’ is replaced 

with ‘‘follow the applicable standard’’ to 

more precisely encompass both 

standards (whichever may be 

applicable) appearing in paragraphs (a) 

and (b) of final § 3007.104. 

Final Appendix A to subpart D of 39 

CFR part 3007—Template Request 

Form. To aid compliance with final 

§ 3007.401(b), which requires a 

requestor to identify the materials 

requested and date(s) that materials 

were originally submitted under seal, a 

template request form is created. Final 

Appendix A is added to subpart D of 39 

CFR part 3007 contains a template form 

for requestors to use and modify. 

C. Review of Other Changes Proposed by 

the Postal Service 

The following discussion summarizes 

all changes proposed by the Postal 

Service (other than issues related to the 

expiration of non-public treatment), 

provides analysis, and describes the 

resulting changes made to the proposed 

rules. 

1. Postal Service Comments 

Aside from the issues related to the 

expiration of non-public treatment, the 

Postal Service proposes changes to 

proposed §§ 3007.101(a), 3007.103, 

3007.200, 3007.300, 3007.301, and 

Appendix A of subpart C of 39 CFR part 

3007. Postal Service Comments at 2–8, 

11–14; Postal Service Appendix at iii– 

vi, xi–xiii, xix. 

With respect to proposed 

§ 3007.101(a), which defines non-public 

material, the Postal Service suggests two 

changes. First, the Postal Service 

requests to add text stating that 

inadvertent disclosure does not waive 

privilege or FOIA exemption status. 

Postal Service Comments at 7. Second, 

the Postal Service requests to add text 

stating that loss of non-public status 

applies only to the particular materials 

at issue, not to similar materials. Id. at 

7–8. 

With respect to proposed § 3007.103, 

the Postal Service requests to add text 

to ensure that notice and due process 

would occur in the event that the 

Commission issues an order to amend 

non-public status sua sponte. Id. at 8. 

With respect to proposed § 3007.200, 

the Postal Service objects to the 

inclusion of existing § 3007.20, which 

requires that before submitting nonpublic materials to the Commission, 

each submitter contact any affected 

person who may have a proprietary 

interest in the non-public information 

contained therein. Id. at 11. The Postal 

Service asserts that this advance notice 

provision imposes a large and 

impracticable burden on persons that 

submit large amounts of third-party 

non-public information on a regular 

basis such as the Postal Service’s NSA 

filings. Id. at 12. In particular, the Postal 

Service observes that the requirement to 

provide notice of docket numbers is 

impracticable because docket numbers 

are usually reserved on the day of filing. 

Id. The Postal Service states that it 

notifies NSA customers through 

template contract language, foreign 

postal operators through a UPU circular, 

and regularly involved third parties 

such as PC postage providers or 

suppliers through a general letter rather 

than through particular notification for 

each filing. Id. at 13. The Postal Service 

asserts that the Commission should 

recognize these methods of addressing 

third party notification. Id. at 14. 

As an alternative, the Postal Service 

proposes that the Commission adopt an 

exception ‘‘that limits the 

individualized notice requirement to 

situations where a third party has 

requested the individualized notice or 

the submitter has determined that any 

blanket notification is not sufficient.’’ 

Id. The Postal Service suggests adding 

text to proposed § 3007.200(b) that 

would allow the submitter to provide 

annual notice, without identification of 

particular docket number designations, 

if the information is filed in multiple 

dockets. Id. The Postal Service suggests 

adding text to proposed § 3007.200(b) 

that would waive the identification of 

docket number designations if the 

person with a proprietary interest has 

executed a contract or similar 

instrument providing notice. Id. 

With respect to proposed §§ 3007.300, 

3007.301, and Appendix A to subpart C 

of 39 CFR part 3007, the proposed rules 

and template forms relating to access to 

non-public material, the Postal Service 

raises three issues. Id. at 2–6. 

First, the Postal Service contends that 

proposed § 3007.300(a)(3)’s insertion of 

the term ‘‘non-employee’’ before the 

term ‘‘subject matter experts’’ creates 

uncertainty as to whether such persons 

would be held to the similar 

requirements and conditions for 

contractors and attorneys described in 

that same subsection. Id. at 2. The Postal 

Service asserts that this uncertainty 

creates a risk that an individual may 

access non-public materials without 

being bound by a contract or code of 

conduct that would prevent 

dissemination of the materials at will. 

Id. The Postal Service further states that 

although such behavior is prohibited 

under proposed § 3007.302, there are no 

apparent sanctions for such violations. 

Id. at 2–3. The Postal Service suggests 

that this can be remedied by inserting 

text in proposed § 3007.300(a)(3) stating 

that such persons have executed nondisclosure agreements. Id. at 3. 

Second, the Postal Service requests 

that the Commission delete text 

appearing in proposed § 3007.300(b) 

and the corresponding template form in 

Appendix A to subpart C of 39 CFR part 

3007 concerning ‘‘involved in 

competitive decision making.’’ Id. at 3– 

4. The Postal Service asserts that an 

attorney with access to non-public 

materials then would be able to use the 

knowledge gained through access 

(consciously or unconsciously) in 

formulating legal or business advice. Id. 

at 4. The Postal Service asserts that 

codifying the text appearing in the 

existing sample protective conditions 

‘‘creates a risk of non-public materials 

being used in ways that could be 

competitively harmful.’’ Id. 

Third, the Postal Service requests that 

the Commission delete text appearing in 

proposed § 3007.300(c) and the 

corresponding proposed 

§ 3007.301(b)(2), which would permit 

persons to seek access solely for the 

purpose of aiding the initiation of a 

proceeding before the Commission. Id. 

at 5. The Postal Service objects that this 

proposed rule could enable persons to 

obtain access to non-public materials by 

providing only limited justification 

relating to a vague, undeveloped 

proposal to initiate a proceeding before 

the Commission. Id. at 6. The Postal 

Service asserts that the proposed rules 

impose no consequences if the person 


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12 Department of Justice Guide to the Freedom of 

Information Act, Discretionary Disclosure and 

Waiver, at 703–704; see n. 82 (available at https:// 

www.justice.gov/sites/default/files/oip/legacy/2014/ 

07/23/disclosure-waiver.pdf). 

13Moreover, in accordance with Fed. R. Evid. 

502(b), which applies to a disclosure to a federal 

office or agency, inadvertent disclosure does not 

waive the attorney-client privilege or work-product 

protection in a federal or state proceeding if: ‘‘the 

holder of the privilege or protection took reasonable 

steps to prevent disclosure; and [] the holder 

promptly took reasonable steps to rectify the error. 

. . .’’ Fed. R. Evid. 502(b)(2)(3). Generally, federal 

courts consider a multi-factor test, which varies 

from case to case, in applying this rule. Fed. R. 

Evid. 502 advisory committee note (2008) (noting 

that Fed. R. Evid. 502 ‘‘does not explicitly codify 

that test, because it is really a set of nondeterminative guidelines that vary from case to 

case’’); see Eden Isle Marina, Inc. v. United States, 

89 Fed. Cl. 480, 506–08 (2009) (quoting) (finding 

that the government waived work-product 

protection for a memorandum, via an inadvertent 

disclosure in response to a FOIA request, where the 

government failed to take prompt, affirmative, 

curative action); Goodrich Corp. v. E.P.A., 593 F. 

Supp. 2d 184, 192–93 (D.D.C. 2009) (finding that 

agency’s failure to exercise ‘‘zealous stewardship’’ 

of its work-product protection to prevent 

inadvertent disclosure of the results of its model 

operated as subject-matter waiver with respect to 

the model itself). 

14Substantive regulatory provisions should not 

be included in a definition. Nat’l Archives and 

Records Admin., Office of the Fed. Register, 

Document Drafting Handbook, Update May 2017, 

(Revision 6, dated May 1, 2018) at 2–28. 

15 Id. By way of background, when establishing a 

docket, the Commission assigns the docket a unique 

identification tag that contains three components. 

First, a letter code indicates the nature of the 

proceeding. Second, four digits identify the fiscal 

year in which the docket was established. Third, a 

hyphen and a unique number are assigned to 

indicate the number of that type of proceeding for 

that fiscal year. For instance, the tag assigned to this 

proceeding indicates that it is a rulemaking (‘‘RM’’), 

established in FY 2018 (‘‘2018’’), and that it is the 

3rd rulemaking docket of FY 2018 (‘‘-3’’). 

granted access under this provision does 

not ultimately initiate the proceeding. 

Id. The Postal Service notes that an 

example referenced in the NPR was 

based on a request for continued access 

in the ACR proceeding after the 

issuance of the ACD. Id. at 5. 

2. Commission Analysis 

Based on the following analysis, the 

Commission adopts changes to 

proposed §§ 3007.101(a), 3007.103, 

3007.200(b), 3007.205, and 

3007.300(a)(3). Also, as discussed 

below, the Commission declines to 

make the Postal Service’s suggested 

changes to proposed §§ 3007.300(b), 

3007.300(c) and 3007.301(b)(2), and the 

template form in Appendix A to subpart 

C of 39 CFR part 3007. 

Proposed § 3007.101(a). The Postal 

Service proposes that the definition of 

non-public materials in proposed 

§ 3007.101(a) should state that 

inadvertent public disclosure does not 

constitute waiver of privilege or FOIA 

exemption status. Id. at 7. To support 

this proposal, the Postal Service quotes 

the Department of Justice Guide to the 

Freedom of Information Act (FOIA), in 

part. Id. The full sentence is 

reproduced, omitting the footnotes, 

using italics to display the text that was 

omitted from the Postal Service 

Comments: ‘‘[w]hile it is generally found 

that agency carelessness or mistake in 

permitting access to certain information 

is not equivalent to waiver, on occasion 

courts have found waiver in such 

releases’’ (emphasis added) (footnotes 

omitted).12 As the full statement 

indicates, numerous cases support this 

general principle, with certain 

boundaries and nuances.13 The 

Commission appreciates the Postal 

Service’s aim to develop a rule that 

would provide certainty concerning 

recognition of this general principle. See 

Postal Service Comments at 7. However, 

the text suggested by the Postal Service 

would add no greater clarity or certainty 

than the line of cases referenced in its 

comments. Incorporating the suggested 

text into the definition of non-public 

materials used in the Commission’s 

procedural rules is unnecessary and 

imprecise.14 Accordingly, this suggested 

revision is not adopted in final 

§ 3007.101(a). 

The Postal Service does not give a 

reason for suggesting to add a sentence 

to the definition of non-public materials 

in proposed § 3007.101(a) regarding the 

loss of non-public status for any reason. 

Postal Service Comments at 7–8; Postal 

Service Appendix at iii. The 

Commission interprets the intent of this 

suggestion to be an effort to seek 

clarification of the scope and operation 

of the loss of non-public status as a 

matter of procedure. Therefore, the 

Commission adds one sentence to final 

§ 3007.101(a) stating that the cessation 

of non-public status applies to the 

particular document or thing and the 

particular information contained therein 

(in whole or in part, as applicable). This 

additional sentence provides sufficient 

clarification regarding the procedural 

question regarding the application of the 

loss of non-public status. 

Proposed § 3007.103. The NPR 

proposed to dispense with a codified 

process and timeframes (as set forth in 

existing § 3007.32(b)-(d)) following the 

issuance of a notice of preliminary 

determination. Order No. 4403 at 13. 

The reason for the deletion was that the 

notice of preliminary determination 

would set forth the specific time allotted 

for the response and reply (if any). Id. 

The Postal Service asks to reincorporate 

these codified procedures and asks to 

codify the standard that would apply. 

Postal Service Comments at 8. The 

Commission agrees that it would be 

helpful to the public to codify 

additional detail regarding the conduct 

of proceedings after a preliminary 

determination has issued. Consistent 

with the NPR’s intent, the final rule 

regarding response and reply a notice of 

preliminary determination allows the 

Commission flexibility to set the 

specific time allotted for the response 

and reply (if any). Therefore, the 

Commission adopts the Postal Service’s 

suggestions with textual edits to 

correspond with the terminology and 

flow of final § 3007.400 (relating to the 

procedure for motions by any interested 

person). Accordingly, final § 3007.103 

reincorporates much of the content of 

existing § 3007.32. 

Proposed § 3007.200(b). The Postal 

Service objects to proposed 

§ 3007.200(b), which retains the existing 

requirement of § 3007.20(b), to provide 

advance notice to any other person who 

has a proprietary interest in the nonpublic material. Postal Service 

Comments at 11. The Postal Service’s 

concerns appear to focus on the 

inclusion of the term ‘‘docket 

designation.’’ 15 The Postal Service 

observes that when initiating a new 

docket, the unique number following 

the hyphen is usually not reserved or 

assigned until shortly before the actual 

filing. Postal Service Comments at 12. 

The Postal Service also complains that 

interpreting the rule to require advance 

individualized notice for each filing 

would substantially burden the Postal 

Service. Id. The Postal Service describes 

its practice of providing one-time notice 

(rather than for each filing) using 

standard language contained in a 

contract, letter, or UPU circular. Id. at 

12–13. 

The Commission acknowledges the 

business and practical difficulties for 

not providing individualized advance 

notice of each submission and of the 

complete unique docket number(s) and 

does not interpret the existing 

requirement, nor the final rule, to 

prohibit the approaches described by 

the Postal Service. While it may not 

always be possible to provide advance 

notice of the full unique docket number, 

it should be possible to inform affected 

persons of the nature of proceeding in 

which the information may be used 

(such as by using the Postal Service’s 

approach of listing the applicable 

docket designation letter code(s) and the 

fiscal year). To minimize confusion, the 

Commission adds a parenthetical ‘‘to 

the extent practicable’’ to the 

requirement that notice include ‘‘the 


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16See, e.g., Docket No. RM2017–3, Motion of the 

National Postal Policy Council, the Major Mailers 

Association, and the National Association of Presort 

Mailers for Access to Nonpublic Document, 

Statement of Compliance with Protective 

Conditions, March 21, 2018, at 1. 

17See generally Docket No. RM2008–1, Initial 

Postal Service Comments; Docket No. RM2008–1, 

Reply Comments of the United States Postal 

Service, October 10, 2008; Docket No. RM2008–1, 

Comments of the United States Postal Service in 

Response to Second Notice of Proposed 

Rulemaking, April 27, 2009; Docket No. RM2008– 

1, Reply Comments of the United States Postal 

Service in Response to Second Notice of Proposed 

Rulemaking, May 11, 2009. 

18See, e.g., Seal Shield, LLC v. Otter Prod., LLC, 

No. 13–CV–2736 CAB (NLS), 2014 WL 12160746, 

at *2–3 (S.D. Cal. Feb. 7, 2014) (entering protective 

order denying access to plaintiff’s in-house counsel 

based on finding that the attorneys had prior and 

current involvement in business and product 

decisions such as to qualify them as competitive 

decision-makers and there was no record evidence 

that plaintiff could not retain outside counsel). 

19For example, federal courts may restrict access 

to highly confidential information to independent 

outside counsel. See, e.g., W. Conv. Stores, Inc. v. 

Suncor Energy (U.S.A.) Inc., No. 11–CV–01611, 

2014 WL 561850, at *1 (D. Colo. Feb. 13, 2014) 

(‘‘During discovery, [the non-party competitor’s] 

interest was addressed by a protective order that 

entitled Western’s counsel and retained experts to 

view [the non-party competitor’s] wholesale 

purchase and retail sales information, but forbade 

the recipients of the information from sharing it 

with [the plaintiff’s owner] . . . .’’); Norbrook 

Laboratories LTD. v. G.C. Hanford Mfg. Co., No. 

5:03–CV–165, at 10, 2003 U.S. Dist. LEXIS 6851, 

*15–17 (N.D. N.Y. Apr. 24, 2003) (denying outside 

counsel, who also served as corporate secretary and 

a board member, access to discovery materials 

containing trade secrets because the situation 

would place his fiduciary duties in conflict with his 

ethical obligations as an attorney and the restriction 

would not unduly prejudice his client). 

20See, e.g., Docket No. RM2017–3, Notice of the 

United States Postal Service of Filing Non-Public 

Materials, Attachment to Notice of Non-Public 

Filing, March 16, 2018, at 8–9 (requesting that 

certain persons not be granted access to the nonpublic materials or only be granted access subject 

to more stringent protective conditions). 

pertinent docket designation(s)’’ in final 

§ 3007.200(b). 

Proposed § 3007.205. With respect to 

the Postal Service’s concern regarding 

what happens in the event that nonpublic materials are inadvertently 

released to the public, the Commission 

finds there is a benefit to providing 

additional procedural detail. See Postal 

Service Comments at 6–8. The NPR 

included proposed § 3007.205, which 

‘‘outlines a process to minimize 

exposure of sensitive information that 

may occur due to a filer’s error.’’ Order 

No. 4403 at 21. Although the Postal 

Service did not suggest changes to 

proposed § 3007.205, the Commission 

has determined to require that the 

application for non-public treatment 

concerning such inadvertently 

submitted materials shall also clearly 

indicate any special relief that is 

requested. This additional procedural 

detail provides better instruction to the 

person seeking to protect the interests of 

the submitter or other person(s) with a 

proprietary interest in the materials that 

is claimed to have been inadvertently 

submitted. 

Such special relief may be sought to 

address a situation in which a person 

who has not obtained access under 

proposed §§ 3007.300 or 3007.301 has 

preserved, viewed, or disseminated the 

materials (and the information 

contained therein that is later claimed to 

be non-public) while they were still 

publicly available (due to the 

submitter’s error). If a person who has 

not obtained access under proposed 

§§ 3007.300 or 3007.301 has preserved, 

viewed, or disseminated the materials at 

issue while they were still publicly 

available (through no fault of his or her 

own), this provision better ensures that 

person is aware if any special relief 

sought. The Commission notes that this 

a procedural issue (and more 

specifically, a notice issue). It does not 

prejudice the ability of any person to 

seek access or to challenge the filer’s 

claim that the materials should be 

accorded non-public treatment. Nor 

does this provision prejudge how the 

Commission would adjudicate such 

fact-specific issues. 

Proposed § 3007.300(a)(3). The Postal 

Service focuses on the concern that nonemployee subject matter experts may 

access non-public materials without an 

appropriate non-disclosure agreement in 

place. See Postal Service Comments at 

2–3. The Postal Service asks to codify 

that all non-employees assisting the 

Commission execute appropriate nondisclosure agreements before accessing 

non-public materials. See id. The 

Commission adopts the Postal Service’s 

suggestion in final § 3007.300(a)(3), with 

linguistic edits for clarity and 

simplicity. Final § 3007.300(a)(3) 

provides that access may be granted 

without issuance of an order to ‘‘[n]onemployees who have executed 

appropriate non-disclosure agreements 

(such as contractors, attorneys, or 

subject matter experts), assisting the 

Commission in carrying out its duties.’’ 

Proposed § 3007.300(b) and Appendix 

A to subpart C of 39 CFR part 3007. 

Proposed § 3007.300(b) prohibits 

granting access to persons involved in 

competitive decision-making for any 

entity or individual that might gain a 

competitive advantage from using the 

materials at issue. The Postal Service 

does not object to this exclusion. The 

Postal Service suggests deleting two 

sentences appearing in proposed 

§ 3007.300(b) and the corresponding 

template form in Appendix A to subpart 

C of 39 CFR part 3007 that provides a 

non-exhaustive list of the types of 

persons included and not included in 

the exclusion. Id. at 3–4. 

The Commission disagrees with the 

Postal Service’s assertion that codifying 

the text at issue, which appears in the 

existing sample protective conditions 

‘‘creates a risk of non-public materials 

being used in ways that could be 

competitively harmful.’’ Id. at 4. This 

language has been used in the protective 

conditions governing access in standard 

practice for many years.16 Moreover, the 

Postal Service did not object to its 

inclusion in existing Appendix A to 39 

CFR part 3007.17 The Postal Service 

does not explain how adding this 

language in paragraph (b), and retaining 

it in the template form, would create a 

risk of misuse. See Postal Service 

Comments at 4. Moreover, the Postal 

Service’s suggested approach, to retain 

the categorical prohibition on access for 

any person involved in competitive 

decision-making, but exclude any sort of 

explanation of what type of persons 

would be included, would render the 

final rule (and the corresponding 

template form) vague, overbroad, and 

unhelpful. 

The Commission acknowledges the 

Postal Service’s concern regarding 

individuals serving in dual capacities.18

The Commission does not interpret the 

final rule (nor the corresponding 

template form) from preventing these 

concerns from being addressed when 

the Commission is balancing the 

interests of the parties consistent with 

the analysis undertaken by a federal 

court when applying the protective 

conditions appearing in Federal Rule of 

Civil Procedure 26(c).19 Paragraph (b) 

categorically excludes certain persons 

from access to non-public materials. 

Paragraph (b) does not restrict a 

submitter or a person with a proprietary 

interest from seeking to exclude 

additional persons from access on an ad 

hoc basis or opposing a request for 

access for a particular individual.20

Similarly, inclusion of this language in 

the proposed template form also does 

not restrict participants from seeking or 

negotiating stricter protections. 

Therefore, the Commission does not 

adopt the Postal Service’s suggested 

deletions. 

Proposed §§ 3007.300(c) and 

3007.301(b)(2). Finally, the Commission 

declines to adopt the Postal Service’s 

suggestion to delete the provisions 

appearing in proposed §§ 3007.300(c) 

and 3007.301(b)(2) that would permit 

persons to seek access to non-public 

materials solely for the purpose of 

aiding the initiation of a proceeding 

before the Commission. See Postal 

Service Comments at 5. The Postal 

Service misinterprets proposed 


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§ 3007.301(b)(2) as enabling persons to 

obtain access to non-public materials by 

providing only limited justification 

relating to a vague, undeveloped 

proposal to initiate a proceeding before 

the Commission. Id. at 6. Proposed 

§ 3007.301(b)(2) requires that a motion 

for access include a detailed statement 

justifying the request for access. Also, 

proposed § 3007.301(b)(2)(ii) requires 

that a motion for access to aid initiation 

of a proceeding before the Commission 

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. These requirements ensure 

that the request for access is made in 

good faith, but are not so strict as to 

require that the planned proceeding is 

fully ready. Further, final § 3007.301(c) 

permits the filing of a response to a 

motion for access. Therefore, there are 

sufficient procedural mechanisms to 

ensure that the justification given is 

adequate. Ultimately, the standard to 

grant access balances the interests of the 

parties, which takes into account the 

interests of the person seeking access 

and the interests of any person opposing 

access. 

The Postal Service also objects that 

the proposed rules impose no 

consequences if the person granted 

access under this provision does not 

ultimately initiate the proceeding. Id. 

This corresponds with the existing 

practice, which does not impose 

consequences against a person who 

obtains access but then opts not to file 

a document with the Commission. 

Because the person requesting access 

has no opportunity to review the sealed 

materials in camera prior to obtaining 

access, it is possible that the person will 

opt against filing with the Commission 

after obtaining access. The underlying 

concern expressed by the Postal Service 

is not a failure to move forward with the 

planned proceeding; rather, the Postal 

Service is raising a concern of misuse, 

dissemination, or lack of care of the 

materials. The final rules prohibit such 

practices. Persons who obtain access are 

subject to protective conditions imposed 

by order and the rules, which limit use 

and dissemination of the non-public 

materials and the information contained 

therein. Final § 3007.303(a) provides for 

sanctions for violation of protective 

conditions. Final § 3007.303(b) reserves 

the right of any person, including the 

Postal Service, to pursue other 

remedies. 

The Postal Service reviews the 

potential to use indirect procedural 

mechanisms to aid persons to initiate a 

proceeding before the Commission, such 

as requesting that the Commission 

initiate a public inquiry docket and then 

seeking access, or seeking access in (and 

continuing access) in the ACR 

proceeding. Id. at 5–6. The Postal 

Service asserts that such indirect 

options undermine the necessity of the 

proposed rule. Id. at 6. Final 

§§ 3007.300(c) and 3007.301(b)(2) 

provide a direct mechanism. This makes 

the rules plain and more accessible to 

the public. Further, it facilitates the 

design and enforcement of protective 

conditions that will ensure the nonpublic material, and the non-public 

information contained therein, are used 

only for the purposes supplied. 

Therefore, the Commission does not 

adopt the Postal Service’s suggested 

deletions. 

3. Changes to the Proposed Rules 

Each line-by-line change to the 

proposed rules made in response to the 

Postal Service’s comments is reviewed 

below. Editorial changes made solely to 

improve global consistency, clarity, or 

precision are also reviewed below 

where applicable to the final rule at 

issue. The following changes to the 

proposed rules appear in the final rules. 

Final § 3007.101(a). A sentence is 

added to the end of this paragraph to 

reflect that the cessation of non-public 

status applies to the particular 

document or thing and the particular 

information contained therein (in whole 

or in part, as applicable). 

Final § 3007.103. This rule is divided 

into three paragraphs. 

Final § 3007.103(a). This paragraph 

contains the first sentence of proposed 

§ 3007.103, informing the reader of 

examples of the types of action by 

which the Commission may seek 

additional information to determine the 

non-public treatment, if any, to be 

accorded. For global consistency, the 

word ‘‘given’’ is replaced with 

‘‘accorded.’’ Clarifying text is also added 

to reflect that the materials at issue are 

those that are claimed by any person to 

be non-public. 

Final § 3007.103(b). This paragraph 

contains the second sentence of 

proposed § 3007.103, but deletes the 

reference to sua sponte amendment and 

instead focuses on amendment 

prompted by motions practice. For 

global consistency, the word ‘‘given’’ is 

replaced with ‘‘accorded.’’ 

Final § 3007.103(c). This paragraph 

codifies the specific procedure relating 

to instances in which the Commission, 

on its own motion, issues notice of a 

preliminary determination. The first 

sentence of final § 3007.103(c), which 

outlines the first step of this process— 

the issuance of notice of a preliminary 

determination, is based on existing 

§ 3007.32(a) and the Postal Service’s 

suggested language. See Postal Service 

Appendix at iv. The second sentence of 

final § 3007.103(c), which sets forth the 

response timeframe, is based on existing 

§ 3007.32(b) and the Postal Service’s 

suggested language, with edits to 

correspond with final § 3007.400(c). See 

id. The third sentence of final 

§ 3007.103(c), which sets forth the 

general rule regarding reply, is based on 

existing § 3007.32(c), with edits to 

correspond with final § 3007.400(d). 

The fourth sentence of final 

§ 3007.103(c), which reflects that the 

Commission will continue to accord 

non-public treatment to the materials 

while the issue is pending, incorporates 

the Postal Service’s suggested text and 

corresponds with final § 3007.400(e). 

See id. The fifth sentence of final 

§ 3007.103(c) which explains the timing 

for the Commission ruling, is based on 

existing § 3007.32(d) and the Postal 

Service’s suggested language, with edits 

to correspond with final § 3007.400(f). 

See id. at iv-v. 

The sixth sentence of final 

§ 3007.103(c), which explains the 

standards for the Commission ruling, is 

based on the Postal Service’s suggested 

text. See id. at v. Specifically, the sixth 

sentence of final § 3007.103(c) replaces 

the Postal Service’s suggested phrase 

‘‘balance the interests of the parties as’’ 

with ‘‘follow the applicable standard.’’ 

This revision is made to more precisely 

encompass both standards (whichever 

may be applicable) appearing in 

paragraphs (a) and (b) of final 

§ 3007.104. This modified phrasing of 

the sixth sentence also corresponds with 

final § 3007.400(f). 

Final § 3007.200(b). The 

parenthetical ‘‘if applicable’’ is replaced 

with ‘‘to the extent practicable.’’ 

Final § 3007.205(c). An additional 

paragraph is added to provide 

additional instruction for an application 

for non-public treatment regarding 

materials that are claimed to have been 

inadvertently submitted publicly. If 

special relief is sought, the application 

for non-public treatment must clearly 

request it. Such special relief may 

include that any person not granted 

access to the materials in accordance 

with the Commission’s rules 

immediately destroy or return all 

versions of such material; refrain from 

disclosing or using such materials (and 

the information contained therein); and, 

if applicable, take reasonable steps to 

retrieve such materials (and the 

information contained therein) that 

were disclosed to any person not 

granted access to the materials in 

accordance with the Commission’s rules 


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21By way of background, the Commission’s ex 

parte rules and policy provide that ex parte 

communications do not include: (1) Documents 

filed using the Commission’s docketing system; (2) 

communications during the course of public 

Commission meetings, hearings, and other widely 

publicized Commission events; (3) communications 

during the course of a public off-the-record 

technical conference associated with a matter before 

the Commission or the pre-filing conference 

required for a nature of service case; (4) questions 

regarding procedures, status, or scheduling; and (5) 

communications unrelated to the matter before the 

Commission. See 39 CFR 3008.2; see also Ex Parte 

Communications Policy, Policy # OGC–16–1, June 

30, 2016, at 7, (Ex Parte Communications Policy) 

available at prc.gov, hover over ‘‘References’’ and 

follow ‘‘Ex Parte Policy’’ hyperlink. 

prior to the filing of the application for 

non-public treatment. 

Final § 3007.300(a)(3). The text is 

clarified to reflect that access may be 

granted without issuance of an order to 

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. 

D. Review of Other Changes Proposed by 

the Public Representative 

The following discussion summarizes 

all changes proposed by the Public 

Representative (other than issues related 

to the expiration of non-public 

treatment), provides analysis, and 

describes the resulting changes made to 

the proposed rules. 

1. Public Representative Comments 

Aside from the issues related to the 

expiration of non-public treatment, the 

Public Representative discusses seven 

major issue areas. See generally PR 

Comments. First, he asserts that a 

framework should be adopted for the 

consistent usage of terminology 

throughout the proposed rules. Id. at 2– 

4. To illustrate this suggestion, the 

Public Representative proposes a 

framework for how to describe the 

manifestations of information, which he 

categorizes into documents, things, and 

communications similar to Federal Rule 

of Civil Procedure 26(b)(5). Id. at 3. As 

an alternative, he suggests adopting the 

‘‘documents or other matter’’ 

terminology based on 39 U.S.C. 504(g). 

Id. at 3, n.5. He acknowledges that fully 

consistent usage may not be possible in 

all instances, specifically with respect to 

the FOIA rules appearing in part 3004 

of this chapter. Id. n.3. 

Second, he contends that proposed 

§ 3007.100(a) omits a reference to the 

ability to claim protection for materials 

provided by the Postal Service of its 

own volition. Id. at 7. Therefore, he 

suggests omitting the reference to 

materials being provided in response to 

a subpoena or request of the 

Commission. Id. 

Third, he suggests the term ‘‘other 

person’’ as used is unclear and that in 

each instance the Commission should 

specify ‘‘person other than the Postal 

Service’’ or ‘‘person other than the 

submitter.’’ Id. 

Fourth, he suggests that the 

Commission consider expansion of the 

proposed rules to apply to information 

exchanged by oral communications 

(meetings or consultations between the 

Commission and the Postal Service and 

users of the mail). Id. at 8. He describes 

past experience in which persons 

attending closed hearings involving the 

discussion of non-public information 

signed non-disclosure agreements prior 

to entry and suggests formalization of 

such procedure would be beneficial. Id. 

Fifth, he notes that filing materials in 

closed dockets is administratively 

inconvenient under the existing Filing 

Online interface—closed dockets are not 

displayed in the menu and Dockets 

personnel typically seek internal 

approval before posting materials in 

closed dockets. Id. He also observes that 

the proposed G docket is not currently 

accessible under the existing Filing 

Online interface. Id. He suggests the 

Commission update its Filing Online 

interface and Dockets procedures to 

accommodate such filings. Id. at 9. 

Sixth, he requests additional 

explanation for the conforming changes 

to proposed § 3004.30. Id. at 11. He 

believes that the proposal ‘‘would 

appear to require the Postal Service to 

concomitantly file a Protective 

Conditions Statement on every occasion 

that non-public information or materials 

are revealed in any discussions or 

consultations with the Commission (or 

an individual Commissioner, or 

Commission staff).’’ Id. He states that he 

does not oppose such a requirement. Id. 

He does not suggest any edits to 

proposed §§ 3004.30 or 3004.70. See id. 

at 10–11. 

Seventh, the Public Representative 

offers specific line-by-line editorial 

revisions to proposed subpart E of 39 

CFR part 3001 and 39 CFR part 3007. 

See id. at 9–10, 11–16. 

2. Commission Analysis 

The following discussion addresses 

the first six major issue areas raised by 

the Public Representative, and then 

addresses the seventh major issue 

through a more detailed discussion of 

the specific line-by-line editorial 

revisions he suggests. 

First, with respect to the Public 

Representative’s suggested framework, 

the Commission clarifies the distinction 

between ‘‘information’’ (the substance, 

such as explanations, confirmations, 

factual descriptions, and data) and its 

manifestations into ‘‘materials’’ 

(tangible matter that conveys 

information). With respect to 

‘‘materials,’’ the Commission 

distinguishes between ‘‘documents’’ and 

‘‘things.’’ This framework parallels the 

‘‘documents or other matter’’ framework 

of 39 U.S.C. 504(g). ‘‘Documents’’ 

convey information in hard copy (paper) 

or electronic forms. All other matter that 

conveys information are referred to as 

‘‘things.’’ Generally, nearly all materials 

submitted to the Commission are 

‘‘documents;’’ ‘‘things’’ is a catch-all 

category for all other matter. Changes to 

implement this framework are made 

throughout the final rules appearing in 

subpart E of 39 CFR part 3001 and 39 

CFR part 3007. 

Second, the Commission agrees that 

deleting proposed § 3007.100(a)’s 

reference to materials being provided 

under a subpoena or in response to a 

Commission request would better 

describe the applicability of protection 

for materials that the Postal Service 

submits to the Commission. The Postal 

Service may seek non-public treatment 

for materials that are submitted to the 

Commission voluntarily. This is 

consistent with existing practice for any 

person (including the Postal Service) 

and the Commission is authorized to 

provide for such procedural 

mechanisms consistent with its general 

rulemaking authority. See 39 U.S.C. 503. 

Third, the Commission agrees that use 

of the phrases ‘‘person other than the 

submitter’’ or ‘‘person other than the 

Postal Service,’’ whichever is 

applicable, would improve clarity. This 

suggestion is adopted globally 

throughout the final rules. 

Fourth, at this time, the Commission 

declines to codify specific rules relating 

to non-public information conveyed 

through oral communications during 

consultations and meetings.21 The 

Commission believes that addressing 

this issue ad hoc is sufficient. With 

respect to communications during 

Commission meetings, hearings, and 

other widely publicized Commission 

events existing Commission policy 

confirms, ‘‘[f]or events that include 

presentation of non-public materials, 

interested persons may be limited to 

persons complying with provisions 

intended to protect non-public 

materials.’’ Ex Parte Communications 

Policy at 8. This policy similarly 

addresses technical conferences ‘‘[i]n 

dockets that include non-public 

materials, interested persons may be 

limited to persons complying with 

provisions intended to protect nonpublic materials.’’ Id. at 15. 


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22See, e.g., 18 U.S.C. 1905 (prohibiting an officer 

or employee of the United States, or of any 

department or agency thereof, from disclosing 

confidential information except as authorized by 

law; prohibited disclosure shall result in removal 

from office or employment as well as monetary 

fines, imprisonment of not more than one year, or 

both). 

By way of additional background, two 

types of informal consultations and 

briefings occur subject to the 

Commission’s ex parte policy that are 

not open to the public. Id. at 13–14. 

First, the Commission and the Postal 

Service regularly consult (at the highest 

organizational levels) to share 

operational information. Id. at 13. 

Second, the Postal Service periodically 

briefs the Commission (at all 

organizational levels) on matters of 

interest. Id. at 14. The communications 

made during these consultations and 

briefings are subject to the ex parte 

policy—discussion of pending or 

anticipated matters before the 

Commission, deliberations, and 

decisional discussions are prohibited. 

Id. at 13–14. Because these 

consultations and briefings are attended 

by officers and employees of the federal 

government (including the Postal 

Service and the Commission), 

protections are already in place under 

the law.22 Moreover, the Commission 

has internal policies and procedures 

that train employees not to disclose 

non-public information, provide 

procedures to immediately report and 

remediate potential exposure in the 

event of breach, and for employee 

discipline (if applicable). Also, as part 

of its standard contracting practice, 

contractors assisting the Commission 

have non-disclosure provisions in their 

contracts and, as suggested by the Postal 

Service, this practice has been formally 

codified in final § 3007.300(a)(3). 

Therefore, the existing safeguards 

applicable to non-public information 

conveyed through oral communications 

render the suggested changes 

unnecessary. Further, the existing rules 

appearing in 39 CFR part 3007 are 

focused on materials that are submitted 

to the Commission in a tangible fashion. 

Fifth, the Commission acknowledges 

the administrative issues noted by the 

Public Representative with respect to 

filing in closed dockets and G dockets. 

The Commission will make the 

necessary technical updates to allow for 

filings in Docket No. G2018–1 by the 

time these final rules will go into effect. 

The existing interface permits filings 

to be made in closed dockets. The 

interface to create a new filing record 

instructs the filer to type remarks into 

a designated box, if the drop-down 

menu does not list the docket number 

in which the filing should be posted. 

The interface explains that any text 

typed into this designated box is viewed 

only by Dockets personnel. Therefore, 

any filer that intends to file in a closed 

docket may use this feature in the 

existing interface to type in the closed 

docket number, consistent with exiting 

practice. 

Sixth, the Commission provides the 

following explanation with respect to 

the requirements applicable to the 

Postal Service’s submitting non-public 

materials outside of a filing (e.g., not in 

the context of docketed proceedings or 

periodic reporting requirements). As 

stated in the NPR, the proposed rules 

‘‘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.’’ Order No. 4403 at 36 (emphasis 

added); see also UPS Comments at 8. 

As the NPR discussed, the existing 

rules do not clearly address the 

applicable procedural requirements if 

the Postal Service submits non-public 

materials to the Commission outside of 

a filing. Order No. 4403 at 14. As the 

NPR explained such submissions may 

occur in accordance with the 

Commission’s ex parte policy. Id. 

The NPR aimed to better address the 

procedural requirements that would be 

applicable if the Postal Service submits 

non-public materials to the Commission 

outside of a filing. Id. This would 

include situations involving the 

submission of materials claimed by the 

Postal Service to contain non-public 

information during the course of 

consultations and briefings that occur in 

accordance with the ex parte policy. See 

id. Accordingly, if the Postal Service 

submits materials to the Commission 

that the Postal Service believes to 

contain non-public information 

(including related to consultations or 

briefings), the Postal Service must 

submit an application for non-public 

treatment, a redacted version of the nonpublic materials, and an unredacted 

version of the non-public materials. See 

id. As the NPR explained, the final rules 

are designed to facilitate the 

Commission’s determination of nonpublic treatment (if any) that should be 

accorded to materials that are submitted 

outside of a docketed proceeding or 

periodic reporting, better ensure that 

confidential treatment is properly 

accorded, and facilitate the 

Commission’s resolution of motions 

practice. See id. 

As applied to the specific procedural 

question presented by the Public 

Representative, if the Commission 

(including an individual Commissioner 

or employee) takes custody of an 

unredacted version of a document 

during a consultation or briefing (e.g., 

the Postal Service employee hand 

delivers or electronically transmits a 

document to a member of the 

Commission or Commission staff) and 

the Postal Service claims that the 

document contains non-public 

information, there must be a 

concomitant submission of the 

application for non-public treatment 

and a redacted version of the document 

in accordance with final §§ 3004.30(d) 

and 3007.200(a). 

This situation, which permissibly 

may occur subject to the ex parte rules 

outside of a docketed proceeding or a 

periodic reporting requirement, does not 

require the use of the Filing Online 

system to submit the application for 

non-public treatment and a redacted 

version of the document. Therefore, in 

the example at issue, it would be 

permissible for the Postal Service 

employee to provide the application for 

non-public treatment and a redacted 

version of the document (concomitantly 

with the unredacted version of the 

document) to a member of the 

Commission or Commission staff. Final 

§§ 3007.201 and 3007.202 impose 

requirements for the contents of the 

application for non-public treatment 

and the redacted version of the 

document claimed to contain nonpublic information. The same content 

requirements apply to persons other 

than the Postal Service that submit nonpublic materials under final 

§ 3004.70(a). See Order No. 4403 at 15, 

36. 

The unredacted version of the nonpublic document (displaying the 

information that is claimed to be nonpublic) must be appropriately marked in 

accordance with final § 3007.203(a). In 

accordance with final § 3007.203(b), the 

Filing Online interface that results in 

the posting of a document on the 

Commission’s public website may not 

be used to submit the unredacted 

version of a non-public document. If the 

non-public document is a spreadsheet, 

more specific form requirements apply 

to the unredacted version under final 

§ 3007.203(d). Submission of the 

unredacted version of the non-public 

document that is made during a 

consultation or briefing is not required 

to be made using sealed envelopes or 

the alternative system approved by the 

Secretary under final § 3007.203(c)). 

Because the issues discussed during 

such consultation or briefing do not 

involve discussion of pending or 

anticipated matters before the 


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23 It is also important to recognize that 

information requests serve as a Commission 

procedure separate and distinct from the discovery 

mechanisms appearing in existing 39 CFR part 3001 

such as depositions, requests for admissions, 

interrogatories, and requests for production. 

Commission, deliberations, or 

decisional discussions, the Commission 

does not interpret its final rules to 

require use of either filing method. 

However, a person making such 

submission should use care to ensure 

that he or she does not waive any 

applicable protection; using sealed 

envelopes for hard copy materials or a 

secure transmission method for 

electronic submissions would be 

prudent. The same requirements apply 

to persons other than the Postal Service 

that submit non-public materials under 

final § 3004.70(a). See id. 

With respect to the Public 

Representative’s inquiry regarding nonpublic information conveyed through 

oral communications at consultations 

and briefings (in accordance with the ex 

parte rules), as stated above, the 

Commission does not adopt a specific 

procedural rule. The final rules apply to 

materials—documents and things—not 

oral communications. The protection of 

non-public information exchanged 

orally will continue to be handled 

through the existing safeguards. 

Seventh, generally the Public 

Representative’s editorial revisions 

(with some variations) are adopted to 

improve the clarity and precision of the 

final rules. Additional explanation 

follows. 

Proposed § 3001.100. The 

Commission generally adopts the 

proposed editorial changes to improve 

readability and conform to the 

distinction between information and the 

materials used to convey information. 

See PR Comments at 9, 17–18. 

With respect to the distinctions 

between types of materials, the final 

rule varies slightly from the Public 

Representative’s proposal. The Public 

Representative proposes to categorize 

materials into documents, things, and 

communications similar to Federal Rule 

of Civil Procedure 26(b)(5). Id. at 3. As 

an alternative, he suggests categorizing 

materials into ‘‘documents or other 

matter’’ based on 39 U.S.C. 504(g). Id. at 

3, n.5. As discussed above, the 

Commission uses the terms documents 

and things as its framework for 

describing the types of materials that 

may be provided to the Commission. 

The final rule informs the reader that 

the information request may seek 

information that already exists in some 

tangible form as well as the creation of 

a tangible document or thing that 

describes the information sought. 

Whether the response might involve the 

creation of a tangible document or thing 

or the identification of an existing 

document or thing depends on the 

situation. The final rule is intended to 

be construed broadly to encompass 

whichever would be applicable and 

appropriately responsive to the 

information request. This is consistent 

with existing practice before the 

Commission. 

To the extent that information that 

was orally communicated is sought, the 

information request would typically 

seek the underlying substance of the 

oral communication through tangible 

matter (e.g., explanations, 

confirmations, factual descriptions, and 

data). Generally, the person responding 

to the information request would create 

document(s) or thing(s) to convey the 

underlying substance of the 

communication or identify existing 

responsive document(s), whichever may 

be applicable and appropriately 

responsive. As an example, a response 

to an information request may involve 

creating a narrative response containing 

the requested explanations, 

confirmations, factual descriptions; 

creating workpapers or tables containing 

the requested data; or identifying 

responsive document(s) or thing(s) that 

already exist. 

Practice before the Commission 

differs from practice before federal 

courts in that occurrence of oral 

communications are rarely at issue in 

information requests.23 In the unlikely 

instance that the occurrence of the oral 

communication itself was at issue in an 

information request, then the 

information request would likely seek a 

document or thing memorializing the 

occurrence of such oral communication. 

As an example, a response to such an 

information request may involve 

creating a narrative response containing 

confirmation that the oral 

communication at issue occurred (or did 

not occur), a description of the facts 

surrounding the occurrence (or nonoccurrence) of the oral communication, 

or identification of an existing 

responsive document or thing relating to 

the occurrence (or non-occurrence) of 

the oral communication. 

Proposed § 3001.101. The 

Commission generally adopts the 

proposed editorial changes to improve 

readability and conform to the 

framework of information, documents, 

and things. See id. at 10, 19–20. The 

Commission also adopts the proposed 

change of the second sentence of 

paragraph (b) to the passive voice to 

minimize confusion regarding the 

ability of the Chairman of the 

Commission or the presiding officer to 

make a judgment independent of the 

full Commission. 

The references to ‘‘filing’’ a motion 

are deleted in paragraph (b) to reduce 

unnecessary text. The Commission does 

not interpret paragraph (b) to prohibit a 

motion from being stated orally on the 

record; these references to ‘‘filing’’ a 

motion appear in existing § 3007.3(c). 

However, the movant may be instructed 

to reduce his or her oral motion to a 

writing and file it under § 3001.30(g) of 

this chapter. The proposed change to 

abbreviate the end of the third sentence 

of paragraph (b) is not adopted; the 

additional text is retained in the final 

version of the rule to better inform the 

reader of what an information request 

based on a motion may include. 

Proposed § 3007.100. The 

Commission generally agrees with the 

issues raised by the Public 

Representative. See id. at 11. With 

respect to applicability, the text of 

proposed § 3007.100 is redesignated as 

final § 3007.100(a) with four 

subparagraphs (1)–(4). Because the rules 

appearing in 39 CFR part 3007 are 

derived not only from the Commission’s 

specific authority in 39 U.S.C. 504(g), 

but also the Commission’s general 

rulemaking authority (see Order No. 

4403 at 6), the specific cross-reference is 

deleted to minimize confusion. 

Therefore, the final rule abbreviates the 

Public Representative’s suggested text. 

Similarly, the text quoted directly from 

section 504(g)(1) of title 39 relating to 

materials provided by the Postal Service 

in response to a subpoena or otherwise 

at the request of the Commission is 

deleted to minimize confusion. The 

Postal Service may provide materials to 

the Commission in the absence of a 

subpoena or a direct Commission 

request and apply for non-public 

treatment, if circumstances warrant. 

Generally, the other clarifying 

language suggested by the Public 

Representative is adopted throughout 

final § 3007.100(a). See PR Comments at 

11. In final § 3007.100(a)(3) and (4), a 

simpler phrase, ‘‘any person,’’ is 

adopted in lieu of the suggested phrase, 

‘‘the Postal Service or any person other 

than the Postal Service.’’ 

Throughout final § 3007.100(a)(1)–(4), 

edits are made to conform to the 

distinction between information and the 

materials used to convey information. 

Final § 3007.100(b), which replicates the 

scope text appearing in final 

§ 3001.100(b), is added to assist readers. 

Proposed § 3007.101(a). The 

Commission generally adopts the 

proposed edits to the first sentence, to 

better distinguish between information 

and the means of conveying 

information, with minor variations to fit 


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the selection of the documents or things 

framework. See id. at 24. The 

Commission also adopts the Public 

Representative’s suggestion to divide 

the text into more sentences. See id. at 

11–12. Accordingly, three revised 

sentences explain the applicable bases 

for the Postal Service, any person other 

than the Postal Service, and any person 

to claim that information is non-public. 

The final rule varies slightly from the 

Public Representative’s suggestion to 

reflect the potential that any person 

(including the Postal Service) may cite 

to 5 U.S.C. 552(b) as a basis to claim that 

information is non-public. Potential 

examples involving a person other than 

the Postal Service may involve another 

government agency subject to FOIA or a 

business providing information in 

accordance with 5 U.S.C. 552(b)(4). 

The Commission declines to adopt the 

Public Representative’s suggestion to 

replace the proposed terminology 

‘‘publicly discloses’’ with ‘‘publicly 

provides access to’’ the materials to 

avoid potential confusion with access 

granted subject to protective conditions. 

See id. at 24. 

Proposed § 3007.102. In response to 

the Public Representative’s concern, 

edits are adopted to more explicitly 

convey that disclosure of or access to 

the non-public information contained 

within non-public materials is 

prohibited, except in accordance with 

final 39 CFR part 3004 or final 39 CFR 

part 3007. See id. at 12. 

Proposed § 3007.104. The 

Commission adopts the Public 

Representative’s suggestion to clarify 

the distinction between materials and 

the information conveyed therein in the 

heading and in paragraph (a). See id. at 

12, 26. The Commission declines to 

adopt the suggestion to replace the 

proposed terminology ‘‘publicly 

disclose’’ and ‘‘public disclosure of’’ in 

the heading and in paragraph (a) with 

‘‘publicly allow access to’’ and ‘‘public 

access to’’ materials to avoid potential 

confusion with access granted subject to 

protective conditions. See id. at 26. 

The Commission agrees with the 

Public Representative that the 

description of the standard in paragraph 

(b) should be amplified and adopts his 

suggestion. See id. at 12–13. 

Proposed § 3007.200. The 

Commission adopts the Public 

Representative’s proposed edit in 

paragraph (a) to use the word 

‘‘concomitantly’’ rather than ‘‘on the 

same business day’’ to emphasize that 

the submissions shall occur as closely in 

time as practicable on the same business 

day. See id. at 13, 26. 

The Commission adopts the Public 

Representative’s proposed clarifying 

edits in paragraph (b). See id. at 13, 27. 

Proposed § 3007.201(b). The 

Commission adopts the Public 

Representative’s proposed clarifying 

edits in paragraph (b), with one 

exception. See id. at 13, 27–28. The 

phrase ‘‘or both’’ is retained in 

subparagraph (b)(2) to emphasize that 

the submitter must either identify 

multiple individuals or ensure that a 

single designated individual will 

provide notice to the affected person. 

Proposed § 3007.202. Taking the view 

that this proposed rule only applies to 

documents, not all materials, the Public 

Representative suggests limiting its 

applicability accordingly in the heading 

and in paragraph (a). See id. at 14, 29. 

Generally, the Commission’s rules focus 

on documents (either hard copy or 

electronic). Although the category of 

‘‘things’’ is simply a catch-all, that is 

unlikely to be used, paragraphs (b) and 

(c) allow sufficient flexibility to account 

for the practical difficulty in redacting 

a thing. Therefore, the Commission 

declines to adopt this suggestion. The 

Commission adopts the Public 

Representative’s other proposed 

clarifying edits in paragraph (a) to more 

precisely refer to the information that is 

claimed to be non-public. See id. at 29. 

The two line edits suggested for the 

first sentence of paragraph (b) are not 

adopted because they are not necessary. 

See id. First, using ‘‘shall’’ is sufficient 

to convey that it is mandatory to justify 

using a method other than blackout to 

redact non-public information 

appearing in the materials. Second, 

replacing ‘‘using’’ with ‘‘the use of’’ 

does not produce an appreciable 

improvement in clarity. 

Proposed § 3007.203. The 

Commission adopts the suggestions to 

re-divide the paragraphs, with some 

variations. See id. at 30–31. Final 

paragraph (a) pertains solely to the 

marking requirement; final paragraph 

(b) pertains to the prohibition on using 

the Filing Online interface that results 

in the public posting of a document; 

final paragraph (c) pertains to the 

method to file non-public materials; and 

final paragraph (d) pertains to 

requirements specific to non-public 

spreadsheets. 

The Commission generally adopts the 

suggested edits to final paragraph (a) 

with minor variations due to the 

selection of the documents or things 

framework. See id. at 14, 30. 

The Commission adds an additional 

phrase to the first sentence of final 

paragraph (b) to accommodate the 

potential that the existing Filing Online 

interface may be modified to accept 

non-public documents in a secure 

manner. See id. at 14. The existing 

Filing Online interface causes a public 

filing to be made, leading to the posting 

of a document to the Commission’s 

public-facing website. Filers may not 

submit the unredacted version of the 

non-public materials (the version that 

displays the non-public information) 

using the existing Filing Online 

interface. 

In final paragraph (c), the suggestion 

to replace ‘‘materials’’ with 

‘‘documents’’ is adopted in part. See id. 

at 14, 30–31. This change is not adopted 

in the introductory text of final 

paragraph (c); instead, other text is 

deleted so that the sentence is more 

generally applicable. In final 

subparagraph (c)(1), text pertaining to 

materials, as a broad category, is 

confined to the first two sentences. The 

suggestion to refer specifically to a 

document is adopted in the third and 

fourth sentences of final subparagraph 

(c)(1). This change is also not adopted 

in final subparagraph (c)(2); the 

Secretary’s authority to approve and 

administer an alternative filing system 

includes all materials. 

The suggestion to reword final 

subparagraph (c)(2)’s reference to the 

Secretary is adopted. See id. at 31. The 

suggested additional description is 

adopted in the third sentence of final 

subparagraph (c)(1) to reflect that 

‘‘DVDs’’ may be digital video discs or 

digital versatile discs. See id. at 14, 31. 

The Commission agrees with the 

Public Representative’s observation that 

the requirements relating to 

spreadsheets appearing in proposed 

subparagraph (b)(1) are off-topic. See id. 

at 14. The Commission appreciates his 

suggestion to address certain 

requirements for spreadsheets in a 

different part of the Commission’s 

regulations and may consider it in 

future rulemaking. Moving these two 

sentences to final paragraph (d) 

minimizes the diversion. The reason 

that the sentences are not deleted from 

final § 3007.203 is to convey that there 

are certain minimal form and content 

requirements associated with the 

unredacted version of a spreadsheet, a 

matter that is entirely within the scope 

of 39 CFR part 3007. This is necessary 

to include because in some instances 

the formulas and links to related 

spreadsheets contain non-public 

information and, therefore, are masked 

in the redacted version of the 

spreadsheet. 

Proposed § 3007.204. The clarifying 

language suggested by the Public 

Representative is adopted in the header 

and text. See id. at 14, 31. 


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24 In federal practice, sanctions are mandatory 

‘‘[i]f a certification violates this rule without 

substantial justification.’’ Fed. R. Civ. P. 26(g)(3). 

25See Fed. R. Civ. P. 26(g)(3) (‘‘If a certification 

violates this rule without substantial justification, 

the court, on motion or on its own, must impose 

an appropriate sanction on the signer, the party on 

whose behalf the signer was acting, or both.’’) 

(emphasis added). 

26See Merriam-Webster Dictionary, available at 

http://www.merriam-webster.com/dictionary/ 

disclose (‘‘disclose’’ defined as ‘‘to expose to view’’ 

and ‘‘to make known or public’’). 

Proposed § 3007.205. With respect to 

the suggestion to replace ‘‘could’’ with 

‘‘should’’ in the first sentence, the 

Commission instead rephrases to better 

focus the issue not on the technical 

capability of making a sealed filing but 

rather on having a cognizable legal basis 

to assert a claim that the materials could 

have been subject to a claim for nonpublic treatment. See id. at 14–15, 32. 

The Commission declines to use 

‘‘should’’ to avoid a potential 

interpretation that the final rule 

prejudges whether the materials at issue 

actually should (ought to) be withheld 

from the public. 

With respect to the suggestion to 

strike the last sentence pertaining to 

repeated mistakes, the Commission 

declines to adopt the suggestion. See id. 

at 15, 32. This sentence is retained to 

notify the reader that any reoccurring 

problems may be addressed by the 

Secretary administratively. It is also 

retained to emphasize that this 

procedure to minimize the potential 

exposure from an error made by a filer 

is meant to be rarely invoked. 

With respect to the suggestion to 

strike text to broaden the rule’s 

applicability to materials submitted 

outside the context of a formal filing, 

the Commission instead incorporates 

this suggestion in a separate final 

paragraph (b). See id. Because such 

submissions related to consultations 

and briefings would most likely not be 

directed to Dockets personnel, the 

person making the request should 

contact the Commission personnel to 

whom the submission was directed. The 

heading of the final rule is changed to 

accommodate the addition of final 

paragraph (b). 

Proposed § 3007.301. The 

Commission adopts the Public 

Representative’s proposed clarifying 

edits in paragraphs (a), (b)(1), and (e). 

See id. at 15, 34, 36. The Commission 

agrees with the Public Representative 

that the description of the standard in 

paragraph (e) should be amplified and 

adopts his suggestion. See id. at 15. 

Proposed § 3007.302. The 

Commission adopts the Public 

Representative’s proposed clarifying 

edit in paragraph (a). See id. at 15, 36. 

Proposed § 3007.303. The 

Commission adopts the Public 

Representative’s proposal to replace 

‘‘shall’’ with ‘‘may’’ in paragraph (a) to 

acknowledge that a sanction may not be 

applied in every instance of an 

infraction. See id. at 15, 37. This change 

is consistent with the practice employed 

by federal courts and is equivalent to 

retaining the word ‘‘shall’’ and applying 

a nominal sanction.24 The Commission 

adopts his suggestions to provide two 

additional illustrative types of sanctions 

in final paragraphs (a)(3)–(4). See PR 

Comments at 16, 37. 

The Commission declines to adopt the 

proposed edit in paragraph (b). See id. 

at 16, 38. The phrase ‘‘or both’’ is 

retained to emphasize precisely who 

may face sanctions.25

Proposed § 3007.304. The 

Commission agrees with the Public 

Representative’s observation that it 

would be beneficial to convey that if 

judicial review occurs, access may 

continue through the duration of the 

review and any Commission response 

thereto. See PR Comments at 16. Final 

paragraph (a)(1) varies slightly from the 

suggested edit because if judicial review 

does occur, the final event triggering 

termination of access would be when 

judicial review expires for that decision 

or the Commission’s actions in response 

to that decision. See id. at 38. 

Proposed § 3007.400. The Public 

Representative suggests changing 

terminology from ‘‘public disclosure’’ or 

‘‘publicly disclosed’’ to using ‘‘public 

availability’’ or ‘‘made publicly 

available’’ in the heading of Subpart D, 

the heading of proposed § 3007.400, and 

the text of proposed § 3007.400(b). See 

id. at 45. The suggested changes are not 

adopted because they are unnecessary. 

Using terminology based on the phrase 

‘‘publicly disclose’’ appears in existing 

§ 3007.33(a) and (b) (describing the 

applicable standard for the Commission 

ruling) to refer to unsealing materials 

filed as non-public (and the information 

therein claimed to be non-public). This 

terminology has been retained in final 

§ 3007.104(a) and (b) and it has been 

used globally throughout the final rules. 

Using terminology based on the term 

‘‘disclose’’ is sufficient to refer to 

unsealing materials filed as non-public 

(and the information therein claimed to 

be non-public).26 The Public 

Representative’s proposed clarifying 

edit to replace ‘‘materials’’ with 

‘‘information’’ in the second sentence of 

paragraph (b) is adopted. See PR 

Comments at 45. 

3. Changes to the Proposed Rules 

Each line-by-line change to the 

proposed rules made in response to the 

Public Representative’s comments is 

reviewed below. Editorial changes made 

solely to improve global consistency, 

clarity, or precision are also reviewed 

below where applicable to the final rule 

at issue. The following changes to the 

proposed rules appear in the final rules. 

Final § 3001.100(a). This paragraph is 

divided into subparagraphs (1) and (2) 

to improve readability. The phrase 

‘‘other person’’ in final § 3007.100(a)(2) 

is clarified to refer to ‘‘person other than 

the Postal Service.’’ Editorial changes 

are made throughout final 

§ 3007.100(a)(1)–(a)(2) to clarify that 

information, and any associated 

documents or things, may be sought. 

Final § 3001.100(b). This paragraph is 

clarified to better illustrate the 

distinctions between information 

(substantive knowledge) and materials 

(the means of conveyance of 

information). A non-exhaustive list of 

examples of documents is provided. 

Things is a catch-all category for 

materials that are not documents. 

Final § 3001.101(a). This paragraph is 

clarified to conform to the framework of 

information, documents, and things. 

The phrase ‘‘the Postal Service or any 

other person’’ is simplified to ‘‘any 

person.’’ 

Final § 3001.101(b). This paragraph is 

edited to conform to the framework of 

information, documents, and things. 

The references to ‘‘filing’’ of a motion 

are deleted to simplify the text. The 

second sentence is changed to the 

passive voice is made to minimize 

confusion regarding the ability of the 

Chairman of the Commission or the 

presiding officer to make a judgment on 

a pending motion for issuance of an 

information request independent of the 

full Commission. 

Final § 3004.70. The Commission 

replaces the word ‘‘nonpublic’’ with 

‘‘non-public’’ in paragraphs (b) and (c) 

for consistent usage of terminology 

throughout this rule. 

Final § 3007.100. Text is added to the 

heading to refer to scope. The text of the 

final rule is reorganized into paragraphs 

(a) and (b) to address applicability and 

scope. Descriptive headings are added at 

the paragraph-level. 

Final § 3007.100(a). A descriptive 

paragraph-level heading is added. The 

first sentence is abbreviated to remove 

the statutory cross-reference. Each of the 

described situations of applicability are 

reorganized into four subparagraphs (1) 

through (4). Throughout subparagraphs 

(1) through (4), text is conformed to the 

distinction between materials and the 


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information contained in materials. In 

subparagraph (1), the phrase ‘‘under a 

subpoena issued under 39 U.S.C. 504(f), 

or otherwise at the request of the 

Commission’’ is deleted to more 

precisely reflect that the Postal Service 

may seek protection for materials that it 

submits to the Commission voluntarily. 

In subparagraph (2), the phrase ‘‘other 

person’’ is clarified to refer to ‘‘person 

other than the Postal Service.’’ In 

subparagraphs (3) and (4), the phrase 

‘‘the Postal Service or any other person’’ 

is simplified to ‘‘any person.’’ In 

subparagraphs (3) and (4), the phrase 

‘‘in the process of’’ is added for 

clarification. 

Final § 3007.100(b). A descriptive 

paragraph-level heading is added. New 

text is added to illustrate the 

distinctions between information, 

documents, things, and materials. 

Final § 3007.101(a). This paragraph is 

edited to conform to the framework of 

information, documents, and things. 

The various bases for seeking nonpublic treatment are subdivided into 

multiple sentences to clarify which 

basis is applicable to the Postal Service, 

persons other than the Postal Service, or 

both. 

Final § 3007.102. Textual references 

to non-public information are added to 

clarify that the final rules apply to the 

non-public information contained 

within non-public materials. 

Final § 3007.104. The heading and 

text of paragraph (a) are edited to reflect 

that materials contain information. 

Additional clarifying text is added to 

paragraph (b) to better explain that the 

Commission will use an analytical 

framework consistent with that of a 

federal court when applying the 

protective conditions appearing in 

Federal Rule of Civil Procedure 26(c). 

Final § 3007.200(a). To convey that 

the submissions shall be made as 

closely in time as practicable on the 

same business day, the phrase ‘‘on the 

same business day’’ is replaced with 

‘‘concomitantly.’’ 

Final § 3007.200(b). Text is conformed 

to the distinction between materials and 

the information contained therein. For 

clarity, the phrase ‘‘other person’’ is 

replaced with ‘‘person other than the 

submitter.’’ 

Final § 3007.201(a). For global 

consistency, the word ‘‘material’’ is 

replaced with ‘‘materials.’’ 

Final § 3007.201(b)(2)–(3). Text is 

conformed to the distinction between 

materials and the information contained 

therein. For clarity, the phrase ‘‘other 

person’’ is replaced with ‘‘person other 

than the submitter.’’ 

Final § 3007.202(a). Text is conformed 

to the distinction between materials and 

the information contained therein. 

Final § 3007.203(a). This paragraph is 

edited to more plainly emphasize that 

the materials must be appropriately 

marked on each page or portion thereof. 

Final § 3007.203(b). In the first 

sentence, text is added to emphasize 

that the prohibition applies to using the 

Filing Online interface that results in 

posting a document that is available to 

the public. 

Final § 3007.203(c). The requirements 

specific to filing methods are 

redesignated as a separate paragraph 

with editorial revisions. The crossreference and the descriptive text 

concerning the requirements are deleted 

to reduce unnecessary text. 

Organization and textual edits are made 

to subparagraph (c)(1) to reflect 

requirements applicable to materials 

versus requirements that only apply to 

documents. A second description of 

DVD is added in subparagraph (c)(1). 

Subparagraph (c)(2) has been reworded 

to refer to ‘‘[t]he secretary of the 

Commission.’’ 

Final § 3007.203(d). The requirements 

specific to spreadsheets are redesignated 

as a separate paragraph with editorial 

revisions. 

Final § 3007.204. For clarity, the 

phrase ‘‘other person’’ is replaced with 

‘‘person other than the submitter’’ in the 

heading and text of the final rule. 

Final § 3007.205. The heading is 

changed to accommodate the addition of 

final paragraph (b). 

Final § 3007.205(a). For clarity, the 

phrase ‘‘filed non-publicly’’ is changed 

to ‘‘subject to a claim for non-public 

treatment is contained.’’ For global 

consistency, the word ‘‘material’’ is 

replaced with ‘‘materials.’’ The tenses of 

the associated verbs are conformed to 

reflect the changes from singular to 

plural nouns. 

Final § 3007.205(b). This paragraph is 

added to provide a procedure to address 

inadvertent submissions that may occur 

outside the context of public filings. 

Final § 3007.301. Paragraph (a) and 

subparagraph (b)(1) are edited to 

conform to the distinctions between 

information and materials. For clarity in 

paragraph (e), the phrase ‘‘other person’’ 

is replaced with ‘‘person other than the 

submitter.’’ Additional clarifying text is 

added to the fourth sentence in 

paragraph (e) to better explain that the 

Commission will use an analytical 

framework consistent with that of a 

federal court when applying the 

protective conditions appearing in 

Federal Rule of Civil Procedure 26(c). 

Also, the inadvertent repetition of the 

words ‘‘balance the’’ is corrected in the 

fourth sentence in paragraph (e). 

Final § 3007.302(a). Explicit reference 

to the non-public information contained 

within non-public materials is added. 

Commas are added for clarity. 

Final § 3007.303(a). The word ‘‘shall’’ 

is changed to ‘‘may’’ for precision. Two 

types of illustrative sanctions are added 

in final § 3007.303(a)(3) and (4). To 

accommodate the new text, the catch-all 

content appearing in proposed 

§ 3007.303(a)(3) is redesignated as final 

§ 3007.303(a)(5). 

The phrase ‘‘any or all of the 

following’’ is added to the introductory 

text of paragraph (a) to better convey 

that the sanctions appearing in 

subparagraphs (1)–(5) are illustrative, 

and that the Commission may determine 

to apply any or all of them. 

Corresponding with this change, the 

word ‘‘or’’ is used in subparagraph (4). 

Final § 3007.304(a)(1). Text is added 

to reflect that access may continue 

throughout the duration of the 

Commission’s response to judicial 

review (if applicable). 

Final § 3007.400(a). For global 

consistency, the word ‘‘material’’ is 

replaced with ‘‘materials.’’ 

Final § 3007.400(b). For precision, the 

word ‘‘materials’’ is replaced with 

‘‘information’’. 

Final § 3007.400(f). For global 

consistency, the word ‘‘given’’ is 

replaced with ‘‘accorded’’ in the second 

sentence. In the last sentence, the 

phrase ‘‘balance the interests of the 

parties as’’ is replaced with ‘‘follow the 

applicable standard’’ to more precisely 

encompass both standards (whichever 

may be applicable) appearing in 

paragraphs (a) and (b) of final 

§ 3007.104. This modified phrasing of 

this last sentence also corresponds with 

final § 3007.103(c). 

IV. Section-by-Section Analysis of the 

Final Changes to 39 CFR Part 3001 

Final subpart E of 39 CFR part 3001. 

The Commission adds subpart E to 

existing 39 CFR part 3001. 

Existing §§ 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 

moves 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 rules to 

existing 39 CFR part 3001, the 

Commission adds proposed subpart E to 

39 CFR part 3001. Final subpart E to 39 


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27Such 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, 

Continued 

CFR part 3001 contains two rules 

applicable to information requests. 

Final § 3001.100 Applicability and 

scope. The first sentence of final 

§ 3001.100(a) mirrors the first sentence 

of existing § 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 § 3007.3(b), the second 

sentence of final § 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. 

Final § 3001.100(b) is based on the 

second sentence of existing § 3007.2 and 

includes a non-exhaustive list of the 

types of information that may be sought 

in an information request. Final 

§ 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. 

Final § 3001.101 Information 

request. Final § 3001.101(a) combines 

existing § 3007.3(a) and (b). Final 

§ 3001.101(a) provides that an 

information request may be directed to 

any person (including the Postal 

Service) and describes the contents of 

an information request. Final 

§ 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, final 

§ 3001.101(a) provides that the issuance 

of an information request is 

discretionary. 

Final § 3001.101(b) is based on 

existing § 3007.3(c). Final § 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. Final 

§ 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. 

V. Section-by-Section Analysis of the 

Final Changes to 39 CFR Part 3004 

Final § 3004.30 Relationship among 

the Freedom of Information Act, the 

Privacy Act, and the Commission’s 

procedures for according appropriate 

confidentiality. The Commission 

amends the introductory text to 

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 

final subpart B of 39 CFR part 3007. The 

Commission also amends 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. 

Final § 3004.70 Submission of nonpublic materials by a person other than 

the Postal Service. The Commission 

amends 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 amends 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 final subpart B of 39 CFR 

part 3007. The Commission also amends 

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 

amends paragraph (c) of the existing 

rule so as to update the cross-reference 

to the provision containing the 

requirements for an application for nonpublic treatment from existing § 3007.10 

to final § 3007.201. Finally, the 

Commission replaces the word 

‘‘nonpublic’’ with ‘‘non-public’’ in 

paragraphs (b) and (c) for consistent 

usage of terminology throughout this 

final rule. 

VI. Section-by-Section Analysis of the 

Final Changes to 39 CFR Part 3007 

As described below, the Commission 

amends 39 CFR part 3007 by replacing 

the existing heading and text of the 

rules. 

Final heading identified in 39 CFR 

part 3007. The Commission revises 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 

materials filed by the Postal Service. 

A. Final Subpart A of 39 CFR Part 

3007—General Provisions 

Final subpart A of 39 CFR part 3007. 

The Commission adds subpart A to 39 

CFR part 3007 containing general 

provisions. 

Final § 3007.100 Applicability and 

Scope. Final § 3007.100(a) identifies 

that final 39 CFR part 3007 applies 

when: (1) The Postal Service claims that 

any materials it provides to the 

Commission contain non-public 

information; (2) any person other than 

the Postal Service 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 by any person (including the 

Postal Service) to contain non-public 

information; or (4) the Commission is 

determining what protective conditions 

should apply to any person (including 

the Postal Service) that is accessing nonpublic materials. Final § 3007.100(b) 

sets forth the scope by distinguishing 

between information (the substance) 

and materials (tangible matter that 

conveys information). Materials refers to 

documents and things. Examples of 

documents are provided. Things refers 

to a catch-all category for tangible 

matter used to convey information that 

is not a document. 

Final § 3007.101 Definitions. Final 

§ 3007.101(a) is based on the definition 

of non-public materials appearing in 

existing § 3007.1(b). 

Final § 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 § 3007.1(b) if 

the claim for non-public treatment is 

made by the Postal Service. This final 

rule reflects the Commission’s practice 

to treat such information as non-public 

materials regardless of who submits the 

materials and regardless of who makes 

the claim for non-public treatment. This 

final rule clarifies that non-public 

information includes commercially 

sensitive information, whether it 

belongs to the Postal Service or any 

other person.27


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which under good business practice would not be 

publicly disclosed.’’ 

28 39 CFR 3001.5(f) provides ‘‘[p]erson means an 

individual, a partnership, corporation, trust, 

unincorporated association, public or private 

organization, or governmental agency.’’ 

Final § 3007.101(a) adds that 

materials cease to be non-public (except 

for inadvertent public submissions 

corrected in accordance with final 

§ 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 final rule reflects that consensual 

voluntary public disclosure of materials 

that were initially claimed to be nonpublic has been used to resolve issues 

of whether public or non-public 

treatment should apply in some 

instances. This final rule 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 a person other than the 

submitter that has a proprietary interest 

in the materials. This final rule clarifies 

that the cessation of non-public status 

applies to the particular document or 

thing and the particular information 

contained therein. 

Final § 3007.101(b) defines 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 § 3001.5(f) of this chapter, this 

final rule uses person to include both a 

natural person (individual) and a legal 

person (entity).28

Final § 3007.102 Treatment of nonpublic materials. Final § 3007.102(a) 

incorporates existing § 3007.23, which 

informs the reader that the Commission 

will not disclose or allow access to nonpublic materials, except as provided by 

39 CFR part 3007. Final § 3007.102(a) 

adds a cross-reference to the 

Commission’s FOIA regulations in 39 

CFR part 3004 and adds a parenthetical 

to refer to the non-public information 

appearing in non-public materials. 

Final § 3007.102(b) retains the content 

of existing § 3007.60. Final 

§ 3007.102(b) adds references to nonpublic information so as to clearly 

encompass the non-public information 

appearing in non-public materials. 

Final § 3007.103 Commission action 

to determine non-public treatment. 

Final § 3007.103 informs the reader 

about the types of action that the 

Commission may take after receiving 

non-public materials. Final § 3007.103 

is divided into three paragraphs. 

Final § 3007.103(a) informs the reader 

that the Commission may seek 

additional information to determine the 

non-public treatment, if any, to be 

accorded to materials claimed be nonpublic. Consistent with practice, final 

§ 3007.103(a) identifies examples such 

as the issuance of information requests, 

preliminary notices, or interim orders. 

Final § 3007.103(b) states that upon a 

motion by any person, the Commission 

may issue an order containing a 

description of the non-public treatment 

accorded (if any) and the timeframe for 

which non-public treatment is accorded. 

Final § 3007.103(c) is based on the 

procedure appearing in existing 

§ 3007.32, which provides the specific 

procedure relating to instances in which 

the Commission, on its own motion, 

issues notice of a preliminary 

determination of non-public treatment. 

Final § 3007.103(c) sets forth the 

response timeframe, the general rule 

regarding reply, and the timing and 

standards for the Commission ruling. 

Final § 3007.104 Standard for public 

disclosure of materials claimed to 

contain non-public information. Final 

§ 3007.104 incorporates the content 

appearing in existing § 3007.33. Final 

§ 3007.104(a) modifies the language 

appearing in existing § 3007.33(a) 

because the existing rule did not appear 

to contemplate situations where 

materials containing Postal Service nonpublic 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. 

Final § 3007.104(b) modifies the content 

of existing § 3007.33(b) by replacing the 

reference to ‘‘a third party’’ to more 

precisely reflect that this final rule 

applies to materials that are claimed to 

be non-public because the materials 

contain the proprietary information of 

any person other than the Postal 

Service. Final § 3007.104(b) amplifies 

the explanation of the standard 

appearing in existing § 3007.33(b) by 

stating that the Commission will use an 

analytical framework consistent with 

that of a federal court when applying 

the protective conditions appearing in 

Federal Rule of Civil Procedure 26(c). 

B. Final Subpart B of 39 CFR Part 

3007—Submitting Non-Public Materials 

and Seeking Non-Public Treatment 

Final subpart B of 39 CFR part 3007. 

The Commission adds 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. 

Final § 3007.200 General 

requirements for submitting non-public 

materials and seeking non-public 

treatment. Final § 3007.200 explains the 

process to provide non-public materials 

to the Commission applicable to all 

submitters. Final § 3007.200(a) requires 

the provision of three things as closely 

in time as practicable on the same 

business day—an application for nonpublic 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. Final § 3007.200(a) unifies 

aspects of the content of existing 

§§ 3007.10, 3007.20(a), 3007.21(a), and 

3007.22(a). 

Final § 3007.200(a) also addresses 

situations that are not adequately 

addressed in the existing rules. Existing 

§§ 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 materials to 

the Commission outside of a filing made 

in accordance with §§ 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 will facilitate 

the Commission’s determination of nonpublic 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, these requirements 

will facilitate the Commission’s 

resolution of motions practice related to 

those materials. 

Moreover, although existing 

§ 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 final 

§ 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) 


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must include an application. Existing 

§ 3004.70(a) reflects that a third party 

submitting materials claimed to be nonpublic to the Commission ‘‘may’’ lodge 

an application for non-public treatment. 

Requiring the submission of an 

application by any submitter of nonpublic materials will promote fairness 

and will facilitate the Commission’s 

determination of the type and degree of 

non-public treatment (if any) that 

should be accorded to those materials. 

Final § 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 the 

information contained in the non-public 

materials. This final rule expands the 

application of existing § 3007.20(b) to 

Postal Service submissions made 

outside formal filings and to 

submissions made by persons other than 

the Postal Service. The final rule will 

better ensure the protection of an 

affected person’s proprietary 

information contained in the materials 

by giving the affected person an 

opportunity to file an application for 

non-public treatment and address its 

confidentiality concerns directly with 

the Commission. 

Final § 3007.201 Application for 

non-public treatment. Final 

§ 3007.201(a) retains the same burden of 

persuasion appearing in existing 

§ 3007.21(b) and expands it to apply to 

all submitters. 

Final § 3007.201(b) sets forth the 

required contents of an application. 

Existing §§ 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. Final § 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. These requirements will aid 

the Commission’s determination of the 

non-public treatment, if any, to be 

accorded to the materials. 

The uniform content requirements 

appearing in final § 3007.201(b)(1), (3)– 

(8) remains substantially the same as 

existing § 3007.21(c)(1), (3)–(8). Final 

§ 3007.201(b)(1), (3)–(8) contain changes 

to improve clarity and update crossreferences. 

Final § 3007.201(b)(2) is based on 

existing § 3007.21(c)(2), which requires 

the Postal Service to identify any third 

party known to have a proprietary 

interest in the information contained in 

the materials or a designated Postal 

Service employee to notify each affected 

third party (if identification of the third 

party is sensitive). Final § 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. 

Final § 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 information contained 

in the non-public materials. This final 

rule will improve transparency, 

especially for persons seeking access or 

public disclosure of the non-public 

materials. This final rule reflects the 

growing complexity related to the nonpublic materials submitted to the 

Commission. In simple scenarios, the 

information in the non-public materials 

belongs solely to the submitter. In more 

complex instances, the information in 

the non-public materials is a 

reproduction of the proprietary 

information of a business partner of the 

submitter or non-public materials to 

which the submitter has been 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 final § 3007.201(b)(2)(i), 

each person other than the submitter 

pursuant to final § 3007.201(b)(2)(ii), or 

both pursuant to final 

§ 3007.201(b)(2)(iii). 

If the submitter’s interest is 

implicated, final § 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, final § 3007.201(b)(2)(ii) 

requires that the application identify 

each affected person. Consistent with 

existing § 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 final rule reflects 

situations not contemplated by existing 

§ 3007.21(c)(2), such as if multiple 

persons speaking multiple languages 

were affected. Consistent with existing 

§ 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, final 

§ 3007.201(b)(2)(ii) requires that the 

application provide an explanation. 

This final rule will better ensure 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 

asserted as a basis not to identify each 

affected person. 

If the proprietary interest of both the 

submitter and another person are 

implicated, final § 3007.201(b)(2)(iii) 

requires the application to comply with 

the requirements of both final 

§ 3007.201(b)(2)(i) and (ii). Final 

§ 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. 

Final § 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 nonpublic 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 

requirements of § 3007.201(b) and 

reduce the burden involved in drafting 

the application. Final § 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. 


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Final § 3007.202 Redacted version of 

the non-public materials. Final 

§ 3007.202 provides the requirements 

applicable to the submission of the 

redacted (public) version of the nonpublic materials. 

Consistent with existing § 3007.10(c), 

final § 3007.202(a) explains that 

submitters must graphically redact 

(blackout) the information that is 

claimed to be non-public from the 

materials. Final § 3007.202(a) also 

incorporates the prohibition on 

excessive redactions (blacking out 

information that is not non-public), 

which appears in existing § 3007.10(b), 

and expands its applicability to all 

submitters. This final rule will promote 

fairness and improve transparency. 

Final § 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 materials, which 

appears in existing § 3007.10(c), and 

expands its applicability to all 

submitters so as to promote fairness and 

improve transparency. Final 

§ 3007.202(b) modifies existing 

§ 3007.10(c)’s requirement 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 § 3007.10(b), 

final § 3007.202(c) provides that 

electronic versions of redacted materials 

must be filed in a searchable format. 

Final § 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. 

Final § 3007.203 Unredacted version 

of the materials. Final § 3007.203 sets 

forth the manner for submission of the 

unredacted version of the non-public 

materials. 

Consistent with existing § 3007.10(d), 

final § 3007.203(a) requires that upon 

submitting the unredacted version of the 

non-public materials, each page or 

portion (whichever is applicable) of the 

materials be marked in a manner 

reasonably calculated to alert custodians 

to its confidential nature. 

Consistent with existing § 3007.10(a), 

final § 3007.203(b) reflects that nonpublic materials may not be submitted 

through the Filing Online method that 

results in the posting of a document that 

is available to the public, which is 

accessible through the Commission’s 

public website (http://www.prc.gov). 

This is a public website and does not 

presently allow for the submission of 

non-public documents to the 

Commission. 

Final § 3007.203(c) sets forth 

additional requirements pertaining to 

the filing of the unredacted version of 

the non-public materials. Final 

§ 3007.203(c) sets forth how filings shall 

be performed for the unredacted 

versions of the non-public materials. 

Final § 3007.203(c)(1) requires filing 

of the unredacted version of the nonpublic materials in sealed envelopes 

marked ‘‘Confidential. Do Not Post on 

Web,’’ consistent with existing 

§ 3007.10(a). Existing § 3007.10(a) 

requires filing of both electronic (via 

compact disc (CD) or DVD and hard 

copy (paper) versions of the non-public 

materials. To reduce the burden, final 

§ 3007.203(c)(1) allows the filer to 

provide only the electronic version of a 

non-public document. If it is 

impracticable to submit the electronic 

version, final § 3007.203(c)(1) permits 

the filer to provide the paper version of 

a non-public document 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, final 

§ 3007.203(c)(2) sets forth the 

requirements associated with use of any 

alternative system. Final 

§ 3007.203(c)(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 nonpublic materials in accordance with 

final § 3007.203(c)(1). 

Final § 3007.203(d) sets forth the 

requirements for the unredacted 

versions of spreadsheets. 

Final § 3007.204 Protections for any 

person other than the submitter with a 

proprietary interest. Final § 3007.204 

incorporates existing § 3007.20(c), 

which allows any person other than the 

submitter with a proprietary interest in 

non-public materials filed with the 

Commission to lodge an application for 

non-public treatment. Final § 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. 

Final § 3007.205 Non-public 

materials inadvertently submitted 

publicly. Final § 3007.205(a) pertains to 

instances in which a person discovers 

that information that could have been 

subject to a claim for non-public 

treatment is contained within a public 

filing made in accordance with 

§§ 3001.9 and 3001.10 of this chapter. 

Final § 3007.205(a) instructs the person 

to notify Dockets by telephone to 

remove the non-public materials from 

the publicly available material. The 

person must file an application for nonpublic treatment and the non-public 

materials within 1 business day of this 

request to Dockets. Final § 3007.205(a) 

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 final rule outlines a process to 

minimize exposure of sensitive 

information that may occur due to a 

filer’s error. 

Final § 3007.205(b) pertains to 

instances in which a person discovers 

that information that could have been 

subject to a claim for non-public 

treatment is contained within a publicly 

available submission (other than a 

public filing made in accordance with 

§§ 3001.9 and 3001.10 of this chapter). 

Final § 3007.205(b) instructs the person 

to telephone the Commission personnel 

receiving the submission with the 

request to segregate the materials 

claimed to be non-public. The person 

must submit an application for nonpublic treatment and the non-public 

materials within 1 business day of this 

request. Final § 3007.205(b) states that 

the Secretary has the discretion to 

impose additional filing requirements 

on any submitter that repeatedly 

invokes this rule. This final rule 

outlines a process to minimize exposure 


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of sensitive information that may occur 

due to a submitter error. The 

Commission expects this final rule will 

be invoked rarely because persons 

submitting materials to the Commission 

are incentivized to avoid errors. 

Final § 3007.205(c) provides 

additional procedural instruction for a 

person making an application pursuant 

to final § 3007.205(a) or (b). Final 

§ 3007.205(c) requires any special relief 

sought to be clearly indicated in the 

application. Final § 3007.205(c) 

provides three non-exhaustive examples 

to illustrate types of special relief. The 

three examples focus on minimizing 

exposure of information claimed to be 

non-public that has already been 

preserved, viewed, or disseminated 

prior to the submitter taking action 

under final § 3007.205(a) or (b). 

C. Final Subpart C of 39 CFR Part 

3007—Seeking Access to Non-Public 

Materials 

Final subpart C of 39 CFR part 3007. 

The Commission adds subpart C to 39 

CFR part 3007 containing rules 

applicable to seeking access to nonpublic materials. These rules allow nonpublic materials to remain under seal 

and allow specific persons to access the 

materials subject to protective 

conditions. 

Final § 3007.300 Eligibility for 

access to non-public materials. Final 

§ 3007.300(a) incorporates existing 

§ 3007.24(a), which provides that nonpublic materials may be disclosed to 

Commission and reviewing court 

personnel. Final § 3007.300(a) adds 

clarifying language to indicate that such 

disclosure may be made without the 

need for issuance of an order. 

Final § 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 39 CFR part 

3007. Final § 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 39 CFR part 3007. 

Codifying this standard in the final 

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. 

Final § 3007.300(c) mirrors existing 

§ 3007.24(b) by explaining the 

circumstances and cross-referencing the 

relevant provision for other persons to 

obtain access (via proposed § 3007.301). 

Final § 3007.300(c) unifies existing 

§§ 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). Final 

§ 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. Any 

person seeking to view non-public 

materials for other purposes may file a 

motion for disclosure pursuant to final 

§ 3007.400 or a FOIA request under 39 

CFR part 3004. Any person seeking to 

view materials for which non-public 

treatment has expired may file a request 

pursuant to final § 3007.401. 

Final § 3007.301 Motion for access 

to non-public materials. Final 

§ 3007.301 concerns requests for access 

to non-public materials. This final rule 

combines the text of existing §§ 3007.40, 

3007.42, 3007.50, and 3007.52, which 

have separate access rules for nonpublic 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 unifies this 

content for simplicity. 

Final § 3007.301(a) combines 

language appearing in existing 

§§ 3007.40 and 3007.50, which instruct 

the person seeking access to file a 

motion. Final § 3007.301(a) also adds an 

instruction that any part of the motion 

revealing non-public information must 

be filed under seal. 

Final § 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. 

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 in 

accordance with § 3001.14 of this 

chapter. 

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. 

Final § 3007.301(b) sets forth the 

content requirements for the motion 

based on the text appearing in existing 

§§ 3007.40(a) and 3007.50(a). Final 

§ 3007.301(b)(1) requires identification 

of the non-public materials for which 

access is sought. Consistent with 

existing §§ 3007.40(a)(1) and 

3007.50(a)(1), final § 3007.301(b)(2) 

requires a detailed statement justifying 

the access request. 

Final § 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. 

Final § 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 final rule will provide 

additional guidance to movants 

regarding the justification required for 

access requests. Also, because in past 

practice, persons have sought to use 

non-public materials in multiple 

dockets, this final rule will ensure that 

adequate justification is provided 

relating to each docket at issue. 

Final § 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 final rule will 

provide additional guidance to movants 

regarding the justification required in 

these instances. 

Final § 3007.301(b)(3) remains 

consistent with existing §§ 3007.40(a)(2) 

and 3007.50(a)(2)’s requirements to list 

relevant affiliations. 

Final § 3007.301(b)(4) requires the 

movant to indicate whether actual 

notice has been provided to each person 

identified in the application under 

§ 3007.201(b)(2). This final rule will 

make it clear whether the expedited 

deadline for a response under proposed 

§ 3007.301(c) applies. 

If the motion states that actual notice 

has been provided to any person, the 


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motion should identify the individual 

receiving actual notice, the date and 

approximate time, and the method of 

notification. This identification 

requirement will help to protect the 

interests of the submitter and any 

person with a proprietary interest. 

Moreover, this identification 

requirement will 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 final rule will expedite the 

resolution of motions where it is 

represented that motion is uncontested 

(in whole or in part). 

Final § 3007.301(b)(5) requires 

attachment of a description of protective 

conditions executed by the movant’s 

attorney or non-attorney representative. 

Final § 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 final template Protective Conditions 

Statement and Certification to Comply 

with Protective Conditions included in 

Final Appendix A to subpart C of 39 

CFR part 3007. 

Final § 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 §§ 3007.40(b) and 

3007.50(b). 

Final § 3007.301(d) remains 

consistent with existing §§ 3007.40(c) 

and 3007.50(c) regarding reply. 

Final § 3007.301(e) sets forth 

information related to the Commission’s 

ruling. Consistent with past practice, 

final § 3007.301(e) explains that the 

Commission may rule on an 

uncontested access motion at any time 

after receiving the motion. Consistent 

with past practice, final § 3007.301(e) 

provides that the Commission may rule 

on an unresolved access motion at any 

time after the response period has 

expired. Final § 3007.301(e) sets forth 

the standard for the Commission ruling, 

which remains consistent with the 

standard appearing in existing 

§§ 3007.42 and 3007.52. Final 

§ 3007.301(e) states that access shall 

begin after issuance of the order setting 

forth all protective conditions. 

Final § 3007.302 Non-dissemination, 

use, and care of non-public materials. 

Final § 3007.302 sets forth the duties of 

persons granted access to non-public 

materials in Commission proceedings. 

Final § 3007.302(a) remains consistent 

with existing § 3007.62(a) by prohibiting 

dissemination of non-public materials to 

any person not granted access by the 

Commission under proposed 

§§ 3007.300 (Commission and reviewing 

court personnel) or 3007.301 (persons 

granted access by order of the 

Commission). Final § 3007.302(b) 

remains consistent with existing 

§ 3007.25(a) by limiting the use of nonpublic materials to only the purpose for 

which the non-public materials are 

supplied. Final § 3007.302(c) is based 

on the prohibition on allowing 

unauthorized persons to have access to 

the materials, which appears in existing 

§ 3007.25(b). Final § 3007.302(c) also 

incorporates the standard of care 

appearing in existing Appendix A to 39 

CFR 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. 

Final § 3007.303 Sanctions for 

violating protective conditions. Final 

§ 3007.303(a) remains consistent with 

existing § 3007.62(a) relating to the 

sanctions for violations of the order 

granting access subject to protective 

conditions. Final § 3007.303(a) provides 

examples of the types of sanctions that 

may be applied. 

Final § 3007.303(b) adapts the 

language of existing § 3007.62(b). 

Existing § 3007.62(b) refers only to the 

Postal Service. To reflect that persons 

other than the Postal Service may be 

adversely affected by violations of 

protective conditions, final 

§ 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. 

Final § 3007.304 Termination and 

amendment of access to non-public 

materials. Final § 3007.304(a) combines 

the text appearing in existing §§ 3007.41 

and 3007.51, which relate to the 

termination of access to non-public 

materials. Existing §§ 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. Final 

§ 3007.304(a) treats termination 

procedures consistently in both 

instances. 

Final § 3007.304(a)(1) remains 

consistent with the timeframes for the 

termination of access described in 

existing §§ 3007.41(a)(1) and 

3007.51(a)(1). 

Final § 3007.304(a)(2) remains 

consistent with the procedural 

requirements upon termination 

described in existing §§ 3007.41(c) and 

3007.51(c). Final § 3007.304(a)(2) 

provides that the applicable non-public 

materials must be destroyed or returned 

to the Commission and notification of 

compliance must be filed with the 

Commission. As described below, the 

Commission revises the applicable 

template form to be filed with the 

Commission upon termination of access 

in final Appendix A to subpart C of 39 

CFR part 3007. 

Final § 3007.304(b) sets forth the 

procedure for a person to seek 

amendment of any protective 

conditions. This final rule will facilitate 

prompt resolution of common issues 

such as seeking access for additional 

time (as encompassed under existing 

§§ 3007.41(b) and 3007.51(b)) or for an 

additional employee or consultant. 

Final § 3007.305 Producing nonpublic materials in non-Commission 

proceedings. Final § 3007.305 clarifies 

existing § 3007.61. 

Final § 3007.305(a) retains the 

existing § 3007.61(a)’s 2-day notification 

requirement 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 § 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 nonpublic by a person other than the Postal 

Service. Therefore, final § 3007.305(a) 

requires the target to notify all persons 

identified in the underlying application 

for non-public treatment pursuant to 

proposed § 3007.201(b)(2). The final 

rule better serves its purpose, which is 

to give the affected person the 

opportunity to object to the production 

or to seek a protective order or other 

relief. 

Final § 3007.305(b) clarifies the 

language of existing § 3007.61(b). Final 

§ 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 nonCommission proceedings. 

Final § 3007.305(c) clarifies the 

language of existing § 3007.61(c). Final 

§ 3007.305(c) provides that unless 

overridden in a non-Commission 


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proceeding, the protective conditions 

ordered by the Commission will remain 

in effect. 

Final Appendix A to subpart C of 39 

CFR part 3007—Template Forms. 

Existing Appendix A to 39 CFR part 

3007 contains three template forms 

relating to seeking or terminating access 

to non-public materials. The 

Commission moves this content to 

subpart C of 39 CFR part 3007, which 

pertains to access to non-public 

materials. To better reflect its content, 

the Commission updates the heading 

identified in existing Appendix A to 39 

CFR part 3007, ‘‘Statement of 

Compliance with Protective 

Conditions,’’ to ‘‘Template Forms.’’ 

The content of each proposed 

template form is revised to conform 

with the changes to the rules appearing 

in final 39 CFR part 3007 and to 

improve readability. The first template 

form is a Protective Conditions 

Statement to aid compliance with final 

§ 3007.301(b)(5), which requires 

attachment of a description of protective 

conditions to a motion for access to nonpublic materials. The second template 

form is a Certification to Comply with 

Protective Conditions to aid compliance 

with final § 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 template form is a 

Certification of Compliance with 

Protective Conditions and Termination 

of Access to aid compliance with final 

§ 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. Final Subpart D of 39 CFR Part 

3007—Seeking Public Disclosure of 

Non-Public Materials 

Final subpart D of 39 CFR part 3007. 

The Commission adds subpart D to 39 

CFR part 3007 containing rules 

applicable to seeking public disclosure 

of non-public materials. 

Final § 3007.400 Motion for 

disclosure of non-public materials. Final 

§ 3007.400 applies to situations when a 

person seeks to challenge the nonpublic treatment claimed for materials— 

that is, to have the materials disclosed 

to the public, also known as ‘‘unsealed.’’ 

Final § 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. 

Final § 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 § 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 nonpublic treatment. Also, consistent with 

existing § 3007.31(a), the motion may 

not publicly disclose the information 

that is designated as non-public pending 

resolution of the motion. 

Final § 3007.400(b) requires the 

movant to indicate whether actual 

notice has been provided to all persons 

identified in the application under final 

§ 3007.201(b)(2). This final rule will 

make it clear whether the expedited 

deadline for a response under final 

§ 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 identification 

requirement will help to protect the 

interests of the submitter and any 

person with a proprietary interest. 

Moreover, this identification 

requirement will 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 final 

rule will 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 final 

§ 3007.101(a), a motion for public 

disclosure can be avoided if all persons 

identified pursuant to final 

§ 3007.201(b)(2) consent to allowing the 

submitter to file the materials at issue 

publicly. 

Final § 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 

personnel to discuss whether a more 

appropriate docket exists. 

Final § 3007.400(c) imposes an 

expedited response deadline for 

motions if there has been actual notice. 

If there has been actual notice, proposed 

§ 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 §§ 3007.40(b) and 

3007.50(b). This final rule will 

encourage movants to provide actual 

notice and thereby streamline motions 

practice. 

Final § 3007.400(d) remains 

consistent with existing §§ 3007.40(c) 

and 3007.50(c) regarding reply. 

Final § 3007.400(e) reflects that the 

Commission will continue to accord 

non-public treatment to the materials 

while the motion is pending. 

Final § 3007.400(f) sets forth 

information related to the Commission’s 

ruling. Final § 3007.400(f) remains 

consistent with existing § 3007.31(d), 

which explains the timing for the 

Commission ruling. Final § 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. Final 

§ 3007.400(f) remains consistent with 

existing § 3007.33, which explains the 

standards for the Commission ruling. 

Final § 3007.401 Materials for which 

non-public treatment has expired. Final 

§ 3007.401 applies to materials for 

which non-public treatment has 

expired. Consistent with existing 

§ 3007.30, final § 3007.401(a) provides 

that non-public status shall expire after 

the passage of 10 years, unless 

otherwise provided by the Commission. 

The existing rules do not set forth the 

mechanism for the handling of materials 

when non-public treatment has expired. 

Final § 3007.401(b)–(f) provide the 

procedural mechanisms to take effect 

after 10 years have passed. Final 

§ 3007.401(b)–(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. 

Final § 3007.401(b) provides that any 

person may request the disclosure of 

materials for which non-public 

treatment has expired. Final 

§ 3007.401(b) explains the content of 

such a request. This request must 

identify the materials requested and 

date(s) that the materials sought were 

originally submitted under seal. Final 

§ 3007.401(b) notifies the reader that 


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completing and filing the template form 

appearing in final Appendix A to 

subpart D of 39 CFR part 3007 will 

satisfy these content requirements. Final 

§ 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. 

Final § 3007.401(b) also adds 

instructions pertaining to the docket in 

which the request must be filed. The 

request 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 request shall be filed in 

the G docket for the applicable fiscal 

year. Any requestor considering filing in 

a G docket should telephone Dockets 

personnel to discuss whether a more 

appropriate docket exists. 

Final § 3007.401(c) sets forth the 

timing and content requirements 

pertaining to any response opposing the 

request. Final § 3007.401(c) sets the 

response period at 7 calendar days. A 

response opposing the request must ask 

for an extension of non-public status by 

including an application for non-public 

treatment compliant with final 

§ 3007.201 and include specific facts 

supporting any assertion that 

commercial injury is likely to occur if 

the information contained in the 

materials is publicly disclosed 10 years 

after the original sealed submission. 

Final § 3007.401(d) permits a reply to 

be filed within 7 calendar days of the 

response. 

Final § 3007.401(e) states that the 

information designated as non-public 

will be accorded non-public treatment 

pending resolution of the request. 

Final § 3007.401(f) sets forth the 

timing and standard of the ruling. The 

request may be granted any time after 

the response period described in 

proposed § 3007.401(c) expires. A 

request may be denied any time after the 

reply period described in final 

§ 3007.401(d) expires. The Commission 

ruling shall follow the applicable 

standard described in final § 3007.104. 

Final Appendix A to subpart D of 39 

CFR part 3007—Template Request 

Form. To aid compliance with final 

§ 3007.401(b), which requires a 

requestor to identify the materials 

requested and date(s) that materials 

were originally submitted under seal, 

final Appendix A to subpart D of 39 

CFR part 3007 contains a template form 

Request for Materials for Which NonPublic Treatment Has Expired. 

VII. Regulatory Flexibility Act Analysis 

The Regulatory Flexibility Act 

requires federal agencies, in 

promulgating rules, to consider the 

impact of those rules on small entities. 

See 5 U.S.C. 601, et seq. (1980). If the 

proposed or final rules will not, if 

promulgated, have a significant 

economic impact on a substantial 

number of small entities, the head of the 

agency may certify that the initial and 

final regulatory flexibility analysis 

requirements of 5 U.S.C. 603 and 604 do 

not apply. See 5 U.S.C. 605(b). 

The Commission’s primary 

responsibility is in the regulatory 

oversight of the United States Postal 

Service. The rules that are the subject of 

this rulemaking have an impact on 

participation in Commission 

proceedings, but impose no further 

financial obligation upon any entity. For 

entities other than the United Stated 

Postal Service, participation is strictly 

voluntary. Based on these findings, the 

Chairman of the Commission certifies 

that the rules that are the subject of this 

rulemaking will not have a significant 

economic impact on a substantial 

number of small entities. Therefore, 

pursuant to 5 U.S.C. 605(b), this 

rulemaking is exempt from the initial 

and final regulatory flexibility analysis 

requirements of 5 U.S.C. 603 and 604. 

VIII. Ordering Paragraphs 

It is ordered: 

1. Parts 3001, 3004, and 3007 of title 

39, Code of Federal Regulations, are 

revised as set forth below the signature 

of this Order, effective 30 days after 

publication in the Federal Register. 

2. 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 amends 

chapter III of title 39 of the Code of 

Federal Regulations as follows: 

PART 3001—RULES OF PRACTICE 

AND PROCEDURE 

■ 1. The authority citation for part 3001 

continues to read as follows: 

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

3661. 

■ 2. Add subpart E to read as follows: 

Subpart E—Information Requests 

Sec. 

3001.100 Applicability and scope. 

3001.101 Information request. 

§ 3001.100 Applicability and scope. 

(a) Applicability. The Commission 

may: 

(1) Require the Postal Service to 

provide any information, and any 

associated documents or things in its 

possession or control, or any 

information, and any associated 

documents or 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. 

(2) Request that any person other than 

the Postal Service provide any 

information, and any associated 

documents or things in its possession or 

control, or any information, and any 

associated documents or 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 includes, but is 

not limited to, explanations, 

confirmations, factual descriptions, and 

data. Document refers to a hard copy or 

electronic conveyance of information 

and may be stored in any medium from 

which information can be obtained 

either directly or, if necessary, after 

translation into a reasonably usable 

form. Documents include, but are not 

limited to, writings, notes, graphs, 

charts, data files, emails, drawings, 

photographs, and images. Things 

include all matter, other than 

documents, that convey information. 

Documents and things shall collectively 

be referred to as materials. 

§ 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 


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seeking that any person provide 

information, documents, or things 

covered by § 3001.100. An information 

request shall describe the information, 

documents, or 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 

motion. The motion shall list the 

information, documents, or things 

sought; explain the reasons the 

information request should be made, 

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, 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 

■ 3. The authority citation for part 3004 

continues to read as follows: 

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

■ 4. Amend § 3004.30, by revising 

paragraphs (d) introductory text and (e) 

to read as follows: 

§ 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. 

■ 5. Amend § 3004.70, by revising the 

section heading and paragraphs (a), (b), 

and (c) to read as follows: 

§ 3004.70 Submission of non-public 

materials by a person other than the Postal 

Service. 

(a) Overlap with treatment of nonpublic materials. Any person who 

submits materials to the Commission 

(submitter) that the submitter 

reasonably believes to be exempt from 

public disclosure shall follow the 

procedures described in subpart B of 

part 3007 of this chapter. 

(b) Notice of request. Except as 

provided in § 3004.30(d), if a FOIA 

request seeks materials designated as 

non-public 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 non-public treatment 

pursuant to § 3007.201 of this chapter, 

to the disclosure of the information. 

* * * * * 

■ 6. Revise part 3007 to read as follows: 

PART 3007—NON–PUBLIC 

MATERIALS PROVIDED TO THE 

COMMISSION 

Subpart A—General Provisions 

Sec. 

3007.100 Applicability and Scope. 

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 

materials claimed to contain non-public 

information. 

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 nonpublic materials. 

3007.203 Unredacted version of the nonpublic materials. 

3007.204 Protections for any person other 

than the submitter with a proprietary 

interest. 

3007.205 Non-public materials 

inadvertently submitted 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 nonpublic materials. 

3007.401 Materials for which non-public 

treatment has expired. 

Appendix A to subpart D of part 3007— 

Template Form 

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

Subpart A—General Provisions 

§ 3007.100 Applicability and Scope. 

(a) Applicability. The rules in this part 

apply whenever: 

(1) The Postal Service claims that any 

materials it provides to the Commission 

in connection with any proceeding or 

other purpose under title 39 of the U.S. 

Code, contain non-public information; 

(2) Any person other than the Postal 

Service claims that any materials it 

provides to the Commission contain 

non-public information; 

(3) The Commission is in the process 

of determining the appropriate degree of 

confidentiality to be accorded materials 

identified by any person to contain nonpublic information in accordance with 

these rules; or 

(4) The Commission is in the process 

of determining how to ensure 

appropriate confidentiality for materials 

identified to contain non-public 

information that is furnished to any 

person in accordance with these rules. 

(b) Scope. Information includes, but is 

not limited to, explanations, 

confirmations, factual descriptions, and 

data. Document refers to a hard copy or 

electronic conveyance of information 

and may be stored in any medium from 

which information can be obtained 

either directly or, if necessary, after 

translation into a reasonably usable 

form. Documents include, but are not 

limited to, writings, notes, graphs, 


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charts, data files, emails, drawings, 

photographs, and images. Things 

include all matter, other than 

documents, that convey information. 

Documents and things shall collectively 

be referred to as materials. 

§ 3007.101 Definitions. 

(a) Non-public materials means any 

documents or things that are provided 

to the Commission and identified as 

containing non-public information. The 

Postal Service may claim that 

information that would be exempt from 

disclosure pursuant to 39 U.S.C. 410(c), 

504(g), 3652(f), or 3654(f) is non-public 

information. Any person other than the 

Postal Service with a proprietary 

interest in the materials may claim that 

information that would be protectable 

under Federal Rule of Civil Procedure 

26(c) is non-public information. Any 

person may claim that information that 

is exempt from public disclosure under 

5 U.S.C. 552(b) is non-public 

information. 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 § 3007.205, nonpublic 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). The 

cessation of non-public status applies to 

the particular document or thing and 

the particular information contained 

therein (in whole or in part, as 

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. 

§ 3007.102 Treatment of non-public 

materials. 

(a) Except as described in part 3007 or 

part 3004 of this chapter, the 

Commission will neither disclose nor 

grant access to any non-public materials 

(and the non-public information 

contained therein). 

(b) To accord appropriate 

confidentiality to non-public 

information and 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 information and nonpublic materials; 

(2) Specify terms for public disclosure 

of the non-public information and nonpublic materials; 

(3) Order a specific method for 

disclosing the non-public information 

and non-public materials; 

(4) Restrict the scope of the disclosure 

of the non-public information and nonpublic materials as they relate to certain 

matters; 

(5) Restrict who may access the nonpublic information and 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. 

§ 3007.103 Commission action to 

determine non-public treatment. 

(a) 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 accorded to the materials 

claimed by any person to be non-public. 

(b) Upon motion by any person, the 

Commission may issue an order 

containing a description of and 

timeframe for the non-public treatment, 

if any, to be accorded to materials 

claimed by any person to be non-public. 

(c) Upon its own motion, the 

Commission may issue notice of its 

preliminary determination concerning 

the appropriate degree of protection, if 

any, to be accorded to materials claimed 

by any person to be non-public. A 

response is due within 7 calendar days 

of issuance of the preliminary 

determination, unless the Commission 

otherwise provides. No reply to a 

response shall be filed, unless the 

Commission otherwise provides. 

Pending the Commission’s resolution of 

the preliminary determination, 

information designated as non-public 

will be accorded non-public treatment. 

The Commission will enter an order 

determining what non-public treatment, 

if any, will be accorded to the materials 

after the response period described in 

this paragraph has expired. The 

determination of the Commission shall 

follow the applicable standard 

described in § 3007.104. 

§ 3007.104 Standard for public disclosure 

of materials claimed to contain non-public 

information. 

(a) In determining whether to publicly 

disclose materials claimed by the Postal 

Service to contain non-public 

information, 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 

consistent with the analysis undertaken 

by a federal court when applying the 

protective conditions appearing in 

Federal Rule of Civil Procedure 26(c). 

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. 

(a) Whenever providing non-public 

materials to the Commission, the 

submitter shall concomitantly provide 

the following: An application for nonpublic treatment that clearly identifies 

all non-public materials and describes 

the circumstances causing them to be 

submitted to the Commission in 

accordance with § 3007.201, a redacted 

(public) version of the non-public 

materials in accordance with 

§ 3007.202, and an unredacted (sealed) 

version of the non-public materials in 

accordance with § 3007.203. 

(b) Before submitting non-public 

materials to the Commission, if the 

submitter has reason to believe that any 

person other than the submitter has a 

proprietary interest in the information 

contained within 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) (to the extent 

practicable) and that the affected person 

may address any confidentiality 

concerns directly with the Commission. 

§ 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 materials designated as nonpublic 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 


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explanation justifying application of the 

provision(s) to the materials. 

(2) A statement of whether the 

submitter, any person other than the 

submitter, or both have a proprietary 

interest in the information contained 

within 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 information contained 

within 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 information contained within the 

materials, identification of each person 

who is known to have a proprietary 

interest in the information. If such an 

identification is sensitive or 

impracticable, an explanation shall be 

provided along with the identification 

of an individual designated by the 

submitter to provide notice to each 

affected person. 

(iii) If both the submitter and any 

person other than the submitter have a 

proprietary interest in the information 

contained within 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 information 

contained within the materials claimed 

to be non-public in a manner that, 

without revealing the information at 

issue, would allow the Commission to 

thoroughly evaluate the basis for the 

claim that the information contained 

within 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 nonpublic 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 nonpublic 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. 

§ 3007.202 Redacted version of the nonpublic materials. 

(a) Except as allowed under paragraph 

(b) of this section, the submitter shall 

use the graphical redaction (blackout) 

method to redact non-public 

information from the materials. The 

submitter shall blackout only the 

information that is claimed to be nonpublic. 

(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. 

§ 3007.203 Unredacted version of the nonpublic materials. 

(a) Each page or portion 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. 

(b) The Filing Online method that 

results in posting a document that is 

available to the public, which is 

accessible through the Commission’s 

website (http://www.prc.gov) described 

under §§ 3001.9 and 3001.10 of this 

chapter may not be used to submit the 

unredacted version of non-public 

materials. 

(c) The filing of the unredacted 

version of the non-public materials shall 

be made in accordance with the 

following requirements. 

(1) Except if using an alternative 

system approved by the Commission 

under paragraph (c)(2) of this section, 

the unredacted version of the nonpublic 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. The unredacted version of the 

non-public materials may not be 

password protected. Two copies of the 

unredacted version of a non-public 

document shall be filed using an 

electronic format such as compact discs 

(CDs), or digital video discs or digital 

versatile discs (DVDs) that shall be 

clearly marked ‘‘Confidential. Do Not 

Post on Web.’’ If making an electronic 

unredacted version of a non-public 

document is impracticable, two hard 

copies (paper) versions of the nonpublic document may be filed. 

(2) The Secretary of the Commission 

has authority to approve the use of a 

secure alternative system to file nonpublic 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. 

(d) The unredacted version of a 

spreadsheet shall display the formulas 

used and their links to related 

spreadsheets. The unredacted version of 

workpapers or data shall be submitted 

in a form, and be accompanied by 

sufficient explanation and 

documentation, to allow them to be 

replicated using a publicly available PC 

application. 

§ 3007.204 Protections for any person 

other than the submitter with a proprietary 

interest. 

Any person other than the submitter 

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. 

§ 3007.205 Non-public materials 

inadvertently submitted publicly. 

(a) Any filer or person with a 

proprietary interest that discovers the 


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inclusion of materials that could have 

been subject to a claim for non-public 

treatment are contained within a public 

filing made in accordance with 

§§ 3001.9 and 3001.10 of this chapter 

shall telephone Dockets personnel 

immediately to request that the nonpublic materials be removed from the 

publicly available materials. Upon 

receipt of that telephone request, 

Dockets personnel will remove from the 

publicly available materials those 

materials for which non-public 

treatment are 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. 

(b) Any submitter or person with a 

proprietary interest that discovers the 

inclusion of materials that could have 

been subject to a claim for non-public 

treatment are contained within a 

publicly available submission made to 

the Commission in circumstances other 

than through a public filing made in 

accordance with §§ 3001.9 and 3001.10 

of this chapter shall telephone the 

Commission personnel to whom the 

submission was directed immediately to 

request that the non-public materials be 

removed from the publicly available 

materials. Upon receipt of that 

telephone request, the Commission 

personnel will remove from the publicly 

available materials those materials for 

which non-public treatment are being 

requested until the end of the next 

business day in order to provide the 

submitter or person with a proprietary 

interest an opportunity to submit an 

application for non-public treatment 

and the non-public materials in 

accordance with the requirements of 

this subpart. If any submitter makes 

repeated use of this rule, the Secretary 

has discretion to impose additional 

requirements on this submitter as 

necessary to ensure secure submission 

of non-public materials. 

(c) An application for non-public 

treatment made under paragraph (a) or 

(b) of this section shall also clearly 

indicate if any special relief is sought. 

Examples of special relief include a 

request that any person not granted 

access to the materials under § 3007.300 

or § 3007.301 perform any or all of the 

following actions: 

(1) Immediately destroy or return all 

versions of the materials that are 

claimed to have been inadvertently 

submitted publicly; 

(2) Refrain from disclosing or using 

the materials, and the information 

contained therein, that are claimed to be 

non-public; and 

(3) Take reasonable steps to retrieve 

any materials, and the information 

contained therein, that are claimed to be 

non-public and were disclosed to any 

person not granted access to the 

materials under § 3007.300 or 

§ 3007.301 prior to the submission of 

application for non-public treatment. 

Subpart C—Seeking Access to NonPublic Materials 

§ 3007.300 Eligibility for access to nonpublic materials. 

(a) The following persons may access 

non-public materials without an order 

issued pursuant to § 3007.301(e): 

(1) Members of the Commission; 

(2) Commission employees, including 

Public Representatives, carrying out 

their official responsibilities; 

(3) 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; 

(4) Reviewing courts and their staffs; 

(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 nonpublic 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 § 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. 

§ 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 information 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 

materials 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 § 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 


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(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 § 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 person identified 

pursuant to § 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 person other than the 

submitter 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 interests of the parties 

consistent with the analysis undertaken 

by a Federal court when applying the 

protective conditions appearing in 

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. 

§ 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 § 3007.300 or 

§ 3007.301 may disseminate the 

materials or the information contained 

therein, in whole or in part, to any 

person not allowed access pursuant to 

§ 3007.300 or § 3007.301. 

(b) Persons with access to non-public 

materials under § 3007.300 or 

§ 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 § 3007.300 or 

§ 3007.301 shall protect the non-public 

materials from any person not granted 

access under § 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. 

§ 3007.303 Sanctions for violating 

protective conditions. 

(a) If a person who has been granted 

access to non-public materials under 

§ 3007.301 violates the terms of the 

order granting access, the Commission 

may 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 any or all of the following: 

(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; 

(3) Revoking access to non-public 

materials; 

(4) Restricting access to non-public 

materials in the future; or 

(5) 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. 

§ 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 § 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 (including the completion of 

any Commission response to judicial 

review, if applicable). 

(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 § 3007.301. 

§ 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 § 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 nonpublic 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. 


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Appendix A to Subpart C of Part 3007— 

Template Forms 

BILLING CODE 7710–FW–P 


sradovich on DSK3GMQ082PROD with RULES2ER03JY18.000</GPH>

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: 

o this Protective Conditions Statement, 

o the Certification to Comply with Protective Conditions, 

o the Certification of Compliance with Protective Conditions and Termination 

of Access; and 

o 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. 
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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). 
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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 
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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. 

(signature of representative) 

(print name of representative) 

(address line 1 of representative) 

(address line 2 of representative) 

(telephone number of representative) 

(e-mail address of representative) 

(choose the appropriate response) 

(name of the movant) 

Respectfully submitted, 

/s/ 

Attorney I Non-Attorney Representative 

for 

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). 
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Certification to Comply with Protective Conditions 

_________ (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). 

_________ (name of participant filing motion) requests that the 

Commission 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: 

I have read and understand the Protective Conditions Statement and this 

Certification to Comply with Protective Conditions; 

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 

I will comply with all protective conditions established by the Commission. 

(signature of individual receiving access) Is/ 

(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). 
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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: 

o I accessed, maintained, and used these materials in accordance with the 

protective conditions established by the Commission; 

o Effective ____ (date}, my access to these materials was terminated; 

and 

o Effective ____ (date), I no longer have any of these materials or any 

duplicates. 

(signature of individual granted access) 

Is/ 

(print name of individual granted access) 

(title of individual granted access) 

(employer of individual granted access) 

(name of participant filing notice) 
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BILLING CODE 7710–FW–C 

Subpart D—Seeking Public Disclosure 

of Non-Public Materials 

§ 3007.400 Motion for disclosure of nonpublic materials. 

(a) Application of this section. This 

section applies to non-public materials 

during the initial duration of non-public 

status, up to 10 years, and any nonpublic materials for which the 

Commission enters an order extending 

the duration of that status under 

§ 3007.401(a). 

(b) Motion for disclosure of nonpublic 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 information 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 

§ 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, faceto-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 § 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 § 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 nonpublic treatment, if any, will be 

accorded to the materials after the 

response period described in paragraph 

(c) of this section has expired. The 

determination of the Commission shall 

follow the applicable standard 

described in § 3007.104. 

§ 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, nonpublic materials shall lose non-public 

status unless otherwise provided by the 

Commission. 

(b) Request for Disclosure of Materials 

for Which Non-Public Treatment has 

Expired. Any person may request that 

materials for which non-public 

treatment has expired under paragraph 

(a) of this section be publicly disclosed. 

Any part of the request revealing nonpublic information shall be filed in 

accordance with subpart B of this part. 

The request shall identify the materials 

requested and date(s) that materials 

were originally submitted under seal. 

The template Request for Materials for 

Which Non-public Treatment Has 

Expired in appendix A to this subpart 

may be used and modified to comply 

with this requirement. The request 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 request shall be 

filed in the G docket for the applicable 

fiscal year. All documents are treated in 

accordance with the Commission’s 

record retention schedule, which may 

reduce the availability of some nonpublic information. 

(c) Response. A response to the 

request is due within 7 calendar days of 

the filing of the request, unless the 

Commission otherwise provides. Any 

response opposing the request shall seek 

an extension of non-public status by 

including an application for non-public 

treatment compliant with § 3007.201. 

This extension application shall also 

include specific facts in support of any 

assertion that commercial injury is 

likely to occur if the information 

contained in the materials is publicly 

disclosed despite the passage of 10 years 

or the timeframe established by 

Commission order. 

(d) Reply. Within 7 calendar days of 

the filing of a response, any person 

(including the requestor) may file a 

reply, unless the Commission otherwise 

provides. 

(e) Non-public treatment pending 

resolution. Pending the resolution of the 

request by the Commission, information 

designated as non-public will be 

accorded non-public treatment. 

(f) Ruling. The Commission may grant 

the request at any time after the 

response period described in paragraph 

(c) of this section has expired. The 

Commission may deny the request 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 

follow the applicable standard 

described in § 3007.104. 

Appendix A to Subpart D of Part 

3007—Template Request Form 

BILLING CODE 7710–FW–P 


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Before the 

POSTAL REGULATORY COMMISSION 

WASHINGTON, DC 20268-0001 

(Caption) ______________ _ Docket No. 

REQUEST FOR MATERIALS 

---

FOR WHICH NON-PUBLIC TREATMENT HAS EXPIRED 

_______ , 20_ (date) 

On (date non-public materials were initially submitted), nonpublic treatment was requested for the materials identified as 

________ (non-confidential description of non-public materials) (hereinafter 

"these materials"). Because the non-public treatment of these materials has 

expired, I request that these materials be disclosed to the public. 

(signature of representative) 

(print name of representative) 

(address line 1 of representative) 

(address line 2 of representative) 

Respectfully submitted, 

Is/ 
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[FR Doc. 2018–14183 Filed 7–2–18; 8:45 am] 

BILLING CODE 7710–FW–C 


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