13370 Federal Register / Vol. 74, No. 58 / Friday, March 27, 2009 / Proposed Rules 

As required by the SAFE Port Act, the 

pilot program’s results should validate 

the TWIC and TWIC reader’s impact on 

the flow of commerce, the ability for 

vessels and facilities to comply with the 

regulations, the applicability of the 

TWIC reader requirements, and their 

ability to improve security, and 

economic and environmental impacts. 

VII. Regulatory Analyses 

Before developing an NPRM, we will 

consider a number of statutes and 

executive orders related to rulemaking, 

including Executive Orders 12866 and 

13132 (Regulatory Planning and Review 

and Federalism, respectively), the 

Regulatory Flexibility Act (5 U.S.C. 

601–612), the Paperwork Reduction Act 

(44 U.S.C. 3501–3520), and the National 

Environmental Policy Act of 1969 (42 

U.S.C. 4321–4370f). If you have any 

information or comments that you feel 

would be helpful to us as we complete 

these required analyses, please submit it 

to the docket during the comment 

period for this ANPRM. Draft analyses 

will be included as part of an NPRM, 

and will be made public for comment 

before the issuance of a final rule, as 

required by the Administrative 

Procedure Act (5 U.S.C. 553). 

Dated: January 16, 2009. 

Brian M. Salerno, 

Rear Admiral, U.S. Coast Guard, Assistant 

Commandant for Marine Safety, Security and 

Stewardship. 

[FR Doc. E9–6852 Filed 3–26–09; 8:45 am] 

BILLING CODE 4910–15–P 

POSTAL REGULATORY COMMISSION 

39 CFR Part 3007 

[Docket No. RM2008–1; Order No. 194] 

Treatment of Non-Public Materials 

Submitted by the Postal Service 

AGENCY: Postal Regulatory Commission. 

ACTION: Proposed rule. 

SUMMARY: The Commission is proposing 

rules on the treatment of non-public 

material submitted by the Postal 

Service. Issuance of this proposal will 

allow interested parties to comment on 

the Commission’s approach to 

implementing a new statutory 

requirement. 

DATES: Initial comments due April 27, 

2009; reply comments due May 11, 

2009. 

ADDRESSES: Submit comments 

electronically via the Commission’s 

Filing Online system at http:// 

www.prc.gov. 

FOR FURTHER INFORMATION CONTACT: 

Stephen L. Sharfman, General Counsel, 

202–789–6820 and 

stephen.sharfman@prc.gov. 

SUPPLEMENTARY INFORMATION: Regulatory 

History, 73 FR 50532 (August 26, 2008). 

I. Introduction 

The Postal Regulatory Commission 

(Commission) proposes to implement 39 

U.S.C. 504(g) by adopting regulations 

applicable to confidentiality of materials 

submitted by the Postal Service to the 

Commission. A Notice of Proposed 

Rulemaking to Establish a Procedure for 

According Appropriate Confidentiality, 

issued August 13, 2008 (Order No. 96), 

requested public comments and reply 

comments. Based on comments received 

in this docket (RM2008–1) in response 

to the Commission’s initial notice, the 

Commission issues this Second Notice 

of Proposed Rulemaking to Establish a 

Procedure for According Appropriate 

Confidentiality. 

39 U.S.C. 504(g)(3)(A) recognizes the 

need to balance the Postal Service’s, its 

business partners’, or its customers’ 

legitimate expectations to keep 

commercially sensitive information 

confidential with the public’s 

expectation for accountability and 

transparency of the business dealings of 

a governmental entity competing in 

commercial markets. The Postal 

Accountability and Enhancement Act 

(PAEA), Public Law 109–435, 120 Stat. 

3218 (2006), relies on public 

transparency, in addition to regulation, 

to achieve its goal of Postal Service 

accountability. Therefore, as directed by 

the provisions of the PAEA and because 

the Commission considers it necessary 

and appropriate, the Commission 

proposes rules that could lead to public 

disclosure of materials that the Postal 

Service or a third party initially claims 

are non-public. 

In developing proposed rules, the 

Commission takes very seriously its 

responsibility to achieve a fair balance 

between the commercial interests of the 

Postal Service and its partners or 

customers and the public interest in 

disclosure of information concerning a 

public entity that competes in 

commercial markets, as well as the need 

for discovery and access for any persons 

who wish to participate in Commission 

proceedings. 

II. Statutory Standards for According 

Confidentiality to Postal Service 

Materials 

The Postal Regulatory Commission is 

an independent establishment of the 

executive branch of the Government of 

the United States. See 39 U.S.C. 501. 

Therefore, the presumption is that its 

records are available for public review. 

5 U.S.C. 552. However, 39 U.S.C. 

504(g)(1) provides that the Postal 

Service may determine ‘‘that any 

document or other matter it provides to 

the Postal Regulatory Commission’’ is 

exempt from public disclosure under 39 

U.S.C. 410(c) or 5 U.S.C. 552(b). The 

Postal Service must give reasons, in 

writing, for its claim. See 39 U.S.C. 

504(g)(1). 

Unless the Commission has 

established rules for determining the 

appropriate degree of protection of 

materials claimed to be non-public by 

the Postal Service, the Commission may 

not (1) ‘‘use such information for 

purposes other than the purposes for 

which it is supplied;’’ or (2) ‘‘permit 

anyone who is not an officer or 

employee of the Commission to have 

access to any such information.’’ See 39 

U.S.C. 504(g)(2). 

These proposed rules outline the 

procedure for the Commission’s 

treatment of non-public materials. 

Under these proposed rules, when 

materials are filed along with an 

application for non-public treatment, 

the Commission will initially treat those 

materials as non-public. However, the 

proposed rules allow persons to 

challenge non-public status or request 

access to the materials. The 

Commission, following such a motion or 

of its own accord, may balance the 

relevant interests to determine if 

disclosure or access is warranted. 

Under 39 U.S.C. 410(c), the Postal 

Service may claim as exempt from 

public disclosure the name and address 

of postal customers; certain commercial 

information, for example, trade secrets, 

and other information which would not 

be disclosed under good business 

practice; certain information related to 

the negotiation of collective bargaining 

agreements; information prepared for 

proceedings before the Commission or 

the Federal courts concerning postal 

rates, classes and services; reports and 

memoranda prepared by outside sources 

unless their disclosure would have been 

required if the Postal Service had 

prepared the reports or memoranda 

itself; and investigatory files compiled 

for law enforcement purposes, unless 

legally available to parties other than 

the Postal Service. 

Under 5 U.S.C. 552(b), records that 

may be withheld from public disclosure 

include, but are not limited to, matters 

concerning only internal personnel 

matters of an agency; matters 

specifically exempted from public 

disclosure by statute; trade secrets and 

privileged or confidential commercial or 

financial information; non-public 


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Federal Register / Vol. 74, No. 58 / Friday, March 27, 2009 / Proposed Rules 13371 

1Rule 26(c), which is entitled ‘‘Protective 

Conditions,’’ authorizes the court, for good cause, 

to issue a variety of orders to protect parties or 

witnesses in the discovery process. See Charles 

Alan Wright, Arthur R. Miller & Richard L. Marcus, 

Federal Practice and Procedure 2035, et seq. (2d ed. 

1994). 

2See, e.g., Arnold v. Penn. Dep’t of Transp., 477 

F.3d 105 (3d Cir. 2007) at 109–110; Pansy v. 

Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994) 

at 788; Leucadia, Inc. v. Applied Extrusion 

Technologies, 998 F.2d 157 (3d Cir. 1993) at 167. 

See generally Arthur R. Miller, Confidentiality, 

Protective Orders, and Public Access to the Courts, 

105 Harv. L. Rev. 427 (1991). 

3For example, in a complaint filed by a mailer 

against the Postal Service, the mailer may ask for 

discovery of documents relevant to the complaint 

but which do not fall under the purview of the 

public’s interest in financial transparency. See, e.g., 

Washington Post v. U.S. Dept. of Health and 

Human Services, 690 F.2d 252 (D.C. App. 1982); see 

also Assoc. for Women in Science v. Califano, 566 

F.2d 339 (D.C. App. 1982). Both cases address the 

different applications of the Freedom of Information 

Act (FOIA) and the Federal Rules of Civil Procedure 

as they pertain to discoverability and privilege from 

discovery. 

4See, e.g., 39 U.S.C. 3653(a) (directing the 

Commission to ‘‘promptly provide an opportunity 

for comment’’ during the ACD proceeding). 

interagency or intra-agency memoranda 

or letters; privacy protected personnel, 

medical and other files; and certain law 

enforcement records or information. 

Section 552(b) provides that any 

portions of records subject to disclosure 

that can be segregated from records 

otherwise exempt from disclosure must 

be provided. 

Upon adopting appropriate 

regulations under 5 U.S.C. 553 that 

‘‘establish a procedure for according 

appropriate confidentiality[,]’’ the 

Commission may publicly disclose 

materials which the Postal Service 

asserts are exempt from disclosure 

under 39 U.S.C. 410(c) or 5 U.S.C. 

552(b). 39 U.S.C. 504(g)(3)(A). In 

determining the appropriate degree of 

confidentiality for non-public materials, 

the Commission is directed to ‘‘balance 

the nature and extent of the likely 

commercial injury to the Postal Service 

against the public interest in 

maintaining the financial transparency 

of a government establishment 

competing in commercial markets.’’ Id. 

During a proceeding, the Commission 

may authorize access to non-public 

materials that the Postal Service has 

claimed are exempt from disclosure 

under 39 U.S.C. 410(c) or 5 U.S.C. 

552(b). 39 U.S.C. 504(g)(3)(B). However, 

before authorizing any person to access 

the non-public materials, the 

Commission ‘‘shall, by regulations 

based on rule 26(c) of the Federal Rules 

of Civil Procedure, establish procedures 

for ensuring appropriate confidentiality 

for the information * * *.’’ Federal 

Rule of Civil Procedure 26(c) allows a 

court to issue a protective order for 

‘‘good cause.’’ 1 Under rule 26(c) a 

protective order may range from a 

complete bar on disclosure to disclosure 

with conditions placed on time, 

manner, method, scope, or party 

allowed access. 

The general parameters for disclosure 

and conversely protection of 

confidentiality of non-public materials 

during the discovery process under 

section 504(g)(3)(B) must be gleaned 

from the Federal case law pertaining to 

Federal Rule of Civil Procedure 26. 

Those parameters are a broader set than 

the specific parameters established by 

the balancing test laid out in section 

504(g)(3)(A).2 Case law surrounding 

Federal Rule of Civil Procedure 26 

identifies several non-exclusive factors 

to be applied under the rule 26(c) ‘‘good 

cause balancing test.’’ See Arnold at 

108. In the 2007 Arnold decision, the 

Third Circuit reaffirms the balancing 

test factors it developed in its 1994 

Pansy decision: 

(1) [T]he interest in privacy of the party 

seeking protection; (2) whether the 

information is being sought for a legitimate 

purpose or an improper purpose; (3) the 

prevention of embarrassment, and whether 

that embarrassment would be particularly 

serious; (4) whether the information sought is 

important to public health and safety; (5) 

whether sharing of the information among 

litigants would promote fairness and 

efficiency; (6) whether the party benefitting 

from the order of confidentiality is a public 

entity or official; and (7) whether the case 

involves issues important to the public. 

Id. (citing Pansy, 23 F.3d at 787–88). In 

this order, the Commission refers to 

these factors as ‘‘evidentiary privileges.’’ 

The general parameters for protection 

of confidentiality of materials under 

section 504(g)(3)(B) differ from the test 

under 504(g)(3)(A) which entails 

balancing the ‘‘nature and extent of the 

likely commercial injury to the Postal 

Service against the public interest in 

maintaining the financial transparency 

of a government establishment 

competing in commercial markets.’’ 

Access entails a specific request for 

materials during a Commission 

proceeding which may or may not 

trigger a ‘‘public interest.’’ 3 The 

procedure for ensuring confidentiality 

under section 504(g)(3)(B) must balance 

a private interest, the party’s need for 

the materials to participate effectively in 

a proceeding, as well as the public’s 

interest in transparent Commission 

proceedings, against the Postal Service’s 

or third party with a proprietary 

interest’s evidentiary privileges derived 

from the Federal Rule of Civil Procedure 

26(c) ‘‘good cause balancing test.’’ 

The Commission may require the 

Postal Service to submit materials in 

furtherance of the Commission’s duties 

to determine compliance under chapter 

36 of title 39 of the U.S. Code. The 

public must be provided an opportunity 

to participate effectively in the Annual 

Compliance Determination (ACD) 

proceeding.4 For the public to 

participate effectively and comment in 

an ongoing or upcoming annual 

determination of compliance, the 

Commission anticipates that persons 

may require access to non-public 

materials outside a Commission 

proceeding. To determine if access to 

these materials is appropriate, the 

Commission must determine that the 

materials are relevant to an ongoing or 

upcoming ACD, and balance the Postal 

Service’s (or third party with a 

proprietary interest) evidentiary 

privilege interest against the need of the 

requesting party to participate 

effectively. This process is akin to a 

request for access under section 

504(g)(3)(B); therefore, it is appropriate 

for the Commission to utilize protective 

conditions when necessary to protect 

the interests of the Postal Service or 

third party with a proprietary interest in 

the materials. 

III. Order No. 96 

In Order No. 96, the Commission 

proposed rules which would govern 

handling and access to materials 

submitted to the Commission, but 

deemed ‘‘exempt from disclosure’’ by 

the Postal Service. See Order No. 96. 

The Commission proposed rules 

3007.10 to 3007.21, which would 

require the Postal Service to make an 

application for non-public treatment of 

all materials it submits and deems 

‘‘exempt from disclosure’’ under 39 

U.S.C. 504(g)(1). Id. at 17–19. The 

Commission also proposed rules 

3007.24 through 3007.32, which govern 

the types of persons who can access the 

materials, the method by which a 

person can obtain access to materials, 

the restrictions on use of materials for 

persons signing protective conditions, 

and the procedure to remove the ‘‘nonpublic’’ status from the materials. Id. at 

20–23. 

The Commission proposed that one 

balancing test, governing the degree of 

confidentiality or assurance of 

appropriate confidentiality under 39 

U.S.C. 504(g)(3)(A) and 39 U.S.C. 

504(g)(3)(B), respectively, would be 

adequate and appropriate. Id. at 5. 

Consequently, the Commission 

proposed rule 3007.25, as a single 

standard for decision for requests made 

to access non-public Postal Service 

materials, and requests to remove 


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13372 Federal Register / Vol. 74, No. 58 / Friday, March 27, 2009 / Proposed Rules 

5 Valpak Direct Marketing Systems, Inc. and 

Valpak Dealers’ Association, Inc. Comments 

Regarding Regulations to Establish a Procedure for 

According Appropriate Confidentiality, September 

25, 2008 (Valpak Comments); Initial Comments of 

American Postal Workers Union, AFL–CIO, 

September 25, 2008 (APWU Comments); and Reply 

Comments of the Newspaper Association of 

America, October 10, 2008 (NAA Reply Comments). 

6See Reply Comments of the Greeting Card 

Association, October 10, 2008 (GCA Reply 

Comments). 

7 Initial Comments of the United States Postal 

Service, September 25, 2008, at 5–6 (Postal Service 

Comments). 

8 Initial Comments of Parcel Shippers 

Association, the Association for Postal Commerce, 

Direct Marketing Association, Inc., Mail Order 

Association of America, Time Warner Inc., National 

protective conditions and publicly 

disclose those materials. Id. at 21. That 

standard for decision included two 

subparts: 

(a) The Commission or its authorized 

representative shall balance the nature and 

extent of the likely commercial or other 

injury identified by the Postal Service against 

the public interest in maintaining the 

financial transparency of a government entity 

operating in commercial markets in 

determining whether to issue an order 

requiring disclosure of the information or 

materials filed under 39 U.S.C. 504(g)(1). 

(b) The Commission or its authorized 

representative shall balance the nature and 

extent of the likelihood that [disclosure of] 

non-public materials would invade a specific 

evidentiary privilege that is recognized in 

federal civil courts, or would constitute an 

undue burden that the Postal Service has 

quantified to the best of its ability against the 

public interest that would be served by 

providing access to the non-public materials 

in determining whether to issue an order 

requiring disclosure of non-public materials. 

Id. 

Order No. 96 summarizes ways the 

Postal Service and third-party nonpublic materials come before the 

Commission and the proposed treatment 

of such materials. Order No. 96 also 

proposed procedures to ensure 

confidentiality, or provide public 

dissemination, as may be appropriate. 

IV. Comments on Order No. 96 

Multiple parties commented on Order 

No. 96. The Commission acknowledges 

the comments and appreciates the 

thoughtful discourse they provide 

concerning the proposed confidentiality 

rules. Several issues raised by the 

comments, and further discussions by 

the Commission, have led to 

modifications in the initially proposed 

regulations and necessitate this order 

and a second opportunity for interested 

parties to comment. 

The comments filed in response to 

Order No. 96 cover multiple issues. 

However, two issues were common to 

multiple commenters and provide the 

impetus for this order. 

Language and function of the 

balancing test to determine the 

appropriate degree of confidentiality. 

Valpak Direct Marketing Systems, Inc., 

and Valpak Dealers’ Association, Inc. 

(Valpak); American Postal Workers 

Union, AFL–CIO (APWU); and the 

Newspaper Association of America 

(NAA) comment that the ‘‘evidentiary 

privileges’’ recognized by the Federal 

courts under Federal Rule of Civil 

Procedure 26(c) and the open-ended 

‘‘other injury’’ term should not be 

imputed into the balancing test to 

determine the appropriate degree of 

confidentiality under 39 U.S.C. 

504(g)(3)(A).5 The comments advise the 

Commission to use the balancing test 

articulated in 39 U.S.C. 504(g)(3)(A) to 

determine the appropriate degree of 

confidentiality under the rules, rather 

than considering ‘‘other injury’’ or 

evidentiary privileges. See Valpak 

Comments at 11; APWU Comments at 2; 

and NAA Reply Comments at 2–8. 

Valpak specifically asserts: 

[D]espite its regulations, the Commission’s 

actual decision-making on confidentiality 

could be infected by inappropriate references 

to rule 26(c)’s ‘good cause balancing test’ in 

derogation of the ‘commercial injury/ 

financial transparency’ test established by 

section 504(g)(3)(A). Indeed, the Commission 

has suggested that, under the influence of the 

rule 26(c) balancing test, it could ‘decid[e] 

whether the need for transparency outweighs 

the need for protecting the commercial or 

other interests of the Postal Service,’ whereas 

section 504(g)(3)(A) limits the balancing 

process to one Postal Service interest — 

‘likely commercial injury’—without reference 

to any ‘other interest,’ including [rule 26(c) 

factors] * * *. Such factors may be relevant 

to judicially-crafted protective orders in 

private litigation, but which are wholly 

inapposite to such orders in the discharge of 

the executive and administrative functions of 

the Commission, especially in light of 

statutory requirements for transparency. 

Valpak Comments at 11–12 (internal 

citations omitted, footnote omitted, 

emphasis omitted). NAA agrees with 

Valpak: 

Val-Pak correctly points out that the Rule 

26(c) judge-created balancing test used in 

civil litigation is incompatible with the 

substantive balancing test adopted by 

Congress in Section 504(g)(3)(A). 

NAA Reply Comments at 4. 

These comments find conflict in the 

Commission’s single rule balancing test 

which encompasses ‘‘other injury’’ in 

addition to ‘‘likely commercial injury.’’ 

Greeting Card Association (GCA), 

however, disagrees with limiting the test 

to the language of section 504(g)(3)(A).6

GCA argues that the Commission should 

take into account ‘‘other injury’’ because 

the statutory language does not limit the 

balancing test to only the factors set 

forth in the statute. Id. at 2. GCA 

comments that under 504(g)(3)(A), loss 

of volume resulting from potential 

disclosure of third-party sensitive 

information should also be included as 

‘‘commercial injury.’’ Id. at 2–3. 

The Postal Service is also opposed to 

the balancing test encompassing only 

‘‘likely commercial injury.’’ 7 It believes 

that interests it has in law enforcement, 

audit activities, collective bargaining, 

privacy, deliberative process, testing 

and examination of employees, and 

other interests are not implicated in 

such a test. Id. The Commission does 

not read ‘‘likely commercial injury’’ in 

such a narrow fashion as to exclude 

harm associated with the categories 

mentioned by the Postal Service in its 

comments. Most materials filed by the 

Postal Service with the Commission are 

commercial in nature, and for the 

Commission to demand information 

from the Postal Service, that information 

must be in furtherance of the 

Commission’s duties under title 39 of 

the U.S. Code. 

The Postal Service also comments that 

the Commission should not conduct 

‘‘appellate review’’ of the Postal 

Service’s FOIA determinations under 

these proposed rules. Id. at 3. The 

operation of these rules, however, by 

clear mandate from 39 U.S.C. 504(g), 

allows the Commission either to 

publicly disclose, or to grant access 

subject to protective conditions, 

materials it collects from the Postal 

Service in furtherance of the its duties 

under title 39 of the U.S. Code. 39 

U.S.C. 504(g) does not operate to make 

the Commission an appellate body for 

FOIA; rather, without regard to FOIA, it 

operates to provide a mechanism for the 

Commission to create greater 

transparency (and hence less protection 

than FOIA provides), for matters 

relevant to the financial transparency 

and the regulatory responsibilities of the 

Postal Regulatory Commission. 

Protection for non-public materials in 

which a third party has a proprietary 

interest. Parcel Shippers Association 

(PSA, et al.); the Association for Postal 

Commerce (PostCom); Direct Marketing 

Association, Inc. (DMA); Mail Order 

Association of America (MOAA); Time 

Warner, Inc. (Time Warner); National 

Postal Policy Council (NPPC); Magazine 

Publishers of America, Inc. (MPA); 

Alliance of Nonprofit Mailers (ANM); 

Pitney Bowes Inc.; GCA; and the Postal 

Service all reference the lack of 

protection for third-party materials held 

by the Postal Service but belonging to a 

third party.8 As articulated by Pitney 


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Postal Policy Council, Magazine Publishers of 

America, Inc., and Alliance of Nonprofit Mailers on 

Order No. 96, September 25, 2008 (PSA, et al. 

Comments); Comments of Pitney Bowes Inc., 

September 25, 2008, (Pitney Bowes Comments); and 

Initial Comments of the Greeting Card Association, 

September 25, 2008 (GCA Comments). See also 

Postal Service Comments. 

9Public Representative Comments on Proposed 

Regulations to Establish Procedure for According 

Appropriate Confidentiality, September 25, 2008 

(Public Representative Comments). 

10Comments of United Parcel Service on Notice 

of Proposed Rulemaking to Establish a Procedure 

for According Appropriate Confidentiality, 

September 25, 2008 (UPS Comments). 

11 Docket No. ACR2008, Motion to Make Core 

Cost, Volume, and Revenue Materials Public, 

January 27, 2009, at 13. 

12 Docket No. ACR2008, Valpak Direct Marketing 

Systems, Inc. and Valpak Dealers’ Association, Inc. 

Motion for Issuance of Commission Information 

Request Concerning Core Costing Data on Detached 

Address Labels, January 13, 2009. 

13 Docket No. MC2009–11, Public Representative 

Comments in Response to Order No. 142, December 

10, 2008, at 4. 

14 Docket No. MC2009–13, Request of the United 

States Postal Service to Add Express Mail & Priority 

Mail Contract 3 to Competitive Product List and 

Notice of Establishment of Rates and Class Not of 

General Applicability, December 19, 2008, at 3. 

15 Docket No. MC2009–15, Public Representative 

Comments in Response to United States Postal 

Service Request to Add Express Mail Contract 3 to 

Competitive Product List, January 15, 2009, at 3– 

4. 

Bowes, there should be an obligation to 

provide notice and an opportunity to be 

heard for parties whose commercially 

sensitive materials could be subject to 

disclosure in a Commission proceeding 

under these rules. See Pitney Bowes 

Comments at 6–7. This need is acute, 

according to Pitney Bowes, since the 

interests of the third party may not align 

perfectly with the Postal Service’s 

reasons for claiming the materials 

exempt from disclosure. Id. at 5. The 

balancing test set out in section 

504(g)(3)(A) must not be used for 

materials in which a third party has a 

proprietary interest because as PSA 

comments, ‘‘[i]t is manifest * * * that 

the same balancing requirements in the 

public interest are not implicated in the 

disclosure of the sensitive information 

of a third-party * * *.’’ PSA Comments 

at 4. 

NAA, however, does not believe any 

additional protection of non-public 

materials with a third-party proprietary 

interest is necessary. See NAA Reply 

Comments at 8–10. Specifically, NAA 

comments: 

[A] third party that has provided 

documents to the Postal Service should [not] 

have an absolute right to prevent disclosure 

of that document. Disclosure of one’s 

potentially sensitive documents, when in the 

possession of another entity, is always a risk 

in the business world. There is no reason 

why third parties dealing with the Postal 

Service should have any greater rights than 

in other business relationships. 

Id. at 8–9. 

The Public Representative’s 

comments provide useful critique for 

the structure, wording, and application 

of the proposed rules.9 United Parcel 

Service (UPS) comments that the 

Commission should not apply 

protective conditions as a prophylactic 

remedy.10 UPS argues that protective 

conditions should not be used for ‘‘key 

Postal Service information that should 

be available to the public at-large.’’ Id. 

at 2–3. 

The Postal Service requests that it be 

able to submit redacted, public versions 

of word processing documents in Adobe 

Portable Document format (PDF) rather 

than in native format. Postal Service 

Comments at 15. The Postal Service also 

requests that persons seeking access 

under the rules identify relevant 

affiliations to accurately assess whether 

to object within an abbreviated 

timeframe. Id. at 12–13. 

V. Other Developments 

In Docket No. ACR2008, the Public 

Representative raised an issue of 

‘‘continuity of analysis,’’ which occurs 

when materials are accessed under 

protective conditions and are subject to 

the requirement that they be ‘‘returned 

or destroyed’’ when the Commission 

issues a final order in a case, or another 

event brings a matter before the 

Commission to a conclusion.11 The 

Public Representative points out that 

this may effectively foreclose the 

opportunity to review trends in data 

over time, or compare data to determine 

anomalies. Id. Proposed rule 3007.50 

will allow a person who has obtained 

access to non-public materials either 

during discovery in a Commission 

proceeding or in a previous rule 3007.50 

request, to make a motion to continue 

access and protective conditions. If such 

a motion is granted, access subject to 

protective conditions will continue 

through the conclusion of the 

Commission’s next ACD proceeding. 

Also in Docket No. ACR2008, Valpak 

asked the Commission to issue an 

information request.12 Valpak ‘‘believes 

that participants should be permitted to 

request information directly from the 

Postal Service on the record * * *.’’ Id. 

at 1. Since participants’ requests may be 

burdensome, duplicative, irrelevant, or 

involve objections or confidentiality 

concerns for the Postal Service, the 

Commission formalizes the process by 

which a person may request the 

Commission to issue an information 

request by changing proposed rule 

3007.3. Under proposed rule 3007.3(b), 

any person may make a motion 

requesting that the Commission issue an 

information request to the Postal 

Service. Such a motion must include a 

detailed statement of support explaining 

how the materials sought will be 

relevant and material to the 

Commission’s duties under title 39 of 

the U.S. Code. 

In Docket No. MC2009–11, the Public 

Representative stated that the Postal 

Service should redact using the ‘‘black 

box’’ method as it is preferable to using 

the ‘‘ellipses’’ (deletion) method since it 

allows the reader ‘‘to view the scope 

and extent of material that has been 

removed.’’ 13 Subsequently, in Docket 

No. MC2009–13, the Postal Service 

justified use of the ‘‘ellipses’’ method by 

making a claim that the ‘‘black box’’ 

method provides ‘‘information or clues 

regarding the name of the customer, the 

length and breadth of price charts, the 

complexity of annual adjustment 

mechanisms, or other similar sensitive 

information.’’ 14 Most recently, in 

Docket No. MC2009–15, the Public 

Representative suggested that the 

Commission may wish to address the 

appropriate method by which the Postal 

Service should redact non-public 

materials.15

VI. Review of Changes to Proposed 

Rules 

The Commission adds several new 

proposed rules and modifies previously 

proposed rules to accurately identify 

and balance all relevant interests. 

The Commission will obtain 

information, and must manage access to 

that information, in two basic contexts. 

In the first context, the Postal Service 

will file information pursuant to a 

specific statutory requirement or 

Commission rule. In these instances, 

with respect to some reports, the PAEA 

explicitly authorizes the Postal Service 

to designate portions as non-public 

annexes or to otherwise avail itself of 

the protections afforded Postal Service 

documents or other matters under the 

procedures of section 504(g). See 39 

U.S.C. 3642(d), 3652(f), and 3654(f). 

Under proposed rule 3007.20, the Postal 

Service would notify any third party 

which the Postal Service has reason to 

believe may have a proprietary interest 

in the materials of the filing. 

Under proposed rule 3007.20, the 

Postal Service must apply to the 

Commission, at the time that it files 

materials, for specifically identified 

portions of these materials to be nonpublic and to qualify for a degree of 

protection from public disclosure. 

Similarly, under proposed rule 3007.20, 

a third party with a proprietary interest 

in non-public materials may file an 


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16 Information and materials required to be 

provided to the Commission in response to a 

subpoena that the Postal Service determines to be 

exempt are subject to the same rules under 

proposed part 3007 as information or materials 

provided in response to a data or information 

request. See 39 U.S.C. 504(f), (g). 

17See e.g., Washington Post v. U.S. Dept. of 

Health and Human Services, 690 F.2d 252 at 258 

(discussing the difference between discoverability 

in litigation and disclosure under FOIA: ‘‘[i]t is well 

established that information that is exempt from 

disclosure to the general public under FOIA may 

nevertheless be subject to discovery.’’ 

18 In application of the proposed disclosure rule, 

the decision-maker will also take into account 

relevant factors such as the procedural stage a 

matter is in (for example, discovery versus a formal 

hearing before the Commission) when deciding 

whether protection or non-disclosure of materials 

sought by the Postal Service is appropriate. Another 

factor to be considered is whether the information 

at issue relates to market dominant or competitive 

products. 

application for non-public treatment. 

Proposed rules 3007.21 and 3007.22 

provide guidance on the content for an 

application for non-public treatment. 

Proposed rule 3007.21 specifically 

instructs the Postal Service to 

thoroughly justify its application with 

statutory authority. 

In the second major context, the 

Commission may request information or 

materials from the Postal Service by way 

of a data or information request, or, if 

necessary, by issuance of a subpoena.16

The Commission may also receive 

information or materials from other 

parties during the exercise of its duties 

under title 39 of the U.S. Code. When 

the Commission identifies information 

that it needs for the preparation of 

reports, for the conduct of 

‘‘proceedings,’’ or other functions under 

the PAEA, the normal procedure 

contemplated for obtaining that 

information will be the issuance of data 

or information requests under proposed 

rule 3007.3. Data or information 

requests in the proposed rules are 

similar to requests that were issued in 

the former Postal Rate Commission’s 

international mail dockets as part of its 

preparation of its reports to Congress on 

international mail. The proposed rules 

contemplate that, where it perceives it 

to be necessary, the Postal Service or 

third party with a proprietary interest in 

the materials would file an application 

for non-public treatment under 

proposed rule 3007.20 with regard to 

data or information provided in 

response to a request issued by the 

Commission. In its application for nonpublic treatment, the Postal Service or 

third party with a proprietary interest in 

the materials would ask for a necessary 

degree of protection from public 

disclosure; for example, by requesting 

limiting the scope of the information to 

be produced, or restricting the 

dissemination of the information 

provided, as is commonly done in the 

application of rule 26(c) of the Federal 

Rules of Civil Procedure in Federal civil 

litigation. 

In both instances, the non-public 

materials would initially be protected 

from disclosure until the Commission 

decides to disclose or grant access to the 

non-public materials, following a 

request for termination of non-public 

status, a request for access during a 

proceeding, or a request for access to 

materials relevant to compliance under 

proposed rules 3007.31, 3007.40, or 

3007.50, respectively. Before acting on 

its own initiative, or in response to a 

request to require disclosure of or access 

to non-public materials, the 

Commission will give interested parties 

an opportunity to respond. 

Valpak, APWU, and NAA’s comments 

about the appropriate balancing test for 

determining the degree of 

confidentiality to be afforded Postal 

Service non-public materials result in 

several changes to the proposed rules. 

While a single balancing test has 

simplicity, it is neither equitable nor 

consistent with section 504(g) to use a 

single balancing test to determine public 

disclosure, discoverability in a 

Commission proceeding, and access to 

materials outside a proceeding but 

relevant to compliance. The 

Commission, therefore, proposes 

separate balancing tests depending on 

the nature of the request. The 

Commission also bifurcates the standard 

for decision for termination of nonpublic status in proposed rule 3007.33 

to account for situations where only 

Postal Service non-public materials are 

at issue, and situations where nonpublic materials in which a third party 

has a proprietary interest are at issue. 

While more complex, the Commission 

believes these new proposed rules will 

allow the public to identify more easily 

the competing interests at issue in each 

determination, and to channel requests 

to the appropriate rule. 

The Commission incorporates the 

statutory test from 39 U.S.C. 

504(g)(3)(A) in proposed rule 

3007.33(a), which sets forth the 

standard for decision when a person 

requests public disclosure and removal 

of non-public status. This proposed rule 

allows a person to challenge the Postal 

Service’s classification of materials as 

non-public and exempt from disclosure 

under 39 U.S.C. 504(g)(1). This test 

balances the Postal Service’s interest in 

avoiding commercial injury against the 

public’s interest in financial 

transparency. If the likely commercial 

injury does outweigh the public interest, 

the Commission may deny the request 

to remove non-public status from the 

materials, or order the Postal Service to 

redact sensitive portions of the materials 

so that some portion may be released to 

the public. 

In cases where non-public materials 

in which a third party has a proprietary 

interest are at stake, subsection (b) of 

this rule sets out the balancing of the 

parties’ interests under Federal Rule of 

Civil Procedure 26(c) as the test for 

disclosure. 

There are different rights at issue, 

interests to be balanced, and a stronger 

need for disclosure in the context of 

discovery, so the Commission creates a 

separate test applicable to access to 

materials during a Commission 

proceeding in proposed rule 3007.42. 

Under this proposed rule, the 

Commission would balance the need of 

the requesting party to access the nonpublic materials to participate 

effectively in a Commission proceeding 

against the Postal Service’s or third 

party with a proprietary interest’s 

evidentiary privileges under Federal 

Rule of Civil Procedure 26(c). 

In discovery under the Commission’s 

rules, see 39 CFR 3001.25 et seq., there 

is a private right balanced against a 

private right, similar to the balancing 

routinely undertaken by Federal courts 

in civil litigation during discovery. Due 

to the need for disclosure for efficient 

operation of discovery (both in civil 

litigation and in Commission 

proceedings), the scales are tipped in 

favor of disclosure.17 To offset the 

possible harm visited by this greater 

need for disclosure, the Commission 

may issue a protective order similar to 

those employed under Federal Rule of 

Civil Procedure 26(c) during Federal 

civil litigation.18 Under Federal Rule of 

Civil Procedure 26(c), a party or person 

may, during the discovery process, 

request a protective order. Federal Rule 

of Civil Procedure 26(c) lists several 

possible procedures to limit discovery 

and ensure confidentially of 

information, including (1) completely 

forbidding the disclosure; (2) specifying 

terms for disclosure; for example, 

specifying the time and/or place of 

discovery; (3) ordering a specific 

method of discovery; (4) limiting the 

scope of discovery as it relates to certain 

matters; (5) limiting who may be present 

during discovery; (6) sealing a 

deposition; and (7) requiring that a trade 

secret or other confidential information 

be revealed only in a specific and 

limited manner. 

Finally, there are different rights at 

issue and interests to be balanced in the 

context of the Commission’s ACD 

proceeding under chapter 36 of title 39 


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19As a means of comparison, when processing 

FOIA requests, the Department of Defense utilizes 

the ‘‘black box’’ and other redaction methods which 

do not involve disguising the amount of material 

redacted. See ‘‘Sanitization Procedures’’ http:// 

www.dod.mil/pubs/foi/dfoipo/docs/ 

NewRedactionPolicy.pdf. 

of the U.S. Code. The Commission 

proposes another distinct test, 

applicable when there is not an active 

proceeding, for requests for access to 

non-public materials that are relevant to 

developing comments for use in a 

current or future ACD proceeding. This 

avenue will allow persons, outside of a 

Commission proceeding, to receive 

access to non-public materials relevant 

to an understanding or review of a past 

ACD proceeding or participation in an 

ongoing or upcoming ACD proceeding. 

Proposed rule 3007.52 announces the 

standard for decision for requests made 

for ACD relevant materials, outside of a 

Commission proceeding. This rule 

balances the Postal Service’s or any 

third party with a proprietary interest in 

the materials’ evidentiary privileges 

against the requesting party’s need for 

the materials to participate effectively in 

a compliance determination or 

understand the intricacies of a 

completed ACD, and the public interest 

in transparency of Commission 

proceedings. Public participation in the 

ACD is directly called for by the PAEA. 

See 39 U.S.C. 3653(a). The Commission 

finds as a result of recent experience 

that a publicly published method to 

access materials relevant to compliance, 

outside of discovery in a proceeding, is 

necessary for effective public 

participation and transparency in the 

ACD process. 

PSA, PostCom, DMA, MOAA, Time 

Warner, NPPC, MPA, ANM, Pitney 

Bowes, and GCA comment about the 

need for protection of third party nonpublic materials submitted to the Postal 

Service. These comments result in the 

change and reformatting of several 

proposed rules. Under the 

Commission’s new proposed rules, the 

Postal Service would have a duty to 

notify a third party with a proprietary 

interest in materials filed with the 

Commission at the time of filing. The 

notice requirement should not unduly 

burden the Postal Service as it 

maintains a record of contacts for third 

parties with proprietary interests in 

materials it holds for FOIA purposes. 

See Postal Service Comments at 10–11. 

The third party with a proprietary 

interest in non-public materials would 

be afforded the same opportunity to 

respond to requests for access or early 

termination of non-public status as the 

Postal Service. 

The Commission also adopted other 

additions, clarifications, and 

improvements based on public 

comments and other developments. The 

Commission adds proposed rule 

3007.10(c) to clarify that the Postal 

Service should use the ‘‘black box’’ or 

‘‘graphical’’ method of redaction as the 

preferred method of redaction. In an 

instance where the Postal Service can 

show likely competitive harm from the 

use of the ‘‘black box’’ method, it must 

indicate at the site of each redaction the 

amount of materials redacted (in 

number of lines or pages).19 Proposed 

rule 3007.3(b) allows a person to request 

that the Commission issue a data or 

information request to the Postal 

Service. Proposed rule 3007.10(b) 

allows the Postal Service to submit 

redacted word processing documents in 

PDF format. Proposed rules 3007.40 and 

3007.50 require submitters to identify 

relevant affiliations (such as 

employment, consultant, or contractual 

relationships). 

Initial comments are due within 30 

days of the publication of this notice in 

the Federal Register. Reply comments 

are due within 45 days of the 

publication of this notice in the Federal 

Register. 

VII. Analysis of Proposed Rules 

Below, the Commission provides a 

concise description of each rule, 

designed to assist commenters in 

understanding the scope and nature of 

the proposed rules and changes. 

Rule 3007.1 Definitions. This 

provision sets forth definitions of terms 

used in part 3007. The term ‘‘non-public 

materials’’ is defined as any 

information, documents, and things 

filed by the Postal Service which, 

pursuant to 39 U.S.C. 504(g), it 

determines to be exempt from 

disclosure. The term is also used to 

describe materials submitted by the 

Postal Service in which a third party has 

a proprietary interest, i.e., the third 

party believes is protectable under 

Federal Rule of Civil Procedure 26(c). 

As used in the rules, the phrase 

‘‘materials claimed to be non-public’’ 

has the same meaning as non-public 

materials. 

Rule 3007.2 Scope. This provision 

sets forth the scope of information, 

documents, and things that the 

Commission (or its authorized 

representative) may require the Postal 

Service to provide in connection with 

the Commission’s responsibilities under 

title 39 of the U.S. Code. It is intended 

to encompass information, documents, 

and things in whatever form likely to 

materially assist the Commission in 

fulfilling its statutory responsibilities. 

Rule 3007.3 Data or information 

requests. This proposed rule provides 

that the Commission, or its authorized 

representative, may issue data or 

information requests to the Postal 

Service concerning materials covered by 

proposed rule 3007.2. The rule has 

changed since Order No. 96 in that it 

also allows persons to request that the 

Commission issue a data or information 

request. These proposed rules only 

allow for persons to request access to 

materials or disclosure of materials after 

the materials have been filed with the 

Commission. This rule provides a 

mechanism for relevant materials to be 

filed with the Commission concurrent 

or prior to a request for access (under 

proposed rules 3007.40 or 50) or early 

termination of non-public status (under 

proposed rule 3007.31). In justifying a 

request made pursuant to this rule, the 

movant should indicate whether it 

expects a request under proposed rule 

3007.31, 3007.40, or 3007.50 will be 

made and a detailed statement of 

support explaining how the materials 

sought will be relevant and material to 

the Commission’s duties under title 39 

of the U.S. Code. 

Rule 3007.10 Submission of nonpublic materials under seal. This 

proposed rule sets forth the manner in 

which non-public materials are to be 

filed with the Commission. More 

specifically, it provides that non-public 

materials are not to be filed 

electronically pursuant to rule 3001.9, 

but are to be filed in sealed envelopes 

clearly marked as confidential. The 

proposed rule requires non-public 

materials to be filed in hard copy as 

well as electronic form (compact discs), 

with the latter subject to certain 

conditions to ensure their utility. In 

addition, the proposed rule requires that 

a redacted copy of the non-public 

materials be filed electronically 

pursuant to rule 3001.9. Changes to the 

rule since Order No. 96 require that 

when the Postal Service files redacted 

copies of non-public materials in 

electronic form, they must be in a 

searchable format (such as searchable 

Adobe PDF format), but spreadsheets, 

data files, or programs must be in native 

format. The method of redaction for 

hard copy submissions under this rule 

shall be the ‘‘black box’’ or ‘‘graphical’’ 

redaction method unless the Postal 

Service identifies particular, likely 

commercial injury which may result 

from the use of such a method. If any 

other method is used, the Postal Service 

must indicate, at the site of each 

redaction, in lines or pages, the amount 

of material removed. 

Rule 3007.20 Application for nonpublic treatment. This provision directs 


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20This aspect of the rule is designed to enable the 

Commission to address claims of confidentiality by 

the Postal Service or a third party on its own 

initiative. It is not intended to imply that the 

Commission will necessarily make a preliminary 

determination with respect to each filing by the 

Postal Service of non-public materials. 

21 Industry affiliations of the party requesting 

access to materials designated as protected by the 

Postal Service are disclosed to enable the Postal 

Service to determine whether to object in the 

context of an expedited matter. 

the Postal Service to file an application 

for non-public treatment whenever it 

files non-public materials. It also 

instructs the Postal Service to contact 

any third party which may have a 

proprietary interest in the information 

being filed with the Commission to give 

that party an opportunity to file an 

application for non-public treatment, 

and address its confidentiality concerns 

directly with the Commission. 

Rule 3007.21 Content of the Postal 

Service application for non-public 

treatment. This proposed rule requires 

the Postal Service to identify the 

materials it asserts are non-public and to 

provide a detailed statement in support 

thereof, addressing, among other things, 

the rationale for the claim, including the 

statutory authority, the nature and 

extent of any commercial harm, a 

hypothetical example of such harm, the 

extent of public protection from public 

disclosure deemed necessary, and any 

other factors relevant to the application 

for non-public treatment. 

Rule 3007.22 Content of third-party 

applications for non-public treatment. 

This proposed rule gives guidance to a 

third party with a proprietary interest in 

non-public materials on the content of 

an application for non-public treatment. 

The proposed rule directs the third 

party to provide justification for nonpublic treatment of materials it believes 

should not be publicly disclosed or 

accessed. 

Rule 3007.23 Treatment of nonpublic materials. This proposed rule 

provides that the Commission will not 

disclose non-public materials except as 

pursuant to the rules in part 3007. 

Rule 3007.24 Commission access to 

non-public materials. This proposed 

rule permits Commissioners, 

Commission employees, including the 

public representative, other persons 

assisting the Commission in carrying 

out its statutory duties, and reviewing 

court personnel access to non-public 

materials subject to the limitations in 39 

U.S.C. 504(g)(2)(A) and (B). Access to 

non-public materials for all persons not 

covered by this rule is by motion under 

proposed rules 3007.40 and 3007.50. 

Rule 3007.25 Use of non-public 

materials. This proposed rule states that 

persons with access to non-public 

materials under proposed rule 3007.24, 

except as pursuant to this part, may not 

use non-public materials for purposes 

other than for which they were supplied 

or allow any other person to have access 

to the non-public materials. 

Rule 3007.30 Termination of nonpublic status. This proposed rule states 

that non-public status shall expire 10 

years after filing, unless otherwise 

provided by the Commission or its 

authorized representative. 

In the context of FOIA requests under 

rule 3004.8, the Commission provides 

that information submitted to the 

Commission and claimed to be exempt 

from disclosure under 5 U.S.C. 552(b) 

(namely, trade secrets or commercially 

or financially sensitive materials) will 

lose any such exemption 10 years after 

its submission. The Commission 

believes that a 10-year sunset provision 

in this instance will also serve 

administrative convenience and sound 

records management practices while 

adequately protecting the commercial 

interest of the Postal Service. 

Rule 3007.31 Request for early 

termination of non-public status. This 

proposed rule states that any person 

may request that the Commission 

remove non-public status from materials 

filed by the Postal Service. This 

proposed rule gives details of the form 

and procedure of such a request. The 

request for early termination of nonpublic status must specifically address 

the Postal Service claims in its 

application for non-public treatment. 

If a request for early termination of 

non-public status is made, the Postal 

Service or any third party with a 

proprietary interest may submit an 

answer within 7 days (or such longer 

period as specified in the notice). Given 

the expedited timetables under which 

the Commission ordinarily operates, 

this proposed rule does not allow any 

filings after the initial answers. Thus, 

requests and answers should address all 

issues relevant to whether the nonpublic materials should be publicly 

disclosed. Following the receipt of the 

answers, if any, the Commission will 

issue an order concerning the 

appropriate status of the non-public 

materials. 

Rule 3007.32 Preliminary 

determination of non-public status. This 

proposed rule recognizes that as a 

matter of course, the Commission will 

review Postal Service materials 

designated as non-public for substance, 

and in the course of such review may 

have cause to question the claim that 

part or all of the materials should not be 

disclosed. Thus, the proposed rule 

provides that the Commission may issue 

a notice of preliminary determination 

concerning the appropriate degree of 

protection, if any, to be accorded nonpublic materials filed by the Postal 

Service.20

If a preliminary determination of nonpublic status is made, the Postal Service 

or any third party with a proprietary 

interest may submit an answer within 7 

days (or such longer period as specified 

in the notice). Given the expedited 

timetables under which the Commission 

ordinarily operates, this proposed rule 

does not allow any filings after the 

initial answers. Thus, those answers 

should address all issues relevant to 

whether the non-public materials 

should be publicly disclosed. Following 

the receipt of the answers, if any, the 

Commission will issue an order 

concerning the appropriate status of the 

non-public materials. 

Rule 3007.33 Standard for decision 

for early termination of non-public 

status. Subsection (a) of this proposed 

rule sets out the balancing test 

prescribed in 39 U.S.C. 504(g)(3)(A) for 

determining the appropriate degree of 

confidentiality to be accorded Postal 

Service non-public materials for which 

a request for early termination of nonpublic status or a preliminary 

determination of non-public status has 

been made. Paragraph (b) of this section 

sets out the balancing test, adapted from 

39 U.S.C. 504(g)(3)(A), applicable to a 

request for early termination of nonpublic status for materials in which the 

Commission determines that a third 

party has proprietary interest. 

Rule 3007.40 Request for access to 

non-public materials. Any person, 

during a Commission proceeding and 

pursuant to the Commission’s rules of 

practice, may make a motion to request 

access to non-public materials filed by 

the Postal Service under 39 U.S.C. 

504(g)(1). Any person requesting access 

must file a motion, which must include 

a detailed statement in support of 

granting access. The person requesting 

access must identify all relevant 

affiliations, including employer, 

organization, agency or contractual 

relationships, and ties to the delivery 

services, communications, or mailing 

industry.21

Given the expedited timetables under 

which the Commission generally 

operates, the proposed rules 

contemplate procedures that will 

expedite the process. Thus, the 

proposed rule provides that the person 

submitting the motion may agree in 

advance to execute and attach sample 

Commission protective conditions. In 


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22Consistent with the Commission’s rules, any 

prescribed time period of 5 days or less excludes 

Saturdays, Sundays, and legal holidays. See rule 

3001.15. 

that event, answers to the motion are 

due within 3 days.22

Recognizing that protective 

conditions may vary based on the nature 

of the non-public materials at issue, the 

Commission encourages any person 

attaching protective conditions to tailor 

the conditions to fit that situation, e.g., 

limiting access to competitive 

information to certain individuals. 

Persons attaching protective conditions 

should describe those conditions, 

particularly alterations to the standard 

form. If an executed copy of the sample 

Commission protective conditions is not 

attached, answers to the motion are due 

in 7 days. Following the filing of the 

answer, the Commission will issue an 

order concerning access to the nonpublic materials, or, if protective 

conditions are approved by the Postal 

Service or third party with a proprietary 

interest, the Commission or its 

authorized representative will grant 

access subject to the agreed protective 

conditions. 

Rule 3007.41 Termination of access 

to non-public materials. This proposed 

rule states that access terminates for all 

persons with access under proposed 

rule 3007.40 when the proceeding 

during which the materials were 

requested ends (by Commission order or 

report) or the person otherwise 

withdraws or ceases to be involved in 

the proceeding. This proposed rule also 

allows a person who has access under 

proposed rule 3007.40 to maintain 

access, subject to any applicable 

protective conditions, while that person 

waits for the Commission or its 

authorized representative to rule on a 

motion to continue access made under 

proposed rule 3007.50. 

Rule 3007.42 Standard for decision 

for request for access to non-public 

materials. This proposed rule creates a 

balancing test to establish procedures to 

accord appropriate confidentiality as 

authorized by 39 U.S.C. 504(g)(3)(B). 

This test directs the Commission to 

balance the interests of the parties, 

similar to balancing done in Federal 

civil litigation under Federal Rule of 

Civil Procedure 26(c). The standard 

balances the need of the requesting 

party to have access to participate 

effectively in a Commission proceeding 

against the Postal Service’s or third 

party with a proprietary interest in the 

materials’ rights derived from rule 26 of 

the Federal Rules of Civil Procedure. 

Rule 3007.50 Request for access to 

non-public materials relevant to 

compliance. This proposed rule 

provides procedures for any interested 

person to request access to non-public 

materials, relevant to the ACD, when 

outside an ongoing Commission 

proceeding. This proposed rule also 

allows a person who has access subject 

to protective conditions (under 

proposed rules 3007.40 or 3007.50) to 

file a motion to continue access if the 

materials are relevant to compliance 

under 39 U.S.C. 3653. Any person 

requesting access must file a motion, 

which includes a statement justifying 

why access should be granted, and 

stating how the requested materials are 

relevant to the Commission’s annual 

determination of compliance under 39 

U.S.C. 3653. As with proposed rule 

3007.40, the person requesting access 

must identify all relevant affiliations to 

assist the Postal Service in determining 

whether to object to access. 

Given the expedited timetables under 

which the Commission generally 

operates, the proposed rules 

contemplate procedures that will 

expedite the process. Thus, the 

proposed rule provides that the person 

submitting the motion may execute and 

attach to the motion the sample 

Commission protective conditions. In 

that event, answers to the motion are 

due within 3 days. Recognizing that 

protective conditions may vary based on 

the nature of the non-public materials at 

issue, the Commission encourages any 

person attaching protective conditions 

to tailor the conditions to fit that 

situation, e.g., limiting access to 

competitive information to certain 

individuals. Persons attaching 

protective conditions should describe 

those conditions, particularly alterations 

to the standard form. If a copy of the 

sample Commission protective 

conditions is not attached, answers to 

the motion are due in 7 days. Following 

the filing of any answers, the 

Commission will issue an order 

concerning access to the non-public 

materials, or, if protective conditions are 

approved by the Postal Service or third 

party with a proprietary interest, the 

Commission or its authorized 

representative will grant access subject 

to the agreed protective conditions. 

Under this proposed rule, a person 

previously granted access to materials 

under this proposed rule could make 

renewed requests for access to nonpublic materials. 

Rule 3007.51 Termination of access 

to non-public materials relevant to 

compliance. This proposed rule states 

that access terminates for all persons 

with access under proposed rule 

3007.50 when the Commission issues its 

next ACD or the person otherwise 

withdraws or ceases to be involved. 

This proposed rule also allows a person 

who has access under proposed rule 

3007.50 to maintain access, subject to 

any applicable protective conditions, 

while that person waits for the 

Commission to rule on a motion to 

continue access made under proposed 

rule 3007.50. 

Rule 3007.52 Standard for decision 

for request for access to non-public 

materials relevant to compliance. This 

proposed rule creates a balancing test to 

establish the procedures to accord 

appropriate confidentiality when 

determining restrictions on the amount 

or conditions of access to materials 

requested by a person which are 

relevant to the ACD. The standard 

instructs the Commission to balance the 

parties’ interests, similar to balancing 

done by the Federal courts under 

Federal Rule of Civil Procedure 26(c). 

Such balancing may weigh the 

requesting party’s need to access the 

materials to participate effectively in 

determining compliance against the 

Postal Service’s interests derived from 

Federal Rule of Civil Procedure 26(c). 

Rule 3007.60 Limitations on access 

to non-public materials. This proposed 

rule identifies various limitations on 

access to non-public materials that may 

be ordered by the Commission pursuant 

to 39 U.S.C. 504(g)(3)(B). These 

limitations, which are generally similar 

to relief provided by Federal civil courts 

in discovery disputes under rule 26(c) of 

the Federal Rules of Civil Procedure 

include, inter alia, not requiring the 

public disclosure of the materials, 

specifying the terms for public 

disclosure, ordering a specific method 

of disclosure, restricting to whom the 

information may be disclosed, 

specifying a time when access 

terminates, and such other relief as the 

Commission deems appropriate. 

Rule 3007.61 Continued 

effectiveness of protective conditions. 

This proposed rule specifies procedures 

to be followed if a court or other 

administrative agency subpoenas (or 

otherwise orders production of) nonpublic materials which a person has 

obtained pursuant to a protective order 

issued by the Commission. This 

proposed rule requires that any person 

seeking to disclose non-public materials 

to a reviewing court make a good faith 

effort to obtain protective conditions in 

accord with those prescribed by the 

Commission. The proposed rule also 

provides that unless overridden by the 

reviewing court, the protective 

conditions of the Commission (or its 

authorized representative) remain in 

effect. The procedures require notice to 

the Postal Service. 


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Rule 3007.62 Sanctions for 

violations of protective conditions. This 

proposed rule reiterates the protective 

conditions, barring the dissemination of 

non-public materials by every person 

granted access to such materials to any 

person not authorized to access such 

materials. The sanctions include 

dismissing the proceeding in whole or 

part, issuing a default judgment against 

the violator of the protective conditions, 

and such other relief as the Commission 

(or its authorized representative) deems 

appropriate. In addition, the rule 

provides that the Postal Service may 

pursue whatever remedies may be 

available to it under law against the 

violator as well as the entity on whose 

behalf that person was acting. 

VIII. Public Representative 

Pursuant to 39 U.S.C. 505, Kenneth E. 

Richardson remains the officer of the 

Commission (Public Representative) to 

represent the interests of the general 

public in the captioned docket. 

IX. Ordering Paragraphs 

It is Ordered: 

1. Interested persons may submit 

initial comments no later than 30 days 

from the date of publication of this 

notice in the Federal Register. 

2. Reply comments may be filed no 

later than 45 days from the date of 

publication of this notice in the Federal 

Register. 

3. The Secretary shall arrange for 

publication of this notice in the Federal 

Register. 

List of Subjects in 39 CFR Part 3007 

Administrative practice and 

procedure, Confidential business 

information, Postal Service. 

By the Commission. 

Steven W. Williams, 

Secretary. 

For the reasons discussed above, the 

Commission proposes to amend 39 CFR 

chapter III by adding part 3007 to read 

as follows: 

PART 3007—TREATMENT OF NONPUBLIC MATERIALS PROVIDED BY 

THE POSTAL SERVICE 

Sec. 

3007.1 Definitions. 

3007.2 Scope. 

3007.3 Data or information requests. 

3007.10 Submission of non-public materials 

under seal. 

3007.20 Application for non-public 

treatment. 

3007.21 Content of the Postal Service 

application for non-public treatment. 

3007.22 Content of third-party application 

for non-public treatment. 

3007.23 Treatment of non-public materials. 

3007.24 Commission access to non-public 

materials. 

3007.25 Use of non-public materials. 

3007.30 Termination of non-public status. 

3007.31 Request for early termination of 

non-public status. 

3007.32 Preliminary determination of nonpublic status. 

3007.33 Standard for decision for early 

termination of non-public status. 

3007.40 Request for access to non-public 

materials. 

3007.41 Termination of access to nonpublic materials. 

3007.42 Standard for decision for request 

for access to non-public materials. 

3007.50 Request for access to non-public 

materials relevant to compliance. 

3007.51 Termination of access to nonpublic materials relevant to compliance. 

3007.52 Standard for decision for request 

for access to non-public materials 

relevant to compliance. 

3007.60 Limitations on access to non-public 

materials. 

3007.61 Continued effectiveness of 

protective conditions. 

3007.62 Sanctions for violations of 

protective conditions. 

Appendix A to Part 3007—Statement of 

Compliance with Protective Conditions 

Authority: 39 U.S.C. 504. 

§ 3007.1 Definitions. 

For purposes of this part: 

(a) Authorized representative means 

any Commissioner designated by the 

Chairman, any administrative law judge 

appointed by the Commission under 5 

U.S.C. 3105, and any employee of the 

Commission designated by the 

Commission. The authorized 

representative may administer oaths, 

examine witnesses, take depositions, 

and receive evidence with respect to 

any proceeding before the Commission 

under title 39 of the U.S. Code or obtain 

information to assist the Commission in 

the preparation of a report or 

performance of a function under title 39 

of the U.S. Code. 

(b) Non-public materials means any 

information, documents, and things 

filed with the Commission which are 

claimed to be exempt from disclosure by 

the Postal Service pursuant to 39 U.S.C. 

504(g), 3652(f) or 3654(f), or claimed to 

be protectable under Federal Rule of 

Civil Procedure 26(c) by a third party 

with a proprietary interest in the 

materials. 

§ 3007.2 Scope. 

The Commission or its authorized 

representative may require the Postal 

Service to provide any information, 

documents, and things in its possession 

or control, or any information, 

documents, and things that it can obtain 

through reasonable effort and expense, 

that are likely to materially assist the 

Commission in its conduct of 

proceedings, in its preparation of 

reports, or in performance of its 

functions under title 39 of the U.S. 

Code. Information, documents, and 

things the Postal Service may be 

required to provide, include, but are not 

limited to, paper hard copy and 

electronically stored data and 

materials—including writings, notes, emails, drawings, graphs, charts, 

photographs, sound recordings, images, 

and other data or data compilations— 

stored in any medium from which 

information can be obtained either 

directly or, if necessary, after translation 

into a reasonably usable form; or any 

tangible things. 

§ 3007.3 Data or information requests. 

(a) The Commission or its authorized 

representative may issue data or 

information requests to the Postal 

Service seeking information, 

documents, and things covered by 

§ 3007.2. A data or information request 

shall describe the documents, 

information, and things sought, briefly 

explain the reason for the request, and 

specify a timeframe for receiving the 

requested information and materials. 

(b) Any person may request that the 

Commission issue a data or information 

request for documents, information, and 

things covered by § 3007.2 by filing a 

motion with the Commission, pursuant 

to § 3001.21 of this chapter, which 

describes the documents, information, 

and things sought, explains the reasons 

the Commission should make the 

request, and includes a statement of 

how the materials sought are relevant 

and material to the Commission’s duties 

under title 39 of the U.S. Code. 

§ 3007.10 Submission of non-public 

materials under seal. 

(a) Non-public materials shall not be 

filed electronically pursuant to § 3001.9 

of this chapter, but shall be filed in 

sealed envelopes clearly marked 

‘‘Confidential. Do Not Post on Web.’’ 

The person filing the non-public 

materials shall submit two copies 

consisting, where practicable, of two 

paper hard copies as well as two copies 

in easily usable electronic form such as 

compact discs (CDs) or digital video 

discs (DVDs) of the non-public materials 

which shall also be clearly marked 

‘‘Confidential. Do Not Post on Web.’’ 

Spreadsheets submitted in electronic 

form shall display the formulas used, 

their links to related spreadsheets, and 

shall not be password protected. All 

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 


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application. Each page of any paper 

hard copy non-public materials 

submitted shall be clearly marked as 

non-public. 

(b) The person submitting the nonpublic materials shall also file an 

electronic public (redacted) copy of the 

non-public materials pursuant to 

§ 3001.9 of this chapter. The electronic 

public (redacted) copy of the materials 

which are not spreadsheets, data files, 

or programs must be submitted in a 

searchable electronic format, but need 

not be submitted in its native format. As 

part of its publicly available electronic 

filing, the Postal Service must 

appropriately redact materials that 

contain both public and non-public 

information. For example, the Postal 

Service may not identify a whole page 

or a whole table as non-public materials 

if the page or table contains both public 

and non-public information, but must 

redact only the information it claims to 

be non-public. If practicable, the Postal 

Service shall sequentially number each 

page of the materials identified as nonpublic. 

(c) The Postal Service shall use the 

graphical redaction (blackout) method 

for all redacted materials. Should the 

Postal Service wish to use any other 

method, it must state with particularity 

the competitive harm associated with 

use of the graphical redaction method to 

justify the use of any other method, and 

indicate the number of lines or pages 

removed at each redaction. 

(d) The Postal Service shall mark each 

page, item, and thing, or portion thereof, 

that it seeks to protect from disclosure 

in a manner reasonably calculated to 

alert custodians to the confidential 

nature of the information or materials. 

§ 3007.20 Application for non-public 

treatment. 

(a) Whenever the Postal Service files 

non-public materials with the 

Commission, it shall at the same time 

file an application for non-public 

treatment under § 3007.21. 

(b) Before the Postal Service files nonpublic materials with the Commission 

which the Postal Service has reason to 

believe may implicate a third-party 

proprietary interest, the Postal Service 

shall inform each such third party: 

(1) Of the nature and scope of the 

filing with the Commission, including 

the pertinent docket, and 

(2) That it may address its 

confidentiality concerns directly with 

the Commission. 

(c) A third party with a proprietary 

interest in the materials may, if it deems 

necessary, independently seek nonpublic treatment under § 3007.22. 

§ 3007.21 Content of the Postal Service 

application for non-public treatment. 

(a) Whenever the Postal Service files 

non-public materials with the 

Commission, it must submit an 

application for non-public treatment 

that clearly identifies all non-public 

materials and describes the 

circumstances causing them to be 

submitted to the Commission. 

(b) An application for non-public 

treatment is to fulfill the burden of 

persuasion that the non-public materials 

should be withheld from the public. 

(c) The application for non-public 

treatment must include a specific and 

detailed statement setting forth: 

(1) The rationale for claiming that the 

materials are non-public, including the 

specific statutory basis for the claim, 

and a statement justifying application of 

the provision(s); 

(2) A description of the materials 

claimed to be non-public in a manner 

that, without revealing the materials at 

issue, would allow a person to 

thoroughly evaluate the basis for the 

claim that they are non-public; 

(3) Particular identification of the 

nature and extent of commercial harm 

alleged and the likelihood of such harm; 

(4) At least one specific hypothetical, 

illustrative example of each alleged 

harm; 

(5) The extent of protection from 

public disclosure deemed to be 

necessary; 

(6) The length of time deemed 

necessary for the non-public materials 

to be protected from public disclosure 

with justification thereof; and 

(7) Any other factors or reasons 

relevant to support the application. 

§ 3007.22 Content of third-party 

application for non-public treatment. 

(a) The application for relief from 

public disclosure submitted by a party 

other than the Postal Service must 

clearly identify all materials believed to 

be protected from disclosure. 

(b) The application for non-public 

treatment must include a specific and 

detailed statement setting forth: 

(1) A description of the materials 

claimed to be non-public in a manner 

that, without revealing the materials at 

issue, would allow a person to 

thoroughly evaluate the basis for the 

claim that they are non-public; 

(2) Particular identification of the 

nature and extent of the harm alleged 

and the likelihood of such harm; and 

(3) Any other factors or reasons 

relevant to support the application. 

§ 3007.23 Treatment of non-public 

materials. 

The Commission or its authorized 

representative will not publicly disclose 

or grant access to non-public materials 

except as provided in the rules of this 

part. 

§ 3007.24 Commission access to nonpublic materials. 

(a) Non-public materials may be 

disclosed to the following persons: 

(1) Members of the Commission; 

(2) Commission employees including 

a public representative carrying out 

their appropriate responsibilities; 

(3) Contractors, attorneys, or other 

subject matter experts assisting the 

Commission in carrying out its statutory 

duties; 

(4) Reviewing courts and their staffs; 

or 

(5) Court reporters, stenographers, or 

persons operating audio or video 

recording equipment for such court 

reporters or stenographers at hearings or 

depositions. 

(b) Access to non-public materials for 

all persons not covered by this section 

is pursuant to §§ 3007.40 and 3007.50. 

§ 3007.25 Use of non-public materials. 

Except as pursuant to this part, 

persons with access to non-public 

materials under § 3007.24 may not: 

(a) Use such materials for purposes 

other than the purposes for which they 

are supplied. 

(b) Permit anyone who is not allowed 

access under § 3007.24 to have access to 

any such materials. 

§ 3007.30 Termination of non-public 

status. 

Ten years after the date of filing with 

the Commission, non-public materials 

shall lose non-public status unless the 

Commission or its authorized 

representative enters an order extending 

the duration of that status. 

§ 3007.31 Request for early termination of 

non-public status. 

(a) Any person may make a request to 

the Commission that non-public 

materials be publicly disclosed. Each 

such request shall provide a specific 

and detailed statement justifying why 

the non-public materials should be 

made public giving specific recognition 

to any pertinent rationale(s) provided in 

the application for relief submitted 

pursuant to § 3007.21 or § 3007.22. The 

request, however, shall not publicly 

disclose any of the non-public materials. 

If it is necessary to use the non-public 

materials to formulate the argument in 

favor of public disclosure, the argument 

utilizing the non-public materials shall 

be filed under seal. 

(b) Any interested person, including 

the Postal Service, may file a response 

to the request within 7 days after such 


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a request is filed, unless a longer period 

is specified by the Commission. 

(c) Unless the Commission otherwise 

provides, no reply to a response filed 

pursuant to paragraph (a) of this section 

shall be filed. 

(d) Following the filing of responses, 

if any, the Commission will issue an 

order determining the appropriate 

degree of protection, if any, to be 

accorded to the materials claimed to be 

non-public by the Postal Service or third 

party with a proprietary interest in the 

materials. 

§ 3007.32 Preliminary determination of 

non-public status. 

(a) Whenever the Postal Service files 

non-public materials, the Commission 

may issue a notice of preliminary 

determination concerning the 

appropriate degree of protection, if any, 

to be accorded to such materials. 

(b) Any interested person, including 

the Postal Service, may file a response 

to the Commission’s notice of 

preliminary determination within 7 

days after such a notice is filed, unless 

a longer period is specified. 

(c) Unless the Commission otherwise 

provides, no reply to a response filed 

pursuant to paragraph (b) of this section 

shall be filed. 

(d) Following the filing of responses, 

if any, the Commission will issue an 

order determining the appropriate 

degree of protection, if any, to be 

accorded to the materials claimed to be 

non-public by the Postal Service or third 

party with a proprietary interest in the 

materials. 

§ 3007.33 Standard for decision for early 

termination of non-public status. 

(a) In determining whether to publicly 

disclose non-public materials filed by 

the Postal Service, 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 non-public materials in which 

the Commission determines a third 

party has a proprietary interest, the 

Commission shall balance the interests 

of the parties based on Federal Rule of 

Civil Procedure 26(c). 

§ 3007.40 Request for access to nonpublic materials. 

(a) During a Commission proceeding, 

any person may file a motion pursuant 

to § 3001.21 of this chapter requesting 

access to non-public materials. The 

motion shall include: 

(1) A detailed statement providing 

justification for access; and 

(2) A list of relevant affiliations, 

including employment or other 

relationship (including agent, 

consultant or contractor) with the party 

requesting access, and whether that 

party is affiliated with the delivery 

services, communications or mailing 

industries. 

(b) To expedite the process, each 

person seeking access to non-public 

materials may attach to the motion an 

executed copy of the sample 

Commission protective conditions as 

provided in Appendix A of this part. 

(1) If an executed copy of the sample 

Commission protective conditions is 

attached, answers are due within 3 days 

after such a motion is filed. 

(2) If an executed copy of the sample 

Commission protective conditions is not 

attached, answers are due within 7 days 

after such a motion is filed. 

(c) Unless the Commission otherwise 

provides, no reply to an answer filed 

pursuant to paragraph (b)(1) or 

paragraph (b)(2) of this section shall be 

filed. 

(d) Following the filing of answers, if 

any: 

(1) The Commission will issue an 

order allowing or denying access and 

setting forth the appropriate protective 

conditions, if any, to be accorded nonpublic materials, or 

(2) If the Postal Service or third party 

with a proprietary interest does not 

contest a person’s access subject to 

agreed protective conditions, the 

Commission or its authorized 

representative may issue an order 

allowing access subject to the agreed 

protective conditions. 

§ 3007.41 Termination of access to nonpublic materials. 

(a) Except as provided in paragraph 

(b) of this section, access to non-public 

materials obtained under § 3007.40 

terminates either when the Commission 

issues a final order or report in the 

relevant proceeding or the person 

withdraws or is otherwise no longer 

involved in the proceeding, whichever 

occurs first. For purposes of this section, 

an order or report is not considered final 

until after the possibility of judicial 

review expires. 

(b) Access to non-public materials 

shall continue for persons seeking 

continued access under § 3007.50. 

(c) Upon termination of access under 

paragraph (a) of this section, all nonpublic materials in a person’s 

possession must be destroyed, and the 

form attached to the protective 

conditions certifying destruction must 

be executed and filed with the 

Commission. 

§ 3007.42 Standard for decision for 

request for access to non-public materials. 

In determining whether to grant a 

request for access to non-public 

materials, the Commission shall balance 

the interests of the parties based on 

Federal Rule of Civil Procedure 26(c). 

§ 3007.50 Request for access to nonpublic materials relevant to compliance. 

(a) Any person may file a motion 

pursuant to § 3001.21 of this chapter 

requesting access to, or continued 

access to, non-public materials relevant 

to compliance under 39 U.S.C. 3653. 

The motion shall include: 

(1) A detailed statement providing 

justification for access, including 

reference to the materials’ relevance to 

compliance under chapter 36 of title 39 

of the U.S. Code; and 

(2) A list of relevant affiliations, 

including employment or other 

relationship (including agent, 

consultant or contractor) with the party 

requesting access, and whether that 

party is affiliated with the delivery 

services, communications or mailing 

industries. 

(b) To expedite the process, each 

person seeking access to non-public 

materials may attach to the motion an 

executed copy of the sample 

Commission protective conditions as 

provided in Appendix A of this part. 

(1) If an executed copy for the sample 

Commission protective conditions is 

attached, answers are due within 3 days 

after such a motion is filed. 

(2) If an executed copy of the sample 

Commission protective conditions is not 

attached, answers are due within 7 days 

after such a motion is filed. 

(c) Unless the Commission otherwise 

provides, no reply to an answer filed 

pursuant to paragraph (b)(1) or 

paragraph (b)(2) of this section shall be 

filed. 

(d) Following the filing of answers, if 

any: 

(1) The Commission will issue an 

order allowing or denying access and 

setting forth the appropriate protective 

conditions, if any, to be accorded the 

non-public materials, or 

(2) If the Postal Service or third party 

with a proprietary interest does not 

contest a person’s access subject to 

agreed protective conditions, the 

Commission or its authorized 

representative may issue an order 

allowing access subject to the agreed 

protective conditions. 

§ 3007.51 Termination of access to nonpublic materials relevant to compliance. 

(a) Access to non-public materials 

obtained under § 3007.50 terminates 

either when the Commission issues its 


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next Annual Compliance Determination 

(ACD) or the person withdraws or is 

otherwise no longer involved in the 

relevant proceeding, whichever occurs 

first. 

(b) Access to non-public materials 

shall continue for persons seeking 

continued access under § 3007.50. 

(c) Upon termination of access under 

paragraph (a) of this section, all nonpublic materials in a person’s 

possession must be destroyed, and the 

form attached to the protective 

conditions certifying destruction must 

be executed and filed with the 

Commission. 

§ 3007.52 Standard for decision for 

request for access to non-public materials 

relevant to compliance. 

In determining whether to grant a 

request for access to non-public 

materials relevant to compliance, the 

Commission shall balance the interests 

of the parties based on Federal Rule of 

Civil Procedure 26(c). 

§ 3007.60 Limitations on access to nonpublic materials. 

To afford appropriate confidentiality 

to non-public materials during any stage 

of a proceeding before the Commission, 

or in connection with any other purpose 

under title 39 of the U.S. Code, the 

Commission may, based on Federal Rule 

of Civil Procedure 26(c): 

(a) Prohibit the public disclosure of 

the non-public materials; 

(b) Specify terms for public disclosure 

of the non-public materials; 

(c) Order a specific method for 

disclosing the non-public materials; 

(d) Restrict the scope of the disclosure 

of the non-public materials as they 

relate to certain matters; 

(e) Restrict who may have access to 

non-public materials; 

(f) Require that a trade secret be 

revealed only in a specific and limited 

manner or to limited or specified 

persons; and 

(g) Order other relief as appropriate 

including, but not limited to, sealing a 

deposition or part of a proceeding. 

§ 3007.61 Continued effectiveness of 

protective conditions. 

(a) If a court or other administrative 

agency subpoenas or orders production 

of non-public materials which a person 

has 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 for production, notify the Postal 

Service of the pendency of the subpoena 

or order to allow the Postal Service time 

to object to the production or to seek a 

protective order or seek such other relief 

as it deems appropriate. 

(b) Any person seeking to disclose 

non-public materials to a reviewing 

court 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) Protective conditions ordered by 

the Commission or its authorized 

representative shall remain in effect 

throughout any subsequent review 

unless overridden by the action of the 

reviewing court. 

§ 3007.62 Sanctions for violations of 

protective conditions. 

(a) No person who has been granted 

access to materials subject to protective 

conditions shall disseminate the 

materials in whole or in part to any 

person not authorized to obtain access 

under the protective conditions 

imposed by the Commission. If a person 

who has been granted access to such 

non-public materials under a protective 

order violates the terms of such order, 

the Commission or its authorized 

representative shall impose sanctions on 

the person who violated the protective 

order or the individuals or entities on 

whose behalf the person was acting, or 

both. The sanctions may include: 

(1) Dismissing the proceeding in 

whole or in part; 

(2) Ruling by default against the 

person who violated the protective 

order; and 

(3) Such other sanctions as the 

Commission or its authorized 

representative deems appropriate. 

(b) The Postal Service, in its 

discretion, may pursue any remedies 

available to it under the law against the 

individual who violated the protective 

order, or the individuals or entities on 

whose behalf the person was acting, or 

both. 

BILLING CODE 7710–FW–P 


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[FR Doc. E9–6891 Filed 3–26–09; 8:45 am] 

BILLING CODE 7710–FW–C 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 600 

[Docket No. 080102007–81097–01] 

RIN 0648–AW18 

Magnuson-Stevens Fishery 

Conservation and Management Act; 

Regional Fishery Management 

Councils; Operations 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes changes to 

the regulations that address the 

operations and administration of 

regional fishery management councils 

(Councils). The regulatory changes are 

needed to implement amendments to 

the Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) that, among 

other things, govern the Council 

Coordination Committee (CCC), expand 

the role of the Councils’ Scientific and 

Statistical Committee (SSC), require that 

SSC members disclose their financial 

interests, and provide for training of 

Council members and staff. 

Additionally, the proposed rule would 

make changes to the regulations 

requiring Councils to provide 

procedures for proposed regulations, 

clarifying restrictions on lobbying, and 

clarifying timing in the Council member 

nomination process. The proposed rule 

would also make technical and minor 

corrections to the regulations unrelated 

to the most recent Magnuson-Stevens 

Act amendments. 

DATES: Written comments must be 

received no later than 5 p.m. e.d.t. on 

July 6, 2009. 

ADDRESSES: You may submit comments, 

identified by ‘‘RIN 0648–AW18,’’ by any 

one of the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov. 

• Fax: 301–713–1175. 

• Mail: Alan Risenhoover, Director, 

Office of Sustainable Fisheries, National 

Marine Fisheries Service, 1315 EastWest Highway, SSMC3, Silver Spring, 

MD 20910. Please mark the outside of 

the envelope ‘‘Council Operations.’’ 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter n/a in the required 

fields, if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe pdf 

file formats only. 

Written comments regarding the 

burden-hour estimates or other aspects 

of the collection-of-information 

requirements contained in this proposed 

rule may be submitted to the Office of 

Sustainable Fisheries at the mailing 

address or fax number specified above 

and by e-mail to 

DavidlRostker@omb.eop.gov, or fax to 

(202) 395–7285. 

FOR FURTHER INFORMATION CONTACT: 

William Chappell, at 301–713–2337. 

SUPPLEMENTARY INFORMATION: Section 

302 of the Magnuson-Stevens Act 

includes provisions for the 

establishment and administration of the 

Councils. The Magnuson-Stevens Act 

was reauthorized on January 12, 2007, 

with amendments throughout, and this 

proposed rule would implement some 

of the changes that were made to 

Section 302. Additionally, several issues 

regarding Council operations and 

membership have prompted proposed 


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