30938 Federal Register / Vol. 74, No. 123 / Monday, June 29, 2009 / Rules and Regulations 

1The term ‘‘non-public materials’’ as used in this 

order is defined in 39 CFR 3007.1(b). Essentially 

‘‘non-public materials’’ means any document, 

information, or thing filed with the Commission 

and claimed exempt from disclosure under 

applicable sections of the United States Code by the 

Postal Service or protected from disclosure under 

Federal Rule of Civil Procedure 26(c) by a third 

party with a proprietary interest in the materials. 

2PRC Order No. 96, Notice of Proposed 

Rulemaking to Establish a Procedure for According 

Appropriate Confidentiality, August 13, 2008 

(Order No. 96). 

3PRC Order No. 194, Second Notice of Proposed 

Rulemaking to Establish a Procedure for According 

Appropriate Confidentiality, March 20, 2009 (Order 

No. 194). 

Guard submits evidence to support the 

allegations of the complaint, while the 

respondent may submit evidence in 

rebuttal or mitigation. The 

Administrative Law Judge renders a 

decision on the basis of the evidence 

adduced at the hearing and the law. The 

Administrative Law Judge’s decision is 

given to the respondent. 

(i) In a case where an appeal is made 

by either party (Coast Guard or 

respondent), the notice of appeal is filed 

in accordance with the procedures of 33 

CFR 20.1001(a). 

* * * * * 

Dated: June 22, 2009. 

Stefan G. Venckus, 

Chief, Office of Regulations and 

Administrative Law, United States Coast 

Guard. 

[FR Doc. E9–15195 Filed 6–26–09; 8:45 am] 

BILLING CODE 4910–15–P 

POSTAL REGULATORY COMMISSION 

39 CFR Part 3007 

[Docket No. RM2008–1; Order No. 225] 

Treatment of Non-Public Materials 

Submitted by the Postal Service 

AGENCY: Postal Regulatory Commission. 

ACTION: Final rule. 

SUMMARY: The Commission is adopting 

a final rule on the treatment of nonpublic material submitted by the Postal 

Service. This action is consistent with 

Commission obligations under a recent 

change in law. 

DATES: Effective July 29, 2009. 

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). 

74 FR 13370 ((March 27, 2009). 

I. Introduction 

II. Statutory Standards for According 

Confidentiality to Materials Filed With the 

Commission 

III. Analysis of Comments on Order No. 194 

IV. Section-by-Section Analysis 

V. Ordering Paragraphs 

I. Introduction 

In this order, the Postal Regulatory 

Commission (Commission) adopts rules 

which implement 39 U.S.C. 504(g) of 

the Postal Accountability and 

Enhancement Act (PAEA), Public Law 

109–435, 120 Stat. 3218 (2006). These 

final rules establish a procedure for 

according appropriate confidentiality 

for non-public materials 1 filed with the 

Commission. 

These rules lay a foundation for the 

Commission’s treatment of non-public 

materials filed by the Postal Service and 

other parties. This order focuses 

primarily on comments which suggest a 

need for changes, and the Commission 

incorporates its discussion of the 

proposed rules, especially for those 

issues that did not receive comments 

published in PRC Order No. 194, March 

20, 2009, located at 74 FR 13370 (March 

27, 2009). The remainder of part I of this 

order includes background information 

and sets forth the procedural history of 

this docket. Part II of this order briefly 

recapitulates the statutory standards for 

according confidentiality. Part III gives 

an overview of the comments and 

presents a discussion of the issues 

raised by the parties in response to the 

second notice of proposed rulemaking. 

Part IV provides a section-by-section 

analysis of each final rule. The complete 

final rules are set forth at the end of this 

order. 

On August 13, 2008, the Commission 

issued a notice and order of proposed 

rulemaking to establish rules governing 

the treatment of non-public materials.2

Order No. 96 proposed rules to meet the 

statutory standards for according 

confidentiality to Postal Service 

materials. The rules proposed in that 

order only applied to materials filed by 

the Postal Service and claimed to be 

non-public. Id. at 5–6. The rules used 

one test applicable to discovery requests 

and requests to publicly disclose Postal 

Service non-public materials. Id. at 7. 

The Commission received eight 

comments and five reply comments on 

the proposed rules. Comments 

identified two main shortcomings in the 

proposed rules. Several commenters 

requested a mechanism to protect thirdparty non-public materials. See, e.g., 

Comments of Pitney Bowes Inc., 

September 25, 2008, at 6–7. Several 

comments also addressed the 

Commission’s departure from the test 

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

which is designed to balance the Postal 

Service’s interest in avoiding 

commercial injury against the public’s 

interest in financial transparency of a 

government agency competing in 

commercial markets. See, e.g., Valpak 

Direct Marketing Systems, Inc. and 

Valpak Dealers’ Association, Inc. 

Comments Regarding Regulations to 

Establish a Procedure for According 

Appropriate Confidentiality, September 

25, 2008, at 11. On review, the 

Commission found those comments 

persuasive and subsequently issued a 

second notice of proposed rulemaking.3

In Order No. 194, the Commission 

modified its proposed rules to address 

commenter issues and respond to 

developments in ongoing proceedings. 

First, the Commission proposed 

procedures for any person to request 

early termination of non-public 

treatment of materials. The proposed 

rule’s standard for decision was the 

balancing test set forth in 39 U.S.C. 

504(g)(3)(A). See id. at 18. Second, the 

Commission proposed rules to govern 

the submission of third-party nonpublic materials and to establish 

procedures for challenging those 

assertions of confidentiality. Id. at 16, 

18–20. 

Because 39 U.S.C. 504(g) is silent as 

to the treatment of materials belonging 

to parties other than the Postal Service, 

the Commission proposed a different 

framework, under its general 

rulemaking authority in 39 U.S.C. 503, 

for assessing challenges to third-party 

assertions of confidentiality. See 

§ 3007.33(b). Id. As 39 U.S.C. 

504(g)(3)(B) directs the Commission to 

establish procedures for ensuring 

appropriate confidentiality for 

information furnished to any party, the 

Commission created §§ 3007.40–.42 and 

3007.50–.52 to develop a framework for 

requests for access to non-public 

materials. Id. Other changes proposed in 

Order No. 194 include provision for 

ongoing access to non-public materials 

which are relevant to compliance and a 

mechanism for a person to make a data 

or information request to the Postal 

Service. Id. at 20. 

II. Statutory Standards for According 

Confidentiality to Materials Filed With 

the Commission 

As discussed in detail in Order No. 96 

and Order No. 194, the PAEA directs the 

Commission to develop procedures for 

handling materials the Postal Service 

claims are non-public. 

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 


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4Comments of Valassis Direct Mail, Inc. on 

Second Notice of Proposed Rulemaking (Valassis 

Comments); Comments of the United States Postal 

Service in Response to Second Notice of Proposed 

Rulemaking (Postal Service Comments); Public 

Representative Comments on Second Notice of 

Proposed Rulemaking to Establish a Procedure for 

According Appropriate Confidentiality (Public 

Representative Comments); Valpak Direct 

Marketing Systems, Inc. and Valpak Dealers’ 

Association, Inc. Initial Comments Regarding 

Second Notice of Proposed Rulemaking to Establish 

a Procedure for According Appropriate 

Confidentiality (Valpak Comments), all filed on 

April 27, 2009; Comments of Discover Financial 

Services, April 28, 2009 (DFS Comments); Reply 

Comments of the Greeting Card Association, May 

11, 2009 (GCA Reply Comments); Reply Comments 

of the United States Postal Service in Response to 

Second Notice of Proposed Rulemaking, May 11, 

2009 (Postal Service Reply Comments); and Reply 

Comments of the Parcel Shippers Association in 

Response to Second Notice of Proposed 

Rulemaking, May 12, 2009 (PSA Reply Comments). 

The Motion of Discover Financial Services for 

Late Acceptance of Comments, filed on April 28, 

2009, is granted. 

5This is not to minimize the importance of 

financial transparency of the government entity 

itself. 

exempt from public disclosure under 39 

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

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

may not publicly disclose materials 

claimed to be non-public by the Postal 

Service unless it ‘‘has adopted 

regulations under section 553 of title 5, 

that establish a procedure for according 

appropriate confidentiality * * *.’’ 

Similarly, 39 U.S.C. 504(g)(3)(B) 

allows the Commission to develop 

procedures to require production of 

designated non-public materials. 

However, 39 U.S.C. 504(g) is silent as to 

the Commission’s treatment of thirdparty sensitive materials. The 

Commission relies on its general 

authority under 39 U.S.C. 503 to 

promulgate rules which govern whether 

and to what extent designated thirdparty non-public materials shall be 

accessed or released. See 39 U.S.C. 503. 

Rules governing the treatment of thirdparty non-public materials are necessary 

for the Commission to carry out its 

functions under the PAEA. 

III. Analysis of Comments on Order No. 

194 

The Commission received five 

comments and three reply comments on 

the revised rules.4 With one exception, 

the comments support the 

Commission’s proposed procedures for 

according appropriate confidentiality to 

non-public materials filed with the 

Commission. 

The Commission finds the comments 

in this docket thoughtful and helpful 

and appreciates the efforts of all 

commenters to refine and critique the 

proposed rules. Several comments 

identify minor aspects of the proposed 

rules that would benefit from a revision. 

Thus, these final rules differ slightly 

from the proposed rules in ways 

designed to clarify and improve the 

rules in response to the comments. 

Overall, the comments in response to 

Order No. 194 indicate approval of the 

revised proposed rules, with several 

suggestions. See, e.g., Postal Service 

Comments at 5; Public Representative 

Comments at 1; Discover Financial 

Services Comments at 2; GCA Reply 

Comments at 7; and PSA Reply 

Comments at 1. In its comments, Valpak 

reiterates several issues it believes 

remain relevant in spite of the revisions 

made between Order No. 96 and Order 

No. 194. See Valpak Comments. A more 

detailed discussion of the comments 

follows. 

Appropriate standard for decision. 

Valpak directs most of its comments to 

its assertion that the balancing tests in 

rules 3007.33(b), 3007.42 and 3007.52 as 

provided ‘‘in Order No. 194 still 

unlawfully displace the statutorilyrequired two-factor formula with the 

Rule 26(c) seven-factor [formula], 

contrary to the mandates of the PAEA 

* * *.’’ Valpak Comments at 4–5. The 

rules at issue provide the standard of 

decision for termination of non-public 

status for third-party non-public 

materials, and access to Postal Service 

or third-party non-public materials. 

Valpak argues that since the language 

of 39 U.S.C. 504(g)(3)(A) sets forth a 

two-factor balancing test, the 

Commission may not include any other 

elements. See id. at 5–8. Valpak claims 

third-party interests are adequately 

protected under the test articulated in 

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

the Postal Service’s interests align with 

any third party which may submit 

sensitive materials through it. Id. at 8– 

14. Valpak also takes issue with the 

language of 39 U.S.C. 504(g)(3)(B) which 

directs the Commission to establish, 

based on ‘‘rule 26(c) of the Federal 

Rules of Civil Procedure * * * 

procedures for ensuring appropriate 

confidentiality for information 

furnished to any party.’’ Id. at 9. Valpak 

asserts that the ‘‘procedures’’ referred to 

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

‘‘protective conditions’’ and do not 

allow the Commission to use an 

alternative standard for decision in 

determining the appropriate degree of 

confidentiality in the context of access 

to non-public materials. Id. at 9–10. In 

sum, Valpak believes the Commission 

erred by using the common law rule 

26(c) balancing test to determine 

whether third-party non-public 

materials should be publicly disclosed 

and using the same test to determine if 

non-public materials may be accessed. 

In its reply comments, the Greeting 

Card Association (GCA) addresses most 

of the points Valpak raises regarding the 

appropriate balancing tests. GCA points 

out that the test articulated in 39 U.S.C. 

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

504(g)(1), which states that the Postal 

Service may submit non-public 

materials if it claims they are exempt 

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

552(b). GCA Reply Comments at 6. GCA 

argues that the statutory language does 

not mandate exclusive use of the test or 

factors articulated in 39 U.S.C. 

504(g)(3)(A). Id. at 2. GCA also refutes 

Valpak’s assertion that the Postal 

Service’s interests would always be 

aligned with a third-party submitter, 

especially in circumstances where the 

Postal Service elected not to pursue a 

business relationship with the third 

party. Id. at 4–7. GCA recommends that 

the Commission adopt the rules as 

proposed in Order No. 194. Id. at 7. 

The Commission is not persuaded by 

Valpak’s assertions. First, 39 U.S.C. 504 

makes no reference to third-party nonpublic materials. 39 U.S.C. 504(g)(1) 

provides: 

If the Postal Service determines that any 

document or other matter it provides to the 

Postal Regulatory Commission * * *contains 

information which is described in section 

410(c) of this title, or exempt from public 

disclosure under section 552(b) of title 5, the 

Postal Service, shall, at the time of providing 

such matter to the Commission, notify the 

Commission, in writing, of its determination 

(and the reasons therefor). 

All that follows the 504(g)(1) 

introduction is predicated on the Postal 

Service’s submission and determination 

that a document is exempt from 

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

U.S.C. 552(b). The balancing test set 

forth in 39 U.S.C. 504(g)(3)(A) also only 

takes into account ‘‘commercial injury 

to the Postal Service’’ and ‘‘public 

interest in maintaining the financial 

transparency of a government 

establishment competing in commercial 

markets[,]’’ two factors which are not 

applicable to third-party materials.5

Second, the test in 39 U.S.C. 

504(g)(3)(A) focuses on commercial 

injury to the Postal Service, and it does 

not protect third-party interests directly. 

For example, the Postal Service is 

presumably indifferent if ‘‘Company A’’ 

loses market share to ‘‘Company B’’ 

provided their volumes are shipped via 

the Postal Service. As GCA points out, 

Valpak’s contention that only the 

statutory language should apply offers 

inadequate protection of third-party 

interests. 

GCA’s comment and hypothetical that 

third-party non-public materials which 


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belong to a party no longer in 

negotiations or partnership with the 

Postal Service and would not implicate 

any commercial injury to the Postal 

Service is well taken. See GCA Reply 

Comments at 4–6. By its reading of 39 

U.S.C. 504(g)(3)(A), Valpak would 

impose an exclusive test for determining 

the status of non-public materials when 

the statute does not require it, and 

significantly, regardless of the legitimate 

interests of third parties in the nonpublic materials at issue. 

Third-party non-public materials are 

not referenced in 39 U.S.C. 504; 

however, the Commission receives such 

materials in the course of exercising its 

duties under title 39. Therefore, the 

Commission must exercise its general 

authority under 39 U.S.C. 503 to create 

a procedure for the treatment of such 

third-party non-public materials. The 

Commission adopts the standard as 

proposed in § 3007.33(b). 

Third, Valpak’s claim that the 

Commission’s proposed rules conflict 

with 39 U.S.C. 504(g)(3)(B) is not 

persuasive. 39 U.S.C. 504(g)(3)(B) 

directs the Commission to develop 

‘‘procedures for ensuring appropriate 

confidentiality[,]’’ but it does not state 

that those ‘‘procedures’’ are exclusively 

the ‘‘procedural remedies’’ found in 

Federal Rule of Civil Procedure 26(c). 

For example, 39 U.S.C. 504(g)(3)(A) 

directs the Commission to adopt 

regulations ‘‘that establish a procedure 

for according appropriate 

confidentiality * * *.’’ Part 3007 

contains the regulations that establish a 

procedure for according appropriate 

confidentiality. By Valpak’s logic, the 

Commission would be barred from 

introducing any substantive elements to 

its rules which establish such a 

procedure. 

The Commission, therefore, adopts 

the procedures for ensuring appropriate 

confidentiality for access to non-public 

materials as described in §§ 3007.42 and 

3007.52. 

Notice requirement for expedited 

requests. Valassis recommends that 

when third-party non-public materials 

are requested under §§ 3007.40 and 

3007.50, the requesting party should 

provide that third party with actual 

notice of the request to allow the 

Commission to resolve the issue in an 

expedited manner. Valassis Comments 

at 1–3. Discover Financial Services 

supports the notion of ‘‘actual notice’’ to 

the third party with a proprietary 

interest, but also believes a 7-day time 

to respond would be more appropriate. 

DFS Comments at 2–4. Parcel Shippers 

Association also agrees that actual 

notice is appropriate, and suggests that 

the Commission adopt Valassis’s 

proposed language. See PSA Reply 

Comments. Finally, the Postal Service 

supports the actual notice requirement, 

but questions how a requester should 

get access to the name of the appropriate 

party. Postal Service Reply Comments at 

2–4. 

Valassis’s suggestion is reasonable 

and is adopted. The 3-day response 

period is designed to expedite access to 

non-public materials. Requiring actual 

notice to the third party in the form of 

a conversation or e-mail exchange will 

ensure that the third party has timely 

notice and an opportunity to respond. 

Moreover, the requirement is not 

burdensome. 

The Postal Service expresses concern 

regarding situations where the third 

party’s identity may be confidential. In 

considering this issue, the Commission 

finds it appropriate to add 

§ 3007.21(c)(2), which instructs the 

Postal Service to provide the name and 

contact information for the appropriate 

third party or for a Postal Service 

employee if the third party’s identity is 

confidential. The Commission also finds 

it appropriate to add to §§ 3007.40(b)(1) 

and 3007.50(b)(1) to provide that actual 

notice may be accomplished by a faceto-face or telephone conversation or email exchange. 

Public Representative’s suggestions. 

The Public Representative suggests that 

the rules redefine ‘‘non-public 

materials’’ to include a caveat that they 

are non-public upon identification by 

the Postal Service or third party, unless 

disclosure has been ordered under this 

part. Public Representative Comments at 

4. 

The Commission agrees that refining 

the definition of non-public materials 

will clarify an ambiguity in the rules, 

and modifies the definition in 

§ 3007.1(b) accordingly. 

The Public Representative also 

suggests that the Commission create a 

cross-reference within the 

confidentiality rules to the rules in part 

3004 governing Freedom of Information 

Act procedures. Id. The Postal Service 

opposes this suggestion, arguing that the 

Commission may become a de facto 

Freedom of Information Act appellate 

body. 

The Commission does not agree that 

it is appropriate to overlap the Freedom 

of Information Act requests and requests 

for access or disclosure under the 

confidentiality rules. The Commission 

will shortly revise its rules governing 

Freedom of Information Act procedures, 

and will resolve any ambiguity in its 

revisions to part 3004. 

The Public Representative also asserts 

that the phrase ‘‘the Commission may 

issue an order’’ used in §§ 3007.40(d)(2) 

and 3007.50(d)(2) is unclear. Id. at 5–6. 

The rule, according to the Public 

Representative, is ambiguous as to when 

a person could attain access to nonpublic materials when no objection is 

made. Id. The Postal Service believes 

that it is ‘‘a consistent expectation on 

the part of all parties that access is 

available only by order of the 

Commission* * *.’’ Postal Service 

Reply Comments at 3–4. However, the 

Postal Service believes that the use of 

the word ‘‘may’’ preserves the 

Commission’s discretion to 

preemptively quash an inappropriate 

request. Id. at 4. 

The Commission agrees with the 

Public Representative and the Postal 

Service that access to non-public 

materials should only be granted 

following an appropriate order or ruling. 

The Commission also agrees with the 

Postal Service that discretion should be 

maintained for the Commission, sua 

sponte, to issue an order quashing an 

inappropriate request. Therefore, the 

Commission finds it appropriate to add 

language to §§ 3007.40 and 3007.50 that 

access commences only following the 

issuance of an appropriate order or 

ruling. 

Finally, the Public Representative 

makes two minor editorial suggestions. 

First, the Public Representative suggests 

altering the title of § 3007.24 to read 

‘‘Commission and Court access to nonpublic materials.’’ Public Representative 

Comments at 6. In the same rule, the 

Public Representative recommends 

editing paragraph (a)(2) of this section to 

read ‘‘Commission employees including 

public representatives carrying out their 

appropriate responsibilities;’’. Id. 

The Commission agrees with the 

Public Representative that the rules will 

benefit from these suggestions and 

revises the rules accordingly. 

IV. Section-by-Section Analysis 

Below, the Commission provides a 

concise description of each rule, 

designed to assist commenters in 

understanding the scope and nature of 

the 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 or other party 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). Section 3007.1(b) is 


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edited to state that non-public materials 

are no longer non-public if such status 

expires or is terminated pursuant to this 

part. 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 

chapter 36 of title 39 of the United 

States 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 rule provides that the 

Commission, or its authorized 

representative, may issue data or 

information requests to the Postal 

Service concerning materials covered by 

§ 3007.2. Under this rule, a person may 

request that the Commission issue such 

a request. Consistent with commenters’ 

suggestions that the Commission protect 

third-party non-public material, 

paragraph (c) is added to this rule to 

allow the Commission to issue a data or 

information request to a third party. 

Rule 3007.10 Submission of nonpublic materials under seal. This rule 

sets forth the manner in which nonpublic materials are to be filed with the 

Commission. More specifically, it 

provides that non-public materials are 

not to be filed electronically pursuant to 

§ 3001.9, but are to be filed in sealed 

envelopes clearly marked as 

confidential. The rule requires nonpublic 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 rule requires that a 

redacted copy of the non-public 

materials be filed electronically 

pursuant to § 3001.9. The rule also 

requires that when the Postal Service or 

third party files redacted copies of nonpublic 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 ‘‘blackout’’ 

or ‘‘graphical’’ redaction method unless 

the Postal Service or third party 

identifies particular, likely injury which 

may result from the use of such a 

method. If any other method is used, the 

Postal Service or third party 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 rule directs 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 materials 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 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. The rule also 

requires the Postal Service to identify 

and provide contact information for any 

third party who is known to have a 

proprietary interest in the non-public 

materials, or in the alternative, to 

provide contact details for a Postal 

Service employee who shall provide 

notice to that third party. 

Rule 3007.22 Content of third-party 

applications for non-public treatment. 

This 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 rule directs the third party to 

provide justification for non-public 

treatment of materials it believes should 

not be publicly disclosed or accessed. 

Rule 3007.23 Treatment of nonpublic materials. This rule provides that 

the Commission will not disclose nonpublic materials except as pursuant to 

the rules in part 3007. 

Rule 3007.24 Commission access to 

non-public materials. This rule permits 

Commissioners, Commission 

employees, including public 

representatives, 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 

§§ 3007.40 and 3007.50. 

Rule 3007.25 Use of non-public 

materials. This rule states that persons 

with access to non-public materials 

under § 3007.24 may not use non-public 

materials for purposes other than those 

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 rule states that nonpublic status shall expire 10 years after 

filing, unless otherwise provided by the 

Commission or its authorized 

representative. 

In the context of FOIA requests under 

part 3004, 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 

rule states that any person may request 

that non-public status be removed from 

materials filed with the Commission. 

The rule gives details of the form and 

procedure of such a request. A request 

for early termination of non-public 

status must specifically address the 

Postal Service or third-party 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 rule does not allow any filings after 

the initial answers. Thus, requests and 

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 3007.32 Preliminary 

determination of non-public status. This 

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 rule provides that the 

Commission may issue a notice of 

preliminary determination concerning 

the appropriate degree of protection, if 


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6This 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. 

7 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. 

8Consistent with the Commission’s rules, any 

prescribed time period of 5 days or less excludes 

Saturdays, Sundays and legal holidays. See 

§ 3001.15. 

any, to be accorded non-public 

materials filed by the Postal Service.6

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 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. Paragraph (a) of this 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 non-public status or a 

preliminary determination of nonpublic status has been made. Paragraph 

(b) of this rule sets out the balancing 

test, adapted from 39 U.S.C. 

504(g)(3)(A), applicable to a request for 

early termination of non-public 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. This rule provides 

that any person, during a Commission 

proceeding and pursuant to the 

Commission’s rules of practice, may 

make a motion to request access to nonpublic 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.7

Given the expedited timetables under 

which the Commission generally 

operates, these rules contemplate 

procedures that will expedite the 

process. Thus, this rule provides that 

the person submitting the motion may 

agree in advance to execute and attach 

protective conditions and must provide 

actual notice to any third party 

previously identified as having a 

proprietary interest in the non-public 

materials or the Postal Service’s 

designee for such notice as identified in 

§ 3007.21(c). In that event, answers to 

the motion are due within 3 days.8

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 protective 

conditions is not attached, answers to 

the motion are due in 7 days. Following 

the filing of the answer, the Commission 

may 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. 

The rule explicitly provides that 

access shall commence only following 

an appropriate order or ruling. 

Rule 3007.41 Termination of access 

to non-public materials. This rule states 

that access obtained under § 3007.40 

terminates for all persons 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. Access granted under 

§ 3007.40 may be maintained, subject to 

any applicable protective conditions, 

pending action on a motion to continue 

access made under § 3007.50. 

Rule 3007.42 Standard for decision 

for request for access to non-public 

materials. This rule creates a balancing 

test to accord appropriate 

confidentiality. 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 or 

third party with a proprietary interest in 

the materials rights derived from section 

26 of the Federal Rules of Civil 

Procedure. 

Rule 3007.50 Request for access to 

non-public materials relevant to 

compliance. This 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 

rule also allows a person who has access 

subject to protective conditions (under 

§§ 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 § 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 short timetables under 

which the Commission often must 

operate, the rules provide procedures 

that will expedite the process. Thus, 

this rule provides that the person 

submitting the motion may execute and 

attach to the motion protective 

conditions and must provide actual 

notice to any third party previously 

identified as having a proprietary 

interest in the non-public materials or 

the Postal Service’s designee for such 

notice as identified in § 3007.21(c). 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 executed protective 

conditions is not attached, answers to 

the motion are due in 7 days. Following 

the filing of any answers, the 

Commission may 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 rule, a person previously 

granted access to materials may make 

requests for continuing access to nonpublic materials. 


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Rule 3007.51 Termination of access 

to non-public materials relevant to 

compliance. This rule states that access 

terminates for all persons with access 

under § 3007.50 when the Commission 

issues its next ACD or the person 

otherwise withdraws or ceases to be 

involved. This rule also allows a person 

who has access to maintain access, 

subject to any applicable protective 

conditions, pending action on a motion 

to continue access made under 

§ 3007.50. 

Rule 3007.52 Standard for decision 

for request for access to non-public 

materials relevant to compliance. This 

rule creates a balancing test to accord 

appropriate confidentiality when 

determining restrictions on 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). 

Rule 3007.60 Limitations on access 

to non-public materials. This 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 section 

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 rule specifies procedures to be 

followed if a court or other 

administrative agency issues a subpoena 

for (or otherwise orders production of) 

non-public materials which a person 

has obtained pursuant to a protective 

order issued by the Commission. This 

rule requires that any person required to 

disclose non-public materials make a 

good faith effort to obtain protective 

conditions in accord with those 

prescribed by the Commission. The 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. 

Rule 3007.62 Sanctions for 

violations of protective conditions. This 

rule reiterates that the protective 

conditions bar the dissemination of nonpublic materials by every person 

granted access to such materials to any 

person not authorized to access such 

materials. The rule provides sanctions 

for any person contravening the 

protective conditions. 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. 

V. Ordering Paragraphs 

It is Ordered: 

1. The Commission hereby adopts the 

final rules applicable to treatment of 

non-public materials that follow the 

Secretary’s signature into the 

Commission’s Rules of Practice and 

Procedure to appear in 39 CFR part 

3007. 

2. These rules shall take effect 30 days 

after publication in the Federal 

Register. 

3. The Secretary shall arrange for 

publication of this order in the Federal 

Register. 

List of Subjects in 39 CFR Part 3007 

Administrative practice and 

procedure, Confidential business, Postal 

Service. 

By the Commission. 

Steven W. Williams, 

Secretary. 

■ For the reasons discussed above, the 

Commission amends 39 CFR chapter III 

by adding part 3007 to read as follows: 

PART 3007—TREATMENT OF NON– 

PUBLIC MATERIALS PROVIDED BY 

THE POSTAL SERVICE 

Sec. 

3007.1 Definitions for purposes of this part. 

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. 503, 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. Non-public materials cease to 

be non-public if the status has expired 

or been terminated by the Commission 

pursuant to this part. 

§ 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 


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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) The Commission or its authorized 

representative may issue data or 

information requests to third parties 

seeking any information, document or 

thing. A data 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 

materials. 

(c) Any person may request that the 

Commission issue a data or information 

request 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 

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 or third party 

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 or third party 

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) Identification, including name, 

phone number, and e-mail address for 

any third party who is known to have 

a proprietary interest in the materials, or 

if such an identification is sensitive, 

contact information for a Postal Service 

employee who shall provide notice to 

that third party; 

(3) 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; 

(4) Particular identification of the 

nature and extent of commercial harm 

alleged and the likelihood of such harm; 

(5) At least one specific hypothetical, 

illustrative example of each alleged 

harm; 

(6) The extent of protection from 

public disclosure deemed to be 

necessary; 

(7) The length of time deemed 

necessary for the non-public materials 

to be protected from public disclosure 

with justification thereof; and 

(8) 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: 


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(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 and court access to 

non-public materials. 

(a) Non-public materials may be 

disclosed to the following persons: 

(1) Members of the Commission; 

(2) Commission employees including 

public representatives 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 

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 protective conditions 

such as those provided in Appendix A 

of this part. 

(1) If an executed copy of protective 

conditions is attached and if actual 

notice of the motion has been provided 

by conversation or e-mail exchange to 

all persons identified by the Postal 

Service under § 3007.2(c), answers are 

due within 3 days after such a motion 

is filed. 

(2) In all other circumstances, 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 


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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 protective conditions 

such as those provided in Appendix A 

of this part. 

(1) If an executed copy of protective 

conditions is attached and if actual 

notice of the motion has been provided 

by conversation or e-mail exchange to 

all persons identified by the Postal 

Service under § 3007.21(c), answers are 

due within 3 days after such a motion 

is filed. 

(2) In all other circumstances, 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 

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 issues a subpoena 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 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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30950 Federal Register / Vol. 74, No. 123 / Monday, June 29, 2009 / Rules and Regulations 

[FR Doc. E9–15367 Filed 6–26–09; 8:45 am] 

BILLING CODE 7710–FW–C 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R05–OAR–2009–0219; FRL–8921–2] 

Approval and Promulgation of 

Implementation Plans and Designation 

of Areas for Air Quality Planning 

Purposes; Michigan; Redesignation of 

the Detroit-Ann Arbor Area to 

Attainment for Ozone 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is making a 

determination under the Clean Air Act 

(CAA) that the Detroit-Ann Arbor 

nonattainment area has attained the 

8-hour ozone National Ambient Air 

Quality Standard (NAAQS). The DetroitAnn Arbor area includes Lenawee, 

Livingston, Macomb, Monroe, Oakland, 

St. Clair, Washtenaw, and Wayne 

Counties. This determination is based 

on quality-assured ambient air quality 

monitoring data for the 2006–2008 

ozone seasons that demonstrate that the 

8-hour ozone NAAQS has been attained 

in the area. EPA is approving a request 

from the State of Michigan to 

redesignate the Detroit-Ann Arbor area 

to attainment of the 8-hour ozone 

NAAQS. The Michigan Department of 

Environmental Quality (MDEQ) 

submitted this request on March 6, 

2009. In approving this request, EPA is 

also approving, as a revision to the 

Michigan State Implementation Plan 

(SIP), the State’s plan for maintaining 

the 8-hour ozone NAAQS in the area 

through 2020. EPA is approving the 

2005 base year emissions inventory for 

the Detroit-Ann Arbor area as meeting 

the requirements of section 182(a)(1) of 

the CAA. EPA also finds adequate and 

is approving the State’s 2020 Motor 

Vehicle Emission Budgets (MVEBs) for 

the Detroit-Ann Arbor area. EPA 

proposed these actions on April 23, 

2009. EPA provided a 30-day review 

and comment period, which closed on 

May 26, 2009. EPA received comments 

in support of the redesignation from 

Consumers Energy and the Southeast 

Michigan Council of Governments. EPA 

received no comments in opposition to 

the proposal. 

DATES: This final rule is effective June 

29, 2009. 

ADDRESSES: EPA has established a 

docket for this action: Docket ID No. 

EPA–R05–OAR–2009–0219. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

i.e., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically at http:// 

www.regulations.gov or in hard copy at 

the U.S. Environmental Protection 

Agency, Region 5, Air and Radiation 

Division, 77 West Jackson Boulevard, 

Chicago, Illinois 60604. This facility is 

open from 8:30 a.m. to 4:30 p.m., 

Monday through Friday, excluding 

Federal holidays. We recommend that 

you telephone Kathleen D’Agostino, 

Environmental Engineer, at (312) 886– 

1767 before visiting the Region 5 office. 

FOR FURTHER INFORMATION CONTACT: 

Kathleen D’Agostino, Environmental 

Engineer, Criteria Pollutant Section, Air 

Programs Branch (AR–18J), U.S. 

Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

Chicago, Illinois 60604, (312) 886–1767, 

dagostino.kathleen@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. This supplementary information 

section is arranged as follows: 

Table of Contents 

I. What Is the Background for This Rule? 

II. What Comments Did We Receive on the 

Proposed Rule? 

III. What Action Is EPA Taking? 

IV. Statutory and Executive Order Reviews 

I. What Is the Background for This 

Rule? 

A. What Is the General Background 

Information? 

On July 18, 1997 (62 FR 38856), EPA 

promulgated an 8-hour ozone standard 

of 0.08 parts per million (ppm). EPA 

published a final rule designating and 

classifying areas under the 1997 8-hour 

ozone NAAQS on April 30, 2004 (69 FR 

23857). 

On March 12, 2008, EPA promulgated 

a more stringent 8-hour ozone standard 

of 0.075 ppm which was published in 

the Federal Register on March 27, 2008 

(73 FR 16436). EPA will designate 

nonattainment areas under the 2008 

8-hour ozone standard in 2010. Today’s 

approval of Michigan’s SIP revision 

addresses only the status of the DetroitAnn Arbor area with respect to the 1997 

8-hour ozone standard. 

The background for today’s actions 

with respect to the 1997 ozone standard 

is discussed in detail in EPA’s April 23, 

2009, proposal (74 FR 18479). In that 

rulemaking, we noted that, under EPA 

regulations at 40 CFR part 50, the 8-hour 

ozone standard is attained when the 

three-year average of the annual fourthhighest daily maximum 8-hour average 

ozone concentrations is less than or 

equal to 0.08 ppm. (See 69 FR 23857 

(April 30, 2004) for further information.) 

The data completeness requirement is 

met when the average percent of days 

with valid ambient monitoring data is 

greater than 90%, and no single year has 

less than 75% data completeness, as 

determined in accordance with 

appendix I of part 50. 

Under the CAA, EPA may redesignate 

nonattainment areas to attainment if 

sufficient complete, quality-assured data 

are available to determine that the area 

has attained the standard and that it 

meets the other CAA redesignation 

requirements in section 107(d)(3)(E). 

On March 6, 2009, MDEQ submitted 

a request to redesignate the Detroit-Ann 

Arbor area to attainment of the 8-hour 

ozone standard. The request included 

three years of complete, quality-assured 

data for the period of 2006 through 

2008, indicating the 8-hour NAAQS for 

ozone had been achieved. The April 23, 

2009, proposed rule provides a detailed 

discussion of how Michigan met this 

and other CAA requirements. 

B. What Are the Impacts of the 

December 22, 2006, and June 8, 2007, 

United States Court of Appeals 

Decisions Regarding EPA’s Phase 1 

Implementation Rule? 

On December 22, 2006, in South 

Coast Air Quality Management Dist. v. 

EPA, the U.S. Court of Appeals for the 

District of Columbia Circuit vacated 

EPA’s Phase 1 Implementation Rule for 

the 8-hour ozone standard (69 FR 23951, 

April 30, 2004). 472 F.3d 882 (D.C. Cir. 

2006). On June 8, 2007, in response to 

several petitions for rehearing, the D.C. 

Circuit Court clarified that the Phase 1 

Rule was vacated only with regard to 

those parts of the rule that had been 

successfully challenged. Id., Docket No. 

04–1201. Therefore, the Phase 1 Rule 

provisions related to classifications for 

areas currently classified under subpart 

2 of Title I, part D of the CAA as 8-hour 

nonattainment areas, the 8-hour 

attainment dates, and the timing for 

emissions reductions needed for 

attainment of the 8-hour ozone NAAQS 

remain effective. The June 8th decision 

left intact the Court’s rejection of EPA’s 

reasons for implementing the 8-hour 

standard in certain nonattainment areas 

under subpart 1 in lieu of subpart 2. By 


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