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e-CFR data is current as of December 1, 2020

Title 39Chapter IIISubchapter CPart 3011 → Subpart C


Title 39: Postal Service
PART 3011—NON-PUBLIC MATERIALS PROVIDED TO THE COMMISSION


Subpart C—Seeking Access to Non-Public Materials


Contents
§3011.300   Eligibility for access to non-public materials.
§3011.301   Motion for access to non-public materials.
§3011.302   Non-dissemination, use, and care of non-public materials.
§3011.303   Sanctions for violating protective conditions.
§3011.304   Termination and amendment of access to non-public materials.
§3011.305   Producing non-public materials in non-Commission proceedings.
Appendix A to Subpart C of Part 3011—Template Forms Protective Conditions Statement

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§3011.300   Eligibility for access to non-public materials.

(a) The following persons may access non-public materials without an order issued pursuant to §3011.301(e):

(b) No person involved in competitive decision-making for any individual or entity that might gain competitive advantage from using non-public materials shall be granted access to non-public materials. Involved in competitive decision-making includes consulting on marketing or advertising strategies, pricing, product research and development, product design, or the competitive structuring and composition of bids, offers or proposals. It does not include rendering legal advice or performing other services that are not directly in furtherance of activities in competition with an individual or entity having a proprietary interest in the protected material.

(c) Any person not described in paragraph (a) or (b) of this section may request access to non-public materials as described in §3011.301, for the purpose of aiding participation in a pending Commission proceeding (including compliance proceedings) or aiding the initiation of a proceeding before the Commission.

[83 FR 31281, July 3, 2018, as amended at 85 FR 9642, Feb. 19, 2020]

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§3011.301   Motion for access to non-public materials.

(a) Filing requirements. A request for access to non-public materials shall be made by filing a motion with the Commission. Any part of the motion revealing non- public information shall be filed in accordance with subpart B of this part. The motion shall be filed in the docket in which the materials were filed or in the docket in which the materials will be used; in all other circumstances, the motion shall be filed in the G docket for the applicable fiscal year.

(b) Content requirements. The motion shall:

(1) Identify the particular non-public materials to which the movant seeks access;

(2) Include a detailed statement justifying the request for access:

(i) If access is sought to aid participation in any pending Commission proceeding, the motion shall identify all proceedings (including compliance proceedings) in which the movant proposes to use the materials and how those materials are relevant to those proceedings, or

(ii) If access is sought to aid initiation of a proceeding before the Commission, the motion shall describe the subject of the proposed proceeding, how the materials sought are relevant to that proposed proceeding, and when the movant anticipates initiating the proposed proceeding;

(3) List all relevant affiliations, including employment or other relationship (including agent, consultant or contractor) with the movant, and whether the movant is affiliated with the delivery services, communications or mailing industries;

(4) Specify if actual notice of the motion has been provided to each person identified in the application pursuant to §3011.201(b)(2). If the motion states that actual notice has been provided, the motion shall identify the individual(s) to whom actual notice was provided, the date(s) and approximate time(s) of actual notice, the method(s) of actual notice (by telephone conversation, face-to-face conversation, or an exchange of telephone or email messages), and whether the movant is authorized to represent that the motion (in whole or in part) has been resolved or is contested by the submitter or any other affected person;

(5) Attach a description of protective conditions completed and signed by the movant's attorney or non-attorney representative, who may use and modify the template Protective Conditions Statement in Appendix A to this subpart; and

(6) Attach a certification to comply with protective conditions executed by each person (and any individual working on behalf of that person) seeking access, who may use and modify the template Certification to Comply with Protective Conditions in Appendix A to this subpart.

(c) Response. If actual notice of the motion was provided in advance of the filing to each person identified pursuant to §3011.201(b)(2) by telephone conversation, face-to-face conversation, or an exchange of telephone or email messages, a response to the motion is due within three business days of the filing of the motion, unless the Commission otherwise provides. In all other circumstances, a response to the motion is due within seven calendar days of filing the motion, unless the Commission otherwise provides.

(d) Reply. No reply to a response shall be filed, unless the Commission otherwise provides.

(e) Commission ruling. The Commission may enter an order at any time after receiving a motion if the movant states that actual notice has been given to each person identified pursuant to §3011.201(b)(2) and that the movant is authorized to represent that the motion is uncontested. In all other circumstances, the Commission will enter an order determining if access will be granted after the response period described in paragraph (c) of this section has expired. If no opposition to the motion has been filed by the submitter or any person other than the submitter with a proprietary interest before the expiration of the response period described in paragraph (c) of this section, the Commission may issue an order granting access, subject to the agreed protective conditions. In determining whether to grant access to non-public materials, the Commission shall balance the interests of the parties consistent with the analysis undertaken by a Federal court when applying the protective conditions appearing in Federal Rule of Civil Procedure 26(c). If access is granted, access shall commence following the issuance of the appropriate order setting forth all protective conditions.

[83 FR 31281, July 3, 2018, as amended at 85 FR 9642, Feb. 19, 2020]

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§3011.302   Non-dissemination, use, and care of non-public materials.

(a) No person who has been granted access to non-public materials in accordance with §3011.300 or §3011.301 may disseminate the materials or the information contained therein, in whole or in part, to any person not allowed access pursuant to §3011.300 or §3011.301.

(b) Persons with access to non-public materials under §3011.300 or §3011.301 shall use non-public materials only for the purposes for which the non-public materials are supplied.

(c) Persons with access to non-public materials under §3011.300 or §3011.301 shall protect the non-public materials from any person not granted access under §3011.300 or §3011.301 by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized disclosure of these materials as those persons, in the ordinary course of business, would be expected to use to protect their own proprietary material or trade secrets and other internal, confidential, commercially sensitive, and privileged information.

[85 FR 9642, Feb. 19, 2020]

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§3011.303   Sanctions for violating protective conditions.

(a) If a person who has been granted access to non-public materials under §3011.301 violates the terms of the order granting access, the Commission may impose sanctions on the person who violated the order, the persons or entities on whose behalf the person was acting, or both. The sanctions may include any or all of the following:

(1) Dismissing the proceeding in whole or in part;

(2) Ruling by default against the person who violated the order or the persons or entities on whose behalf the person was acting;

(3) Revoking access to non-public materials;

(4) Restricting access to non-public materials in the future; or

(5) Such other sanctions, as deemed appropriate by the Commission.

(b) This rule does not prevent any person, including the Postal Service, whose interests are damaged by the violation of an order granting access subject to protective conditions, from pursuing any remedies available under the law against the person who violated the order, the persons or entities on whose behalf the person was acting, or both.

[83 FR 31281, July 3, 2018, as amended at 85 FR 9642, Feb. 19, 2020]

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§3011.304   Termination and amendment of access to non-public materials.

(a) Termination of access. (1) Except as provided in paragraph (b) of this section, access to non-public materials granted under §3011.301 terminates either when the Commission issues the final order or report concluding the proceeding(s) in which the participant who filed the motion seeking access represented that the non-public materials would be used, or when the person granted access withdraws or is otherwise no longer involved in the proceeding(s), whichever occurs first. For purposes of this paragraph, an order or report is not considered final until after the possibility of judicial review expires (including the completion of any Commission response to judicial review, if applicable).

(2) Upon termination of access, all non-public materials, and any duplicates, in the possession of each person (and any individual working on behalf of that person) granted access shall be destroyed or returned to the Commission. The participant who filed the motion seeking access shall file with the Commission a notice of termination of access and attach a certification of compliance with protective conditions executed by each person (and any individual working on behalf of that person) granted access to the non-public materials. The template Certification of Compliance with Protective Conditions and Termination of Access in Appendix A to this subpart may be used and modified to comply with this requirement.

(b) Amendment of access. Any person may file a motion seeking to amend any protective conditions related to access of non-public materials, including extending the timeframe for which access is granted or expanding the persons to whom access is to be granted, in accordance with §3011.301.

[83 FR 31281, July 3, 2018, as amended at 85 FR 9643, Feb. 19, 2020]

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§3011.305   Producing non-public materials in non-Commission proceedings.

(a) If a court or other administrative agency issues a subpoena or orders production of non-public materials that a person obtained under protective conditions ordered by the Commission, the target of the subpoena or order shall, within two days of receipt of the subpoena or order, notify each person identified pursuant to §3011.201(b)(2) of the pendency of the subpoena or order to allow time to object to that production or to seek a protective order or other relief.

(b) Any person that has obtained non-public materials under protective conditions ordered by the Commission and seeks to disclose the non-public materials in a court or other administrative proceeding shall make a good faith effort to obtain protective conditions at least as effective as those set forth in the Commission order establishing the protective conditions.

(c) Unless overridden by the reviewing court or other administrative agency, protective conditions ordered by the Commission will remain in effect.

[83 FR 31281, July 3, 2018, as amended at 85 FR 9643, Feb. 19, 2020]

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Appendix A to Subpart C of Part 3011—Template Forms Protective Conditions Statement

____________ (name of submitter of non-public materials) requests confidential treatment of non-public materials identified as ________ (non-confidential description of non-public materials) (hereinafter “these materials”) in Commission Docket No(s).________ (designation of docket(s) in which these materials were filed).

____________ (name of participant filing motion) (hereinafter “the movant”) requests access to these materials related to ________ (designation of docket(s) or description of proposed proceeding(s) in which these materials are to be used) (hereinafter “this matter”).

The movant has provided to each person seeking access to these materials:

o  This Protective Conditions Statement;

o  the Certification to Comply with Protective Conditions;

o  the Certification of Compliance with Protective Conditions and Termination of Access; and

o  the Commission's rules applicable to access to non-public materials filed in Commission proceedings (subpart C of part 3011 of the U.S. Code of Federal Regulations).

Each person (and any individual working on behalf of that person) seeking access to these materials has executed a Certification to Comply with Protective Conditions by signing in ink or by typing/s/before his or her name in the signature block. The movant attaches the Protective Conditions Statement and the executed Certification(s) to Comply with Protective Conditions to the motion for access filed with the Commission.

The movant and each person seeking access to these materials agree to comply with the following protective conditions:

In accordance with 39 CFR 3011.303, the Commission may impose sanctions on any person who violates these protective conditions, the persons or entities on whose behalf the person was acting, or both.

2. In accordance with 39 CFR 3011.300(b), no person involved in competitive decision-making for any individual or entity that might gain competitive advantage from using these materials shall be granted access to these materials. Involved in competitive decision-making includes consulting on marketing or advertising strategies, pricing, product research and development, product design, or the competitive structuring and composition of bids, offers or proposals. It does not include rendering legal advice or performing other services that are not directly in furtherance of activities in competition with an individual or entity having a proprietary interest in the protected material.

3. In accordance with 39 CFR 3011.302(a), a person granted access to these materials may not disseminate these materials in whole or in part to any person not allowed access pursuant to 39 CFR 3011.300(a) (Commission and court personnel) or 3011.301 (other persons granted access by Commission order) except in compliance with:

a. Specific Commission order,

b. Subpart B of 39 CFR 3011 (procedure for filing these materials in Commission proceedings), or

c. 39 CFR 3011.305 (production of these materials in a court or other administrative proceeding).

4. In accordance with 39 CFR 3011.302(b) and (c), all persons granted access to these materials:

a. Must use these materials only related to this matter; and

b. must protect these materials from any person not authorized to obtain access under 39 CFR 3011.300 or 3011.301 by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized disclosure of these materials as those persons, in the ordinary course of business, would be expected to use to protect their own proprietary material or trade secrets and other internal, confidential, commercially sensitive, and privileged information.

5. The duties of each person granted access to these materials apply to all:

a. Disclosures or duplications of these materials in writing, orally, electronically, or otherwise, by any means, format, or medium;

b. Excerpts from, parts of, or the entirety of these materials;

c. Written materials that quote or contain these materials; and

d. Revised, amended, or supplemental versions of these materials.

6. All copies of these materials will be clearly marked as “Confidential” and bear the name of the person granted access.

7. Immediately after access has terminated pursuant to 39 CFR 3011.304(a)(1), each person (and any individual working on behalf of that person) who has obtained a copy of these materials must execute the Certification of Compliance with Protective Conditions and Termination of Access. In compliance with 39 CFR 3011.304(a)(2), the movant will attach the executed Certification(s) of Compliance with Protective Conditions and Termination of Access to the notice of termination of access filed with the Commission.

8. Each person granted access to these materials consents to these or such other conditions as the Commission may approve.

Respectfully submitted,

(signature of representative)

/s/

(print name of representative)

(address line 1 of representative)

(address line 2 of representative)

(telephone number of representative)

(e-mail address of representative)

(choose the appropriate response)

Attorney/Non-Attorney Representative for

(name of the movant)

You may delete the instructional text to complete this form. This form may be filed as an attachment to the motion for access to non-public materials under 39 CFR 3011.301(b)(5).

Certification To Comply With Protective Conditions

____________ (name of submitter of non-public materials) requests confidential treatment of non-public materials identified as ________ (non-confidential description of non-public materials) (hereinafter “these materials”) filed in Commission Docket No(s). ________ (designation of docket(s) in which these materials were filed).

____________ (name of participant filing motion) requests that the Commission grant me access to these materials to use related to ________ (designation of docket(s) or description of proposed proceeding(s) in which these materials are to be used) (hereinafter “this matter”).

I certify that:

o  I have read and understand the Protective Conditions Statement and this Certification to Comply with Protective Conditions;

o  I am eligible to receive access to these materials because I am not involved in competitive decision-making for any individual or entity that might gain competitive advantage from using these materials; and

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

(signature of individual receiving access)

/s/

(print name of individual receiving access)

(title of individual receiving access)

(employer of individual receiving access)

(name of the participant filing the motion)

(date)

You may delete the instructional text to complete this form. This form may be filed as an attachment to the motion for access to non-public materials under 39 CFR 3011.301(b)(6).

Certification of Compliance with Protective Conditions and Termination of Access

____________ (name of submitter of non-public materials) requests confidential treatment of non-public materials identified as ________ (non-confidential description of non-public materials) (hereinafter “these materials”) filed in Commission Docket No(s). ________ (designation of docket(s) in which these materials were filed).

The Commission granted the request by________ (name of participant filing notice) to grant me access to these materials to use related to ________ (designation of docket(s) or description of proposed proceeding(s) in which these materials are to be used) (hereinafter “this matter”).

I certify that:

o  I accessed, maintained, and used these materials in accordance with the protective conditions established by the Commission;

o  Effective ________ (date), my access to these materials was terminated; and

o  Effective ________ (date), I no longer have any of these materials or any duplicates.

(signature of individual granted access)

/s/

(print name of individual granted access)

(title of individual granted access)

(employer of individual granted access)

(name of participant filing notice)

(date)

You may delete the instructional text to complete this form. This form should be filed as an attachment to the notice of termination of access to non-public materials under 39 CFR 3011.304(a)(2).

[85 FR 9643, Feb. 19, 2020]

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