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e-CFR data is current as of October 22, 2020

Title 39Chapter IIISubchapter CPart 3011 → Subpart A


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


Subpart A—General Provisions


Contents
§3011.100   Applicability and Scope.
§3011.101   Definitions.
§3011.102   Treatment of non-public materials.
§3011.103   Commission action to determine non-public treatment.
§3011.104   Standard for public disclosure of materials claimed to contain non-public information.

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§3011.100   Applicability and Scope.

(a) Applicability. The rules in this part apply whenever:

(1) The Postal Service claims that any materials it provides to the Commission in connection with any proceeding or other purpose under title 39 of the U.S. Code, contain non-public information;

(2) Any person other than the Postal Service claims that any materials it provides to the Commission contain non-public information;

(3) The Commission is in the process of determining the appropriate degree of confidentiality to be accorded materials identified by any person to contain non-public information in accordance with these rules; or

(4) The Commission is in the process of determining how to ensure appropriate confidentiality for materials identified to contain non-public information that is furnished to any person in accordance with these rules.

(b) Scope. Information includes, but is not limited to, explanations, confirmations, factual descriptions, and data. Document refers to a hard copy or electronic conveyance of information and may be stored in any medium from which information can be obtained either directly or, if necessary, after translation into a reasonably usable form. Documents include, but are not limited to, writings, notes, graphs, charts, data files, emails, drawings, photographs, and images. Things include all matter, other than documents, that convey information. Documents and things shall collectively be referred to as materials.

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§3011.101   Definitions.

(a) Non-public materials means any documents or things that are provided to the Commission and identified as containing non-public information. The Postal Service may claim that information that would be exempt from disclosure pursuant to 39 U.S.C. 410(c), 504(g), 3652(f), or 3654(f) is non-public information. Any person other than the Postal Service with a proprietary interest in the materials may claim that information that would be protectable under Federal Rule of Civil Procedure 26(c) is non-public information. Any person may claim that information that is exempt from public disclosure under 5 U.S.C. 552(b) is non-public information. Non-public materials cease to be non-public if the status has expired or has been terminated by the Commission pursuant to this part. Except as provided by §3011.205, non-public materials cease to be non-public if the submitter publicly discloses the materials with the consent of each affected person with a propriety interest in the materials (if applicable). The cessation of non-public status applies to the particular document or thing and the particular information contained therein (in whole or in part, as applicable).

(b) Submitter means any natural or legal person, including the Postal Service, that provides non-public materials to the Commission and seeks non-public treatment in accordance with the rules of this part.

[83 FR 31281, July 3, 2018, as amended at 85 FR 9641, Feb. 19, 2020]

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§3011.102   Treatment of non-public materials.

(a) Except as described in part 3011 or part 3006 of this chapter, the Commission will neither disclose nor grant access to any non-public materials (and the non-public information contained therein).

(b) To accord appropriate confidentiality to non-public information and non-public materials during any stage of a proceeding before the Commission, or in connection with any other purpose under title 39 of the U.S. Code, the Commission may, based on Federal Rule of Civil Procedure 26(c):

(1) Prohibit the public disclosure of the non-public information and non-public materials;

(2) Specify terms for public disclosure of the non-public information and non-public materials;

(3) Order a specific method for disclosing the non-public information and non-public materials;

(4) Restrict the scope of the disclosure of the non-public information and non-public materials as they relate to certain matters;

(5) Restrict who may access the non-public information and non-public materials;

(6) Require that a trade secret be revealed only in a specific and limited manner or to limited or specified persons; and

(7) Order other relief as appropriate including sealing a deposition or part of a proceeding.

[83 FR 31281, July 3, 2018, as amended at 85 FR 9641, Feb. 19, 2020]

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§3011.103   Commission action to determine non-public treatment.

(a) Information requests as described in §3010.170 of this chapter, preliminary notices, or interim orders may be issued to help the Commission determine the non-public treatment, if any, to be accorded to the materials claimed by any person to be non-public.

(b) Upon motion by any person, the Commission may issue an order containing a description of and timeframe for the non-public treatment, if any, to be accorded to materials claimed by any person to be non-public.

(c) Upon its own motion, the Commission may issue notice of its preliminary determination concerning the appropriate degree of protection, if any, to be accorded to materials claimed by any person to be non-public. A response is due within seven calendar days of issuance of the preliminary determination, unless the Commission otherwise provides. No reply to a response shall be filed, unless the Commission otherwise provides. Pending the Commission's resolution of the preliminary determination, information designated as non-public will be accorded non-public treatment. The Commission will enter an order determining what non-public treatment, if any, will be accorded to the materials after the response period described in this paragraph has expired. The determination of the Commission shall follow the applicable standard described in §3011.104.

[83 FR 31281, July 3, 2018, as amended at 85 FR 9641, Feb. 19, 2020]

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§3011.104   Standard for public disclosure of materials claimed to contain non-public information.

(a) In determining whether to publicly disclose materials claimed by the Postal Service to contain non-public information, the Commission shall balance the nature and extent of the likely commercial injury identified by the Postal Service against the public interest in maintaining the financial transparency of a government entity competing in commercial markets.

(b) In determining whether to publicly disclose materials in which the Commission determines any person other than the Postal Service has a proprietary interest, the Commission shall balance the interests of the parties consistent with the analysis undertaken by a federal court when applying the protective conditions appearing in Federal Rule of Civil Procedure 26(c).

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