[Code of Federal Regulations]

[Title 39, Volume 1]

[Revised as of July 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 39CFR265.8]



[Page 106-108]

 

                        TITLE 39--POSTAL SERVICE

 

                 CHAPTER I--UNITED STATES POSTAL SERVICE

 

PART 265_RELEASE OF INFORMATION--Table of Contents

 

Sec. 265.8  Business information; procedures for predisclosure 

notification to submitters.



    (a) In general. This section provides a procedure by which persons 

submitting business information to the Postal Service can request that 

the information not be disclosed pursuant to a request under the Freedom 

of Information Act. This section does not affect the Postal Service's 

right, authority, or obligation to disclose information in any other 

context, nor is it intended to create any right or benefit, substantive 

or procedural, enforceable at law by a party against the Postal Service, 

its officers, or any person. Existing rights of submitters are also 

unaffected. For purposes of this section, the following definitions 

apply:

    (1) Business information means commercial or financial information 

provided directly or indirectly to the Postal Service by a submitter 

that arguably is protected from disclosure under Exemption 4 of the 

Freedom of Information Act, 5 U.S.C. 552(b)(4), which is restated in 

Sec. 265.6(b)(2).

    (2) Submitter means any person or entity who provides business 

information, directly or indirectly, to the Postal Service. The term 

includes, but is not limited to, corporations, state governments, and 

foreign governments.

    (b) Notice to submitters. (1) The custodian shall, to the extent 

permitted by law, provide a submitter with prompt written notice of a 

Freedom of Information Act request for the submitter's business 

information whenever required under paragraph (c) of this section, 

except as provided in paragraph (d) of this section, in order to afford 

the submitter an opportunity to object to disclosure pursuant to 

paragraph (f) of this section. Such written notice shall either describe 

the exact nature of the business information requested or provide copies 

of the records or portions of records containing the business 

information. In the case of an administrative appeal, the General 

Counsel shall be responsible for providing such notification as may be 

appropriate under this section.

    (2) When notice is given to a submitter under paragraph (b)(1) of 

this section, the requester also shall be notified that notice and an 

opportunity to object are being provided to the submitter pursuant to 

this section.

    (c) When notice is required. Notice shall be given to a submitter 

whenever:

    (1) The submitter has in good faith designated the information as 

information deemed protected from disclosure under Exemption 4, in 

accordance with the procedure described in paragraph (e) of this 

section; or

    (2) In the opinion of the custodian, or of the General Counsel in 

the case of an administrative appeal, it is likely that disclosure of 

the information would result in competitive harm to the submitter.

    (d) Exceptions to notice requirements. The notice requirements of 

paragraph (b) of this section shall not apply if:

    (1) The Postal Service determines without reference to the submitter 

that the information will not be disclosed;

    (2) The information lawfully has been published or has been 

officially made available to the public;

    (3) Disclosure of the information is required by law (other than the 

Freedom of Information Act, 5 U.S.C. 552); or

    (4) Disclosure of the particular kind of information is required by 

a Postal Service regulation, except that, in such case, advance written 

notice of a decision to disclose shall be provided to the submitter if 

the submitter had provided written justification for protection of the 

information under Exemption 4 at the time of submission or a reasonable 

time thereafter.

    (e) Procedure for designating business information at the time of 

its submission. (1) Submitters of business information shall use good-

faith efforts to designate, by appropriate markings, either at the time 

of submission or at a reasonable time thereafter, those portions of 

their submissions which they deem to be protected from disclosure under 

Exemption 4. Each record, or portion



[[Page 107]]



thereof, to be so designated, shall be clearly marked with a suitable 

legend such as Privileged Business Information--Do Not Release. When the 

designated records contain some information for which an exemption is 

not claimed, the submitter shall clearly indicate the portions for which 

protection is sought.

    (2) At the time a designation is made pursuant to paragraph (e)(1) 

of this section, the submitter shall furnish the Postal Service with the 

name, title, address and telephone number of the person or persons to be 

contacted for the purpose of the notification described in paragraph (b) 

of this section.

    (3) Submitters who provide to a postal facility business information 

on a recurring basis and in substantially identical form may use the 

following simplified process: The first submission will provide in full 

the information required in paragraphs (e)(1) and (2) of this section; 

shall identify the type of information, e.g., PS Form 3602, to which it 

is intended to apply; and shall state that it is intended to serve as a 

designation for all of the information of this type that is submitted to 

the particular facility. Thereafter when providing this type of 

information, the submitter need only mark a submission with a reference 

to the designation, e.g., Privileged: see letter of 4-1-91. By written 

agreement with the head of the facility, even this marking may be 

dispensed with if it is not necessary to alert postal employees at that 

facility of the claim of exemption.

    (4) A designation made pursuant to paragraph (e) of this section 

shall be deemed to have expired ten years after the date the records 

were submitted unless the submitter requests, and provides reasonable 

justification for, a designation period of greater duration.

    (5) The Postal Service will not determine the validity of any 

request for confidential treatment until a request for disclosure of the 

information is received.

    (f) Opportunity to object to disclosure. Through the notice 

described in paragraph (b) of this section, the submitter shall be 

afforded a reasonable period of time within which to provide the Postal 

Service with a detailed written statement of any objection to 

disclosure. Such statement shall specify all grounds for withholding any 

of the information under any exemption of the Freedom of Information Act 

and, in the case of Exemption 4, shall demonstrate why the information 

is contended to be a trade secret or commercial or financial information 

that is privileged or confidential. Whenever possible, the submitter's 

claim of confidentiality should be supported by a statement or 

certification by an officer or authorized representative of the 

submitter that the information in question is in fact confidential, has 

not been disclosed to the public by the submitter, and is not routinely 

available to the public from other sources. Information provided by a 

submitter pursuant to this paragraph may itself be subject to disclosure 

under the FOIA.

    (g) Determination that confidential treatment is warranted. If the 

custodian determines that confidential treatment is warranted for any 

part of the requested records, he shall inform the requester in writing 

in accordance with the procedures set out in Sec. 265.7(d) of this 

chapter, and shall advise the requester of the right to appeal. A copy 

of the letter of denial shall also be provided to the submitter of the 

records in any case in which the submitter had been notified of the 

request pursuant to paragraph (c) of this section.

    (h) Notice of intent to disclose. The custodian, in the case of an 

initial request, or the General Counsel, in the case of an appeal, shall 

consider carefully a submitter's objections and specific grounds for 

nondisclosure prior to determining whether to disclose business 

information. In the event of a decision to disclose business information 

over the objection of the submitter, the submitter shall be furnished a 

written notice which shall include:

    (1) A description of the business information to be disclosed;

    (2) A statement of the reasons for which the submitter's disclosure 

objections were not sustained; and

    (3) The specific date upon which disclosure will occur. Such notice 

of intent to disclose shall be forwarded to the submitter a reasonable 

number of days prior to the specified disclosure date and the requester 

shall be notified likewise.



[[Page 108]]



    (i) Notice of FOIA lawsuit. Whenever a requester brings suit seeking 

to compel disclosure of business information, the General Counsel shall 

promptly notify the submitter.



[56 FR 56934, Nov. 7, 1991]