[Code of Federal Regulations]
[Title 39, Volume 1]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 39CFR265.8]

[Page 104-106]
 
                        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

[[Page 105]]

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 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

[[Page 106]]

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.
    (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]