Title 39
SECTION 265.7
265.7 Confidential commercial information obtained from submitters.
§ 265.7 Confidential commercial information obtained from submitters.(a) Definitions. (1) Confidential commercial information means commercial or financial information obtained by the Postal Service from a submitter that may be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).
(2) Submitter means any person or entity, including a corporation, State, or foreign government, but not including another Federal Government entity, that provides information, either directly or indirectly to the Postal Service.
(b) Designation of confidential commercial information. A submitter of confidential commercial information must use good faith efforts to designate by appropriate markings, either at the time of submission or within a reasonable time thereafter, any portion of its submission that it considers to be protected from disclosure under Exemption 4. The Postal Service will not determine the validity of any request for confidential treatment until a request for disclosure of the information is received. These designations shall expire 10 years after the date of the submission unless the submitter requests and provides justification for a longer designation period.
(c) When notice to submitters is required. (1) The Postal Service shall promptly provide written notice to a submitter of confidential commercial information whenever records containing such information are requested under the FOIA if, after reviewing the request, the responsive records, and any appeal by the requester, the Postal Service determines that it may be required to disclose the records, provided:
(i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or
(ii) The Postal Service has a reason to believe that the requested information may be protected from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure under that exemption or any other applicable exemption.
(2) The notice shall either describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, notice may be made by posting or publishing the notice in a place or manner reasonably likely to accomplish it.
(d) Exceptions to submitter notice requirements. The notice requirements of this section shall not apply if:
(1) The Postal Service determines that the information is exempt under the FOIA or 39 U.S.C. 410(c);
(2) The information has been lawfully published or has been officially made available to the public;
(3) Disclosure of the information is required by a statute other than the FOIA or by a Postal Service regulation; if disclosure is required by a Postal Service regulation and the submitter provided written justification for protection of the information under Exemption 4 at the time of submission or a reasonable time thereafter, advanced written notice of the disclosure must be provided to the submitter; or
(4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous or overly broad, except that, in such cases, the component shall give the submitter written notice of any final decision to disclose the information and must provide that notice within a reasonable number of days prior to a specified disclosure date.
(e) Opportunity to object to disclosure. (1) The Postal Service shall specify a reasonable time period within which the submitter must respond to the notice referenced above. If a submitter has any objections to disclosure, it should provide the Postal Service a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as basis for nondisclosure, the submitter must explain why the information constitutes 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.
(2) A submitter who fails to respond within the time period specified in the notice shall be considered to have no objection to disclosure of the information. Information received by the Postal Service after the date of any disclosure decision shall not be considered by the Postal Service. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA. The Postal Service must consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose the requested information.
(f) Determination that confidential treatment is warranted. If the Postal Service determines that confidential treatment is warranted for any part of the requested records and that the records will therefore be redacted or withheld, it must inform the requester in writing, and must advise the requester of the right to appeal. A copy of the letter of denial must also be provided to the submitter of the records in any case in which the submitter had been notified of the request.
(g) Notice of intent to disclose. If the Postal Service decides to disclose information over the objection of a submitter, the Postal Service shall provide the submitter written notice, which shall include:
(1) A statement of the reasons why each of the submitter's disclosure objections was not sustained;
(2) A description or copy of the information to be disclosed; and
(3) A specified disclosure date, which shall be a reasonable time subsequent to the notice.
(h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of confidential commercial information, the component shall promptly notify the submitter. Whenever a submitter files a lawsuit to prevent disclosure of confidential commercial information, the component shall promptly notify the requester.
(i) Requester notification. The Postal Service shall notify a requester whenever it notifies the submitter of its intent to disclose the requested information.