Goto Section: 0.458 | 0.460 | Table of Contents
Revised as of October 28, 2020
Goto Year:2020 |
§ 0.459 Requests that materials or information submitted to the Commission
be withheld from public inspection.
(a)(1) Procedures applicable to filings in non-electronic proceedings.
Any person submitting information or materials to the Commission may
submit therewith a request that such information not be made routinely
available for public inspection. (If the materials are specifically
listed in § 0.457, such a request is unnecessary.) A copy of the request
shall be attached to and shall cover all of the materials to which it
applies and all copies of those materials. If feasible, the materials
to which the request applies shall be physically separated from any
materials to which the request does not apply; if this is not feasible,
the portion of the materials to which the request applies shall be
identified. In the latter circumstance, where confidential treatment is
sought only for a portion of a document, the person submitting the
document shall submit a redacted version for the public file.
(2) Procedures applicable to filings in electronic proceedings. In
proceedings to which the electronic filing requirements set forth in
§ 1.49(f) of this chapter apply, a party seeking confidential treatment
of a portion of a filing must submit in electronic format either a
redacted version of the document or an affidavit that it is impossible
to submit a redacted document consistent with the filing requirements
of this section. Where a party demonstrates that even the fact of a
filing must remain confidential, and that this is consistent with the
requirements of this section, this affidavit may be filed in paper
format under seal.
(3) Comments and other materials may not be submitted by means of the
Commission's Electronic Comment Filing System (ECFS) with a request for
confidential treatment under this section.
(4) The Commission may use abbreviated means for indicating that the
submitter of a record seeks confidential treatment, such as a checkbox
enabling the submitter to indicate that the record is confidential.
However, upon receipt of a request for inspection of such records
pursuant to § 0.461, the submitter will be notified of such request
pursuant to § 0.461(d)(3) and will be requested to justify the
confidential treatment of the record, as set forth in paragraph (b) of
(b) Except as provided in § 0.459(a)(3), each such request shall contain
a statement of the reasons for withholding the materials from
inspection (see § 0.457) and of the facts upon which those records are
(1) Identification of the specific information for which confidential
treatment is sought;
(2) Identification of the Commission proceeding in which the
information was submitted or a description of the circumstances giving
rise to the submission;
(3) Explanation of the degree to which the information is commercial or
financial, or contains a trade secret or is privileged;
(4) Explanation of the degree to which the information concerns a
service that is subject to competition;
(5) Explanation of how disclosure of the information could result in
substantial competitive harm;
(6) Identification of any measures taken by the submitting party to
prevent unauthorized disclosure;
(7) Identification of whether the information is available to the
public and the extent of any previous disclosure of the information to
(8) Justification of the period during which the submitting party
asserts that material should not be available for public disclosure;
(9) Any other information that the party seeking confidential treatment
believes may be useful in assessing whether its request for
confidentiality should be granted.
(c) Casual requests (including simply stamping pages “confidential”)
which do not comply with the requirements of paragraphs (a) and (b) of
this section will not be considered.
(d)(1) If a response in opposition to a confidentiality request is
filed, the party requesting confidentiality may file a reply within ten
business days. All responses or replies filed under this paragraph must
be served on all parties.
(2) Requests which comply with the requirements of paragraphs (a) and
(b) of this section will be acted upon by the appropriate custodian of
records (see § 0.461(d)(1)), who is directed to grant the request if it
demonstrates by a preponderance of the evidence that non-disclosure is
consistent with the provisions of the Freedom of Information Act, 5
U.S.C. 552. If the request for confidentiality is granted, the ruling
will be placed in the public file in lieu of the materials withheld
from public inspection.
(3) The Commission may defer acting on requests that materials or
information submitted to the Commission be withheld from public
inspection until a request for inspection has been made pursuant to
§ 0.460 or § 0.461. The information will be accorded confidential
treatment, as provided for in § 0.459(g) and § 0.461, until the
Commission acts on the confidentiality request and all subsequent
appeal and stay proceedings have been exhausted.
(e) If the materials are submitted voluntarily (i.e., absent any
requirement by statute, regulation, or the Commission), the person
submitting them may request the Commission to return the materials
without consideration if the request for confidentiality should be
denied. In that event, the materials will ordinarily be returned (e.g.,
an application will be returned if it cannot be considered on a
confidential basis). Only in the unusual instance where the public
interest so requires will the materials be made available for public
inspection. However, no materials submitted with a request for
confidentiality will be returned if a request for inspection has been
filed under § 0.461. If submission of the materials is required by the
Commission and the request for confidentiality is denied, the materials
will be made available for public inspection once the period for review
of the denial has passed.
(f) If no request for confidentiality is submitted, the Commission
assumes no obligation to consider the need for non-disclosure but, in
the unusual instance, may determine on its own motion that the
materials should be withheld from public inspection. See § 0.457(d).
(g) If a request for confidentiality is denied, the person who
submitted the request may, within ten business days, file an
application for review by the Commission. If the application for review
is denied, the person who submitted the request will be afforded ten
business days in which to seek a judicial stay of the ruling. If these
periods expire without action by the person who submitted the request,
the materials will be returned to the person who submitted them or will
be placed in a public file. Notice of denial and of the time for
seeking review or a judicial stay will be given by telephone, with
follow-up notice in writing. The first day to be counted in computing
the time periods established in this paragraph is the day after the
date of oral notice. Materials will be accorded confidential treatment,
as provided in § 0.459(g) and § 0.461, until the Commission acts on any
timely applications for review of an order denying a request for
confidentiality, and until a court acts on any timely motion for stay
of such an order denying confidential treatment.
(h) If the request for confidentiality is granted, the status of the
materials is the same as that of materials listed in § 0.457. Any person
wishing to inspect them may submit a request for inspection under
(i) Third party owners of materials submitted to the Commission by
another party may participate in the proceeding resolving the
confidentiality of the materials.
[ 74 FR 14078 , Mar. 30, 2009, as amended at 76 FR 24389 , May 2, 2011]
Goto Section: 0.458 | 0.460
Goto Year: 2020 |
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