§ 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 this section.

   (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 based, including:

   (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 third parties;

   (8) Justification of the period during which the submitting party asserts
   that material should not be available for public disclosure; and

   (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 § 0.461.

   (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]

   return arrow Back to Top