Sec.  0.459   Requests that materials or information submitted to the Commission be
withheld from public inspection.

   (a) 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  Sec. 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.

   (b) Each such request shall contain a statement of the reasons for
   withholding the materials from inspection (see  Sec. 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 which do not comply with the requirements of paragraphs
   (a) and (b) of this section will not be considered.

   (d)(1) 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  Sec. 0.460 or  Sec. 0.461.
   The information will be accorded confidential treatment, as provided for in
    Sec. 0.459(g) and  Sec. 0.461, until the Commission acts on the confidentiality
   request and all subsequent appeal and stay proceedings have been exhausted.
   If a response in opposition to a confidentiality request is filed, the party
   requesting confidentiality may file a reply.

   (2) Requests which comply with the requirements of paragraphs (a) and (b) of
   this section will be acted upon by the appropriate Bureau or Office Chief,
   who is directed to grant the request if it presents by a preponderance of
   the evidence a case for non-disclosure consistent with the provisions of the
   Freedom of Information Act, 5 U.S.C. 552. If the request is granted, the
   ruling will be placed in the public file in lieu of the materials withheld
   from public inspection. A copy of the ruling shall be forwarded to the
   General Counsel.

   (e) If the materials are submitted voluntarily (i.e., absent any direction
   by 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 is filed under
    Sec. 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.

   (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  Sec. 0.457(g).

   (g) If a request for confidentiality is denied, the person who submitted the
   request may, within 5 working 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 5 working 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 subsection is the day
   after the date of oral notice. Materials will be accorded confidential
   treatment, as provided in  Sec. 0.459(g) and  Sec. 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 is granted, the status of the materials is the same as
   that of materials listed in  Sec. 0.457. Any person wishing to inspect them may
   submit a request for inspection under  Sec. 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.

   [ 40 FR 7313 , Feb. 19, 1975, as amended at  49 FR 21719 , May 23, 1984;  55 FR 8951 , Mar. 9, 1990;  63 FR 44167 , Aug. 18, 1998;  64 FR 55163 , Oct. 12, 1999]