§ 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]

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