Examination of Current Policy Concerning the Treatment of Confidential Information Submitted to the Commission

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 0

[GC Docket No. 96-55; FCC 99-262]

Examination of Current Policy Concerning the Treatment of

Confidential Information Submitted to the Commission

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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[[Page 55162]]

SUMMARY: The Commission denies reconsideration of its decision amending

its rules concerning the treatment of confidential information

submitted to the Commission. It also makes five technical amendments to

its Freedom of Information Act-related rules. The amended rules provide

the General Accounting Office with more expedited access to

confidential information submitted to the Commission. Another amendment

clarifies that if a request for confidentiality is denied, the

documents will not be disclosed until the Commission disposes of an

application for review or a court acts on a motion for stay. The third

amendment permits third party owners of materials subject to

confidentiality disputes to participate in the proceeding. Another rule

amendment permits parties seeking confidential treatment of materials

to reply to oppositions to requests for confidentiality.

DATES: Effective October 12, 1999.

FOR FURTHER INFORMATION CONTACT: Laurence H. Schecker, Office of

General Counsel, (202) 418-1720.

SUPPLEMENTARY INFORMATION:

1. The Commission has under consideration a petition for

reconsideration filed by MCI WorldCom, Inc. (MCIW), of our decision

setting out our general policies governing the handling of confidential

information. In the Matter of Examination of Current Policy Concerning

the Treatment of Confidential Information Submitted to the Commission,

63 FR 44161 (August 18, 1998); 13 FCC Rcd 24816 (1998) (Report and

Order). MCIW seeks rule changes that would restrict the ability of a

submitting party to seek confidential treatment of tariff cost support

data and that would allow access to confidential information pursuant

to a protective order while a denial of confidentiality was being

appealed to the Commission. We deny MCIW's petition. In addition, we

amend the rules to ensure that the General Accounting Office (GAO) has

more efficient access to confidential materials, consistent with its

statutory authority, and to make minor technical changes to the

confidentiality portions of our Freedom of Information Act (FOIA)

regulations.

2. Disclosure to the GAO. Section 0.442 of our Rules, 47 CFR 0.442,

along with 44 U.S.C. 3510, governs disclosure of records to other

federal government agencies (but not to Congress, see 47 CFR 0.442(e)).

Section 0.442 currently provides that information submitted to the

Commission in confidence will be disclosed to other federal agencies as

long as the Commission has not given specific assurances against such

disclosure, the requesting agency has established a legitimate need for

the information, the confidentiality of the information will be

maintained by the requesting agency, and disclosure is not prohibited

by the Privacy Act or other law. 47 CFR 0.442(b). A party who submits

confidential information to the Commission is notified at the time the

records are requested by another federal agency and may oppose the

requests. No notice is provided, however, if notice will unduly

interfere with law enforcement activities, in which case notice is

provided once the potential for interference is eliminated. 47 CFR

0.442(d)(1), (2). If the party who submitted the confidential

information does not object, the information is provided to the

requesting federal agency. 47 CFR 0.442(d)(3). If disclosure is

opposed, and the Commission decides to provide the information to the

requesting agency, the submitting party is afforded 10 working days to

seek a judicial stay. 47 CFR 0.442(d)(4).

3. Recently, the Commission has received numerous requests for

documents from GAO. The 10-day notice procedures of section 0.442 have

resulted in unnecessary delay when GAO requests information that is

deemed confidential by the submitting party. We do not believe this

notice period is necessary, as GAO is required under its own statute,

31 U.S.C. 716(e), to maintain the confidentiality of confidential

information that it obtains from the Commission. Moreover, the

Commission is obligated by law to allow GAO access to its records. See

31 U.S.C. 716(a). Given GAO's undisputed statutory authority, in our

experience the 10-day period has merely resulted in delaying GAO's

ability to gain access to requested information. We will therefore

amend section 0.442(e) to provide that the advance notification

requirement does not apply to requests from the GAO, although we will

continue to provide notice that GAO has been afforded access to the

documents. We find good cause that this rule change may be made without

notice and comment because it is more consistent with Congress' clear

intent that GAO be afforded unimpeded access to Commission records, and

thereby better serves the public interest. See 5 U.S.C. 553(b)(B). For

the same reason, we will make this change effective upon publication in

the Federal Register. See 5 U.S.C. 553(d)(3).

4. Technical Amendments to the Rules. We take this opportunity to

make several minor procedural amendments to our confidentiality

regulations. Section 0.459(g) will be modified to clarify that

documents will not be disclosed until the Commission disposes of any

application for review of the order denying confidentiality and, if a

judicial stay of that order is sought, until the court disposes of the

motion for stay. This is consistent with out current practice. In

addition, in the Report and Order we indicated that we would amend

section 0.459 to permit third party owners of materials subject to

confidentiality disputes to participate in the proceeding resolving the

confidentiality issue, but by oversight section 0.459 was not so

amended. Section 0.459 will be amended accordingly and corresponding

changes will be made to section 0.461. We also believe that the rules

should be amended to make clear that if a response in opposition to a

confidentiality request is filed, the party requesting confidentiality

should be able to reply. Section 0.459 will be amended to so provide.

We will also correct the citation to the Paperwork Reduction Act (PRA)

in 47 CFR 0.442(a) and (b), because the confidentiality section of the

PRA was recodified as 44 U.S.C. 3510(b). These modifications are either

nonsubstantive rule changes or procedural rules that do not require

notice and comment under the Administrative Procedure Act, 5 U.S.C.

553(b)(A) (rules of agency procedure do not require notice and

comment). See Aluminum Co. of America v. FTC, 589 F. Supp. 169, 178

(S.D.N.Y. 1984) (holding FOIA rules are procedural rules); see also JEM

Broadcasting Co., Inc. v. FCC, 22 F.3d 320, 326-28 (D.C. Cir. 1994)

(rules of agency procedure are exempt from general notice and comment

requirements of the APA). For the same reason, we will make this change

effective October 12, 1999. See 5 U.S.C. 553(d).

List of Subjects in 47 CFR Part 0

Freedom of Information.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rule Changes

Part 0 of Title 47 of the Code of Federal Regulations is amended as

follows:

PART 0--COMMISSION ORGANIZATION

1. The authority citation for Part 0 continues to read as follows:

Authority: Sec 5, 48 Stat. 1068, as amended; 47 U.S.C. 155, 225,

unless otherwise noted.

2. Section 0.442 is amended by removing ``3508(a)'' and adding

[[Page 55163]]

``3510(b)'' in its place in paragraphs (a) and (b), and by revising

paragraph (d)(1), (d)(3), and (e) to read as follows:

Sec. 0.442 Disclosure to other Federal government agencies of

information submitted to the Commission in confidence.

* * * * *

(d)(1) Except as provided in paragraphs (d)(2) and (d)(3) of this

section, a party who furnished records to the Commission in confidence

will be notified at the time that the request for disclosure is

submitted and will be afforded 10 days in which to oppose disclosure.

* * * * *

(3) A party who furnished records to the Commission in confidence

under Sec. 0.457(d) or 0.459 will not be afforded prior notice when the

disclosure is made to the Comptroller General. Such a party will

instead be notified of disclosure of the records to the Comptroller

General either individually or by public notice.

* * * * *

(e) Except as provided in paragraph (d)(3) of this section, nothing

in this section is intended to govern disclosure of information to

Congress or the Comptroller General.

3. Section 0.459 is amended by adding a sentence to the end of

paragraph (d)(1), by adding a sentence to the end of paragraph (g), and

by adding paragraph (i) to read as follows:

Sec. 0.459 Requests that materials or information submitted to the

Commission be withheld from public inspection.

* * * * *

(d)(1) * * * If a response in opposition to a confidentiality

request is filed, the party requesting confidentiality may file a

reply.

* * * * *

(g) * * * 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.

* * * * *

(i) Third party owners of materials submitted to the Commission by

another party may participate in the proceeding resolving the

confidentiality of the materials.

4. Section 0.461 is amended by revising paragraph (i) to read as

follows:

Sec. 0.461 Requests for inspection of materials not routinely

available for public inspection.

* * * * *

(i)(1) If a request for inspection of records submitted to the

Commission in confidence under Sec. 0.457(d) or Sec. 0.459 is granted,

an application for review of the action may be filed by the person who

submitted the records to the Commission or by a third party owner of

the records. The application for review and the envelope containing it

(if any) shall be captioned ``Review of Freedom of Information

Action.'' The application for review shall be filed within 10 working

days after the date of the written ruling, shall be delivered or mailed

to the General Counsel, and shall be served on the person who filed the

request for inspection of records. The first day to be counted in

computing the time period for filing the application for review is the

day after the date of the written ruling. If an application for review

is not filed within this period, the records will be produced for

inspection. The person who filed the request for inspection of records

may respond to the application for review within 10 working days after

it is filed.

(2) If the request for inspection of records submitted to the

Commission in confidence under Sec. 0.457(d) or Sec. 0.459 is partially

granted and partially denied, the person who submitted the records to

the Commission, a third party owner of the records and the person who

filed the request for inspection of those records may file an

application for review within the 10 working days after the date of the

written ruling. The application for review and the envelope containing

it (if any) shall be captioned ``REVIEW OF FREEDOM OF INFORMATION

ACTION.'' The application for review shall be delivered or mailed to

the General Counsel. If either person files an application for review,

it shall be served upon the other person.

(3) If an application for review is denied, the person filing the

application for review will be notified in writing and advised of their

rights.

(4) If an application for review filed by the person who submitted

the records to the Commission or who owns the records is denied, or if

the records are made available on review which were not initially made

available, the person who submitted the records to the Commission or

who owns the records will be afforded 10 working days from the date of

the written ruling in which to move for a judicial stay of the

Commission's action. The first day to be counted in computing the time

period for seeking a judicial stay is the day after the date of the

written ruling. If a motion for stay is not made within this period,

the record will be produced for inspection.

* * * * *

[FR Doc. 99-26520 Filed 10-8-99; 8:45 am]

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