[Federal Register Volume 64, Number 196 (Tuesday, October 12, 1999)]
[Rules and Regulations]
[Pages 55161-55163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-26520]


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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]
BILLING CODE 6712-01-U