[Code of Federal Regulations]

[Title 43, Volume 1]

[Revised as of October 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 43CFR4.31]



[Page 71-72]

 

                    TITLE 43--PUBLIC LANDS: INTERIOR

 

PART 4_DEPARTMENT HEARINGS AND APPEALS PROCEDURES--Table of Contents

 

       Subpart B_General Rules Relating to Procedures and Practice

 

Sec.  4.31  Request for limiting disclosure of confidential information.



    (a) If any person submitting a document in a proceeding under this 

part claims that some or all of the information contained in that 

document is exempt from the mandatory public disclosure requirements of 

the Freedom of Information Act (5 U.S.C. 552), is information referred 

to in section 1905 of title 18 of the United States Code (disclosure of 

confidential information), or is otherwise exempt by law from public 

disclosure, the person:

    (1) Must indicate in the document that it is exempt, or contains 

information which is exempt, from disclosure;

    (2) Must request the presiding officer or appeals board not to 

disclose such information except to the parties to the proceeding under 

the conditions provided in paragraphs (b) and (c) of this section, and 

must serve the request upon the parties to the proceeding. The request 

shall include the following items:

    (i) A copy of the document from which has been deleted the 

information for which the person requests nondisclosure; if it is not 

practicable to submit such copy of the document because deletion of the 

information would render the document unintelligible, a description of 

the document may be substituted;

    (ii) A statement specifying why the information is confidential, if 

the information for which nondisclosure is requested is claimed to come 

within the exception in 5 U.S.C. 552(b)(4) for trade secrets and 

commercial or financial information:

    (iii) A statement specifying the justification for nondisclosure, if 

the information for which nondisclosure is requested is not within the 

exception in 5 U.S.C. 552(b)(4).



[[Page 72]]



    (b) If information is submitted in accordance with paragraph (a) of 

this section, the information will not be disclosed except as provided 

in the Freedom of Information Act, in accordance with part 2 of this 

title, or upon request from a party to the proceeding under the 

restrictions stated in paragraph (c) of this section.

    (c) At any time, a party may request the presiding officer or 

appeals board to direct a person submitting information under paragraph 

(a) of this section to provide that information to the party. The 

presiding officer or board will so direct, unless paragraph (d) of this 

section is applicable, if the party requesting the information agrees 

under oath in writing:

    (1) Not to use or disclose the information except in the context of 

the proceeding conducted pursuant to this part; and

    (2) To return all copies of the information at the conclusion of the 

proceeding to the person submitting the information under paragraph (a) 

of this section.

    (d) If any person submitting a document in a proceeding under this 

Part other than a hearing conducted pursuant to 5 U.S.C. 554 claims that 

a disclosure of information in that document to another party to the 

proceeding is prohibited by law, notwithstanding the protection provided 

under paragraph (c) of this section, such person:

    (1) Must indicate in the original document that it contains 

information of which disclosure is prohibited;

    (2) Must request that the presiding officer or appeals board review 

such evidence as a basis for its decision without disclosing it to the 

other party or parties, and serve the request upon the parties to the 

proceeding. The request shall include a copy of the document or 

description as required by paragraph (a)(2)(i) of this section and state 

why disclosure is prohibited, citing pertinent statutory or regulatory 

authority. If the prohibition on disclosure is intended to protect the 

interest of a person who is not a party to the proceeding, the party 

making the request must demonstrate that such person refused to consent 

to the disclosure of the evidence to other parties to the proceeding.

    (3) If the presiding officer or an appeals board denies the request, 

the person who made the request shall be given an opportunity to 

withdraw the evidence before it is considered by the presiding official 

or board unless a Freedom of Information Act request, administrative 

appeal from the denial of a request, or lawsuit seeking release of the 

information is pending.

    (e) If the person submitting a document does not submit the copy of 

the document or description required by paragraph (a)(2)(i) or (d)(2) of 

this section, the presiding officer or appeals board may assume that 

there is no objection to public disclosure of the document in its 

entirety.

    (f) Where a decision by a presiding officer or appeals board is 

based in whole or in part on evidence not included in the public record 

or disclosed to all parties, the decision shall so state, specifying the 

nature of the evidence and the provision of law under which disclosure 

was denied, and the evidence so considered shall be retained under seal 

as part of the official record.



[53 FR 49661, Dec. 9, 1988]