[Federal Register Volume 65, Number 214 (Friday, November 3, 2000)]
[Rules and Regulations]
[Pages 66184-66185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-28061]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 0 and 19

[FCC 00-365]


Nonpublic Information

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Commission is amending its rules to establish a procedure 
to deal with the improper release of nonpublic information. The current 
rules prohibit the unauthorized release of nonpublic information by 
Commission officials. The revised rules add language requiring persons 
regulated by or practicing before the Commission who receive written 
nonpublic information to return it to the Commission's Office of the 
Inspector General without further distribution or use of the material. 
The amended rules also highlight the sanctions available to the 
Commission to address willful violation of the rules by either 
employees of the Commission or individuals who are regulated by or 
practicing before it.

DATES: Effective December 4, 2000.

FOR FURTHER INFORMATION CONTACT: Patrick J. Carney, Office of General 
Counsel, (202) 418-1720.

SUPPLEMENTARY INFORMATION:
    1. Recent unauthorized disclosures of nonpublic internal Commission 
draft orders and documents in market-sensitive proceedings prompt us to 
adopt this order to amend Sec. 19.735-203 of our rules, 47 CFR 19.735-
203. Section 19.735-203 currently governs the disclosure and misuse by 
Commission personnel of nonpublic information that is contained in 
Commission records or obtained in connection with Commission 
employment. The purpose of the amendment is to emphasize the 
responsibilities of Commission employees in this area and to provide 
guidance to persons who receive nonpublic documents under circumstances 
where it appears that the release of the documents was either 
inadvertent or otherwise unauthorized.
    2. Currently, Sec. 19.735-203 prohibits the unauthorized release of 
nonpublic information, including documents, by Commission officials. 
Specifically, Sec. 19.735-203(a) states that ``[e]xcept as authorized 
in writing by the Chairman

[[Page 66185]]

* * *, or otherwise as authorized by the Commission or its rules, 
nonpublic information shall not be disclosed, directly or indirectly, 
to any person outside the commission.'' Such nonpublic information 
clearly includes drafts of Commission orders, memoranda and other 
documents (such as e-mail) containing internal staff recommendations. 
See 5 CFR 2635.703 (``nonpublic information is information that * * * 
has not been made available to the general public'' including documents 
that are ``designated as confidential by an agency.''). We take this 
opportunity to emphasize that, pursuant to Sec. 19.735-107 of our 
rules, employees that disclose such documents (or their contents) are 
subject to significant disciplinary action up to and including removal 
for cause, in addition to any other penalty prescribed by law. See 47 
CFR 19.735-107. Our amendment of Sec. 19.735-203 cross-references this 
rule governing the Commission's disciplinary and remedial authority.
    3. Our rules prohibiting the disclosure of nonpublic information 
serve to protect the integrity of the Commission's deliberative 
processes. Disclosure by Commission staff of draft orders, internal 
confidential memoranda and nonpublic information violates these rules, 
and we will vigorously investigate and address violations of these 
rules by Commission personnel.
    4. While our existing rules and our guidance in this order make 
clear our commitment to ensure that Commission personnel do not 
disclose nonpublic documents, the existing rules do not address the 
steps that are to be taken by persons regulated by or practicing before 
the Commission who receive such documents. The revision to Sec. 19.735-
203 adds language requiring such persons who come into possession of 
written nonpublic information (including written material transmitted 
in electronic form), the release of which they know or reasonably 
should know was either inadvertent or otherwise unauthorized, to 
promptly return such written nonpublic information to the Commission's 
Office of the Inspector General, without further distribution or use of 
the material.
    5. Persons regulated by or practicing before the FCC may be subject 
to appropriate sanctions for willful violation of this section. In the 
case of attorneys practicing before the Commission such sanctions may 
include disciplinary action under the provisions of Sec. 1.24 of the 
Commission's rules. (Cf., D.C. Rules of Professional Conduct, Rule 1.15 
and Opinion no. 256, adopted May 16, 1995. See also: ABA Formal Opinion 
92-368, Nov. 10, 1992; Florida Bar Op. 93-3, Feb. 1, 1994; and Oregon 
Bar Formal Op. No. 1998-150, approved Apr. 1998).
    6. The revision also adds a cross reference to Sec. 19.735-203 in a 
new Sec. 0.458 of the Commission's rules, 47 CFR 0.458. New Sec. 0.458 
is within the Commission's part 0 rules dealing with public and 
nonpublic information.
    7. The requirements set forth in 5 U.S.C. 553(b) and (d) pertaining 
to notice and comment and the effective date in rulemaking proceedings 
do not apply to this amendment because it concerns matters of agency 
organization, procedure or practice. See 5 U.S.C. 553(b)(A); 553(d).
    8. Accordingly, pursuant to sections 4(i), 4(j), 303(r), 47 U.S.C. 
4(i), 4(j), 303(r), parts 0 and 19 of the Commission's rules, 47 CFR 
part 19, ARE AMENDED as set forth, and is effective December 4, 2000.

List of Subjects

47 CFR Part 0

    Classified information.

47 CFR Part 19

    Conflict of interests, Nonpublic information.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.

Rule Changes

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR parts 0 and 19 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.

    2. Section 0.458 is added to read as follows:


Sec. 0.458  Nonpublic information.

    Any person regulated by or practicing before the Commission coming 
into possession of written nonpublic information (including written 
material transmitted in electronic form) as described in Sec. 19.735-
203(a) of this chapter under circumstances where it appears that its 
release was inadvertent or otherwise unauthorized shall be obligated to 
return the information to the Commission's Office of Inspector General 
pursuant to that section. See 47 CFR 19.735-203.

PART 19--EMPLOYEE RESPONSIBILITIES AND CONDUCT

    3. The authority citation for part 19 continues to read as follows:

    Authority: 5 U.S.C. 7301; 47 U.S.C. 154 (b), (i), (j) and 303 
(r).

    4. Section 19.735-203 is amended by adding paragraph (d) and a new 
sentence immediately preceding the second sentence of the note to the 
section to read as follows:


Sec. 19.735-203  Nonpublic information.

* * * * *
    (d) Any person regulated by or practicing before the Commission 
coming into possession of written nonpublic information (including 
written material transmitted in electronic form) as described in 
paragraph (a) of this section under circumstances where it appears that 
its release was inadvertent or otherwise unauthorized shall promptly 
return the written information to the Commission's Office of the 
Inspector General without further distribution or use of the written 
nonpublic information. Any person regulated by or practicing before the 
Commission who willfully violates this section by failing to promptly 
notify the Commission's Office of the Inspector General of the receipt 
of written nonpublic information (including written material 
transmitted in electronic form) that he knew or should have known was 
released inadvertently or in any otherwise unauthorized manner may be 
subject to appropriate sanctions by the Commission. In the case of 
attorneys practicing before the Commission, such sanctions may include 
disciplinary action under the provisions of Sec. 1.24 of this chapter.

    Note: * * * Additionally, employees should refer to Sec. 19.735-
107 of this part, which provides that employees of the Commission 
who violate this part may be subject to disciplinary action which 
may be in addition to any other penalty prescribed by law.

* * * * *
[FR Doc. 00-28061 Filed 11-2-00; 8:45 am]
BILLING CODE 6712-01-U