that to require the public disclosure of the business information sought by plaintiffs would give an unfair competitive advantage to a reporting firm's foreign and domestic competitors who are not required to report. Neither argument is responsive to the issue of whether the public disclosure regulations meet the terms of the statute requiring their promulgation. Whether the public is previded sufficient information to monitor compliance, and whether some adverse competitive advantages may result, are public policy considerations within the usual province of the Congress.2

CLC gives no reasonable explanation related to the objectives of the Act particularly Section 205 forbidding the CLC to "define as excludable any [SEC) information or data . . .,” as to why the CLC decided that the information in dispute was not SEC data and therefore should be withheld from public disclosure. The only reasons advanced are that the CLC and SEC definitions are not the same, thus the figures reported will not be the same, and that, therefore, the CLC contends, it may define the information as proprietary because it is not SEC data. We are not told on what basis the CLC decided that Congress intended public disclosure only of information or data which has been defined identically by both agencies. While there are generally recognized meanings for the accounting terms "sales," "net sales," "operating income," etc., we think it is indisputable that different companies, and different government agencies, will use slightly varying methods of computing these figures to meet the needs of the companies or agencies. Indeed, it is probably the rule, rather than the exception, that one will find minor definitional differences between businesses and between agencies. Congress surely knew this when it enacted Section 205 (b) (3), and, therefore, we find it unrealistic to assume, as defendants' argument would have us do, that Congress intended "information or data" to mean "numerically identical informstion or data." Instead, we think that when Congress, with knowledge that the SEC requires public disclosure of, for example, net sales figures reported to it enacted Section 205 (b) (3) forbidding the CLC to define as proprietary any information required to be reported to the SEC, Congress intended that any net sales figures reported to the CLC could not be defined as proprietary and excludable.

The defendants' position on this issue results in an anomaly. While Congress used the mandatary language "may not define as excludable," which would seen to leave no discretion, the CLC's rationale would permit it to avoid completely the effect of this provision of the statute by simply using definitions which differed from those of the SEC. We think Congress intended these words to have an effect, and that that intended effect was to withhold from the CLC any discretion to exclude from public disclosure business information required by the SEC. Defendants argue that they were required to define very narrowly what infor mation is nonproprietary because Section 205 (a) makes reference to 18 U.S.C. § 1905, which provides criminal penalties for any officer of the government who "discloses, or makes known in any manner or to any extent not authorized by law," any information required to be filed with an agency. While we understand that the CLC is conscientiously endeavoring to release only that information which it is authorized to release, in this case the CLC was not only authorized to release the information, it was forbidden by Section 205 (b) (3) from defining the information as proprietary and preventing its release. Furthermore, the CIC apparently overlooked the fact that the reference to 18 U.S.C. § 1905 in Section 205 (a) is preceded by the words "Except as provided in subsection (b)...." We hold that for these reasons the members of the CLC have no need to fear prosecution under 18 U.S.C. § 1905 for defining information reported to the CLC as nonproprietary when the statute required them to do so.

Having found that the CLC regulations defining proprietary information. 6 C.F.R. § 102.55 (a) (1), (2) and (4); 6 C.F.R. § 102.56 (a) (1), (2), and (4), are illegal because in contravention of Section 205(b) (3) of the Act, we turn to the question of the relief to be given the plaintiffs. Considering the emergency nature of the stabilization program being administered by the defendants, we think it is not inappropriate to consider the impact that an invalidation of these regulations might have on administration. Fortunately it appears that in this case there will

In Dandridge v. Williams, 397 U.S. 471, 485 (1970), cited in Richardson v. Belcher, 404 U.S. 78, 81 (1971), the Supreme Court stated: "The problems of government are practical ones and may justify, if they do not require, rough accommodations illogical It may be, and unscientific."

Section 202 states that the objectives are "to stabilize the economy, reduce inflation minimize unemployment, improve the Nation's competitive position in world trade, and protect the purchasing power of the dollar.

e very minimal, if any, disruptive effects caused by such a determination. The CLC will be required to issue new regulations in conformance with this opinion.* Other than that, however, there will be no additional "red tape" for the efendants, reporting businesses, or the members of the public. The reporting busiesses will continue to submit public disclosure copies of the reports, and the ublic will examine them as it has before. The only difference will be that the CLC, through its new regulations, will have reduced the number of items that may e omitted from the public disclosure copies.5

Accordingly, it is ORDERED that this cause be remanded to the trial court For further proceedings in accordance with this opinion; that the trial court's orders denying plaintiffs' motion for summary judgment and granting defendants' and intervenors' motion for summary judgment be vacated, and that plaintiffs' notion for summary judgment be granted only to the extent expressly indicated y this opinion; and that an injunction be issued ordering the CLC to prepare and issue new regulations in accordance with Section 205 (b) (3) of the Act, as interpreted herein, to replace the existing Sections 102.55 (a) (1), (2), and (4) and 102.56(a)(1), (2), and (4) of its regulations, defining proprietary information, as soon as is practicable under the circumstances. SO ORDERED.

ECONOMIC STABILIZATION PROGRAM,

COST OF LIVING COUNCIL,
Washington, D.C.

DEAR SIR: Section 205 of the Economic Stabilization Act of 1970, as amended in 1973, and as implemented by 6 CFR Part 102 of the Phase IV regulations, requires certain business enterprises to make public some of the information they report under the Economic Stabilization Program regulations to the Cost of Living Council. This requirement applies to any business enterprise which (1) has $250 million or more in annual sales or revenues, (2) is obligated to submit quarterly reports to the Cost of Living Council, and (3) charges a price for a substantial product which exceeds by more than 1.5% the prices lawfully in effect for that product on January 10, 1973, or on the date 12 months preceding the end of the quarterly reporting period, whichever is later.

A firm which meets these criteria is obligated to make public the nonproprietary data contained in the Forms CLC-22 and supporting schedules which it submits as quarterly reports. Part 102 of the Economic Stabilization Program regulations specifies what data on the Form CLC-22 must be made public.

Enclosed are copies of § 205 of the Economic Stabilization Act of 1970, as amended, Cost of Living Council public disclosure regulations, a questionnaire, and a certification concerning public disclosure which must be filed as part of the Form CLC-22 by firms with $250 million or more in annual sales or revenues which have not raised prices sufficiently to trigger the requirement of public disclosure.

Many firms operate on a calendar year basis and will consequently be filing the required quarterly reports on or about November 15, 1973. The purpose of this letter, therefore, is to remind you of the public disclosure requirements, to provide explicit guidance with respect to these requirements, and, finally, to determine the extent of current compliance with § 205 of the Act and Part 102 of the Economic Stabilization Program regulations.

Failure to file the necessary information for public disclosure on the same date as quarterly reports are due may be a violation subject to penalty under the Economic Stabilization Act.

For the guidance of the court below and the parties, the above sections of the regulations (and their predecessors dealing with form CLC-2) are held illegal insofar as they define as proprietary the information required on lines 7 through 18, line 24 (column c), lines 27 through 33, and lines 35 through 39 of present form CLC-22. Section 205(b) (3) of the Act prohibits the CLC from defining as proprietary any information or data which would in fact be reported to the SEC by a single product-line manufacturer or seller. Slight definitional variances between CLC terms and SEC terms are not sufficient grounds for the CLC to define information as proprietary when that information is of the same nature as that required by the S.E.C. Unless a reasonable explanation, related to the objectives of the Act, is shown, the CLC may not use definitional variances as a justification for issuing regulations which restrict the effectiveness of Section 205 in furthering public disclosure to insure compliance with the Act.

We recognize, however, that for quarterly reports filed after the amendment of Section 205 on April 30, 1973, revised public disclosure copies, prepared in accordance with the regulations to be issued to replace those herein declared invalid, must be made available for examination by members of the public, in accordance with the "Disclosure procedure" prescribed by present 6 C.F.R. § 102.54.

We, therefore, ask that you file the documents required by Cost of L Council regulations in a timely manner and complete and promptly return enclosed questionnaire. Written inquiries on this matter should be addressed the Office of the General Counsel, Cost of Living Council, 2000 M Street, XV. Washington, D.C. 20508. "Public Disclosure Inquiry" should be marked on envelope.

The Cost of Living Council greatly appreciates your corporation with the E nomic Stabilization Program.

Very truly yours,

Enclosures.

JAMES W. MCLANE

Deputy Director

[ATTACHMENT 1]

SECTION 205 OF THE ECONOMIC STABILIZATION ACT OF 1970, AS AMENDES
(Omitted and included as part of the text of attachment 2.)

[ATTACHMENT 2]

[From the Federal Register, Aug. 15, 1973]

TITLE 6-ECONOMIC STABILIZATION

CHAPTER I-COST OF LIVING COUNCIL

PART 102-PUBLIC ACCESS TO RECORDS

Miscellaneous Amendments

The purpose of this revision of Part 102 of Title 6 of the Code of Federal Res ulations is to set out the regulations of the Cost of Living Council governing 300 to records during Phase IV.

These regulations are basically a continuation of the regulations in effect desi Phase III. There are two major changes. First, this part now contains, in Sur G, regulations governing inspection of Internal Revenue Economic Stabilizat records. Subpart G sets out unchanged the provisions which were adopted dur Phase II and set out in Chapter IV, Part 4, Subpart K.

The second major change is the adoption of regulations defining which p of Form CLC-22 are subject to disclosure under § 205 of the Economic Sta tion Act of 1970, as amended.

Section 6 of the Economic Stabiligation Act Amendments of 1973 (Public La 93-28), enacted on April 30, 1973, required firms which met certain criteria make public parts of their quarterly reports to the Cost of Living Counci though section 6 required businesses, and not the Council, to disclose the r the Freedom of Information Act, 5 U.S.C. 552, in turn required the Cound make these reports public. Section 6 also directed the President or his dele to issue regulations specifying what parts of those reports did not need to made public.

In accordance with this last requirement, the Council issued proposed res tions on May 11, 1973 (38 FR 12413), held public hearings on June 6, 1973. issued final regulations on June 20, 1973 (38 FR 16023), which appear as part For Part 102 of Title 6 of the Code of Federal Regulations.

On July 18, 1973, the President directed the Council in Executive Order 11 to publish proposed plans for Phase IV. On July 19, 1973 the Council issued in!? posed form some of the regulations for Phase IV, on which it invited p comment. These regulations were published in final form on August 7, 1973. T Council today is publishing public disclosure regulations for Phase IV, in accor auce with the requirements imposed on the Council by section 6 of the Econ Stabilization Act Amendments of 1973.

Section 6 amended section 205 of the Economic Stabilization Act of 1970, whi

as amended reads:

"Section 205 Confidentiality of information.

"(a) Except as provided in subsection (b), all information reported to otherwise obtained by any person exercising authority under this title w contains or relates to a trade secret or other matter referred to in section 1965

e 18, United States Code, shall be considered confidential for the purposes of t section, except that such information may be disclosed to other persons powered to carry out this title solely for the purpose of carrying out this title when relevant in any proceeding under this title.

(b) (1) Any business enterprise subject to the reporting requirements under 30.21 (b) of the regulations of the Cost of Living Council in effect on Januy 11, 1973, shall make public any report (except for matter excluded in accordce with paragraph (2) so required which covers a period during which that siness enterprise charges a price for a substantial product which exceeds by ore than 1.5 per centum the price lawfully in effect for such product on Januy 10, 1973, or on the date twelve months preceding the end of such period, hichever is later. As used in this subsection, the term 'substantial product' means y single product or service which accounted for 5 per centum or more of the oss sales or revenues of a business enterprise in its most recent full fiscal year. “(2) A business enterprise may exclude from any report made public pursuant paragraph 1 any information or data reported to the Cost of Living Council, oprietary in nature, which concerns or relates to the amount or sources of its come, profits, losses, costs, or expenditures but may not exclude from such port, data, or information, so reported, which concerns or relates to its prices r goods and services.

(3) Immediately upon enactment of this subsection, the President or his deleate shall issue regulations defining for the purpose of this subsection what in›rmation or data are proprietary in nature and therefore excludable under aragraph (2), except that such regulations may not define as excludable any formation or data which cannot currently be excluded from publie annual reorts to the Securities and Exchange Commission pursuant to section 13 or 15 (d) f the Securities Exchange Act of 1934 by a business enterprise exclusively enaged in the manufacture or sale of a substantial product as defined in paragraph 1). Such regulations shall define as excludable any information or data which oncerns or relates to the trade secrets, processes, operations, style of work, or pparatus of the business enterprise."

The application of section 215 (b) is limited by its terms to any report required under § 130.21(b) of the regulations of the Cost of Living Council in effect on anuary 11, 1973." Section 130.21 (b) of the Council's regulations, to which secion 205(b) of the Act refers, has been superseded for most sectors of the conomy effective August 12, 1973, when Phase IV begins. The issue, therefore, is vhether the amendment to section 205, which specifically incorporates a Phase II regulation, has any effect when Phase III is superseded by Phase IV. In Phase III, firms over $250 million had to file quarterly reports, while in Phase IV firms over $50 million must file. Consequently, a subsidiary issue is whether or not section 205, assuming it remains in effect in Phase IV, applies only to firms over $250 million, or to all firms subject to the Council's Phase IV reporting requirements, i.e., all firms over $50 million in annual sales or revenues. The reporting requirements of Phase III defined a price reporting firm as a firm with annual sales or revenues of $250 million or more, and § 130.21(b) required each price reporting firm to submit quarterly reports to the Council. Phase IV regulations contain provisions which are analogous in their function of requiring quarterly reports, but which are far broader in their coverage. Sections 150.41 and 150.42 define Price Category I and II firms as, respectively, those firms with $100 million or more and with $50 to $100 million in annual sales or revenues. Section 150.161 requires Price Category I and II firms, with certain exceptions, to submit quarterly reports. So Phase IV's quarterly reporting requirements are far more extensive than those of Phase III. Phase III required fewer than 700 firms to report quarterly, while Phase IV will demand quarterly reports of more than four times that number.

Since section 205 is tied so specifically to a section of the Phase III regulations, and since that section is due to terminate on August 12, 1973, the strictest reading of the Act would leave section 205(b) without effect after August 11. 1973. It is a general rule of statutory interpretation that one looks to Congressional intention only when the words of a statute are unclear. But the Council is required in Phase IV to go behind the wording of the amendments in order to determine the extent to which the amendments modify the application of 18 U.S.C. 1905, which makes disclosure of certain information by Federal Officers a criminal offense, and which, absent the applicability of section 205, requires that the Council keep the quarterly reports confidential.

The legislative history does not speak directly to the question of whether section 205 (b) was intended to survive the passing of Phase III. The discu

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