§  76.9   Confidentiality of proprietary information.

   (a) Any materials filed in the course of a proceeding under this
   provision may be designated as proprietary by that party if the party
   believes in good faith that the materials fall within an exemption to
   disclosure contained in the Freedom of Information Act (FOIA), 5 U.S.C.
   552(b). Any party asserting confidentiality for such materials shall so
   indicate by clearly marking each page, or portion thereof, for which a
   proprietary designation is claimed. If a proprietary designation is
   challenged, the party claiming confidentiality will have the burden of
   demonstrating, by a preponderance of the evidence, that the material
   designated as proprietary falls under the standards for nondisclosure
   enunciated in FOIA.

   (b) Submissions containing information claimed to be proprietary under
   this section shall be submitted to the Commission in confidence
   pursuant to the requirements of §  0.459 of this chapter and clearly
   marked “Not for Public Inspection.” An edited version removing all
   proprietary data shall be filed with the Commission for inclusion in
   the public file within five (5) days from the date the unedited reply
   is submitted, and shall be served on the opposing parties.

   (c) Except as provided in paragraph (d) of this section, materials
   marked as proprietary may be disclosed solely to the following persons,
   only for use in the proceeding, and only to the extent necessary to
   assist in the prosecution or defense of the case:

   (i) Counsel of record representing the parties in the proceeding and
   any support personnel employed by such attorneys;

   (ii) Officers or employees of the parties in the proceeding who are
   named by another party as being directly involved in the proceeding;

   (iii) Consultants or expert witnesses retained by the parties;

   (iv) The Commission and its staff; and

   (v) Court reporters and stenographers in accordance with the terms and
   conditions of this section.

   (d) The Commission will entertain, subject to a proper showing, a
   party's request to further restrict access to proprietary information
   as specified by the party. The other parties will have an opportunity
   to respond to such requests.

   (e) The persons designated in paragraphs (c) and (d) of this section
   shall not disclose information designated as proprietary to any person
   who is not authorized under this section to receive such information,
   and shall not use the information in any activity or function other
   than the prosecution or defense of the case before the Commission. Each
   individual who is provided access to the information by the opposing
   party shall sign a notarized statement affirmatively stating, or shall
   certify under penalty of perjury, that the individual has personally
   reviewed the Commission's rules and understands the limitations they
   impose on the signing party.

   (f) No copies of materials marked proprietary may be made except copies
   to be used by persons designated in paragraphs (c) and (d) of this
   section. Each party shall maintain a log recording the number of copies
   made of all proprietary material and the persons to whom the copies
   have been provided.

   (g) Upon termination of the complaint proceeding, including all appeals
   and petitions, all originals and reproductions of any proprietary
   materials, along with the log recording persons who received copies of
   such materials, shall be provided to the producing party. In addition,
   upon final termination of the proceeding, any notes or other work
   product derived in whole or in part from the proprietary materials of
   an opposing or third party shall be destroyed.

   [ 64 FR 6571 , Feb. 10, 1999]

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