§  1.731   Confidentiality of information produced or exchanged by the
parties.

   (a) Any materials generated in the course of a formal complaint
   proceeding 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) (1) through (9). 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 shall 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
   the FOIA.

   (b) Materials marked as proprietary may be disclosed solely to the
   following persons, only for use in prosecuting or defending a party to
   the complaint action, and only to the extent necessary to assist in the
   prosecution or defense of the case:

   (1) Counsel of record representing the parties in the complaint action
   and any support personnel employed by such attorneys;

   (2) Officers or employees of the opposing party who are named by the
   opposing party as being directly involved in the prosecution or defense
   of the case;

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

   (4) The Commission and its staff; and

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

   (c) These individuals 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 in the case
   before the Commission. Each individual who is provided access to the
   information shall sign a notarized statement affirmatively stating that
   the individual has personally reviewed the Commission's rules and
   understands the limitations they impose on the signing party.

   (d) No copies of materials marked proprietary may be made except copies
   to be used by persons designated in paragraph (b) 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.

   (e) Upon termination of a formal 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 complaint 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.

   [ 58 FR 25573 , Apr. 27, 1993, as amended at  63 FR 1039 , Jan. 7, 1998]

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