§ 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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