§ 8.16   Confidentiality of proprietary information.

   (a) Any materials generated in the course of a proceeding under this part
   may be designated as proprietary by either party to the proceeding or a
   third 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 must:

   (1) Clearly mark 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 materials designated as proprietary
   fall under the standards for nondisclosure enunciated in the FOIA.

   (2) File with the Commission, using the Commission's Electronic Comment
   Filing  System,  a  public  version  of the materials that redacts any
   proprietary information and clearly marks each page of the redacted public
   version with a header stating “Public Version.” The redacted document shall
   be machine-readable whenever technically possible. Where the document to be
   filed electronically contains metadata that is confidential or protected
   from  disclosure  by  a  legal  privilege (including, for example, the
   attorney-client privilege), the filer may remove such metadata from the
   document before filing it electronically.

   (3) File with the Secretary's Office an unredacted hard copy version of the
   materials that contain the proprietary information and clearly marks each
   page  of  the  unredacted  confidential  version with a header stating
   “Confidential Version.” The unredacted version must be filed on the same day
   as the redacted version.

   (4) Serve one hard copy of the filed unredacted materials and one hard copy
   of the filed redacted materials on the attorney of record for each party to
   the proceeding, or where a party is not represented by an attorney, each
   party to the proceeding either by hand delivery, overnight delivery, or
   email,  together  with  a proof of such service in accordance with the
   requirements of § 1.47(g) of this chapter and § 8.13(c)(1)(a) through (c).

   (b) Except as provided in paragraph (c) 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:

   (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) The Commission will entertain, subject to a proper showing under § 0.459
   of this chapter, a party's request to further restrict access to proprietary
   information. Pursuant to § 0.459 of this chapter, the other parties will have
   an  opportunity to respond to such requests. Requests and responses to
   requests  may not be submitted by means of the Commission's Electronic
   Comment Filing System but instead must be filed under seal with the Office
   of the Secretary.

   (d) The individuals designated in paragraphs (b)(1) through (3) 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 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.

   (e) No copies of materials marked proprietary may be made except copies to
   be used by persons designated in paragraphs (b) and (c) 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.

   (f) Upon termination of a 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.

   [ 80 FR 19848 , Apr. 13, 2015]

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