Sec.  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]