(a) Confidential information. Confidential information includes information that is exempt from public disclosure under:

(1) The Freedom of Information Act (5 U.S.C. 552);

(2) The Trade Secrets Act (18 U.S.C. 1905); or

(3) Other laws that exempt the information from public disclosure.

(b) Filing a motion for a protective order. A person or entity who intends to file a document that may contain confidential information, and who wishes to prevent or limit disclosure of that confidential information, must also file and serve a motion for a protective order. The motion for a protective order must include the following.

(1) A statement specifying the factual and legal justification for nondisclosure.

(2) A copy of the document with the information exempt from disclosure redacted, or if it is not practicable to submit a copy of the document because redaction of the information would render the document unintelligible, a description of the document.

(3) A statement indicating one of the following:

(i) That the confidential information may be disclosed to other parties to the proceeding or appeal who agree in a written affidavit or declaration under penalty of perjury to the following conditions:

(A) Not to use or disclose the information except in the context of the proceeding or appeal;

(B) Not to retain the information in any format after the conclusion of the proceeding or appeal; and

(C) To return all physical copies of the information at the conclusion of the proceeding or appeal to the person or entity who submitted the information; or

(ii) That disclosure of the identified confidential information in that document to another party to the proceeding is prohibited by law, notwithstanding the conditions provided in paragraph (b)(3)(i) of this section. This paragraph (b)(3)(ii) does not apply to hearings conducted pursuant to 5 U.S.C. 554. When this paragraph (b)(3)(ii) applies, the person or entity submitting the confidential information must include the following in the motion for a protective order:

(A) A request that the presiding officer or Appeals Board consider the confidential information as a basis for its decision without disclosing it to the other party or parties.

(B) A statement explaining why disclosure is prohibited, citing pertinent statutory or regulatory authority. If the prohibition on disclosure is intended to protect the interest of a person or entity who is not a party to the proceeding, the person or entity making the request must demonstrate that such person or entity refused to consent to the disclosure of the confidential information to other parties to the proceeding.

(c) Ruling on motion for a protective order. (1) If the motion for a protective order satisfies the requirements of paragraph (b)(3)(i) of this section, the presiding officer or Appeals Board will grant the protective order. The presiding officer or Appeals Board may direct that the information be filed under seal and will require service of the information on the other parties to the proceeding or appeal upon filing of the written agreement required in paragraph (b)(3)(i) of this section. The information will be disclosed to the parties to the proceeding or appeal only under the conditions of paragraph (b)(3)(i) of this section unless the Department determines the confidential information must be released under the Freedom of Information Act or in accordance with part 2 of this title.

(2) If the motion for a protective order satisfies the requirements of paragraph (b)(3)(ii) of this section, the presiding officer or Appeals Board will grant the protective order. The presiding officer or Appeals Board may direct that the information be filed under seal and will not disclose the information unless the Department determines the confidential information must be released under the Freedom of Information Act or in accordance with part 2 of this title.

(3) If the presiding officer or Appeals Board denies a motion for a protective order seeking to prevent disclosure of confidential information to the parties to a proceeding or appeal under paragraph (b)(3)(ii) of this section, the presiding officer or Appeals Board must provide the person or entity who submitted the information an opportunity to withdraw the information before it is further considered by the presiding officer or Appeals Board unless a Freedom of Information Act request, administrative appeal from the denial of a request, or lawsuit seeking release of the information is pending.

(d) Waiver. If the person or entity submitting a document does not specify that the document contains confidential information, the presiding officer or Appeals Board may assume that the person or entity submitting the document does not object to public disclosure of any confidential information contained in that document or may allow a reasonable period of time to redact any confidential information identified after filing.

(e) Confidential information in an OHA decision. Where a decision by a presiding officer or Appeals Board is based, in whole or in part, on confidential information subject to a protective order, the presiding officer or Appeals Board must specify the nature of the confidential information and the provision of law under which disclosure was denied and must retain the confidential information under seal as part of the official record.