[Code of Federal Regulations]
[Title 18, Volume 1]
[Revised as of April 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 18CFR385.606]

[Page 913-914]
 
           TITLE 18--CONSERVATION OF POWER AND WATER RESOURCES
 
  CHAPTER I--FEDERAL ENERGY REGULATORY COMMISSION, DEPARTMENT OF ENERGY
 
PART 385--RULES OF PRACTICE AND PROCEDURE--Table of Contents
 
          Subpart F--Conferences, Settlements, and Stipulations
 
Sec. 385.606  Confidentiality in dispute resolution proceedings (Rule 606).

    (a) Except as provided in paragraphs (d) and (e) of this section, a 
neutral in a dispute resolution proceeding shall not voluntarily 
disclose, or through discovery or compulsory process be required to 
disclose, any information concerning any dispute resolution 
communication or any communication provided in confidence to the 
neutral, unless:
    (1) All participants in the dispute resolution proceeding and the 
neutral consent in writing;
    (2) The dispute resolution communication has otherwise already been 
made public;
    (3) The dispute resolution communication is required by statute to 
be made public, but a neutral should make the communication public only 
if no other person is reasonably available to disclose the 
communication; or
    (4) A court determines that the testimony or disclosure is necessary 
to:
    (i) Prevent a manifest injustice;
    (ii) Help establish a violation of law; or
    (iii) Prevent harm to the public health or safety of sufficient 
magnitude in the particular case to outweigh the integrity of dispute 
resolution proceedings in general by reducing the confidence of 
participants in future cases that their communications will remain 
confidential.
    (b) A participant in a dispute resolution proceeding shall not 
voluntarily disclose, or through discovery or compulsory process be 
required to disclose, any information concerning any dispute resolution 
communication, unless:
    (1) All participants to the dispute resolution proceeding consent in 
writing;
    (2) The dispute resolution communication has otherwise already been 
made public;
    (3) The dispute resolution communication is required by statute to 
be made public;
    (4) A court determines that the testimony or disclosure is necessary 
to:
    (i) Prevent a manifest injustice;
    (ii) Help establish a violation of law; or
    (iii) Prevent harm to the public health and safety of sufficient 
magnitude in the particular case to outweigh the integrity of dispute 
resolution proceedings in general by reducing the confidence of 
participants in future cases that their communications will remain 
confidential; or
    (5) The dispute resolution communication is relevant to determining 
the existence or meaning of an agreement or award that resulted from the 
dispute resolution proceeding or to the enforcement of the agreement or 
award.
    (c) Any dispute resolution communication that is disclosed in 
violation of paragraphs (a) or (b) of this section shall not be 
admissible in any proceeding.
    (d)(1) The participants may agree to alternative confidential 
procedures for disclosures by a neutral. The participants must inform 
the neutral before

[[Page 914]]

the commencement of the dispute resolution proceeding of any 
modifications to the provisions of paragraph (a) of this section that 
will govern the confidentiality of the dispute resolution proceeding. If 
the participants do not so inform the neutral, paragraph (a) of this 
section shall apply.
    (2) To qualify for the exemption established under paragraph (l) of 
this section, an alternative confidential procedure under this paragraph 
may not provide for less disclosure than confidential procedures 
otherwise provided under this rule.
    (e) If a demand for disclosure, by way of discovery request or other 
legal process, is made upon a participant regarding a dispute resolution 
communication, the participant will make reasonable efforts to notify 
the neutral and the other participants of the demand. Any participant 
who receives the notice and within 15 calendar days does not offer to 
defend a refusal of the neutral to disclose the requested information 
waives any objection to the disclosure.
    (f) Nothing in Rule 606 prevents the discovery or admissibility of 
any evidence that is otherwise discoverable, merely because the evidence 
was presented in the course of a dispute resolution proceeding. See 
sections 385.410 and 388.112 of this chapter.
    (g) Paragraphs (a) and (b) of this section do not preclude 
disclosure of information and data that are necessary to document an 
agreement reached or order issued pursuant to a dispute resolution 
proceeding.
    (h) Paragraphs (a) and (b) of this section do not prevent the 
gathering of information for research and educational purposes, in 
cooperation with other agencies, governmental entities, or dispute 
resolution programs, so long as the participants and the specific issues 
in controversy are not identifiable.
    (i) Paragraphs (a) and (b) of this section do not prevent use of a 
dispute resolution communication to resolve a dispute between the 
neutral in a dispute resolution proceeding and a participant in the 
proceeding, so long as the communication is disclosed only to the extent 
necessary to resolve the dispute.
    (j) Nothing in this section precludes parties from seeking 
privileged treatment for documents under section 388.112 of this 
chapter.
    (k) Where disclosure is authorized by this section, nothing in this 
section precludes use of a protective agreement or protective orders.
    (l) A dispute resolution communication that may not be disclosed 
under this rule shall also be exempt from disclosure under 5 U.S.C. 
552(b)(3).

[Order 578, 60 FR 19508, Apr. 19, 1995, as amended by Order 602, 64 FR 
17099, Apr. 8, 1999]