[Code of Federal Regulations]
[Title 5, Volume 3]
[Revised as of January 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR1204.14]

[Page 68-69]
 
                    TITLE 5--ADMINISTRATIVE PERSONNEL
 
               CHAPTER II--MERIT SYSTEMS PROTECTION BOARD
 
PART 1204--AVAILABILITY OF OFFICIAL INFORMATION--Table of Contents
 
    Subpart B--Procedures for Obtaining Records Under the Freedom of 
                             Information Act
 
Sec. 1204.14  Requests for access to confidential commercial information.

    (a) General. Confidential commercial information provided to the 
Board by a business submitter will not be disclosed in response to a 
FOIA request except as required by this section.
    (b) Definitions. (1) The term confidential commercial information 
means records provided to the government by a submitter that are 
believed to contain material exempt from release under Exemption 4 of 
the Freedom of Information Act, 5 U.S.C. 552(b)(4), because disclosure 
could reasonably be expected to cause substantial competitive harm.
    (2) The term submitter means any person or organization that 
provides confidential commercial information to the government. The term 
submitter includes, but is not limited to, corporations, state 
governments, and foreign governments.
    (c) Notice to business submitters. The Board will provide a business 
submitter with prompt written notice of a request for its confidential 
commercial information whenever such written notice is required under 
paragraph (d) of this section. Exceptions to such written notice are at 
paragraph (h) of this section. This written notice will either describe 
the exact nature of the confidential information requested or provide 
copies of the records or parts of records containing the commercial 
information.
    (d) When initial notice is required. (1) With respect to 
confidential commercial information received by the Board before January 
1, 1988, the Board will give the business submitter notice of a request 
whenever:
    (i) The information is less than 10 years old; or
    (ii) The Board has reason to believe that releasing the information 
could reasonably be expected to cause substantial competitive harm.
    (2) With respect to confidential commercial information received by 
the Board on or after January 1, 1988, the Board will give notice to the 
business submitter whenever:
    (i) The business submitter has designated the information in good 
faith as commercially or financially sensitive information; or
    (ii) The Board has reason to believe that releasing the information 
could reasonably be expected to cause substantial competitive harm.
    (3) Notice of a request for commercially confidential information 
that was received by January 1, 1988, is required for a period of not 
more than 10 years after the date on which the information is submitted 
unless the business submitter requests, and provides justification for, 
a longer specific notice period. Whenever possible, the submitter's 
claim of confidentially must be supported by a statement or 
certification, by an officer or authorized representative of the 
company, that the information in question is confidential commercial 
information and has not been disclosed to the public.
    (e) Opportunity to object to disclosure. Through the notice 
described in paragraph (c) of this section, the Board will give a 
business submitter a reasonable period to provide a detailed statement 
of any objection to disclosure. The statement must specify all grounds 
for withholding any of the information under any exemption of the 
Freedom of Information Act. In addition, in the case of Exemption 4, the 
statement must state why the information is considered to be a trade 
secret, or to be commercial or financial information that is privileged 
or confidential. Information a business submitter provides under this 
paragraph may itself be subject to disclosure under the Freedom of 
Information Act.
    (f) Notice of intent to release information. The Board will consider 
carefully a business submitter's objections and specific grounds for 
claiming that the information should not be released before determining 
whether to release confidential commercial information.

[[Page 69]]

Whenever the Board decides to release confidential commercial 
information over the objection of a business submitter, it will forward 
to the business submitter a written notice that includes:
    (1) A statement of the reasons for which the business submitter's 
objections to the release were not sufficient;
    (2) A description of the confidential commercial information to be 
released; and
    (3) A specified release date. The Board will forward the notice of 
intent to release the information a reasonable number of days, as 
circumstances permit, before the specified date upon which release is 
expected. It will forward a copy of the release notice to the requester 
at the same time.
    (g) Notice of Freedom of Information Act lawsuit. Whenever a 
requester files a lawsuit seeking to require release of business 
information covered by paragraph (d) of this section, the Board will 
notify the business submitter promptly.
    (h) Exceptions to notice requirements. The notice requirements of 
this section do not apply when:
    (1) The Board decides that the information should not be released;
    (2) The information lawfully has been published or otherwise made 
available to the public;
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552); or
    (4) The disclosure is required by an agency rule that:
    (i) Was adopted after notice and public comment;
    (ii) Specifies narrow classes of records submitted to the agency 
that are to be released under the FOIA; or
    (iii) Provides in exceptional circumstances for notice when the 
submitter provides written justification, at the time the information is 
submitted or a reasonable time thereafter, that release of the 
information could reasonably be expected to cause substantial 
competitive harm.
    (5) The information requested is not designated by the submitter as 
exempt from release according to agency regulations issued under this 
section, when the submitter has an opportunity to do so at the time of 
sending the information or a reasonable time thereafter, unless the 
agency has good reason to believe that disclosure of the information 
would result in competitive harm; or
    (6) The designation made by the submitter according to Board 
regulations appears obviously frivolous; except that, in such case, the 
Board must provide the submitter with written notice of any final 
administrative release decision within a reasonable period before the 
stated release date.