(a) In general. Confidential business information will be disclosed
under the FOIA only in accordance with this section.
(b) Designation of business information. A submitter of business
information will use good-faith efforts to designate, by appropriate
markings, either at the time of submission or at a reasonable time
thereafter, any portions of its submission that it considers to be
protected from disclosure under Exemption 4. These designations will
expire ten years after the date of the submission unless the submitter
requests, and provides justification for, a longer designation period.
(c) Notice to submitters. A component will provide a submitter with
prompt written notice of a FOIA request that seeks its business
information whenever required under paragraph (d) of this section,
except as provided in paragraph (g) of this section, in order to give
the submitter an opportunity to object in writing to disclosure of any
specified portion of that information under paragraph (e) of this
section. The notice will either describe the business information
requested or include copies of the requested records or record portions
containing the information. When notification to a voluminous number of
submitters is required, notification may be made by posting or
publishing notice reasonably likely to accomplish such notification.
(d) When notice is required. Notice will be given to a submitter
whenever:
(1) The information requested under the FOIA has been designated in
good faith by the submitter as information considered protected from
disclosure under Exemption 4; or
(2) A component has reason to believe that the information
requested under the FOIA may be protected from disclosure under
Exemption 4.
(e) Opportunity to object to disclosure. A component will allow a
submitter a reasonable time to respond to the notice described in
paragraph (c) of this section. If a submitter has any objection to
disclosure, it is required to submit a detailed written statement. The
statement must show why the information is a trade secret or commercial
or financial information that is privileged or confidential. In the
event that a submitter fails to respond to the notice within the time
specified, the submitter will be considered to have no objection to
disclosure of the information. Information provided by a submitter
under this paragraph may itself be subject to disclosure under the
FOIA.
(f) Notice of intent to disclose. A component will consider a
submitter's timely objections and specific grounds for non-disclosure
in deciding whether to disclose business information. Whenever a
disclosure officer decides to disclose business information over the
objection of a submitter, the component will give the submitter written
notice, which will include:
(1) A statement of the reason(s) why each of the submitter's
disclosure objections was not sustained;
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date, which will be a reasonable time
subsequent to the notice.
(g) Exceptions to notice requirements. The notice requirements of
paragraphs (c) and (f) of this section will not apply if:
(1) The disclosure officer determines that the information should
not be disclosed;
(2) The information lawfully has been published or has been
officially made available to the public;
(3) Disclosure of the information is required by statute (other
than the FOIA) or by a regulation issued in accordance with the
requirements of Executive Order 12600 (3 CFR 1988 Comp., p. 235); or
(4) The designation made by the submitter under paragraph (b) of
this section appears obviously frivolous or such a designation would be
unsupportable--except that, in such a case, the component will, within
a reasonable time prior to a specified disclosure date, give the
submitter written notice of any final decision to disclose the
information.
(h) Notice of a FOIA lawsuit. Whenever a requester files a lawsuit
seeking to compel the disclosure of business information, the component
will promptly notify the submitter.
(i) Corresponding notice to requesters. Whenever a component
provides a submitter with notice and an opportunity to object to
disclosure under paragraphs (d) and (e) of this section, the component
will also notify the requester(s). Whenever a component notifies a
submitter of its intent to disclose requested information under
paragraph (f) of this section, the component will also notify the
requester(s). Whenever a submitter files a lawsuit seeking to prevent
the disclosure of business information, the component will notify the
requester(s).
(j) Notice requirements. The component will fulfill the notice
requirements of this section by addressing the notice to the business
submitter or its legal successor at the address indicated on the
records, or the last known address. If the notice is returned, the
component will make a reasonable effort to locate the business
submitter or its legal successor. Where notification of a voluminous
number of submitters is required, such notification may be accomplished
by posting and publishing the notice in a place reasonably calculated
to accomplish notification.
