Title 5
SECTION 9800.106
9800.106 Confidential commercial information.
§ 9800.106 Confidential commercial information.(a) Definitions - (1) Confidential commercial information means commercial or financial information obtained by CIGIE from a submitter that may be protected from disclosure under Exemption 4 of FOIA, 5 U.S.C. 552(b)(4).
(2) Submitter means any person or entity, including a corporation, State, or foreign government, but not including another Federal Government entity, that provides information either directly or indirectly to the Federal Government.
(b) Designation of confidential commercial information. A submitter of confidential commercial information must use good faith efforts to designate by appropriate markings, either at the time of submission or within a reasonable time thereafter, any portion of its submission that it considers to be protected from disclosure under Exemption 4. These designations shall expire 10 years after the date of the submission unless the submitter requests and provides justification for a longer designation period.
(c) When notice to submitters is required. (1) CIGIE will promptly provide written notice to a submitter of confidential commercial information whenever records containing such information are requested under FOIA if, after reviewing the request, the responsive records, and any appeal by the requester, CIGIE determines that it may be required to disclose the records, provided:
(i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or
(ii) CIGIE has a reason to believe that the requested information may be protected from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure under that exemption or any other applicable exemption.
(2) The notice will either describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, notice may be made by posting or publishing the notice in a place or manner reasonably likely to accomplish it.
(d) Exceptions to submitter notice requirements. The notice requirements of this section will not apply if:
(1) CIGIE determines that the information is exempt under FOIA;
(2) The information has been lawfully published or has been officially made available to the public;
(3) Disclosure of the information is required by a statute other than FOIA or by a regulation issued in accordance with the requirements of Executive Order 12600; or
(4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous, except that, in such a case, CIGIE will give the submitter written notice of any final decision to disclose the information and must provide that notice within a reasonable number of days prior to a specified disclosure date.
(e) Opportunity to object to disclosure. (1) CIGIE will specify a reasonable time period within which the submitter must respond to the notice referenced above. If a submitter has any objections to disclosure, it should provide CIGIE a detailed written statement that specifies all grounds for withholding the particular information under any exemption of FOIA. To rely on Exemption 4 as basis for nondisclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is privileged or confidential.
(2) A submitter who fails to respond within the time period specified in the notice shall be considered to have no objection to disclosure of the information. Information received by CIGIE after the date of any disclosure decision shall not be considered by CIGIE. Any information provided by a submitter under this part may itself be subject to disclosure under FOIA.
(f) Analysis of objections. CIGIE will consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose the requested information.
(g) Notice of intent to disclose. Whenever CIGIE decides to disclose information over the objection of a submitter, CIGIE will provide the submitter written notice, which will include:
(1) A statement of the reasons why each of the submitter's disclosure objections was not sustained;
(2) A description of the information to be disclosed; and
(3) A specified disclosure date, which will be a reasonable time subsequent to the notice.
(h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of confidential commercial information, CIGIE will promptly notify the submitter.
(i) Requester notification. CIGIE will notify a requester whenever it provides the submitter with notice and an opportunity to object to disclosure; whenever it notifies the submitter of its intent to disclose the requested information; and whenever a submitter files a lawsuit to prevent the disclosure of the information.