[Code of Federal Regulations]
[Title 15, Volume 1]
[Revised as of January 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 15CFR4.9]

[Page 34-35]
 
                  TITLE 15--COMMERCE AND FOREIGN TRADE
 
PART 4--DISCLOSURE OF GOVERNMENT INFORMATION--Table of Contents
 
                  Subpart A--Freedom of Information Act
 
Sec. 4.9  Business Information.

    (a) In general. Business information obtained by the Department from 
a submitter will be disclosed under the FOIA only under this section.
    (b) Definitions. For the purposes of this section:
    (1) Business information means commercial or financial information, 
obtained by the Department from a submitter, which may be protected from 
disclosure under FOIA exemption (b)(4) (5 U.S.C. 552(b)(4)).
    (2) Submitter means any person or entity outside the Federal 
Government from which the Department obtains business information, 
directly or indirectly. The term includes corporations; state, local and 
tribal governments; and foreign governments.
    (c) Designation of business information. A submitter of business 
information should designate by appropriate markings, either at the time 
of submission or at a reasonable time thereafter, any portions of its 
submission that it considers protected from disclosure under FOIA 
exemption (b)(4). These designations will expire ten years after the 
date of the submission unless the submitter requests, and provides 
justification for, a longer period.
    (d) Notice to submitters. A component shall provide a submitter with 
prompt written notice of a FOIA request or administrative appeal that 
seeks its business information whenever required under paragraph (e) of 
this section, except as provided in paragraph (h) of this section, in 
order to give the submitter an opportunity under paragraph (f) of this 
section to object to disclosure of any specified portion of that 
information. Such written notice shall be sent via certified mail, 
return receipt requested, or similar means. The notice shall either 
describe the business information requested or include copies of the 
requested records containing the

[[Page 35]]

information. If notification of a large number of submitters is 
required, notification may be made by posting or publishing the notice 
in a place reasonably likely to accomplish notification.
    (e) When notice is required. Notice shall be given to the submitter 
whenever:
    (1) The submitter has designated the information in good faith as 
protected from disclosure under FOIA exemption (b)(4); or
    (2) The component has reason to believe that the information may be 
protected from disclosure under FOIA exemption (b)(4).
    (f) Opportunity to object to disclosure. A component shall allow a 
submitter seven working days (i.e., excluding Saturdays, Sundays, and 
legal public holidays) from the date of receipt of the written notice 
described in paragraph (d) of this section to provide the component with 
a statement of any objection to disclosure. The statement must identify 
any portions of the information the submitter requests to be withheld 
under FOIA exemption (b)(4), and describe how each qualifies for 
protection under the exemption: that is, why the information is a trade 
secret, or commercial or financial information that is privileged or 
confidential. If 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 a submitter provides under 
this paragraph may itself be subject to disclosure under the FOIA.
    (g) Notice of intent to disclose. A component shall consider a 
submitter's objections and specific grounds under the FOIA for 
nondisclosure in deciding whether to disclose business information. If a 
component decides to disclose business information over a submitter's 
objection, the component shall give the submitter written notice via 
certified mail, return receipt requested, or similar means, which shall 
include:
    (1) A statement of reason(s) why the submitter's objections to 
disclosure were not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A statement that the component intends to disclose the 
information seven working days from the date the submitter receives the 
notice.
    (h) Exceptions to notice requirements. The notice requirements of 
paragraphs (d) and (g) of this section shall not apply if:
    (1) The component determines that the information should not be 
disclosed;
    (2) The information has been lawfully 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 Executive Order 
12600; or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous, in which case the component 
shall provide the submitter written notice of any final decision to 
disclose the information seven working days from the date the submitter 
receives the notice.
    (i) Notice to submitter of FOIA lawsuit. Whenever a requester files 
a lawsuit seeking to compel the disclosure of business information, the 
component shall promptly notify the submitter.
    (j) Corresponding notice to requester. Whenever a component provides 
a submitter with notice and an opportunity to object to disclosure under 
paragraph (d) of this section, the component shall also notify the 
requester. Whenever a submitter files a lawsuit seeking to prevent the 
disclosure of business information, the component shall notify the 
requester.