[Code of Federal Regulations]
[Title 5, Volume 1]
[Revised as of January 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR294.112]

[Page 106-107]
 
                    TITLE 5--ADMINISTRATIVE PERSONNEL
 
                CHAPTER I--OFFICE OF PERSONNEL MANAGEMENT
 
PART 294--AVAILABILITY OF OFFICIAL INFORMATION--Table of Contents
 
  Subpart A--Procedures for Disclosure of Records Under the Freedom of 
                             Information Act
 
Sec. 294.112  Confidential commercial information.

    (a) In general, OPM will not disclose confidential commercial 
information in response to a Freedom of Information Act request except 
in accordance with this section.
    (b) The following definitions from Executive Order 12600, apply to 
this section:
    (1) Confidential commercial information means records provided to 
the Government by a submitter that arguably 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) Submitter means any person or entity who provides confidential 
commercial information, directly or indirectly, to OPM. The term 
includes, but is not limited to, corporations, state governments, and 
foreign governments.
    (c) Submitters of information shall designate by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, any portions of their submissions that they consider to be 
confidential commercial information. Such designations shall expire 10 
years after the date of submission unless the submitter requests, and 
provides reasonable justification for, a designation period of greater 
duration.
    (d) OPM shall, to the extent permitted by law, provide prompt 
written notice to an information submitter of Freedom of Information 
requests or administrative appeals if:
    (1) The submitter has made a good faith designation that the 
requested material is confidential commercial information, or
    (2) OPM has reason to believe that the requested material may be 
confidential commercial information.
    (e) The written notice required in paragraph (d) of this section 
shall either describe the confidential commercial material requested or 
include as an attachment, copies or pertinent portions of the records.
    (f) Whenever OPM provides the notification and opportunity to object 
required by paragraphs (d) and (h) of this section, it will advise the 
requester that notice and an opportunity to object are being provided to 
the submitter.
    (g) The notice requirements of paragraph (d) of this section shall 
not apply if:
    (1) OPM determines that the information should not be disclosed;
    (2) The information has been lawfully published or officially made 
available to the public;
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552);
    (4) The information was submitted on or after August 20, 1992, and 
has not been designated by the submitter as exempt from disclosure in 
accordance with paragraph (c) of this section, unless OPM has 
substantial reason to believe that disclosure of the information would 
result in competitive harm; or
    (5) The designation made by the submitter in accordance with 
paragraph (c) of this section appears obviously frivolous; except that, 
in such a case, OPM shall, within a reasonable number of days prior to a 
specified disclosure date, notify the submitter in writing of any final 
administrative decision to disclose the information.
    (h) The notice described in paragraph (d) of this section shall give 
a submitter a reasonable period from the date of the notice to provide 
OPM with

[[Page 107]]

a detailed written statement of any objection to disclosure. The 
statement shall specify all grounds for withholding any of the material 
under any exemption of the Freedom of Information Act. When Exemption 4 
of the FOIA is cited as the grounds for withholding, the specification 
shall demonstrate the basis for any contention that the material is a 
trade secret or commercial or financial information that is privileged 
or confidential. It must also include a specification of any claim of 
competitive harm, including the degree of such harm, that would result 
from disclosure. Information provided in response to this paragraph may 
itself be subject to disclosure under the FOIA. Information provided in 
response to this paragraph shall also be subject to the designation 
requirements of paragraph (c) of this section. Failure to object in a 
timely manner shall be considered a statement of no objection by OPM, 
unless OPM extends the time for objection upon timely request from the 
submitter and for good cause shown. The provisions of this paragraph 
concerning opportunity to object shall not apply to notices of 
administrative appeals, when the submitter has been previously provided 
an opportunity to object at the time the request was initially 
considered.
    (i) OPM shall consider carefully a submitter's objections and 
specific grounds for nondisclosure, when received within the period of 
time described in paragraph (h) of this section, prior to determining 
whether to disclose the information. Whenever OPM decides to disclose 
the information over the objection of a submitter, OPM shall forward to 
the submitter a written notice, which shall include:
    (1) A statement of the reasons why the submitter's disclosure 
objections were not sustained;
    (2) A description of the information to be disclosed; and
    (3) A specified disclosure date.
    (j) OPM will notify both the submitter and the requester of its 
intent to disclose material a reasonable number of days prior to the 
specified disclosure date.
    (k) Whenever a requester brings suit seeking to compel disclosure of 
confidential commercial information, OPM shall promptly notify the 
submitter.

[57 FR 32150, July 21, 1992]