[Code of Federal Regulations]
[Title 40, Volume 28]
[Revised as of July 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR1601.26]

[Page 515-516]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
       CHAPTER VI--CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD
 
PART 1601--PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM OF INFORMATION ACT--Table of Contents
 
       Subpart C--Procedures for Requesting and Disclosing Records
 
Sec. 1601.26  Special procedures for confidential business information.

    (a) In general. Confidential business information provided to the 
CSB by a business submitter shall not be disclosed pursuant to a FOIA 
request except in accordance with this section.
    (b) Designation of business information. Business submitters should 
use good-faith efforts to designate, by appropriate markings, either at 
the time of submission or at a reasonable time thereafter, those 
portions of their submissions which they deem to be protected under 
Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). Any such designation will 
expire 10 years after the records were submitted to the government, 
unless the submitter requests, and provides reasonable justification 
for, a designation period of longer duration.
    (c) Predisclosure notification. (1) Except as is provided for in 
paragraph (h) of this section, the FOIA Officer shall, to the extent 
permitted by law, provide a submitter with prompt written notice of a 
FOIA request or administrative appeal encompassing its confidential 
business information whenever required under paragraph (d) of this 
section. Such notice shall either describe the exact nature of the 
business information requested or provide copies of the records or 
portions thereof containing the business information.
    (2) Whenever the FOIA Officer provides a business submitter with the 
notice set forth in this paragraph, the FOIA Officer shall notify the 
requester that the request includes information that may arguably be 
exempt from disclosure under Exemption 4 of the FOIA and that the person 
or entity who submitted the information to the CSB has been given the 
opportunity to comment on the proposed disclosure of information.
    (d) When notice is required. The CSB shall provide a business 
submitter with notice of a request whenever:
    (1) The business submitter has in good faith designated the 
information

[[Page 516]]

as business information deemed protected from disclosure under 5 U.S.C. 
552(b)(4); or
    (2) The CSB has reason to believe that the request seeks business 
information the disclosure of which may result in substantial commercial 
or financial injury to the business submitter.
    (e) Opportunity to object to disclosure. Through the notice 
described in paragraph (c) of this section, the CSB shall, to the extent 
permitted by law, afford a business submitter at least 10 working days 
within which it can provide the CSB with a detailed written statement of 
any objection to disclosure. Such statement shall demonstrate why the 
information is contended to be a trade secret or commercial or financial 
information that is privileged or confidential and why disclosure would 
cause competitive harm. Whenever possible, the business submitter's 
claim of confidentiality should be supported by a statement or 
certification by an officer or authorized representative of the business 
submitter. Information provided by a submitter pursuant to this 
paragraph may itself be subject to disclosure under the FOIA.
    (f) Notice of intent to disclose. (1) The FOIA Officer shall 
consider carefully a business submitter's objections and specific 
grounds for nondisclosure prior to determining whether to disclose 
confidential commercial business information. Whenever the FOIA Officer 
decides to disclose such information over the objection of a business 
submitter, the FOIA Officer shall forward to the business submitter a 
written notice at least 10 working days before the date of disclosure 
containing:
    (i) A statement of the reasons for which the business submitter's 
disclosure objections were not sustained,
    (ii) A description of the confidential commercial information to be 
disclosed, and
    (iii) A specified disclosure date.
    (2) Such notice of intent to disclose likewise shall be forwarded to 
the requester at least 10 working days prior to the specified disclosure 
date.
    (g) Notice of FOIA lawsuit. Whenever a requester brings suit seeking 
to compel disclosure of confidential business information, the FOIA 
Officer shall promptly notify the business submitter of such action.
    (h) Exceptions to predisclosure notification. The requirements of 
this section shall not apply if:
    (1) The FOIA 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 law (other than 5 
U.S.C. 552); or
    (4) The designation made by the submitter in accordance with 
paragraph (b) of this section appears obviously frivolous; except that, 
in such a case, the FOIA Officer will provide the submitter with written 
notice of any final decision to disclose confidential business 
information within a reasonable number of days prior to a specified 
disclosure date.