[Code of Federal Regulations] [Title 29, Volume 1] [Revised as of July 1, 2003] From the U.S. Government Printing Office via GPO Access [CITE: 29CFR70.26] [Page 433-435] TITLE 29--LABOR PART 70--PRODUCTION OR DISCLOSURE OF INFORMATION OR MATERIALS--Table of Contents Subpart B--Procedures for Disclosure of Records Under the Freedom of Information Act Sec. 70.26 Predisclosure notification to submitters of confidential commercial information. (a) In general. FOIA requests for confidential commercial information provided to the Department by business submitters shall be processed in accordance with this section. [[Page 434]] (b) Designation of confidential commercial information. Business submitters of information to the Department, at the time of submission or within a reasonable time thereafter, may designate specific information as confidential commercial information subject to the provisions of this section. Such a designation may be made for information which the submitter claims could reasonably be expected to cause substantial competitive harm. The designation must be in writing and whenever possible, the submitter's claim of confidentiality shall be supported by a statement or certification by an officer or authorized representative of the submitter that the identified information in question is, in fact, confidential commercial or financial information and has not been disclosed to the public. (c) Notice to submitters of confidential commercial information. A component shall provide a business submitter with prompt written notice of a request encompassing its business information whenever required under paragraph (d) of this section, and except as is provided in paragraph (g) of this section. Such written notice shall either describe the nature of the confidential commercial information requested or provide copies of the relevant records or portions thereof. (d) When notice is required. (1) For confidential commercial information submitted to the Department prior to January 1, 1988, the component shall provide a business submitter with notice of a request whenever: (i) Less than 10 years have passed since the date the information was received by the Department and the information is subject to prior express commitment of confidentiality given by the component to the business submitter, or (ii) The component has reason to believe that disclosure of the information could reasonably be expected to cause substantial competitive harm. (2) For confidential commercial information submitted to the Department on or after January 1, 1988, the component shall provide a business submitter with notice of a FOIA request whenever: (i) The business submitter has in good faith previously designated the information as commercially or financially sensitive information, or (ii) The component has reason to believe that disclosure of the information could reasonably be expected to cause substantial competitive harm. Notice of a request for confidential commercial information falling within paragraph (d)(2)(i) of this section shall be required for a period of not more than ten years after the date of submission. The business submitter may request a specific notice period of greater duration. The submitter should provide a justification for such a request. In such a case, the Department may, in its discretion, provide for an extended notice period. (e) Opportunity to object to disclosure. Through the notice described in paragraph (c) of this section, a component shall afford a business submitter a reasonable period within which to provide the component with a detailed statement of any objection to disclosure. Such statement shall specify all grounds for withholding any of the information under Exemption 4 of the Freedom of Information Act, and shall demonstrate the basis for the contention that the information is a trade secret or commercial or financial information that is privileged or confidential. Information provided by a business submitter pursuant to this paragraph may itself be subject to disclosure under the FOIA. (f) Notice of intent to disclose. A component shall consider a business submitter's objections and specific grounds for nondisclosure prior to determining whether to disclose business information which has been designated by the submitter as confidential commercial information. Whenever a component decides to disclose such information over the objection of a business submitter or designee, the component shall notify the business submitter in writing. Such notice shall include: (1) A description of the information to be disclosed; (2) A specified disclosure date; (3) A statement of why the submitter's objections were not sustained. Such notice of intent to disclose shall to the extent permitted by law be [[Page 435]] forwarded a resonable number of days prior to the specified date upon which disclosure is intended. The requester shall be provided with a copy of the notice of intent to disclose. (g) Exceptions to notice requirements. The notice requirements 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; or (3) Disclosure of the information is required by law (other than 5 U.S.C. 552). (4) The disclosure is required by a rule that (i) Was adopted pursuant to notice and public comment; (ii) Specifies narrow classes of records submitted to the agency that are to be released under the Freedom of Information Act; and (iii) Provides in exceptional circumstances for notice when the submitter provides written justification, at the time the information is submitted or a reasonable time thereafter, that disclosure of the information could reasonably be expected to cause substantial competitive harm. (5) The information requested has not been designated by the submitter as in accordance with paragraph (b) of this Section, and the submitter had an opportunity to do so at the time of submission of the information or a reasonable time thereafter, unless the component has reason to believe that disclosure of the information would result in substantial competitive harm; or (6) The designation made by the submitter in accordance with these regulations appears obviously frivolous; except that in such case, the component must provide the submitter with written notice of any final administrative disclosure determination within a reasonable number of days prior to the specified disclosure date. (h) Notice of FOIA lawsuit. Whenever a requester brings suit seeking to compel disclosure of confidential commercial information covered by paragraph (b) of this section, the component shall promptly notify the business submitter. (i) Notice requirements. The component shall 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 shall 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.