[Code of Federal Regulations]
[Title 45, Volume 3]
[Revised as of October 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 45CFR612.8]

[Page 127-128]
 
                        TITLE 45--PUBLIC WELFARE
 
                 CHAPTER VI--NATIONAL SCIENCE FOUNDATION
 
PART 612_AVAILABILITY OF RECORDS AND INFORMATION--Table of Contents
 
Sec. 612.8  Business Information

    (a) In general. Business information obtained by the Foundation from 
a submitter of that information will be disclosed under the FOIA only 
under this section's procedures.
    (b) Definitions. For purposes of this section:
    (1) Business Information means commercial or financial information 
obtained by the Foundation from a submitter that may be protected from 
disclosure under Exemption 4 of the FOIA and Sec. 612.7(a)(4).
    (2) Submitter means any person or entity from whom the Foundation 
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 must use good faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, any portions of its submission that it considers to be 
protected from disclosure under Exemption 4. These designations will 
expire ten years after the date of the submission unless the submitter 
requests, and provides justification for, a longer designation period.
    (d) Notice to submitters. The Foundation will provide a submitter 
with prompt written notice of a FOIA request or administrative appeal 
that seeks its business information wherever required under this 
section, in order to give the submitter an opportunity to object to 
disclosure of any specified portion of that information under paragraph 
(f) of this section. The notice shall either describe the business 
information requested or include copies of the requested records or 
record portions containing the information.
    (e) Where notice is required. Notice will be given to a submitter 
wherever:
    (1) The information has been designated in good faith by the 
submitter as information considered protected from disclosure under 
Exemption 4; or
    (2) The Foundation has reason to believe that the information may be 
protected from disclosure under Exemption 4.
    (f) Opportunity to object to disclosure. NSF will allow a submitter 
a reasonable time, consistent with statutory requirements, to respond to 
the notice described in paragraph (d) of this section. If a submitter 
has any objection to disclosure, it must submit a detailed written 
statement. The statement must specify all grounds for withholding any 
portion of the information under any exemption of the FOIA and, in the 
case of Exemption 4, must show why the information is a trade secret, or 
commercial or financial information that is privileged or confidential. 
In the event that a submitter fails to respond within the time specified 
in the notice, the submitter will be considered to have no objection to 
disclosure of the information. Information provided by a submitter under 
this paragraph may itself be a record subject to disclosure under the 
FOIA.
    (g) Notice of intent to disclose. The Foundation will consider a 
submitter's objections and specific grounds for nondisclosure in 
deciding whether to disclose business information. Whenever it decides 
to disclose business information over the objection of a submitter, the 
Foundation will give the submitter written notice, which will include:
    (1) A statement of the reason(s) why the submitter's disclosure 
objections were not sustained;

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    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date, which will be a reasonable time 
subsequent to the notice.
    (h) Exceptions to notice requirements. The notice requirements of 
paragraphs (d) and (g) of this section will not apply if:
    (1) The Foundation determines that the information should not be 
disclosed (the Foundation protects from disclosure to third parties 
information about specific unfunded applications, including pending, 
withdrawn, or declined proposals);
    (2) The information lawfully has been 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 the requirements 
of Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous, in which case the Foundation 
will, within a reasonable time prior to a specified disclosure date, 
give the submitter written notice of any final decision to disclose the 
information.
    (i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of business information, the Foundation 
will promptly notify the submitter(s). Whenever a submitter files a 
lawsuit seeking to prevent the disclosure of business information, the 
Foundation will notify the requester(s).