[Code of Federal Regulations]
[Title 32, Volume 6]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR1800.31]

[Page 383-384]
 
                        TITLE 32-NATIONAL DEFENSE
 
           CHAPTER XVIII--NATIONAL COUNTERINTELLIGENCE CENTER
 
PART 1800_PUBLIC ACCESS TO NACIC RECORDS UNDER THE FREEDOM OF INFORMATION 
ACT (FOIA)--Table of Contents
 
               Subpart D_Additional Administrative Matters
 
Sec. 1800.31  Procedures for business information.


    (a) In general. Business information obtained by NACIC by a 
submitter shall not be disclosed pursuant to a Freedom of Information 
Act request except in accordance with this section. For purposes of this 
section, the following definitions apply:
    Business information means commercial or financial information in 
which a legal entity has a recognized property interest;
    Confidential commercial information means such business information 
provided to the United States Government by a submitter which is 
reasonably believed to contain information exempt from release under 
exemption (b)(4) of the Freedom of Information Act, 5 U.S.C. 552, 
because disclosure could reasonably be expected to cause substantial 
competitive harm;
    Submitter means any person or entity who provides confidential 
commercial information to the United States Government; it includes, but 
is not limited to, corporations, businesses (however organized), state 
governments, and foreign governments; and
    (b) Designation of confidential commercial information. A submitter 
of business information will 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 confidential commercial information and hence protected 
from required disclosure pursuant to exemption (b)(4). Such designations 
shall expire ten (10) years after the date of the submission unless the 
submitter requests, and provides justification for, a longer designation 
period.
    (c) Process in event of FOIA request.--(1) Notice to submitters. 
NACIC shall provide a submitter with prompt written notice of receipt of 
a Freedom of Information Act request encompassing business information 
whenever:
    (i) The submitter has in good faith designated the information as 
confidential commercial information, or
    (ii) NACIC believes that disclosure of the information could 
reasonably be expected to cause substantial competitive harm, and
    (iii) The information was submitted within the last ten (10) years 
unless the submitter requested and provided acceptable justification for 
a specific notice period of greater duration.
    (2) Form of notice. This notice shall either describe the exact 
nature of the confidential commercial information at issue or provide 
copies of the responsive records containing such information.
    (3) Response by submitter. (i) Within seven (7) days of the above 
notice, all claims of confidentiality by a submitter must be supported 
by a detailed statement of any objection to disclosure. Such statement 
shall:
    (A) Specify that the information has not been disclosed to the 
public;
    (B) Explain why the information is contended to be a trade secret or 
confidential commercial information;

[[Page 384]]

    (C) Explain how the information is capable of competitive damage if 
disclosed;
    (D) State that the submitter will provide NACIC and the Department 
of Justice with such litigation defense as requested; and
    (E) Be certified by an officer authorized to legally bind the 
corporation or similar entity.
    (ii) It should be noted that information provided by a submitter 
pursuant to this provision may itself be subject to disclosure under the 
FOIA.
    (4) Decision and notice of intent to disclose. (i) NACIC shall 
consider carefully a submitter's objections and specific grounds for 
nondisclosure prior to its final determination. If NACIC decides to 
disclose a document over the objection of a submitter, NACIC shall 
provide the submitter a written notice which shall include:
    (A) A statement of the reasons for which the submitter's disclosure 
objections were not sustained;
    (B) A description of the information to be disclosed; and
    (C) A specified disclosure date which is seven (7) days after the 
date of the instant notice.
    (ii) When notice is given to a submitter under this section, NACIC 
shall also notify the requester and, if NACIC notifies a submitter that 
it intends to disclose information, then the requester shall be notified 
also and given the proposed date for disclosure.
    (5) Notice of FOIA lawsuit. If a requester initiates a civil action 
seeking to compel disclosure of information asserted to be within the 
scope of this section, NACIC shall promptly notify the submitter. The 
submitter, as specified above, shall provide such litigation assistance 
as required by NACIC and the Department of Justice.
    (6) Exceptions to notice requirement. The notice requirements of 
this section shall not apply if NACIC determines that:
    (i) The information should not be disclosed in light of other FOIA 
exemptions;
    (ii) The information has been published lawfully or has been 
officially made available to the public;
    (iii) The disclosure of the information is otherwise required by law 
or federal regulation; or
    (iv) The designation made by the submitter under this section 
appears frivolous, except that, in such a case, NACIC will, within a 
reasonable time prior to the specified disclosure date, give the 
submitter written notice of any final decision to disclose the 
information.

[64 FR 49879, Sept. 14, 1999; 64 FR 53769, Oct. 4, 1999]