[Code of Federal Regulations]
[Title 10, Volume 4]
[Revised as of January 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 10CFR1004.11]

[Page 726-727]
 
                            TITLE 10--ENERGY
 
          CHAPTER X--DEPARTMENT OF ENERGY (GENERAL PROVISIONS)
 
PART 1004_FREEDOM OF INFORMATION--Table of Contents
 
Sec. 1004.11  Handling information of a private business, foreign 
government, or an international organization.

    (a) Whenever a document submitted to the DOE contains information 
which may be exempt from public disclosure, it will be handled in 
accordance with the procedures in this section. While the DOE is 
responsible for making the final determination with regard to the 
disclosure or nondisclosure of information contained in requested 
documents, the DOE will consider the submitter's views (as that term is 
defined in this section) in making its determination. Nothing in this 
section will preclude the submission of a submitter's views at the time 
of the submission of the document to which the views relate, or at any 
other time.
    (b) When the DOE may determine, in the course of responding to a 
Freedom of Information request, not to release information submitted to 
the DOE (as described in paragraph (a) of this section, and contained in 
a requested document) without seeking any or further submitter's views, 
no notice will be given the submitter.
    (c) When the DOE, in the course of responding to a Freedom of 
Information request, cannot make the determination described in 
paragraph (b) of this section without having for consideration the 
submitter's views, the submitter shall be promptly notified and provided 
an opportunity to submit his views on whether information contained in 
the requested document (1) is exempt from the mandatory public 
disclosure requirements of the Freedom of Information Act, (2) contains 
information referred to in 18 U.S.C. 1905, or (3) is otherwise exempt by 
law from public disclosure. The DOE will make its own determinations as 
to whether any information is exempt from disclosure. Notice of a 
determination by the DOE that a claim of exemption made pursuant to this 
paragraph is being denied will be given to a person making such a claim 
no less than seven (7) calendar days prior to intended public disclosure 
of the information in question. For purposes of this section, notice is

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deemed to be given when mailed to the submitter at the submitter's last 
known address.
    (d) When the DOE, in the course of responding to a Freedom of 
Information request, cannot make the determination described in 
paragraph (b) of this section and, without recourse to paragraph (c) of 
this section, previously has received the submitter's views, the DOE 
will consider such submitter's views and will not be required to obtain 
additional submitter's views under the procedure described in paragraph 
(c) of this section. The DOE will make its own determination with regard 
to any claim that information be exempted from disclosure. Notice of the 
DOE's determination to deny a claim of exemption made pursuant to this 
paragraph will be given to a person making such a claim no less than 
seven (7) calendar days prior to its intended public disclosure.
    (e) Notwithstanding any other provision of this section, DOE offices 
may require a person submitting documents containing information that 
may be exempt by law from mandatory disclosure to (1) submit copies of 
each document from which information claimed to be confidential has been 
deleted or (2) require that the submitter's views be otherwise made 
known at the time of the submission. Notice of a determination by the 
DOE that a claim of exemption is being denied will be given to a person 
making such a claim no less than seven (7) calendar days prior to 
intended public disclosure of the information in question. For purposes 
of this section, notice is deemed to be given when mailed to the 
submitter at the submitter's last known address.
    (f) Criteria for determining the applicability of 5 U.S.C. 
552(b)(4). Subject to subsequent decisions of the Appeal Authority, 
criteria to be applied in determining whether information is exempt from 
mandatory disclosure pursuant to Exemption 4 of the Freedom of 
Information Act include:
    (1) Whether the information has been held in confidence by the 
person to whom it pertains;
    (2) Whether the information is of a type customarily held in 
confidence by the person to whom it pertains and whether there is a 
reasonable basis therefore;
    (3) Whether the information was transmitted to and received by the 
Department in confidence;
    (4) Whether the information is available in public sources;
    (5) Whether disclosure of the information is likely to impair the 
Government's ability to obtain similar information in the future; and
    (6) Whether disclosure of the information is likely to cause 
substantial harm to the competitive position of the person from whom the 
information was obtained.
    (g) When the DOE, in the course of responding to a Freedom of 
Information request, determines that information exempt from the 
mandatory public disclosure requirements of the Freedom of Information 
Act is to be released in accordance with Sec. 1004.1, the DOE will 
notify the submitter of the intended discretionary release no less than 
seven (7) days prior to intended public disclosure of the information in 
question.
    (h) As used in this section, the term submitter's views means, with 
regard to a document submitted to the DOE, an item-by-item indication, 
with accompanying explanation, addressing whether the submitter 
considers the information contained in the document to be exempt from 
the mandatory public disclosure requirements of the Freedom of 
Information Act, to be information referred to in 18 U.S.C. 1905, or to 
be otherwise exempt by law from mandatory public disclosure. The 
accompanying explanation shall specify the justification for 
nondisclosure of any information under consideration. If the submitter 
states that the information comes within the exemption in 5 U.S.C. 
552(b)(4) for trade secrets and commercial or financial information, the 
submitter shall include a statement specifying why such information is 
privileged or confidential and, where appropriate, shall address the 
criteria in paragraph (f) of this section. In all cases, the submitter 
shall address the question of whether or not discretionary disclosure 
would be in the public interest.

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