[Code of Federal Regulations]

[Title 14, Volume 5]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 14CFR1206.610]



[Page 62-63]

 

                     TITLE 14--AERONAUTICS AND SPACE

 

                          SPACE ADMINISTRATION

 

PART 1206_AVAILABILITY OF AGENCY RECORDS TO MEMBERS OF THE PUBLIC--Table 

of Contents

 

                          Subpart 6_Procedures

 

Sec. 1206.610  Notice to submitters of commercial information.



    (a) General policy. Upon receipt of a request for commercial 

information pursuant to the Freedom of Information Act, NASA shall 

provide the submitter with notice of the request in accordance with the 

requirements of this section.

    (b) Notice to submitters. Except as provided in paragraph (g) or (h) 

of this section, the Agency shall make a good faith effort to provide a 

submitter with prompt notice of a request appearing to encompass its 

commercial information whenever required under paragraph (c) of this 

section. Such notice shall identify the commercial information requested 

and shall inform the submitter of the opportunity to object to its 

disclosure in accordance with paragraph (d) of this section. If the 

submitter would not otherwise have access to the document that contains 

the information, upon the request of the submitter, the Agency shall 

provide access to, or copies of, the records or portions thereof 

containing the commercial information. This notice shall be provided in 

writing upon the request of the submitter. Whenever the Agency provides 

notice pursuant to this section, the Agency shall advise the requester 

that notice and opportunity to comment are being provided to the 

submitter.

    (c) When notice is required. Notice shall be given to a submitter 

whenever the information has been designated by the submitter as 

information deemed protected from disclosure under Exemption 4 of the 

Act, or the Agency otherwise has reason to believe that the information 

may be protected from disclosure under Exemption 4.

    (d) Opportunity to object to disclosure. Through the notice 

described in paragraph (b) of this section, the Agency shall afford a 

submitter a reasonable period within which to provide the Agency with a 

detailed statement of any objection to disclosure. This period shall not 

exceed 10 working days from the date after which the Agency can 

reasonably assume receipt of notice by the submitter, unless the 

submitter provides a reasonable explanation justifying additional time 

to respond. If the Agency does not receive a response from the submitter 

within this period, the Agency shall proceed with its review of the 

information and initial determination. The submitter's response shall 

include all bases, factual or legal, for withholding any of the 

information pursuant to Exemption 4. Information provided by a submitter 

pursuant to this paragraph may itself be subject to disclosure under the 

FOIA. Submitters will not be provided additional opportunities to object 

to disclosure, and, therefore, should provide a complete explanation of 

any and all bases for withholding any information from disclosure.

    (e) Notice of intent to disclose. The Agency shall carefully 

consider any objections of the submitter in the course



[[Page 63]]



of determining whether to disclose commercial information. Whenever the 

Agency decides to disclose commercial information over the objection of 

a submitter, the Agency shall forward to the submitter a written 

statement which shall include the following:

    (1) A brief explanation as to why the Agency did not agree with any 

objections;

    (2) A description of the commercial information to be disclosed, 

sufficient to identify the information to the submitter; and

    (3) A date after which disclosure is expected. Such notice of intent 

to disclose shall be forwarded to the submitter in a reasonable number 

of working days prior to the expected disclosure date.

    (f) Notice of FOIA lawsuit. Whenever a requester brings suit seeking 

to compel disclosure of commercial information covered by paragraph (c) 

of this section, the Agency shall promptly notify the submitter. 

Whenever a submitter brings suit against the Agency in order to prevent 

disclosure of commercial information, the Agency shall promptly notify 

the requester.

    (g) Exceptions to notice requirements. The notice requirements of 

this section do not apply if--

    (1) The information has been published or otherwise made available 

to the public.

    (2) Disclosure of the information is required by law (other than 5 

U.S.C. 552);

    (3) The submitter has received notice of a previous FOIA request 

which encompassed information requested in the later request, and the 

Agency intends to withhold and/or release information in the same manner 

as in the previous FOIA request;

    (4) Upon submitting the information or within a reasonable period 

thereafter,

    (i) The submitter reviewed its information in anticipation of future 

requests pursuant to the FOIA,

    (ii) Provided the Agency a statement of its objections to disclosure 

consistent with that described in paragraph (e) of this section, and

    (iii) The Agency intends to release information consistent with the 

submitter's objections;

    (5) Notice to the submitter may disclose information exempt from 

disclosure pursuant to 5 U.S.C. 552(b)(7).

    (h)(1) An additional limited exception to the notice requirements of 

this section, to be used only when all of the following exceptional 

circumstances are found to be present, authorizes the Agency to withhold 

information which is the subject of a FOIA request, based on Exemption 4 

(5 U.S.C. 552(b)(4)), without providing the submitter individual notice:

    (i) The Agency would be required to provide notice to over 10 

submitters, in which case, notification may be accomplished by posting 

or publishing the notice in a place reasonably calculated to accomplish 

notification.

    (ii) Absent any response to the published notice, the Agency 

determines that if it provided notice as is otherwise required by 

paragraph (c) of this section, it is reasonable to assume that the 

submitter would object to disclosure of the information based on 

Exemption 4; and,

    (iii) If the submitter expressed the anticipated objections, the 

Agency would uphold those objections.

    (2) This exemption shall be used only with the approval of the Chief 

Counsel of the Center, the Attorney-Advisor to the Inspector General, or 

the Associate General Counsel responsible for providing advice on the 

request. This exception shall not be used for a class of documents or 

requests, but only as warranted by an individual FOIA request.



[64 FR 39404, July 22, 1999, as amended at 65 FR 19647, Apr. 12, 2000]