[Code of Federal Regulations]

[Title 40, Volume 31]

[Revised as of July 1, 2006]

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

[CITE: 40CFR1601.26]



[Page 920-921]

 

                   TITLE 40--PROTECTION OF ENVIRONMENT

 

       CHAPTER VI--CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD

 

PART 1601_PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM OF 

INFORMATION ACT--Table of Contents

 

       Subpart C_Procedures for Requesting and Disclosing Records

 

Sec.  1601.26  Special procedures for confidential business information.



    (a) In general. Confidential business information provided to the 

CSB by a business submitter shall not be disclosed pursuant to a FOIA 

request except in accordance with this section.

    (b) Designation of business information. Business submitters should 

use good-faith efforts to designate, by appropriate markings, either at 

the time of submission or at a reasonable time thereafter, those 

portions of their submissions which they deem to be protected under 

Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). Any such designation will 

expire 10 years after the records



[[Page 921]]



were submitted to the government, unless the submitter requests, and 

provides reasonable justification for, a designation period of longer 

duration.

    (c) Predisclosure notification. (1) Except as is provided for in 

paragraph (h) of this section, the FOIA Officer shall, to the extent 

permitted by law, provide a submitter with prompt written notice of a 

FOIA request or administrative appeal encompassing its confidential 

business information whenever required under paragraph (d) of this 

section. Such notice shall either describe the exact nature of the 

business information requested or provide copies of the records or 

portions thereof containing the business information.

    (2) Whenever the FOIA Officer provides a business submitter with the 

notice set forth in this paragraph, the FOIA Officer shall notify the 

requester that the request includes information that may arguably be 

exempt from disclosure under Exemption 4 of the FOIA and that the person 

or entity who submitted the information to the CSB has been given the 

opportunity to comment on the proposed disclosure of information.

    (d) When notice is required. The CSB shall provide a business 

submitter with notice of a request whenever:

    (1) The business submitter has in good faith designated the 

information as business information deemed protected from disclosure 

under 5 U.S.C. 552(b)(4); or

    (2) The CSB has reason to believe that the request seeks business 

information the disclosure of which may result in substantial commercial 

or financial injury to the business submitter.

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

described in paragraph (c) of this section, the CSB shall, to the extent 

permitted by law, afford a business submitter at least 10 working days 

within which it can provide the CSB with a detailed written statement of 

any objection to disclosure. Such statement shall demonstrate why the 

information is contended to be a trade secret or commercial or financial 

information that is privileged or confidential and why disclosure would 

cause competitive harm. Whenever possible, the business submitter's 

claim of confidentiality should be supported by a statement or 

certification by an officer or authorized representative of the business 

submitter. Information provided by a submitter pursuant to this 

paragraph may itself be subject to disclosure under the FOIA.

    (f) Notice of intent to disclose. (1) The FOIA Officer shall 

consider carefully a business submitter's objections and specific 

grounds for nondisclosure prior to determining whether to disclose 

confidential commercial business information. Whenever the FOIA Officer 

decides to disclose such information over the objection of a business 

submitter, the FOIA Officer shall forward to the business submitter a 

written notice at least 10 working days before the date of disclosure 

containing:

    (i) A statement of the reasons for which the business submitter's 

disclosure objections were not sustained,

    (ii) A description of the confidential commercial information to be 

disclosed, and

    (iii) A specified disclosure date.

    (2) Such notice of intent to disclose likewise shall be forwarded to 

the requester at least 10 working days prior to the specified disclosure 

date.

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

to compel disclosure of confidential business information, the FOIA 

Officer shall promptly notify the business submitter of such action.

    (h) Exceptions to predisclosure notification. The requirements of 

this section shall not apply if:

    (1) The FOIA Officer determines that the information should not be 

disclosed;

    (2) The information lawfully has been published or has been 

officially made available to the public;

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

U.S.C. 552); or

    (4) The designation made by the submitter in accordance with 

paragraph (b) of this section appears obviously frivolous; except that, 

in such a case, the FOIA Officer will provide the submitter with written 

notice of any final decision to disclose confidential business 

information within a reasonable number of days prior to a specified 

disclosure date.



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