[Code of Federal Regulations]
[Title 5, Volume 3]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR2604.402]

[Page 460-461]
 
                    TITLE 5--ADMINISTRATIVE PERSONNEL
 
                CHAPTER XVI--OFFICE OF GOVERNMENT ETHICS
 
PART 2604_FREEDOM OF INFORMATION ACT RULES AND SCHEDULE OF FEES FOR THE 
 
                     Subpart D_Exemptions Under FOIA
 
Sec.  2604.402  Business information.

    (a) In general. Business information provided to the Office of 
Government Ethics by a submitter will not be disclosed pursuant to a 
Freedom of Information Act request except in accordance with this 
section.
    (b) Designation of business information. Submitters of business 
information 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

[[Page 461]]

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 were submitted 
to the Government, unless the submitter requests, and provides 
reasonable justification for, a designation period of longer duration.
    (c) Predisclosure notification. The FOIA Officer will provide a 
submitter with prompt written notice of a FOIA request regarding its 
business information if:
    (1) The information has been designated by the submitter as 
information deemed protected from disclosure under Exemption 4 of the 
FOIA; or
    (2) The FOIA Officer has reason to believe that the information may 
be protected from disclosure under Exemption 4 of the FOIA. Such written 
notice shall either describe the exact nature of the business 
information requested or provide copies of the records containing the 
business information. The requester also shall be notified that notice 
and an opportunity to object are being provided to a submitter.
    (d) Opportunity to object to disclosure. A submitter has five 
working days from receipt of the predisclosure notification to provide a 
written statement of any objection to disclosure. Such statement shall 
specify all the grounds for withholding any of the information under any 
exemption of the FOIA and, in the case of Exemption 4, shall demonstrate 
why the information is deemed to be a trade secret or commercial or 
financial information that is privileged or confidential. Information 
provided by a submitter pursuant to this paragraph may itself be subject 
to disclosure under the FOIA.
    (e) Notice of intent to disclose. The FOIA Officer will consider all 
objections raised by a submitter and specific grounds for nondisclosure 
prior to determining whether to disclose business information. Whenever 
the FOIA Officer decides to disclose business information over the 
objection of a submitter, he will send the submitter a written notice at 
least 10 working days before the date of disclosure containing:
    (1) A statement of the reasons why the submitter's objections were 
not sustained;
    (2) A copy of the records which will be disclosed or a written 
description of the records; and
    (3) A specified disclosure date. The requester shall also be 
notified of the FOIA Officer's determination to disclose records over a 
submitter's objections.
    (f) Notice of FOIA lawsuit. Whenever a requester brings suit seeking 
to compel disclosure of business information, the FOIA Officer shall 
promptly notify the submitter.
    (g) Exceptions to predisclosure notification. The notice 
requirements in paragraph (c) of this section do not apply if:
    (1) The FOIA Officer determines that the information should not be 
disclosed;
    (2) The information has been published previously 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 business information within a 
reasonable number of days prior to a specified disclosure date.

[60 FR 10007, Feb. 23, 1995, as amended at 64 FR 28091, May 25, 1999]