Section 171.14 - Confidential commercial information(a)Definitions. The following definitions apply for purposes of this section: Confidential commercial information means commercial or financial information obtained by the Department from a submitter that may be exempt from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4) .
Submitter means any person or entity from which the Department obtains confidential commercial information, directly or indirectly. The term includes corporations, partnerships, and sole proprietorships; state, local, and tribal governments; foreign governments; NGOs; and educational institutions. This term does not include another Federal Government entity.
(b)Designation of confidential commercial information. A submitter of confidential commercial information must use good-faith efforts to designate by appropriate markings at the time of submission any portions of its submission that it considers exempt from disclosure under FOIA Exemption 4. These designations expire ten years after the date of the submission unless the submitter requests, and provides justification for, a longer designation period.(c)Notice to submitters.(1) The Department must provide a submitter with prompt written notice whenever records containing its confidential commercial information are requested under the FOIA if the agency determines that it may be required to disclose the records, provided: (i) The information has been designated in good faith by the submitter as information considered exempt from disclosure under Exemption 4; or(ii) The Department has reason to believe that the requested information may be exempt from disclosure under Exemption 4 but has not yet determined whether the information is protected from disclosure.(2) The notice must either describe the confidential commercial information requested or include a copy of the requested records or record portions containing the information.(d)When notice is not required. The notice requirements of this section do not apply if: (1) The Department determines that the information is exempt from disclosure under the FOIA and, therefore, will not be disclosed;(2) The information has been lawfully published or has been officially made available to the public;(3) Disclosure of the information is required by statute (other than the FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12600; or(4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous. In such a case, the Department must give the submitter written notice of any final decision to disclose the information a reasonable number of days prior to a specified disclosure date.(e)Opportunity to object to disclosure. The Department must allow a submitter a reasonable time to respond to the notice described in paragraph (c) of this section and must specify that time period in the notice. If a submitter has any objections to disclosure, it should provide the Department a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as basis for nondisclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is privileged or confidential. If a submitter fails to respond to the notice within the time specified in it, the submitter will be considered to have no objection to disclosure of the information. The Department is not required to consider any information received after any disclosure decision. Information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA.(f)Notice of intent to disclose. The Department will consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose confidential commercial information. Whenever the Department decides to disclose information over the objection of a submitter, it must give the submitter written notice, which must include:(1) A statement of the reason(s) why each of the submitter's disclosure objections was not sustained;(2) A description of the information to be disclosed or copies of the records as the Department intends to release them; and(3) A specified disclosure date, which must be a reasonable time after the notice.(g)Notice of FOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of confidential commercial information, the Department must promptly notify the submitter.(h)Notice to requester. The Department must notify the requester whenever it provides a submitter with notice and an opportunity to object to disclosure; whenever it notifies a submitter of its intent to disclose requested information; and whenever a submitter files a lawsuit seeking to prevent the disclosure of the requested information. 81 FR 19865, 4/6/2016; 88 FR 71740, 11/17/2023