Editorial Note on Part 706
Editorial Note: Nomenclature changes to part 706 appear at 84 FR 37751, Aug. 2, 2019.

§ 706.33 Confidential commercial information. ( a ) *Definitions* — ( 1 ) *Confidential commercial information* means commercial or financial information obtained by the agency from a submitter that may be protected from disclosure under Exemption 4 of the FOIA. Exemption 4 protects certain: ( i ) Trade secrets as defined under FOIA law; or
( ii ) Commercial or financial information that is privileged or confidential as defined under FOIA law.
( 2 ) *Submitter* means any person or entity, including a corporation, State, or foreign government, but not including another Federal Government entity, that provides confidential commercial information to the Federal government, directly or indirectly.
( b ) *Designation of confidential commercial information.* All submitters may designate, by appropriate markings, any portions of their submissions that they consider to be protected from disclosure under the FOIA. These markings will be considered by DFC in responding to a FOIA request but such markings (or the absence of such markings) will not be dispositive as to whether the marked information is ultimately released. Unless otherwise requested and approved these markings will be considered no longer applicable ten years after submission or five years after the close of the associated project, whichever is later.
( c ) *When notice to submitters is required.* ( 1 ) Except as provided in paragraph (d) of this section, DFC's FOIA Office will use reasonable efforts to notify a submitter in writing whenever: ( i ) The requested information has been designated in good faith by the submitter as confidential commercial information protected from disclosure under Exemption 4; or
( ii ) DFC has reason to believe that the requested information may be protected from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure.
( 2 ) This notification will describe the nature and scope of the request, advise the submitter of its right to submit written objections in response to the request, and provide a reasonable time for response. The notice will either describe the commercial information requested or include copies of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, notice may be made by posting or publishing the notice in a place or manner reasonably likely to inform the submitters of the proposed disclosure, instead of sending individual notifications.
( d ) *Exceptions to submitter notice requirements.* The notice requirements of this section shall not apply if: ( 1 ) DFC determines that the information is exempt 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 a statute other than the FOIA or by a regulation issued in accordance with the requirements of Executive Order 12600 of June 23, 1987; or
( 4 ) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous. In such case, DFC will give the submitter written notice of any final decision to disclose the information within a reasonable number of days prior to a specified disclosure date.
( e ) *Opportunity to object to disclosure.* ( 1 ) DFC will specify a reasonable time period within which the submitter must respond to the notice referenced above.
( 2 ) If a submitter has any objections to disclosure, it should provide DFC with a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In setting forth such grounds, the submitter should explain the basis of its belief that the nondisclosure of any item of information requested is mandated or permitted by law. In order to rely on Exemption 4 as a basis for nondisclosure, the submitter shall explain why the information is considered a trade secret or commercial or financial information that is privileged or confidential as defined under FOIA law.
( 3 ) A submitter who fails to respond within the time period specified in the notice shall be considered to have no objection to disclosure of the information. DFC is not required to consider any information received after the date of any disclosure decision. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA.
( 4 ) The period for providing DFC with objections to disclosure of information may be extended by DFC upon receipt of a written request for an extension from the submitter. Such written request shall set forth the date upon which any objections are expected to be completed and shall provide reasonable justification for the extension. In its discretion, DFC may permit more than one extension.
( f ) *Analysis of objections.* DFC will consider a submitter's objections and specific grounds for nondislosure in deciding whether to disclose the requested information.
( g ) *Notice of intent to disclose.* If DFC decides to disclosure information over the objection of a submitter, DFC will notify the submitter of its determination at least five working days prior to release of the information. The notification will include: ( 1 ) A statement of the reasons why each of the submitter's disclosure objections was not sustained;
( 2 ) A description of the information to be disclosed, or a copy thereof; and
( 3 ) A specified disclosure date, which shall be a reasonable time subsequent to the notice.
( h ) *Notice of FOIA lawsuit.* Whenever a requester files a FOIA lawsuit seeking to compel the disclosure of confidential commercial information, DFC will promptly notify the submitter.
( i ) *Requester notification.* DFC will notify a requester whenever it provides the submitter with notice and an opportunity to object to disclosure; whenever it notifies the submitter of its intent to disclose the requested information; and whenever a submitter files a lawsuit to prevent the disclosure of the information.