§ 404.9 Confidential commercial information. ( a ) *Definitions.* As used in this section: ( 1 ) *Confidential commercial information.* Trade secrets and commercial or financial information obtained by EXIM from a submitter that may be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).
( 2 ) *Submitter.* Any person or entity, including a corporation, State, or foreign government, but not including another Federal Government entity, that provides confidential commercial information, either directly or indirectly to the Federal Government.
( b ) *Submitter designation.* All submitters of confidential commercial information must use good faith efforts to designate, by appropriate markings, at the time of submission, any portion of their submissions that they consider to be exempt from disclosure under Exemption 4. This obligation continues after submission, such that a submitter should inform EXIM if it later identifies submitted information that was not marked or newly considers submitted information to be protected by Exemption 4.
( c ) *Pre-disclosure notice to the submitter.* EXIM must provide prompt written notice to the submitter of information that is potentially confidential commercial information whenever records containing such information are requested under the FOIA if EXIM determines that it may be required to disclose the records and: ( 1 ) The requested information has been designated by the submitter as information considered protected from disclosure under Exemption 4; or
( 2 ) EXIM has a 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.
( d ) *Notice requirements.* The notice must either describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, EXIM may post or publish a notice in a place or manner reasonably likely to inform the submitters of the proposed disclosure, instead of sending individual notifications.
( e ) *When notice is not required.* EXIM does not need to send the notice called for by paragraph (c) of this section if: ( 1 ) EXIM 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, EXIM must 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, as specified in paragraph (g) of this section for disclosures made over a submitter's objection.
( f ) *Opportunity to object to disclosure* — ( 1 ) *Timeline for a response.* ( i ) A submitter located within the United States will have 10 working days from and including the date of the notification letter to respond to an EXIM notice sent under paragraph (c) of this section, unless another reasonable time period is specified in EXIM's notice.
( ii ) A submitter located outside the United States will have 20 working days from and including the date of the notification letter to respond to an EXIM notice sent under paragraph (c) of this section, unless another reasonable time period is specified in EXIM's notice.
( iii ) EXIM may extend the time for objection upon timely request from the submitter and for good cause shown.
( 2 ) *Content of submitter's response.* ( i ) If a submitter has any objections to EXIM's disclosure of the information identified in the notice, the submitter should specify all grounds for EXIM to withhold the particular information under the FOIA.
( ii ) In order to rely on Exemption 4 as a basis for EXIM withholding any of the information as confidential commercial information, the submitter must provide a specific and detailed written explanation of why the information constitutes a trade secret or commercial or financial information that is privileged or confidential. A submitter invoking Exemption 4 in its response should consider including or addressing the following: ( A ) Why the information qualifies as a trade secret or is privileged; or
( B ) Why the information is confidential commercial or financial information.
( iii ) A submitter who fails to respond within the time period specified will be considered to have no objection to disclosure of the information. EXIM will not consider any information received after this time period.
( iv ) Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA and should be appropriately marked if confidential.
( g ) *Notices to the requester.* EXIM will notify the requester in writing whenever EXIM provides a submitter the opportunity to object to disclosure of records pursuant to paragraph (b) of this section; whenever EXIM notifies the submitter of EXIM's intent to disclose information; and whenever a submitter files a lawsuit to prevent the disclosure of the information.
( h ) *Consideration of a submitter's response.* EXIM must consider a submitter's timely response prior to making its disclosure decision, including all objections and specific grounds for nondisclosure under the FOIA.
( i ) *Notice of intent to disclose.* Whenever EXIM decides to disclose information over the objection of a submitter, EXIM must notify the submitter, in writing, of EXIM's determination. EXIM must include in this notice: ( 1 ) The reasons for the disclosure decision, including a response to each of the submitter's disclosure objections; and
( 2 ) A description of the information to be disclosed or copies of the records as EXIM intends to release them; and
( 3 ) A specified disclosure date, which must provide the submitter a reasonable time after the notice to file suit to prevent the disclosure. This time period will be at least 10 working days from EXIM's transmission of the notice of intent to disclose.
( j ) *Appeals by requesters.* In response to a requester's administrative appeal of a withholding under Exemption 4, EXIM will comply with the provisions of this section before disclosing any such information.
( k ) *Notice of requester's FOIA lawsuit.* EXIM must promptly notify the submitter whenever a requester brings suit against EXIM seeking to compel the disclosure of confidential commercial information.
( l ) *Publicly available information.* EXIM may, upon request or on its own initiative, publicly disclose the information contained at *exim.data.gov,* listed at § 404.2, including the parties to transactions for which EXIM approves support, the amount of such support, the identity of any primary participants involved, a general description of the related U.S. exports, and the country to which such exports are destined.