§ 1301.8 - Confidential commercial information.

§ 1301.8 Business Confidential commercial information.

(a) In general. Business information obtained by TVA from a submitter will be disclosed under the FOIA only under this section.

(b) Definitions. For purposes of this section:

Definitions -

(1)

Business

Confidential commercial information means commercial or financial information obtained by TVA from a submitter that may be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).

(2) Submitter means any person or entity

from whom TVA obtains business information, directly or indirectly. The term includes corporations; state and local governments; and foreign governments. (c) Designation of business

, 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) Designation of confidential commercial information. A submitter of

business

confidential commercial information

will

must use good

-

faith efforts to designate

,

by appropriate markings,

either

at the time of submission

or at a reasonable time thereafter

, any

portions

portion of its submission that it considers to be protected from disclosure under Exemption 4. These designations

will

expire

ten

10 years after the date of the submission unless the submitter requests

,

and provides justification for

,

a longer designation period.

(

d

c)

Notice

When notice to submitters is required.

(1) TVA

shall provide a submitter with prompt

will promptly provide written notice

of a FOIA request or administrative appeal that seeks its business information wherever required under paragraph (e) of this section, except as provided in paragraph (h) of this section, in order to give the submitter an opportunity to object to disclosure of any specified portion of that information under paragraph (f) of this section. The notice shall either describe the business information requested or include copies of the requested records or record portions containing the information. When notification of a voluminous number of submitters is required, notification may be made by posting or publishing the notice in a place reasonably likely to accomplish notification of submitters.

(e) Where notice is required. Notice shall be given to a submitter wherever:

(1) The information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or

(2) TVA has reason to believe that the information may be protected from disclosure under Exemption 4.

(f

to the submitter of confidential commercial information whenever records containing such information are requested under the FOIA if TVA determines that it may be required to disclose the records, provided:

(i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or

(ii) TVA 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.

(2) 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, the agency 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.

(d) Exceptions to submitter notice requirements. The notice requirements of this section do not apply if:

(1) TVA 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, TVA 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) TVA will

allow

specify a

submitter a

reasonable time

to

period within which the submitter must respond to the notice

described in

referenced under paragraph (

d

c)(1) of this section.

(2) If a submitter has any

objection

objections to disclosure, it

is required to submit

should provide TVA a detailed written statement

. The statement must specify

that specifies all grounds for withholding

any portion of

the particular information under any exemption of the FOIA

and, in the case of Exemption 4, it must show

. In order to rely on Exemption 4 as basis for nondisclosure, the submitter must explain why the information

is

constitutes a trade secret or commercial or financial information that is

privileged or

confidential.

In the event that a submitter

(3) A submitter who fails to respond

to the notice

within the time period specified in

it,

the

submitter

notice will be considered to have no objection to disclosure of the information.

Information provided by the submitter that

TVA is not

received by TVA until after its disclosure decision has been made shall not be considered by TVA. Information

required to consider any information received after the date of any disclosure decision. Any information provided by a submitter under this

paragraph

subpart may itself be subject to disclosure under the FOIA.

(

g

f)

Notice

Analysis of

intent to disclose

objections. TVA

shall

will consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose

business

the requested information.

(g) Notice of intent to disclose. Whenever TVA decides to disclose business information over the objection of a submitter, TVA shall give will provide the submitter written notice, which shall will include:

(1) A statement of the reason(s) reasons why each of the submitter's disclosure objections was not sustained;

(2) A description of the business information to be disclosed , or copies of the records as TVA intends to release them; and

(3) A specified disclosure date, which shall must be a reasonable time subsequent to after the notice.

(h) Exceptions to notice requirements. The notice requirements of paragraphs (d) and (g) of this section shall not apply if:

(1) TVA 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 statute (other than the FOIA) or by applicable regulation; or

(4) The designation made by the submitter under paragraph (c) of this section appears obviously frivolous - except that, in such a case, the component shall, within a reasonable time prior to a specified disclosure date, give the submitter written notice of any final decision to disclose the information.

(i)

Notice of FOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of

business

confidential commercial information, TVA

shall

will promptly notify the submitter.

(

j) Corresponding notice to requesters. Whenever TVA provides a

i) Requester notification. TVA will notify the requester whenever it provides the submitter with notice and an opportunity to object to disclosure

under paragraph (d) of this section, TVA shall also notify the requester(s). Whenever TVA notifies a

; whenever it notifies the submitter of its intent to disclose

requested information under paragraph (g) of this section, TVA shall also notify the requester(s). Whenever

the requested information; and whenever a submitter files a lawsuit

seeking

to prevent the disclosure of

business information, TVA shall notify the requester(s)

the information.