§ 102.7 - Confidential commercial information.

§ 102.7 Business Confidential commercial information.

(a) In general. Business information provided to SBA from a submitter will only be disclosed in accordance with this section.

(b)

Definitions. For purposes of this section:

(1) Business information is

Confidential commercial information means commercial or financial information obtained by the SBA from a submitter that may

arguably

be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(

2

b)(4).

Submitter

is

means any person or entity

who provides business information,

, including a corporation, State, or foreign government, but not including another Federal Government entity, that provides information, either directly or indirectly to

SBA

the Federal Government.

(

c

b)Designation of

business

confidential commercial information.

Submitters

A submitter of

business

confidential commercial information

will

must use

reasonable,

good

-

faith efforts to designate

,

by appropriate markings, either at the time of submission or

at

within a reasonable time thereafter, any

portions

portion of

their submissions that they consider

its submission that it considers to be protected from disclosure under Exemption 4

of the FOIA. Designations will expire ten

. These designations shall expire 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

. SBA will provide a submitter with written notice of a FOIA request or administrative appeal that seeks its business information whenever SBA intends to release that information. The notice will either describe the business information or include copies of the records in the form SBA proposes to release them. SBA will also advise the requester that the submitter is being given the opportunity to object to any proposed disclosure. When notification of a voluminous number of submitters is required, SBA may post or publish such a notice in a place reasonably likely to accomplish notice. (

is required.

(1) A component shall promptly provide written notice to a submitter of confidential commercial information whenever records containing such information are requested under the FOIA if, after reviewing the request, the responsive records, and any appeal by the requester, the component 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) The component 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 under that exemption or any other applicable exemption.

(2) The notice shall 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, notice may be made by posting or publishing the notice in a place or manner reasonably likely to accomplish it.

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

(1) The component determines that the information is exempt under the FOIA;

(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, except that, in such a case, the component shall give the submitter written notice of any final decision to disclose the information and must provide that notice within a reasonable number of days prior to a specified disclosure date.

(e) Opportunity to object to disclosure. SBA will give the submitter ten working days from the date of the written notice to submit

(1) A component shall specify a reasonable time period within which the submitter must respond to the notice referenced above. If the submitter has any objections to disclosure, it should provide the component a detailed written statement

specifying all grounds upon which disclosure is opposed. A reasonable extension of time may be granted by the correct office upon good cause shown by the submitter. The submitter's statement must demonstrate why it believes information is

that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as the 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

(2) A submitter who fails to

timely

respond

to

within the

notice, such failure will be deemed a waiver by the submitter of any objection to the

time period specified in the notice shall be considered to have no objection to disclosure of the information. Information received by the component after the date of any disclosure decision shall not be considered by the component. Any information provided by a submitter under this

paragraph

subpart may itself be subject to disclosure under the FOIA.

(f) Notice Analysis of intent to disclose. SBA will objections. A component shall consider a submitter's objections and specific grounds for nondisclosure in accordance with paragraph (e) of this section in deciding whether to disclose business the requested information. If SBA

(g) Notice of intent to disclose. Whenever a component decides to disclose

business

information

despite

over the objection of a submitter,

SBA will give the

the component shall provide the submitter written notice,

advising the submitter what will be disclosed, and that such disclosure will occur within 10 working days from the date of

which shall 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; and

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