The Wayback Machine - https://web.archive.org/all/20041031031238/http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?TITLE=22&PART=171&SECTION=16&YEAR=2000&YEAR=2000&TYPE=TEXT
[Code of Federal Regulations]
[Title 22, Volume 1, Parts 1 to 299]
[Revised as of April 1, 2000]
From the U.S. Government Printing Office via GPO Access
[CITE: 22CFR171.16]

[Page 659-661]
 
                       TITLE 22--FOREIGN RELATIONS
 
                     CHAPTER I--DEPARTMENT OF STATE
 
PART 171--AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC--Table of Contents
 
              Subpart B--Freedom of Information Provisions
 
Sec. 171.16  Predisclosure notification procedures for confidential commercial information.

    (a) In general. Confidential commercial information provided to the 
Department shall not be disclosed pursuant to a Freedom of Information 
Act request except in accordance with this section. For purposes of this 
section, the following definitions apply:
    (1) Confidential Commercial Information means records provided to 
the Department by a submitter that arguably contain material exempt from 
release under Exemption 4 of the Freedom of Information Act, 5 U.S.C. 
552(b)(4), because disclosure could reasonably be expected to cause 
substantial competitive harm.
    (2) Submitter means any person or entity who provides confidential 
commercial information to the Department. The term submitter includes, 
but is not limited to, corporations, state governments, and foreign 
governments.
    (b) Notice to submitters. Whenever the Department receives a Freedom 
of Information Act request for confidential commercial information and, 
pursuant to paragraph (c) of this section, the submitter is entitled to 
receive notice of that request, the Department shall promptly notify the 
submitter that it has received the request, unless such notice is 
excused under paragraph (g) of this section. The notice shall be in 
writing and either describe the exact nature of the confidential 
commercial information requested or provide a copy of the records or 
portion of the records containing the confidential commercial 
information. The notice shall be addressed to the submitter and mailed, 
postage prepaid, first class mail, to the submitter's last known 
address. Where notice is required to be given to a voluminous number of 
submitters, in lieu of mailing the notice may be posted or published in 
a manner and place reasonably calculated to provide notice to the 
submitters.
    (c) When notice required. (1) For confidential commercial 
information submitted prior to January 1, 1988, the Department shall 
provide a submitter with notice of a receipt of a Freedom of Information 
Act request whenever:
    (i) The records are less than ten (10) years old and the information 
has been designated by the submitter as confidential commercial 
information; or
    (ii) The Department has reason to believe that the disclosure of the 
information could reasonably be expected to cause substantial 
competitive harm.
    (2) For confidential commercial information submitted to the 
Department on or after January 1, 1988, the Department shall provide a 
submitter with notice of receipt of a Freedom of Information Act request 
whenever:
    (i) The submitter has designated the information as confidential 
commercial information pursuant to the requirements of this section; or
    (ii) The Department has reason to believe that the disclosure of the 
information could reasonably be expected to cause substantial 
competitive harm.
    (3) Notice of a request for confidential commercial information 
falling within paragraph (c)(2)(i) of this section shall be required for 
a period of not more than ten (10) years after the date of submission 
unless the submitter provides reasonable justification for a designated 
period of greater duration.
    (4) A submitter shall use good-faith efforts to designate by 
appropriate markings, either at the time a record is submitted to the 
Department or within a reasonable period of time thereafter, those 
portions of the record which it deems to contain confidential commercial 
information. The designation shall be accompanied by a certification 
made by the submitter, its agent or designee, that to the best of the 
submitter's knowledge, information and belief, the record does, in fact, 
contain confidential commercial information that theretofore has not 
been disclosed to the public.

[[Page 660]]

    (5) Whenever the Department provides notice to the submitter in 
accordance with paragraph (c) of this section, the Department shall at 
the same time provide written notice to the requester that it has done 
so.
    (d) Opportunity to object to disclosure. To the extent permitted by 
law, the notice required by paragraph (c) of this section shall afford a 
submitter a reasonable period of time within which the submitter or its 
authorized representative may provide the Department with a written 
objection to the disclosure of the confidential commercial information. 
The objection shall set forth in detail all grounds for withholding 
information and demonstrate why the submitter believes that the records 
contain confidential commercial information. Except where a 
certification already had been made in conformance with the requirements 
of paragraph (c)(4) of this section, the objection shall be accompanied 
by a certification made by the submitter, its agent or designee, that to 
the best of the submitter's knowledge, information and belief, the 
record does, in fact, contain confidential commercial information that 
theretofore has not been disclosed to the public. Information provided 
by a submitter pursuant to this paragraph may itself be subject to 
disclosure under the Freedom of Information Act.
    (e) Notice of intent to disclosure. (1) The Department shall give 
careful consideration to objections made by a submitter pursuant to 
paragraph (d) of this section prior to making any administrative 
determination of the issue. Whenever the Department decides to disclose 
information over the objection of a submitter, the Department shall 
forward to the submitter a written notice which shall include:
    (i) A statement of the reasons for which the submitter's disclosure 
objections were not sustained;
    (ii) A description of the information to be disclosed; and
    (iii) A specified disclosure date.
    (2) To the extent permitted by law, the notice required to be given 
by paragraph (e)(1) of this section shall be provided to the submitter a 
reasonable number of days prior to the specified disclosure date.
    (3) Whenever the Department provides notice to the submitter in 
accordance with paragraphs (e)(1) and (e)(2) of this section, the 
Department shall at the same time notify the requester that such notice 
has been given and the proposed date for disclosure.
    (f) Notice of lawsuit. Whenever a requester brings suit seeking to 
compel the disclosure of information for which notice is required 
pursuant to paragraph (c) of this section, the Department shall promptly 
notify the submitter that such suit has been filed.
    (g) Exceptions to notice requirements. The notice requirements of 
this section shall not apply if:
    (1) The Department determines that the information should not be 
disclosed;
    (2) The information has been published or has been officially made 
available to the public;
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552);
    (4) Disclosure of the information is required by a Department rule 
that:
    (i) Was adopted pursuant to notice and public comment;
    (ii) Specifies narrow classes of records submitted to the agency 
that are to be released under the Freedom of Information Act; and
    (iii) Provides in exceptional circumstances for notice when the 
submitter provides written justification, at the time the information is 
submitted or a reasonable time thereafter, that disclosure of the 
information could reasonably be expected to cause substantial 
competitive harm;
    (5) The information requested was not designated by the submitter as 
exempt from disclosure in accordance with paragraph (c) of this section, 
when the submitter had an opportunity to do so at the time of submission 
of the information or a reasonable time thereafter, unless the 
Department has substantial reason to believe that the disclosure of the 
information would result in competitive harm; or
    (6) The designation made by the submitter in accordance with 
paragraph (c) of this section appears obviously frivolous; except that, 
in such case, the Department must provide the submitter with written 
notice of any final

[[Page 661]]

administrative disclosure determination within a reasonably number of 
days prior to the specified disclosure date.

[55 FR 9318, Mar. 13, 1990]