(a) Definitions. (1) Confidential commercial information means commercial or financial information obtained from a submitter that may be protected from disclosure under Exemption 4 of the FOIA. Exemption 4 protects:
(1) Confidential commercial information means commercial or financial information obtained from a submitter that may be protected from disclosure under Exemption 4 of the FOIA. Exemption 4 protects:
(i) Trade secrets; or
(ii) Commercial or financial information that is privileged or confidential where either: Disclosure of the information would cause substantial competitive harm to the submitter, or the information is voluntarily submitted and would not customarily be publicly released by the submitter.
(2) Submitter means any person or entity who provides confidential commercial information to OPIC, 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. The markings may be made at the time of submission or at a later time. These markings will be considered by OPIC 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 Unless otherwise requested and approved these markings will be considered no longer applicable ten years after submission or five years after the close of the associated project, whichever is later.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, OPIC's FOIA Office will use reasonable efforts to notify a submitter in writing whenever:
(1) Except as provided in paragraph (d) of this section, OPIC'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; or
(ii) OPIC has reason to believe that the requested information may be protected from disclosure under Exemption 4.
(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. 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) OPIC determines that the information is exempt under the FOIA;
(2) The information lawfully has been published or has been officially made available to the public; or
(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.
(e) Opportunity to object to disclosure. (1) The submitter may, at any time prior to the disclosure date described in paragraph (c)(2) of this section, submit to OPIC's FOIA Office detailed written objections to the disclosure of the requested information, specifying the grounds upon which it contends that the information should not be disclosed. 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 the case of information that the submitter believes to be exempt from disclosure under subsection (b)(4) of the FOIA, the submitter shall explain why the information is considered a trade secret or commercial or financial information that is privileged or confidential and either: How disclosure of the information would cause substantial competitive harm to the submitter, or why the information should be considered voluntarily submitted and why it is information that would not customarily be publicly released by the submitter. Information provided by a submitter pursuant to this paragraph may itself be subject to disclosure under the FOIA.
(1) The submitter may, at any time prior to the disclosure date described in paragraph (c)(2) of this section, submit to OPIC's FOIA Office detailed written objections to the disclosure of the requested information, specifying the grounds upon which it contends that the information should not be disclosed. 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 the case of information that the submitter believes to be exempt from disclosure under subsection (b)(4) of the FOIA, the submitter shall explain why the information is considered a trade secret or commercial or financial information that is privileged or confidential and either: How disclosure of the information would cause substantial competitive harm to the submitter, or why the information should be considered voluntarily submitted and why it is information that would not customarily be publicly released by the submitter. Information provided by a submitter pursuant to this paragraph may itself be subject to disclosure under the FOIA.
(2) 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. Information received after the date of any disclosure decision will not be considered. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA.
(3) The period for providing OPIC with objections to disclosure of information may be extended by OPIC 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, OPIC may permit more than one extension.
(f) Analysis of objections. OPIC 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 OPIC rejects the submitter's objections, in whole or in part, OPIC will promptly 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, OPIC will promptly notify the submitter.
(i) Requester notification. OPIC will notify a requester whenever it provides the submitter with notice and an opportunity to object to disclosure and whenever a submitter files a lawsuit to prevent the disclosure of the information.