Section 1662.21 - The FOIA Exemption 4: Trade secrets and confidential commercial or financial informationThe FOIA exempts from disclosure trade secrets as well as commercial or financial information that is obtained from a person that is either privileged or confidential. SSS will allow submitters to designate information as trade secrets and confidential commercial or financial information at the time of submission or within a reasonable time thereafter. Submitters must use good faith efforts to designate, by appropriate markings, any portion of its submission that it considers to be protected from disclosure under the FOIA exemptions. These designations expire ten years after the due date of the submission unless the submitter requests a longer designation period.
(a)Steps of submitters notice -(1)The submitter's notice. When trade secrets or confidential commercial or financial information is requested under the FOIA, the Chief FOIA Officer will provide written submitter's notice if they have substantial reason to believe that information in the records could reasonably be considered exempt under the FOIA Exemption 4. The submitter's notice will describe and include a copy of the trade secret, or commercial or financial information requested. In cases involving many submitters, SSS may publish a submitter's notice to inform the submitters of the proposed disclosure instead of sending individual notifications. The submitter's notice requirements of this section do not apply if: (i) The Chief FOIA Officer determines the information is fully exempt under the FOIA, and therefore will not be disclosed;(ii) The information has been previously published or made generally available; or(iii) Disclosure of the information is required by statute other than the FOIA. (2)Submitter's opportunity to object to disclosure.(i) The submitter must respond to the notice within five business days of the Chief FOIA Officer issuing the submitter's notice or the information may be released in accordance with these regulations and the FOIA. A submitter who fails to respond within five business days will be considered to have no objection to the disclosure of the information. The Chief FOIA Officer is not required to consider any information received after the date of any disclosure decision. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA.(ii) If a submitter objects to disclosure, the submitter should provide the Chief FOIA Officer with a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. To rely on Exemption 4 as basis for nondisclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is confidential.(iii) The Chief FOIA Officer will consider a submitter's timely made objections and specific grounds for nondisclosure in deciding whether to disclose the requested information.(3)Notice of intent to disclose. Whenever the Chief FOIA Officer decides to disclose information over the objection of a submitter, they must provide the following to the submitter:(i) A Release Over Objection letter explaining the reasons why each of the submitter's disclosure objections did not meet the requirements for withholding under the FOIA;(ii) A copy of the information as SSS intends to release it; and(iii) A statement of the Chief FOIA Officer's intent to disclose the information five business days from the date on the Release Over Objection letter unless the submitter files an action in a U.S. District Court to prevent the release.(b)Notice of FOIA lawsuit. When a submitter's notice is issued for a request that is the subject of a lawsuit, the Chief FOIA Officer shall notify the submitter of the lawsuit within the notice.(c)Requester notification. To the extent the Chief FOIA Officer expects substantial delays in the processing of FOIA requests due to the Agency's communications with the submitter, they will notify the requester in writing via email, or when the requester's email is not provided, via U.S. postal mail.