§ 1206.610Notice to submitters of commercial information.
(a) General policy. Upon receipt of a request for commercial information pursuant to the Freedom of Information Act, NASA shall provide the submitter with notice of the request in accordance with the requirements of this section.
(b) Notice to submitters. Except as provided in paragraph (g) or (h) of this section, the Agency shall make a good faith effort to provide a submitter with prompt notice of a request appearing to encompass its commercial information whenever required under paragraph (c) of this section. Such notice shall identify the commercial information requested and shall inform the submitter of the opportunity to object to its disclosure in accordance with paragraph (d) of this section. If the submitter would not otherwise have access to the document that contains the information, upon the request of the submitter, the Agency shall provide access to, or copies of, the records or portions thereof containing the commercial information. This notice shall be provided in writing upon the request of the submitter. Whenever the Agency provides notice pursuant to this section, the Agency shall advise the requester that notice and opportunity to comment are being provided to the submitter.
(c) When notice is required. Notice shall be given to a submitter whenever the information has been designated by the submitter as information deemed protected from disclosure under Exemption 4 of the Act, or the Agency otherwise has reason to believe that the information may be protected from disclosure under Exemption 4.
(d) Opportunity to object to disclosure. Through the notice described in paragraph (b) of this section, the Agency shall afford a submitter a reasonable period within which to provide the Agency with a detailed statement of any objection to disclosure. This period shall not exceed 10 working days from the date after which the Agency can reasonably assume receipt of notice by the submitter, unless the submitter provides a reasonable explanation justifying additional time to respond. If the Agency does not receive a response from the submitter within this period, the Agency shall proceed with its review of the information and initial determination. The submitter's response shall include all bases, factual or legal, for withholding any of the information pursuant to Exemption 4. Information provided by a submitter pursuant to this paragraph may itself be subject to disclosure under the FOIA. Submitters will not be provided additional opportunities to object to disclosure, and, therefore, should provide a complete explanation of any and all bases for withholding any information from disclosure.
(e) Notice of intent to disclose. The Agency shall carefully consider any objections of the submitter in the course of determining whether to disclose commercial information. Whenever the Agency decides to disclose commercial information over the objection of a submitter, the Agency shall forward to the submitter a written statement which shall include the following:
(1) A brief explanation as to why the Agency did not agree with any objections;
(2) A description of the commercial information to be disclosed, sufficient to identify the information to the submitter; and
(3) A date after which disclosure is expected. Such notice of intent to disclose shall be forwarded to the submitter in a reasonable number of working days prior to the expected disclosure date.
(f) Notice of FOIA lawsuit. Whenever a requester brings suit seeking to compel disclosure of commercial information covered by paragraph (c) of this section, the Agency shall promptly notify the submitter. Whenever a submitter brings suit against the Agency in order to prevent disclosure of commercial information, the Agency shall promptly notify the requester.
(g) Exceptions to notice requirements. The notice requirements of this section do not apply if—
(1) The information has been published or otherwise made available to the public.
(2) Disclosure of the information is required by law (other than 5 U.S.C. 552);
(3) The submitter has received notice of a previous FOIA request which encompassed information requested in the later request, and the Agency intends to withhold and/or release information in the same manner as in the previous FOIA request;
(4) Upon submitting the information or within a reasonable period thereafter,
(i) The submitter reviewed its information in anticipation of future requests pursuant to the FOIA,
(ii) Provided the Agency a statement of its objections to disclosure consistent with that described in paragraph (e) of this section, and
(iii) The Agency intends to release information consistent with the submitter's objections;
(5) Notice to the submitter may disclose information exempt from disclosure pursuant to 5 U.S.C. 552(b)(7).
(1) An additional limited exception to the notice requirements of this section, to be used only when all of the following exceptional circumstances are found to be present, authorizes the Agency to withhold information which is the subject of a FOIA request, based on Exemption 4 (5 U.S.C. 552(b)(4)), without providing the submitter individual notice:
(i) The Agency would be required to provide notice to over 10 submitters, in which case, notification may be accomplished by posting or publishing the notice in a place reasonably calculated to accomplish notification.
(ii) Absent any response to the published notice, the Agency determines that if it provided notice as is otherwise required by paragraph (c) of this section, it is reasonable to assume that the submitter would object to disclosure of the information based on Exemption 4; and,
(iii) If the submitter expressed the anticipated objections, the Agency would uphold those objections.
(2) This exemption shall be used only with the approval of the Chief Counsel of the Center, the Attorney-Advisor to the Inspector General, or the Associate General Counsel responsible for providing advice on the request. This exception shall not be used for a class of documents or requests, but only as warranted by an individual FOIA request.