(a) Notice shall be given to a submitter whenever the information requested is commercial information and 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. For the purpose of applying the notice requirements, commercial information is information provided by a submitter and in the possession of NASA, that may arguably be exempt from disclosure under the provisions of Exemption 4 of the FOIA (5 U.S.C. 552(b)(4)). The meaning ascribed to this term for the purpose of this notice requirement is separate and should not be confused with use of this or similar terms in determining whether information satisfies one of the elements of Exemption 4.

(b) A submitter is a person or entity outside the Federal Government from whom the Agency directly or indirectly obtains commercial or financial information. The term submitter includes, but is not limited to corporations, state governments, individuals, and foreign governments.

(c) The notice requirements of § 1206.601 will not apply if:

(1) The information has been lawfully published or officially made available to the public; or

(2) Disclosure of the information is required by a statute (other than this part); or

(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.

(d) An additional limited exception to the notice requirements of § 1206.601, to be used only when all of the following exceptional circumstances are found to be present, authorizes the Agency to withhold information that is the subject of a FOIA request, based on Exemption 4 (5 U.S.C. 552(b)(4)), without providing the submitter individual notice when:

(1) The Agency would be required to provide notice to over ten (10) submitters, in which case, notification may be accomplished by posting or publishing the notice in a place reasonably calculated to accomplish notification.

(2) Absent any response to the published notice, the Agency determines that if it provided notice as is otherwise required by § 1206.601, it is reasonable to assume that the submitter would object to disclosure of the information based on Exemption 4; and,

(3) If the submitter expressed the anticipated objections, the Agency would uphold those objections.

(e) The exception shall be used only with the approval of the Chief Counsel of the Center, the Counsel 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.

(a) Except as provided in § 1206.603(b) and § 1206.603(c), the Agency shall provide a submitter with prompt written notice of a FOIA request that seeks its commercial information whenever required under § 1206.600(a).

(b) A notice to a submitter must include:

(1) The exact language of the request or an accurate description of the request;

(2) Access to or a description of the responsive records or portions thereof containing the commercial information to the submitter;

(3) A description of the procedures for objecting to the release of the possibly confidential information under § 1206.602;

(4) A time limit for responding to the Agency that shall not exceed 10 working days from the date of the letter sent to the submitter by the FOIA Office or publication of the notice (as set forth in § 1206.603(b)) to object to the release and to explain the basis for the objection;

(5) Notice that the information contained in the submitter's objections may itself be subject to disclosure under the FOIA;

(6) Notice that the Agency, not the submitter, is responsible for deciding whether the information shall be released or withheld;

(7) Notice that failing to respond within the timeframe specified under § 1206.601(b)(4) will create a presumption that the submitter has no objection to the disclosure of the information in question.

(c) 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.

(a) If a submitter has any objections to the disclosure of commercial information, the submitter must provide a detailed written statement to the FOIA office that specifies all factual and/or legal grounds for withholding the particular information under any FOIA exemptions.

(b) The submitter must include a daytime telephone number, an email and mailing address, and a fax number if available on a response to the FOIA office.

(c) A submitter who does not respond within the time period specified under this subpart will be considered to have no objection to disclosure of the information.

(d) Responses received by the FOIA office after the time period specified in § 1206.601(b)(4) will not be considered by the FOIA office. An extension of time to respond may be granted provided the submitter provides an explanation justifying additional time within the time period specified in § 1206.601(b)(4).

(a) The Agency shall carefully consider any objections of the submitter in the course of determining whether to disclose commercial information. The Agency, not the submitter, is responsible for deciding whether the information will be released or withheld.

(b) 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 information to the submitter; and

(3) A date after which disclosure is expected, which shall be no less than 10 working days from the date of the letter providing notification to the submitter by the FOIA Office (§ 1206.601).

(c) The FOIA office will provide notification regarding a FOIA lawsuit:

(1) To a submitter, when a requester brings suit seeking to compel disclosure of commercial information; or

(2) To a requester, when a submitter brings suit against the Agency in order to prevent disclosure of commercial information.