CBP Final Rule on Confidentiality, Disclosure Procedures Regarding FOIA Requests, Etc. for Commercial Information Provided by Business Submitters

(According to CBP, 19 CFR 103.35 was promulgated in 2003 to continue the disclosure procedures regarding FOIA requests for commercial information that it had followed under Department of Treasury regulations when CBP was the U.S. Customs Service.)

Entry Documentation Is Not Disclosed as a Matter of Policy

CBP previously stated in the preamble to the 2003 interim rule, that under 19 CFR 103.35, there is no affirmative requirement of business submitters to designate commercial information as privileged or confidential, although the regulations do allow a business submitter to designate information as confidential in 19 CFR 103.35(b)(1)(i) and business submitters may avail themselves of this option when such a designation is feasible, for example, when submitting a ruling request.

However, in situations where there is no method by which to designate information as confidential, such as entry documentation, CBP also previously stated that its position is that the commercial information will not be disclosed as a matter of policy (see 19 CFR 103.35(b)(2)(i)).

103.35 - Confidentiality/Disclosure Procedures for Commercial Information

1. CFR 103.35 (Confidential commercial information; exempt) sets forth CBP's policy regarding the disclosure of commercial information when a FOIA or other information request is made. Highlights of this regulation include the following (partial list):

The regulation defines "commercial information" as trade secret, commercial, or financial information obtained from a person. In addition, commercial information that has been provided to CBP by a business submitter will be treated as privileged or confidential and will not be disclosed pursuant to a FOIA request or otherwise made known in any manner except as provided in 19 CFR 103.35.

1. CFR 103.35 provides that CBP must give written notice, unless excepted, to a business submitter whose commercial information is the subject of a FOIA request or appeal i) when the business submitter has in good faith designated the information as commercially- or financially-sensitive (such a claim should be supported by a statement by an authorized representative) or ii) CBP believes that disclosure could cause substantial competitive harm.

Exceptions to such written notice include when CBP determines that the commercial information will not be disclosed (see above regarding CBP's determination for entry documentation); the commercial information is publicly available; or disclosure is required by law.

The regulation also details the procedure a business submitter must follow to object to the proposed disclosure; the "notice of intent to disclose" provisions that CBP must follow when it decides to disclose requested commercial information over the objection of the business submitter; the notification requirement when there is a FOIA lawsuit, etc.

(See ITT's Online Archives or 08/14/03 news, 03081415, for BP summary of interim final rule.)

CBP Contact - Gregory Vilders (202) 572-8772

CBP Final Rule (CBP Decision 06-24, FR Pub 09/14/06) available athttp://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/E6-15225.pdf

BP Notes

1. 19 CFR Part 103 (Availability of Information) governs the production/disclosure of agency-maintained documents/information requested pursuant to various disclosure laws (e.g., FOIA) and or legal processes. For example, the confidentiality/disclosure requirements regarding vessel cargo manifest information is provided for in 103.31.
2. On January 27, 2003, DHS issued an interim rule that contained procedures for obtaining information from DHS. However, DHS states that these FOIA provisions only apply to Department components transferred to DHS that have not adopted separate guidance under FOIA. This DHS interim rule is available at http://a257.g.akamaitech.net/7/257/2422/14mar20010800/edocket.access.gpo.gov/2003/pdf/03-1996.pdf)