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Confidentiality of Commercial Information

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Information about this document as published in the Federal Register.

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This document has been published in the Federal Register. Use the PDF linked in the document sidebar for the official electronic format.

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Customs and Border Protection, Homeland Security.


Final rule.


This document finalizes, without change, the interim rule published on August 11, 2003, as CBP Decision 03-02, adopting for Customs and Border Protection (CBP), as a component of the Department of Homeland Security, the disclosure procedures that CBP had historically followed as the Customs Service in the Department of the Treasury regarding commercial information that was provided to the agency by a business submitter.


October 16, 2006.

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Gregory R. Vilders, Office of Regulations and Rulings, (202) 572-8772.

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The CBP regulations regarding information requested pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended, are set forth in Part 103 of title 19 of the Code of Federal Regulations (19 CFR Part 103). These regulations were the regulations of the former U.S. Customs Service (Customs). As a component of Treasury, Customs supplemented its regulations with the Treasury regulations (found at 31 CFR Part 1) regarding public access to records. Section 1.6 of the Treasury regulations (31 CFR 1.6) concerns the treatment of information denominated as “business information.” This section provides that such information provided to the Treasury by a “business submitter” shall not be disclosed pursuant to a FOIA request except in accordance with the provisions of the section. Part 103 of the CBP regulations did not have a similar provision, and Customs had followed Treasury's disclosure procedure set forth in 31 CFR 1.6 since it was promulgated in 1987.

Pursuant to the Treasury regulation, Customs did not require business submitters to designate information as protected from disclosure as privileged or confidential under exemption 4 of the FOIA (5 U.S.C. 552(b)(4)) in order for the agency to not disclose such “commercial information,” defined as trade secrets or commercial or financial information obtained from a person and privileged or confidential. For example, Customs routinely considered commercial information appearing on entry documents as confidential and privileged under exemption 4, and did not require business submitters to respond to a notice from Customs with a written detailed statement specifying the reasons for the claim of confidentiality.

On March 1, 2003, Customs was transferred from Treasury to the Department of Homeland Security (DHS). Pub. L. 107-296, 6 U.S.C. 133, 116 Stat. 2135. DHS published its disclosure of information procedures in an interim rule published in the Federal Register (68 FR 4055) on January 27, 2003. Under this rule, established at 6 CFR, Chapter I, Part 5, the DHS FOIA provisions apply to all Treasury components transferred to DHS, except to the extent that such component has adopted separate guidance under the FOIA (6 CFR 5.1(a)(2)).

The DHS FOIA regulation at 6 CFR 5.8(c) provides that a submitter of business information will use good faith efforts to designate, by appropriate markings, either at the time of submission or at a reasonable time thereafter, any portions of its submission that it considers to be protected from disclosure under exemption 4 of the FOIA. The regulations also state that, before business information will be released, notice will be provided to business submitters whenever (1) a FOIA request is made that seeks the business information that has been designated in good-faith as confidential, or (2) the DHS component agency has a reason to believe that the information may be protected from disclosure. When notice is provided by the agency, the submitter is required to submit a detailed written statement specifying the grounds for Start Printed Page 54198withholding any portion of the information and show why the information is a trade secret or commercial or financial information that is privileged or confidential.

Because CBP wished to continue its practice of not requiring business submitters of commercial information to designate such information as protected from disclosure, it published an interim rule in the Federal Register (68 FR 47453) on August 11, 2003, as CBP Decision 03-02 that amended Part 103 of the CBP regulations by adding a new § 103.35 to subpart C. New § 103.35 adopted Treasury's established disclosure procedure that had been followed by Customs since 1987 to assure the trading community that the transfer of Customs from Treasury to DHS would not affect the treatment of commercial information that business submitters provide to CBP.

The comment period for the interim regulations closed on October 10, 2003. No comments were received from the public in response to the interim rule, and CBP is now adopting the interim rule as a final rule without change.

Signing Authority

This final rule is being issued in accordance with 19 CFR 0.2(a) pertaining to the authority of the Secretary of the Department of Homeland Security, or his or her designee, to issue Customs regulations that are not related to customs revenue functions.

Regulatory Flexibility Act and Executive Order 12866

As discussed above, these regulations were published as an interim rule on August 11, 2003. Because no notice of proposed rulemaking was required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply. Further, this document does not meet the criteria for a “significant regulatory action” as specified in Executive Order 12866.

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List of Subjects in 19 CFR Part 103

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Amendments to the Regulations

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For the reasons set forth above, the interim rule amending part 103 of title 19 of the Code of Federal Regulations (

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Dated: September 8, 2006.

Deborah J. Spero,

Acting Commissioner, Customs and Border Protection.

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[FR Doc. E6-15225 Filed 9-13-06; 8:45 am]