[Federal Register Volume 71, Number 178 (Thursday, September 14, 2006)]
[Rules and Regulations]
[Pages 54197-54198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-15225]


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DEPARTMENT OF HOMELAND SECURITY

Bureau of Customs and Border Protection

19 CFR Part 103

[CBP Dec. 06-24]
RIN 1651-AA47


Confidentiality of Commercial Information

AGENCY: Customs and Border Protection, Homeland Security.

ACTION: Final rule.

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SUMMARY: 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.

EFFECTIVE DATE: October 16, 2006.

FOR FURTHER INFORMATION CONTACT: Gregory R. Vilders, Office of 
Regulations and Rulings, (202) 572-8772.

SUPPLEMENTARY INFORMATION:

Background

    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

[[Page 54198]]

withholding 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 Sec.  103.35 to subpart C. New Sec.  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.

List of Subjects in 19 CFR Part 103

    Administrative practice and procedure, Confidential commercial 
information, Freedom of Information, Reporting and recordkeeping 
requirements.

Amendments to the Regulations

0
For the reasons set forth above, the interim rule amending part 103 of 
title 19 of the Code of Federal Regulations (19 CFR part 103), which 
was published in the Federal Register at 68 FR 47453 on August 11, 
2003, is adopted as a final rule without change.

    Dated: September 8, 2006.
Deborah J. Spero,
Acting Commissioner, Customs and Border Protection.
 [FR Doc. E6-15225 Filed 9-13-06; 8:45 am]
BILLING CODE 9111-14-P