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Federal Register / Vol. 86, No. 109 / Wednesday, June 9, 2021 / Proposed Rules destroyed; or the requested record is not readily reproducible in the form or format sought by the requester. A
response will provide an estimate of the volume of any records or any information withheld. Adverse determinations also include denials involving fees or fee waiver matters or denials of requests for expedited processing.
f Information furnished. All denials are in writing and describe in general terms the material withheld; state the reasons for the denial, including, as applicable, a reference to the specific exemption of the FOIA authorizing the withholding; explain your right to appeal the decision and identify the official to whom you should send the appeal; and are signed by the person who made the decision to deny all or part of the request. Records disclosed in part must be marked clearly to show the amount of information deleted and the exemption under which the deletion was made unless doing so would harm an interest protected by an applicable exemption. The location of the information deleted must also be indicated on the record, if technically feasible.
g Conducting searches. USAID
performs a diligent search for records to satisfy your request. Nevertheless, the Agency may not be able to find the records requested using the information provided, or the records may not exist.
Subpart GConfidential Commercial Information
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212.10

Policy and procedure.

a Definitions. 1 Confidential commercial information means commercial or financial information obtained by the Agency from a submitter that may be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552b4.
2 Business submitter means any person or entity, including a corporation, State, or foreign government, but not including another Federal Government entity, that provides information, either directly or indirectly to the Federal Government.
b Designation of confidential commercial information. A submitter of confidential commercial information must use good faith efforts to designate by appropriate markings, either at the time of submission or within a reasonable time thereafter, any portion of its submission that it considers to be protected from disclosure under Exemption 4. These designations shall expire 10 years after the date of the submission unless the submitter
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requests and provides justification for a longer designation period.
c When notice to business submitters is required. 1 The components FOIA
office shall promptly provide written notice to a business submitter of confidential commercial information whenever records containing such information are requested under the FOIA if, after reviewing the request, the responsive records, and any appeal by the requester, the components FOIA
office determines that it may be required to disclose the records, provided:
i The requested information has been designated in good faith by the business submitter as information considered protected from disclosure under Exemption 4; or ii The components FOIA office has a reason to believe that the requested information may be protected from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure under that exemption or any other applicable exemption.
2 The notice shall either describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, notice may be made by posting or publishing the notice in a place or manner reasonably likely to accomplish it.
d Exceptions to business submitter notice requirements. The notice requirements of this section shall not apply if:
1 The components FOIA office determines that the information is exempt under the FOIA;
2 The information has been lawfully published or has been officially made available to the public;
3 Disclosure of the information is required by a statute other than the FOIA or by a regulation issued in accordance with the requirements of Executive Order 12600 of June 23, 1987;
or 4 The designation made by the business submitter appears obviously frivolous, except that, in such a case, the components FOIA office shall give the business submitter written notice of any final decision to disclose the information and must provide that notice within a reasonable number of days prior to a specified disclosure date.
e Opportunity to object to disclosure.
1 The components FOIA office shall specify a reasonable time period within which the business submitter must respond to the notice referenced in this section. If a business submitter has any objections to disclosure, the business
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submitter should provide the components FOIA office with a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4
as basis for nondisclosure, the business submitter must explain why the information constitutes a trade secret or commercial or financial information that is privileged or confidential.
2 A business submitter who fails to respond within the time period specified in the notice shall be considered to have no objection to disclosure of the information.
Information received by the components FOIA office after the date of any disclosure decision shall not be considered by the components FOIA
office. Any information provided by a business submitter under this subpart may itself be subject to disclosure under the FOIA.
f Analysis of objections. The components FOIA office shall consider a business submitters objections and specific grounds for nondisclosure in deciding whether to disclose the requested information.
g Notice of intent to disclose.
Whenever the components FOIA office decides to disclose information over the objection of a business submitter, the components FOIA office shall provide the business submitter written notice, which shall include:
1 A statement of the reasons why each of the business submitters disclosure objections was not sustained;
2 A description of the information to be disclosed; and 3 A specified disclosure date, which shall be a reasonable time subsequent to the notice.
h Notice of FOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of confidential commercial information, the components FOIA office shall promptly notify the business submitter.
i Requester notification. The components FOIA office shall notify the requester whenever it provides the submitter with notice and an opportunity to object to disclosure;
whenever it notifies the submitter of its intent to disclose the requested information; and whenever a submitter files a lawsuit to prevent the disclosure of the information.
Subpart HAdministrative Appeals 212.11

Appeal procedures.

The components FOIA office must inform the requester of the reasons for the denial and the requesters right to appeal the denial to the FOIA Appeals
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