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Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Rules and Regulations
disclosed in part or if providing an estimate would harm an interest protected by an applicable exemption;
4 A statement that the denial may be appealed under 1401.27, and a description of the appeal requirements;
and 5 A statement notifying the requester of the assistance available from the Agencys FOIA Public Liaison, and the dispute resolution services offered by Office of Government Information Services.
g Markings on released documents.
Records disclosed in part must be marked clearly to show the amount of information redacted and the exemption under which the redaction was made unless doing so would harm an interest protected by an applicable exemption.
The location of the information redacted must also be indicated on the record, if technically feasible.
h Use of record exclusions. 1 In the event the FMCS identifies records that may be subject to exclusion from the requirements of the FOIA pursuant to 5
U.S.C. 552c, the Agency will confer with Department of Justice, Office of Information Policy OIP, to obtain approval to apply the exclusion.
2 In the event the FMCS applies an exclusion, it will maintain an administrative record of the process of invocation and approval of the exclusion by OIP.
1401.26 Confidential commercial information CCI.

a Definitions. For purposes of this section:
Confidential commercial information means information obtained by the FMCS from a submitter that may be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C.
552b4.
Submitter means any person or entity, including a corporation, State, or foreign government, but not including another Federal Government entity, that provides confidential commercial 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, at the time of submission, any portion of its submission that it considers to be protected from disclosure under Exemption 4. These designations expire 10 years after the date of the submission unless the submitter requests and provides justification for a longer designation period.
c When notice to submitters is required. 1 The FMCS will promptly
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notify the submitter in writing whenever such confidential commercial information is requested under the FOIA and the Agency determines that it may be required to disclose the information, provided:
i The requested information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or ii The FMCS has a reason to believe that the requested information may be protected from disclosure under Exemption 4, but has not yet made that determination.
2 The notice must 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, the Agency may post or publish a notice in a place or manner reasonably likely to inform the submitters of the proposed disclosure, instead of sending individual notifications.
d Exceptions to submitter notice requirements. The notice requirements of this section do not apply if:
1 The Agency determines that the information is exempt under the FOIA, or the information has been lawfully published or has been officially made available to the public;
2 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 3 The designation made by the submitter appears obviously frivolous.
e Opportunity to object to disclosure.
1 The FMCS must specify a reasonable time period within which the submitter must respond to the notice referenced in paragraph c of this section.
2 If a submitter has any objections to disclosure, it should provide the Agency 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 the basis for nondisclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is privileged or confidential.
3 A submitter who fails to respond within the time period specified in the notice will be considered to have no objection to disclosure of the information. The FMCS is not required to consider any information received after the date of any disclosure decision.
Any information provided by a
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submitter under this subpart may itself be subject to disclosure under the FOIA.
f Analysis of objections. The Agency must consider a submitters objections and specific grounds for nondisclosure in deciding whether to disclose the requested information.
g Notice of intent to disclose.
Whenever the FMCS decides to disclose information over the objection of a submitter, it must provide the submitter written notice, which must include:
1 A statement of the reasons why each of the submitters disclosure objections was not sustained;
2 A description of the information to be disclosed or copies of the records as the Agency intends to release them; and 3 A specified disclosure date, which must be within a reasonable time after the notice.
h Notice of FOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of confidential commercial information, the Agency must promptly notify the submitter.
i Requester notification. The Agency must 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.
1401.27

Appeals.

a Requirements for making an appeal. A requester may appeal any adverse determinations to the Agencys Deputy Director, FOIA Appeal, Federal Mediation and Conciliation Service, 250
E Street SW, Washington, DC 20427;
foia@fmcs.gov. Requesters can submit appeals by mail, email, or via the online portal at www.fmcs.gov/foia. The requester must make the appeal in writing, clearly identifying the grounds therefore and providing any supporting documentation. To be considered timely it must be postmarked or, in the case of electronic submissions, transmitted within 90 calendar days after the date of the response. The appeal should clearly identify the determination that is being appealed and the assigned request number, if known. To facilitate handling, the requester should mark both the appeal letter and envelope, or subject line of the electronic transmission, Freedom of Information Act Appeal.
b Adjudication of appeals. An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation.
c Decisions on appeals. The Deputy Director of the FMCS or designee will provide a decision on an appeal. A

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