[Federal Register Volume 64, Number 57 (Thursday, March 25, 1999)]
[Rules and Regulations]
[Pages 14373-14381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7283]
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EXPORT-IMPORT BANK OF THE UNITED STATES
12 CFR Parts 404 and 405
Comprehensive Revision of Export-Import Bank of the United States
Freedom of Information Act, Privacy Act and other Information
Disclosure Regulations and Implementation of Electronic Freedom of
Information Act Amendments of 1996
AGENCY: Export-Import Bank of the United States.
ACTION: Final rule.
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SUMMARY: This document sets forth comprehensive revisions of the
Export-Import Bank's information disclosure regulations. The
regulations are intended to supersede the Export-Import Bank's current
Freedom of Information Act (FOIA) and Privacy Act regulations, found at
12 CFR parts 404 and 405, respectively. The Export-Import Bank (Ex-Im
Bank) has implemented the following revisions in order to provide more
``user-friendly'' regulations that are consistent with current law,
including the Electronic Freedom of Information Act Amendments of 1996.
The regulations also include updated fee schedules.
DATES: Effective April 26, 1999.
FOR FURTHER INFORMATION CONTACT: Howard A. Schweitzer, Counsel for
Administration, (202) 565-3229.
SUPPLEMENTARY INFORMATION: This is a comprehensive revision of 12 CFR
part 404 (Ex-Im Bank's current FOIA regulations) and 12 CFR part 405
(Ex-Im Bank's current Privacy Act regulations). Part 404 contains Ex-Im
Bank's regulations for the FOIA, found in subpart A, and the Privacy
Act, found in subpart B. Part 404 does not contain any regulations
concerning ``appearance and testimony by Ex-Im Bank officers and
employees,'' currently found at 12 CFR 404.8. Ex-Im Bank has removed
and is reserving part 405 for publication of new regulations entitled
``production and disclosure in federal or state proceedings.''
The FOIA and related disclosure regulations, in addition to setting
forth Ex-Im Bank's basic FOIA policy and procedure, include provisions,
found in Sec. 404.7, to implement Executive Order 12600,
``Predisclosure Notification Procedures for Confidential Commercial
Information.'' The regulations also set forth a revised ``schedule of
fees,'' found in Sec. 404.8. The changes include increases in the
hourly fees for clerical and professional time to $16.00 and $32.00,
respectively, and a decrease in duplication charges, from $.25 to $.10
per photocopy. New provisions implementing the Electronic Freedom of
Information Act Amendments of 1996 (Pub. L. 104-231) can be found in
Sec. 404.3 (public reference facilities), Sec. 404.5 (time for
processing), and Sec. 404.8(d) (material withheld). The regulations
also establish, in Sec. 404.11 (administrative appeal), the Ex-Im Bank
Assistant General Counsel for Administration as the appellate authority
for administrative appeals under the FOIA. This final rule does not
include certain provisions that were published at 63 FR 48452, August
4, 1998, in an amendment to the proposed rule. Due to comments received
from relevant sources, Ex-Im Bank has decided to withdraw the
substantive
[[Page 14374]]
provisions of the proposed amendments.
The Privacy Act regulations set forth Ex-Im Bank's basic Privacy
Act policy and procedures. The regulations also include the following
provisions concerning matters not previously addressed: Sec. 404.19
(Request for accounting of record disclosures); Sec. 404.20 (Notice of
court-ordered and emergency disclosures); Sec. 404.21 (Submission of
social security and passport numbers); and Sec. 404.22 (Government
contracts). The regulations do not include a section published in the
proposed rule concerning employee standards of conduct. Ex-Im Bank
determined that existing statutes and regulations adequately provide
for the protection of information covered by the Privacy Act.
Regulatory Flexibility Act
The Ex-Im Bank President and Chairman, in accordance with the
Regulatory Flexibility Act (5 U.S.C. 605(b)), has certified that this
regulation will not have a significant economic impact on a substantial
number of small entities. Under the Freedom of Information Act,
agencies may recover only the direct costs of searching for, reviewing,
and duplicating the records processed for requesters. Under the Privacy
Act, agencies may recover only duplication costs. Thus, fees assessed
by Ex-Im Bank under these regulations will be nominal. Also, Ex-Im Bank
receives, on average, less than two hundred FOIA and Privacy Act
requests per year, and only one in four of those requests is made by a
small entity
Certification
In accordance with the Regulatory Flexibility Act, I hereby certify
that the Freedom of Information Act and Privacy Act regulations of the
Export-Import Bank of the United States will not have a significant
economic impact on a substantial number of small entities.
James A. Harmon,
President & Chairman.
Dated: November 20, 1997.
Executive Order 12866
This regulation has been drafted and reviewed in accordance with
the Executive Order. The Office of Management and Budget has determined
that this rule is not a ``significant regulatory action,'' as defined
by the Executive Order.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by state, local, and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a ``major rule,'' as defined by the Small Business
Enforcement Fairness Act of 1996. This rule will not result in an
annual effect on the economy of $100,000,000 or more; a major increase
in cost or prices; or significant adverse effects on competition,
employment, investment, productivity, innovation, or on the ability of
United States-based companies to compete with foreign-based companies
in domestic and export markets.
List of Subjects
12 CFR Part 404
Administrative practice and procedure, Confidential business
information, Freedom of information, Privacy.
12 CFR Part 405
Administrative practice and procedure, Privacy.
For the reasons stated in the preamble, Ex-Im Bank amends 12 CFR
chapter IV as follows:
1. 12 CFR part 404 is revised to read as follows:
PART 404--INFORMATION DISCLOSURE
Subpart A--Procedures for Disclosure of Records Under the Freedom of
Information Act.
Sec.
404.1 General provisions.
404.2 Definitions.
404.3 Public reference facilities.
404.4 Request requirements.
404.5 Time for processing.
404.6 Release of records under the Freedom of Information Act.
404.7 Confidential business information.
404.8 Initial determination.
404.9 Schedule of fees.
404.10 Fee waivers or reductions.
404.11 Administrative appeal.
Subpart B--Protection of Privacy and Access to Records Under the
Privacy Act of 1974
Sec.
404.12 General provisions.
404.13 Definitions.
404.14 Requirements of request for access.
404.15 Initial determination.
404.16 Schedule of fees.
404.17 Appeal of denials of access.
404.18 Requests for correction of records.
404.19 Request for accounting of record disclosures.
404.20 Notice of court-ordered and emergency disclosures.
404.21 Submission of social security and passport numbers.
404.22 Government contracts.
404.23 Other rights and services.
Subpart C--[Reserved]
Subpart D--[Reserved]
Subpart E--[Reserved]
Authority: 5 U.S.C. 552 and 552a.
Section 404.7 also issued under E.O. 12600, 52 F.R. 23781, 3
CFR, 1987 Comp., p. 235.
Section 404.21 also issued under 5 U.S.C. 552a note.
Subpart A--Procedures for Disclosure of Records Under the Freedom
of Information Act.
Sec. 404.1 General provisions.
(a) Purpose. This subpart establishes policy, procedures,
requirements, and responsibilities for administration of the Freedom of
Information Act (FOIA), 5 U.S.C. 552, at the Export-Import Bank of the
United States (Ex-Im Bank).
(b) Policy. It is Ex-Im Bank's policy to honor all requests for the
disclosure of its records, provided that disclosure would not adversely
affect a legitimate public or private interest and would not impose an
unreasonable burden on Ex-Im Bank. However, this subpart also
recognizes that the soundness of many Ex-Im Bank programs depends upon
the receipt of reliable commercial, technical, financial, and business
information relating to applicants for Ex-Im Bank assistance and that
receipt of such information depends on Ex-Im Bank's ability to hold
such information in confidence. Consequently, except as provided by
applicable law and this regulation, information provided to Ex-Im Bank
in confidence will not be disclosed without the submitter's consent.
(c) Scope. All record requests made to Ex-Im Bank shall be
processed under this subpart, except that information customarily
furnished to the public in the regular course of the performance of
official duties may continue to be furnished to the public without
complying with this subpart. Requests made by individuals under the
Privacy Act of 1974 which are processed under subpart B of this part
also shall be processed under this subpart A.
(d) Ex-Im Bank Internet site. Ex-Im Bank maintains an Internet site
at http://www.exim.gov. The site contains information on Ex-Im Bank
functions, activities, programs, and transactions.
[[Page 14375]]
Web site visitors have access to Board of Directors and Loan Committee
meeting minutes, country information, and Ex-Im Bank press releases,
among other information. Ex-Im Bank encourages all prospective FOIA
requesters to visit the site prior to submission of a FOIA request.
(e) Delegation. Any action or determination in this subpart which
is the responsibility of a specific Ex-Im Bank employee, may be
delegated to a duly designated alternate.
(f) Ex-Im Bank address. The Export-Import Bank of the United States
is located at 811 Vermont Avenue, NW, Washington, DC 20571.
Sec. 404.2 Definitions.
For purposes of this subpart, the following definitions shall
apply:
All other requesters--Requesters other than commercial use
requesters, educational and non-commercial scientific requesters, or
representatives of the news media.
Appeal--A written request to the Ex-Im Bank Assistant General
Counsel for Administration for reversal of an adverse initial
determination.
Business information--Potentially confidential commercial or
financial information that is provided to Ex-Im Bank.
Business submitter--Any person who provides business information to
Ex-Im Bank.
Commercial use request--A request for a use or purpose that
furthers the commercial, trade or profit interest of the requester.
Direct costs--Expenditures incurred in the search, review, and
duplication of records in response to a FOIA request.
Educational institution--A preschool, a public or private
elementary or secondary school, an institution of undergraduate or
graduate higher education, or an institution of professional or
vocational education.
Final determination--The written decision by the Assistant General
Counsel for Administration on an appeal.
Initial determination--The initial written determination by Ex-Im
Bank regarding disclosure of requested records.
Non-commercial scientific institution--An institution that is
operated for the purpose of conducting scientific research the results
of which are not intended to promote any particular product or industry
and that is not operated solely for purposes of furthering a business,
trade or profit interest.
Person--An individual, partnership, corporation, association or
organization other than a federal government agency.
Record--All papers, memoranda or other documentary material, or
copies thereof, regardless of physical form or characteristics, created
or received by Ex-Im Bank and preserved as evidence of the activities
of Ex-Im Bank. ``Record'' does not include publications which are
available to the public through the Federal Register, sale or free
distribution.
Redaction--The process of removing non-disclosable material from a
record so that the remainder may be released.
Representative of the news media--A person actively gathering
information on behalf of an entity organized and operated to publish or
broadcast news to the public. Freelance journalists shall qualify as
representatives of the news media when they can demonstrate that a
request is reasonably likely to lead to publication.
Request--Any record request made to Ex-Im Bank under the FOIA.
Requester--Any person making a request.
Review--The process of examining a record to determine whether any
portion is required to be withheld. It includes redaction, duplication,
and any other preparation for release. Review does not include time
spent resolving general legal and policy issues regarding the
application of exemptions.
Search--The process of identifying and collecting records pursuant
to a request.
Trade secrets--All forms and types of financial, business,
scientific, technical, economic or engineering information, including,
but not limited to, patterns, plans, compilations, program devices,
formulas, designs, prototypes, methods, techniques, processes,
procedures, programs or codes.
Unusual circumstances--The need to search for and collect requested
records from facilities that are separate from Ex-Im Bank headquarters;
the need to search for, collect, and appropriately examine a voluminous
amount of separate and distinct records which are demanded in a single
request; or the need for consultation with another agency a person that
has a substantial interest in the determination of the request.
Working days--All calendar days excluding Saturdays, Sundays, and
Federal Government holidays.
Sec. 404.3 Public reference facilities.
Ex-Im Bank maintains a public reading room which contains the Ex-Im
Bank records that the FOIA requires to be made available for public
inspection and copying. The records available under this section
include copies of records released pursuant to the FOIA that Ex-Im Bank
determines have, or are likely to, become the subject of subsequent
requests for substantially the same records. Requesters shall be
responsible for the cost of duplicating such material in accordance
with the provisions of Sec. 404.9(e). Persons desiring to use the
reading room should contact the Ex-Im Bank Freedom of Information and
Privacy Office, either in writing at the address at Sec. 404.1(f) or by
telephone at (202) 565-3946 or (800) 565-3946, to arrange a time to
inspect the available records.
Sec. 404.4 Request requirements.
(a) Form. Requests must be made in writing and must be signed by,
or on behalf of, the requester. Requests should be addressed to the
Freedom of Information and Privacy Office at the address in
Sec. 404.1(f) and should contain both the return address and telephone
number of the requester.
(b) Description of records requested. Each request must describe
the records sought in sufficient detail so as to enable a professional
employee of Ex-Im Bank familiar with the subject matter of the request
to locate the record with a reasonable amount of effort. A request
shall not be deemed to have been received until such time as the
request adequately identifies the records sought. To the extent
practicable, a description should include relevant dates, format,
subject matter, and the name of any person to whom the record is known
to relate. A general request for records with no accompanying date
restriction, either express or implied, shall be deemed to be a request
for records created within the preceding twelve months.
(c) Fee statement. The request must contain a statement expressing
willingness to pay fees for the requested records or a request for a
fee waiver (see Sec. 404.10) before the request shall be deemed to have
been received. A fee statement may specify the maximum amount a
requester is willing to pay for processing the request.
(1) Whenever a requester submits a FOIA request that does not
contain a fee statement or a request for a fee waiver, Ex-Im Bank shall
advise the requester of the requirements of this paragraph. If the
requester fails to respond within ten working days of such
notification, then the Freedom of Information and Privacy Office shall
notify the requester, in writing, that Ex-Im Bank will not process the
request.
(2) A general statement by the requester expressing willingness to
pay all applicable fees under Sec. 404.9 shall be deemed an agreement
to pay up to $50.00. If Ex-Im Bank estimates that the
[[Page 14376]]
fees for a request will exceed $50.00, then Ex-Im Bank shall offer the
requester the opportunity to agree, in writing, either to pay a greater
fee or to modify the request as a means of limiting the cost.
(d) Written notice of amendment. The requester should provide any
amendment to the original request in writing to Ex-Im Bank.
(e) Requester assistance. Ex-Im Bank shall make reasonable efforts
to assist a requester in complying with the requirements of this
section.
Sec. 404.5 Time for processing.
(a) General. Ex-Im Bank shall respond to requests within twenty
working days of the date of receipt of the request unless unusual
circumstances exist. Ex-Im Bank shall provide written notice to the
requester whenever such unusual circumstances necessitate an extension.
If the extension is expected to exceed ten working days, then Ex-Im
Bank shall offer the requester the opportunity to:
(1) Alter the request so that it may be processed within the time
limit; or
(2) Propose an alternative, feasible time frame for processing the
request.
(b) Date of receipt. A request shall be deemed to have been
received on the date that the request is received in the Freedom of
Information and Privacy Office, provided that the requester has met all
the requirements of Sec. 404.4. Ex-Im Bank shall notify the requester
of the date on which a request was officially received.
(c) Order of processing. Ex-Im Bank ordinarily shall process
requests according to their order of receipt.
(d) Expedited processing. A request for expedited processing must
be included in the original request for records and may be granted at
the discretion of Ex-Im Bank based upon the requester's demonstration
of:
(1) An imminent threat to the life or physical safety of an
individual; or
(2) In the case of a requester who is a representative of the news
media, an urgency to inform the public concerning actual or alleged
Federal Government activity. Ex-Im Bank shall provide notice of its
determination on expedited processing to the requester. A requester may
file an administrative appeal, as set forth at Sec. 404.11, based on a
denial of a request for expedited processing. Ex-Im Bank shall grant
expeditious consideration to any such appeal.
Sec. 404.6 Release of records under the Freedom of Information Act.
(a) Creation of records. A reasonable request for material not in
existence may be honored at Ex-Im Bank's discretion when tabulation or
compilation will not significantly burden Ex-Im Bank, its programs or
its activities.
(b) Discretionary release. Consistent with federal government
policy, material technically qualifying for exemption from disclosure
under 5 U.S.C. 552(b)(5) may be made available when disclosure would
not adversely affect legitimate public or private interests, violate
law or impose an unreasonable burden on Ex-Im Bank. This policy does
not, however, create any right enforceable in a court of law.
(c) Segregable records. Whenever it is determined that a portion of
a record is exempt from disclosure, any reasonably segregable portion
of the record shall be provided to the requester after redaction of the
exempt material. If segregation would render the document meaningless,
Ex-Im Bank shall withhold the entire record.
(d) Date for determining responsive records. Only those records
within Ex-Im Bank's possession and control as of the date of receipt of
a request shall be deemed to be responsive to a request.
Sec. 404.7 Confidential business information.
(a) Scope. This section applies to all business information, as
defined in Sec. 404.2. Such information shall only be disclosed
pursuant to a FOIA request in accordance with this section.
(b) Submitter designation. All business submitters should
designate, by appropriate markings, either at the time of submission or
at a reasonable time thereafter, any portion of any submission that
they consider to be exempt from disclosure under 5 U.S.C. 552(b)(4).
(c) Pre-disclosure notice to the business submitter. Whenever Ex-Im
Bank receives a FOIA request seeking disclosure of business
information, Ex-Im Bank shall provide prompt written notice to the
submitter of such information. This notice shall include a description
or a copy of the records containing the business information. Such
notice shall not be required, however, if:
(1) Ex-Im Bank determines that the records shall not be disclosed;
(2) The records have been published or otherwise made available to
the public; or
(3) disclosure of the records is required by law.
(d) Opportunity to object to disclosure. The business submitter
shall have ten working days from and including the date of the
notification letter to provide Ex-Im Bank with a detailed statement of
any objection to disclosure of the records. A submitter located outside
the United States shall have twenty working days to object to
disclosure. Ex-Im Bank may extend the time for objection upon timely
request from the submitter and for good cause shown. A statement of
objection must specify all grounds under the FOIA for withholding the
information.
(e) Notice to the requester. The Freedom of Information and Privacy
Office shall notify the requester in writing whenever a business
submitter is afforded the opportunity to object to disclosure of
records pursuant to paragraph (c) of this section.
(f) Disclosure of confidential business information. Ex-Im Bank
shall consider any objections raised by the business submitter prior to
making its disclosure decision.
(g) Notice of intent to disclose. Whenever Ex-Im Bank determines to
disclose business information over the objection of a business
submitter, Ex-Im Bank shall notify the business submitter, in writing,
of such determination, the reasons for the decision, and the expected
disclosure date. This notification--which shall be provided at least
ten days prior to the planned disclosure date and which shall include a
copy or description of the records at issue--is intended to afford the
submitter the opportunity to seek judicial review.
(h) Notice to requester of disclosure date. If Ex-Im Bank
determines to disclose records over a business submitter's objection,
then Ex-Im Bank shall notify the requester of the expected disclosure
date.
(i) Appeal. Whenever Ex-Im Bank determines to disclose, pursuant to
an administrative appeal, business information that initially was
withheld from disclosure under 5 U.S.C. 552(b)(4), Ex-Im Bank shall
notify the business submitter. Such notice shall be in writing and
shall be provided ten working days prior to the proposed disclosure
date. It shall include a copy or description of the records at issue
and a statement of Ex-Im Bank's reasons for disclosure.
(j) Notice of FOIA lawsuit. Ex-Im Bank shall promptly notify the
submitter whenever a requester brings suit against Ex-Im Bank seeking
to compel the release of business information covered by this section.
Ex-Im Bank shall promptly notify the requester when a submitter brings
suit against Ex-Im seeking to restrict the release of business
information that is covered by this section.
(k) Exception. Notwithstanding the foregoing provisions of this
part, Ex-Im Bank may, upon request or on its own initiative, publicly
disclose the parties to transactions for which Ex-Im Bank
[[Page 14377]]
approves support, the amount of such support, the identity of any
participants involved, a general description of the related U.S.
exports, and the country to which such exports are destined.
Sec. 404.8 Initial determination.
(a) Authority to grant or deny requests. The Freedom of Information
and Privacy Office shall be responsible for search, review, and the
initial determination.
(b) Referrals to other government agencies. A requested record in
Ex-Im Bank's possession that was created or classified by another
Federal agency shall be referred to such agency for direct response to
the requester. The Freedom of Information and Privacy Office shall
notify the requester of any such referral, the number of documents so
referred, and the name and address of each agency to which the request
has been referred.
(c) Notification of Ex-Im Bank action. The Freedom of Information
and Privacy Office shall notify the requester in writing of its
decision to grant or deny the request.
(1) If the decision is made to grant a request, then Ex-Im Bank
shall promptly disclose the requested records and shall inform the
requester of any fee payable under Sec. 404.9.
(2) A denial is a determination to withhold any requested record in
whole or in part, a determination that a requested record does not
exist or cannot be located or a determination that what has been
requested is not a record subject to the FOIA. Whenever Ex-Im Bank
withholds information, such notice shall include:
(i) The name, title, and signature of the person responsible for
the determination;
(ii) The statutory basis for non-disclosure; and
(iii) A statement that any denial may be appealed under Sec. 404.11
and a brief description of the requirements of that section.
(d) Material withheld. Ex-Im Bank shall make reasonable efforts to
inform the requester of the volume of material withheld pursuant to a
full or partial denial and the extent of any redaction. Ex-Im Bank
shall not, however, indicate the extent of any denial when doing so
could harm an interest protected by an applicable exemption.
Sec. 404.9 Schedule of fees.
(a) General. Ex-Im Bank shall charge fees to recover the full
allowable direct costs it incurs in processing requests. Ex-Im Bank
shall attempt to conduct searches in the most efficient manner to
minimize costs for both Ex-Im Bank and the requester.
(b) Categories of requesters. Fees shall be assessed according to
the status of the requester. The specific schedule of fees for each
requester category (each as defined in Sec. 404.2) is prescribed as
follows:
(1) Commercial use requesters. Ex-Im Bank shall charge the full
costs for search, review, and duplication.
(2) Educational and non-commercial scientific institution
requesters. Ex-Im Bank shall charge only for the cost of duplication in
excess of 100 pages. No fee will be charged for search or review.
(3) Representatives of the news media. Ex-Im Bank shall charge only
for the cost of duplication in excess of 100 pages. No fee will be
charged for search or review.
(4) All other requesters. Ex-Im Bank shall charge for the cost of
search, review, and duplication, except that 100 pages of duplication
and two hours of professional search time shall be furnished without
charge.
(c) Search and review fees. Ex-Im Bank shall charge the following
fees for search and review:
(1) Clerical. Hourly rate--$16.00.
(2) Professional. Hourly rate--$32.00.
(3) Computer Searches. Hourly rate--based upon the salary of the
employee performing the work and the cost of operating any equipment.
(d) Administrative appeals. Ex-Im Bank shall not charge for
administrative review of an exemption applied in an initial
determination. Ex-Im Bank shall charge, however, for search and review
pursuant to an administrative appeal if the appeal is based on a claim
other than the application of an exemption in the initial
determination.
(e) Duplication. Ex-Im Bank shall charge $.10 per page for paper
copy duplication. Ex-Im Bank shall charge the actual or estimated cost
of copies prepared by computer, such as tape or printouts, or for other
methods of duplication. When duplication charges are expected to exceed
$50.00, Ex-Im Bank shall seek the requester's consent to be responsible
for the estimated charges unless a requester has already expressed a
willingness to pay duplication fees in excess of $50.00. Ex-Im Bank
shall also offer the requester the opportunity to alter the request in
order to reduce duplication costs.
(f) Fees for searches that produce no records. Fees shall be
payable as provided in this section even though searches and review do
not generate any disclosable records.
(g) Aggregating requests. A requester, or a group of requesters
acting in concert, shall not file multiple requests, seeking portions
of a record or similar or related records, in order to avoid payment of
fees. Ex-Im Bank shall aggregate any such requests and charge as if the
requests were a single request.
(h) Special services charges. Complying with requests for special
services such as those listed in this paragraph is entirely at the
discretion of Ex-Im Bank. Ex-Im Bank shall recover the full costs of
providing such services to the extent that it elects to provide them.
(1) Certifications. Ex-Im Bank shall charge $25.00 to certify the
authenticity of any Ex-Im Bank record or any copy of such record.
(2) Special shipping. Ex-Im Bank may ship by special means (e.g.,
express mail) if the requester so desires, provided that the requester
has paid or has expressly undertaken to pay all costs of such special
services. Ex-Im Bank shall not charge for ordinary packaging and
mailing.
(i) Minimum fee. Ex-Im Bank shall waive a final fee of $5.00 or
less.
(j) Advance payment. Whenever Ex-Im Bank estimates that the fees
are likely to exceed $250.00, Ex-Im Bank shall notify the requester of
the likely cost and shall require an advance payment of an amount up to
the full estimated charges.
(k) Failure to pay fee. Ex-Im Bank shall not process a request by a
requester who has failed to pay a fee for a previous request unless and
until such a requester had paid the full amount owed and also has paid,
in advance, the total estimated charges for the new request. The
administrative time limits for the new request--set forth in
Sec. 404.5--shall begin to run only after Ex-Im Bank has received the
payments described in this section.
Sec. 404.10 Fee waivers or reductions.
(a) General. Upon request, Ex-Im Bank shall consider a
discretionary fee waiver or reduction of the fees chargeable under
Sec. 404.9.
(b) Form of request for fee waiver. Ex-Im Bank shall deny a request
for a waiver or reduction of fees that does not clearly address each of
the following:
(1) The proposed use of the records and whether the requester will
derive income or other benefit from such use;
(2) An explanation of the reasons why the public will benefit from
such use; and
(3) If specialized use of the records is contemplated, a statement
of the requester's qualifications that are relevant to the specialized
use.
(d) Burden of proof. In all cases, the requester has the burden of
presenting sufficient evidence or information to
[[Page 14378]]
justify the fee waiver or reduction. The requester may use the
procedures set forth in Sec. 404.11 to appeal a denial of a fee waiver
request.
(e) Employee requests. Fees of less than $50.00 shall be waived in
connection with any request by an employee, former employee, or
applicant for employment, related to a grievance or complaint of
discrimination against Ex-Im Bank.
Sec. 404.11 Administrative appeal.
(a) General. Whenever a request for records, a fee waiver or
expedited processing has been denied, the requester may appeal the
denial within thirty days of the date of Ex-Im Bank's issuance of
notice of such action. Any denial under this subpart must be appealed
according to this section before a requester is eligible to seek
judicial review.
(b) Form. Appeals must be made in writing and must be signed by the
appellant. Appeals should be addressed to the Assistant General Counsel
for Administration at the address at Sec. 404.1(f). Both the envelope
and the appeal letter should be clearly marked in capital letters:
``FREEDOM OF INFORMATION ACT APPEAL.'' Failure to properly mark or
address the appeal may slow its processing. The letter should include:
(1) A copy of the denied request or a description of the records
requested;
(2) The name and title of the Ex-Im Bank employee who denied the
request;
(3) The date on which the request was denied;
(4) The Ex-Im Bank identification number assigned to the request;
and
(5) The return address and telephone number of the appellant.
(c) Processing schedule. Appeals shall not be deemed to have been
received until the Assistant General Counsel for Administration
receives the appeal. Ex-Im Bank shall notify the requester of the date
on which an appeal was officially received. The disposition of an
appeal shall be made in writing within twenty working days after the
date of receipt of an appeal. The Assistant General Counsel for
Administration may extend the time for response an additional ten
working days if unusual circumstances exist, provided that the
Assistant General Counsel for Administration notifies the requester in
writing.
(d) Ex-Im Bank decision. A final determination which affirms an
adverse initial determination shall set forth the reasons for affirming
the denial and shall advise the requester of the right to seek judicial
review. If the initial determination is reversed on appeal, the request
shall be remanded to the Freedom of Information and Privacy Office to
be processed promptly in accordance with the decision on appeal,
subject to Sec. 404.7(i).
Subpart B--Access to Records Under the Privacy Act of 1974
Sec. 404.12 General provisions.
(a) Purpose. This subpart establishes policies, procedures,
requirements, and responsibilities for administration of the Privacy
Act of 1974, 5 U.S.C. 552a, at the Export-Import Bank of the United
States (Ex-Im Bank).
(b) Relationship to the Freedom of Information Act. The Privacy Act
applies to records contained in a systems of records, as defined in
Sec. 404.13. If an individual submits a request for access to records
and cites the Privacy Act, but the records sought are not contained in
a Privacy Act system of records, then the request shall be processed
only under subpart A of this part, Procedures for Disclosure of Records
Under the Freedom of Information Act. All requests properly processed
under this subpart B shall also be processed under subpart A of this
part.
(c) Appellate authority. The Ex-Im Bank Assistant General Counsel
for Administration is the appellate authority for all Privacy Act
requests.
(d) Delegation. Any action or determination in this subpart which
is the responsibility of a specific Ex-Im Bank employee may be
delegated to a duly designated alternate.
(e) Ex-Im Bank address. The Export-Import Bank of the United States
is located at 811 Vermont Avenue, NW, Washington, DC 20571.
Sec. 404.13 Definitions.
For purposes of this subpart, the following definitions shall
apply:
Appeal--A written request to the Ex-Im Bank Assistant General
Counsel for Administration for reversal of an adverse initial
determination.
Final determination--The written decision by the Assistant General
Counsel for Administration on an appeal.
Individual--A citizen of the United States or an alien lawfully
admitted for permanent residence.
Initial determination--The initial written determination in
response to a Privacy Act request.
Record--Any item, collection or grouping of information about an
individual that is maintained within a system of records and that
contains the individual's name or an identifying number, symbol or
other identifying particular assigned to the individual.
Redaction--The process of removing non-disclosable material from a
record so that the remainder may be released.
Request for access--A request to view a record.
Request for accounting--A request for a list of all disclosures of
a record.
Request for correction--A request to modify a record.
Requester--An individual who makes a request under the Privacy Act.
Review--The process of examining a record to determine whether any
portion is required to be withheld.
Search--The process of identifying and collecting records pursuant
to a request.
System of records--A group of any records under the control of an
agency from which information is retrieved by the name of the
individual or some identifying number, symbol or other identifying
particular assigned to the individual.
Working days--All calendar days excluding Saturdays, Sundays, and
Federal Government holidays.
Sec. 404.14 Requirements of request for access.
(a) Form. Requests for access must be made in writing and must be
signed by the requester. Requests should be addressed to the Freedom of
Information and Privacy Office at the address in Sec. 404.12(e) and
should contain both the return address and telephone number of the
requester.
(b) Description of records sought. A request for access must
describe the records sought in sufficient detail so as to enable Ex-Im
Bank personnel to locate the system of records containing the records
with a reasonable amount of effort. To the extent practicable, such
description should include the nature of the record sought, the date of
the record or the period in which the record was compiled, and the name
or identifying number of the system of records in which the requester
believes the record is kept. A requester may include his or her social
security number in the request in order to facilitate the
identification and location of the requested records.
(c) Fee statement. The request must contain a statement expressing
willingness to pay fees for processing the request or a request for a
fee waiver (see Sec. 404.16(d)).
(1) Whenever a requester submits a request for access that does not
contain a fee statement or a request for a fee waiver, Ex-Im Bank shall
advise the requester of the requirements of this section. If the
requester fails to respond within ten working days of such
notification, then the Freedom of
[[Page 14379]]
Information and Privacy Office shall notify the requester, in writing,
that Ex-Im Bank will not process the request.
(2) A general statement by the requester expressing willingness to
pay all applicable fees shall be deemed an agreement to pay up to
$25.00. If Ex-Im Bank estimates that the fees for a request will exceed
$25.00, then Ex-Im Bank shall notify the requester. Ex-Im Bank shall
offer the requester the opportunity to agree, in writing, either to pay
a greater fee or to modify the request as a means of limiting the cost.
(3) Whenever the estimated fee chargeable under this section
exceeds $25.00, Ex-Im Bank reserves the right to require a requester to
make an advance payment prior to processing the request.
(4) Ex-Im Bank shall not process a request by a requester who has
failed to pay a fee for a previous request unless and until such
requester had paid the full amount owed and also has paid, in advance,
the total estimated charges for the new request.
(d) Verification of identity. An individual who submits a request
for access must verify his or her identity. The request must include
the requesters full name, current address, and date and place of birth.
In addition, such requester must provide a notarized statement
attesting to his or her identity.
(e) Verification of guardianship. When a parent or guardian of a
minor or the guardian of a person judicially determined to be
incompetent submits a request for access to records that relate to the
minor or incompetent, such parent or guardian must establish:
(1) His or her own identity and the identity of the subject of the
record in accordance with paragraph (d) of this section; and
(2) Parentage or guardianship of the subject of the record, either
by providing a copy of the subject's birth certificate showing
parentage or by providing a court order establishing guardianship.
(f) Written notice of amendment. The requester must provide any
amendment to the original request in writing to Ex-Im Bank.
(g) Requester assistance. Ex-Im Bank shall make reasonable efforts
to assist a requester in complying with the requirements of this
section.
(h) Date of receipt. Requests for access shall be deemed to have
been received on the date that the request is received by the Freedom
of Information and Privacy Office, provided that all the requirements
of this section have been met. Ex-Im Bank shall notify the requester of
the date on which it officially received a request.
Sec. 404.15 Initial determination.
(a) Time for processing. The Freedom of Information and Privacy
Office shall respond to valid requests for access within twenty working
days of the date of receipt of the request letter. The time for
response may be extended an additional ten working days for good cause,
provided that the Freedom of Information and Privacy Office notifies
the requester in writing.
(b) Notice regarding request for access. The Freedom of Information
and Privacy Office shall notify the requester in writing of its
decision to grant or deny a request for access.
(1) If the request is granted, then the notice shall either include
the requested records, in releasable form, or shall describe the manner
in which access to the record will be granted. The notice also shall
inform the requester of any processing fee.
(2) A denial is a determination to withhold any requested record in
whole or in part or a determination that the requested record does not
exist or cannot be located. If the request is denied, then the denial
notice shall state:
(i) The name, signature, and title or position of the person
responsible for the denial;
(ii) The reasons for the denial; and
(iii) The procedure for appeal of the denial under Sec. 404.17 and
a brief description of the requirements of that section.
(c) Form of record disclosure. Ex-Im Bank shall grant access to the
requested records either by providing the requester with a copy of the
record or, at the requester's option, by making the record available
for inspection at a reasonable time and place. If Ex-Im Bank makes the
record available for inspection, such inspection shall not unreasonably
disrupt Ex-Im Bank operations. In addition, the requester must provide
a form of official photographic identification--such as a passport,
driver's license or identification badge--and any other form of
identification bearing his or her name and address prior to inspection
of the requested records. Records may be inspected by the requester in
the presence of another individual, provided that the requester signs a
form stating that Ex-Im Bank is authorized to disclose the record in
the presence of both individuals.
Sec. 404.16 Schedule of fees.
(a) Search and review. Ex-Im Bank shall not charge for search and
review.
(b) Duplication. Ex-Im Bank shall charge $.10 per page for paper
copy duplication. Ex-Im Bank shall charge the actual or estimated cost
of copies prepared by computer, such as tape or printouts, or for other
methods of reproduction or duplication.
(c) Minimum fee. Ex-Im Bank shall waive final fees of $5.00 or
less.
(d) Fee waivers. Ex-Im Bank may waive fees whenever it is
determined to be in the public interest. Fees of less than $50.00 shall
be waived in connection with any request by an employee, former
employee or applicant for employment, related to a grievance or
complaint of discrimination against Ex-Im Bank.
(e) Special services charges. Complying with requests for special
services such as those listed in this paragraph is entirely at the
discretion of Ex-Im Bank. Ex-Im Bank shall recover the full costs of
providing such services to the extent that it elects to provide them.
(1) Certifications. Ex-Im Bank shall charge $25.00 to certify the
authenticity of any Ex-Im Bank record or any copy of such record.
(2) Special shipping. Ex-Im Bank may ship by special means (e.g.,
express mail) if the requester so desires, provided that the requester
has paid or has expressly undertaken to pay all costs of such special
services. Ex-Im Bank shall not charge for ordinary packaging and
mailing.
Sec. 404.17 Appeal of denials of access.
(a) Appeals to the Assistant General Counsel for Administration.
Whenever Ex-Im Bank denies a request for access or for waiver or
reduction of fees, the requester may appeal the denial to the Assistant
General Counsel for Administration within 30 working days of the date
of Ex-Im Bank's issuance of notice of such action. Appeals must be made
in writing and must be signed by the appellant. Appeals should be
addressed to the Assistant General Counsel for Administration at the
address in Sec. 404.12(e). Both the envelope and the appeal letter
should be clearly marked in capital letters: ``PRIVACY ACT APPEAL.''
Failure to properly mark or address the appeal may slow its processing.
An appeal shall not be deemed to have been received by Ex-Im Bank until
the Assistant General Counsel for Administration receives the appeal
letter. The letter should include:
(1) A copy of the denied request or a description of the records
requested;
(2) The name and title of the Ex-Im Bank employee who denied the
request;
(3) The date on which the request was denied; and
(4) The Ex-Im Bank identification number assigned to the request.
[[Page 14380]]
(b) Final determination. The disposition of an access appeal shall
be made in writing within twenty working days after the date of receipt
of the appeal. The Assistant General Counsel for Administration may
extend the time for response an additional ten working days for good
cause, provided that the requester is notified in writing. A decision
affirming the denial of a request for access shall include a brief
statement of the reasons for affirming the denial and shall advise the
requester of the right to seek judicial review. If the initial
determination is reversed, then the request shall be remanded to the
Freedom of Information and Privacy Office to be processed in accordance
with the decision on appeal.
Sec. 404.18 Requests for correction of records.
(a) Form. Requests for correction must be made in writing and must
be signed by the requester. Requests should be addressed to the Freedom
of Information and Privacy Office at the address in Sec. 404.12(e) and
should contain both the return address and telephone number of the
requester. The request must identify the particular record in question,
state the correction sought, and set forth the justification for the
correction. The requester also must verify his or her identity in
accordance with the procedures set forth at Sec. 404.14(d) and (e).
Both the envelope and the request for correction itself should be
clearly marked in capital letters: ``PRIVACY ACT CORRECTION REQUEST.''
(b) Initial determination. The Freedom of Information and Privacy
Office shall respond to valid correction requests within ten working
days of receipt of the request letter. If Ex-Im Bank grants the request
for correction, then the Freedom of Information and Privacy Office
shall advise the requester of his or her right to obtain a copy, in
releasable form, of the corrected record. A denial notice shall state
the reasons for the denial and shall advise the requester of the right
to appeal. Ex-Im Bank shall not charge for processing requests for
correction.
(c) Appeal of denial of request for correction. Whenever Ex-Im Bank
denies a request for correction, the requester may appeal the denial to
the Assistant General Counsel for Administration within thirty working
days of Ex-Im Bank's issuance of notice of such action. Appeals must be
made in writing and must be signed by the appellant. Appeals should be
addressed to the Assistant General Counsel for Administration at the
address set forth in Sec. 404.12(e). Both the envelope and the appeal
letter should be clearly marked in capital letters: ``PRIVACY ACT
CORRECTION APPEAL.'' Failure to properly mark or address the appeal may
slow its processing. An appeal shall not be deemed to have been
received by Ex-Im Bank until the Assistant General Counsel for
Administration receives the appeal letter. The letter must include:
(1) A copy of the denied request or a description of the correction
sought;
(2) The name and title of the Ex-Im Bank employee who denied the
request;
(3) The date on which the request was denied;
(4) The Ex-Im Bank identification number assigned to the request;
and
(5) Any information said to justify the correction.
(d) Final determination on correction appeal. (1) The disposition
of an appeal shall be made in writing within twenty working days after
the date of receipt of an appeal. The Assistant General Counsel for
Administration may extend the time for response an additional ten
working days for good cause, provided that the requester is notified in
writing.
(2) A decision affirming the denial of a request for access shall
advise the appellant of the:
(i) Reasons for affirming the denial;
(ii) Right to seek judicial review; and
(iii) Right to file a statement of disagreement, as provided in
paragraph (e) of this section.
(3) If the initial determination is reversed, then the request
shall be remanded to the Freedom of Information and Privacy Office to
be processed in accordance with the decision on appeal.
(e) Statement of disagreement. Upon denial of a correction appeal,
the appellant shall have the right to file a statement of disagreement
with Ex-Im Bank, setting forth his or her reasons for disagreeing with
the Agency's action. The statement should be addressed to the Freedom
of Information and Privacy Office at the address in Sec. 404.12(e) and
must be received within thirty working days of Ex-Im Bank's issuance of
the denial notice. A statement of disagreement must not exceed one
typed page per fact disputed. Statements exceeding this limit shall be
returned to the requester for editing. Upon receipt of a statement of
disagreement under this section, the Freedom of Information and Privacy
Office shall have the statement included in the system of records in
which the disputed record is maintained and shall have the disputed
record marked so as to indicate that a Statement of Disagreement has
been filed. Ex-Im Bank may also append to the disputed record a written
statement regarding Ex-Im Bank's reasons for denying the request to
correct the record.
(f) Notices of correction or disagreement. In any disclosure of a
record for which Ex-Im Bank has received a statement of disagreement,
Ex-Im Bank shall clearly note any portion of the record which is
disputed and shall provide a copy of the statement of disagreement. Ex-
Im Bank also may provide its own statement regarding the disputed
record. In addition, whenever Ex-Im Bank corrects a record or receives
a statement of disagreement, Ex-Im Bank shall, as is reasonable under
the circumstances, advise any person or agency to which it previously
disclosed such record of the correction or statement, provided that an
accounting of such disclosure exists.
Sec. 404.19 Request for accounting of record disclosures.
(a) Required information. With respect to each system of records
under Ex-Im Bank control, Ex-Im Bank shall maintain an accurate
accounting of the date, nature, and purpose of each external disclosure
of a record and the name and address of all persons, organizations, and
agencies to which disclosure has been made. Ex-Im Bank shall retain
this accounting for at least five years or the life of the record,
whichever is longer.
(b) Form. An individual may obtain an accounting of all disclosures
of a record, provided that such individual establishes his or her
identity as the subject of such record in accordance with the
procedures set forth at Sec. 404.14(d) and (e). A request for an
accounting must be made in writing and must be signed by the requester.
The request should be addressed to the Freedom of Information and
Privacy Office at the address in Sec. 404.12(e) and should contain both
the return address and telephone number of the requester. Both the
envelope and the request itself should be clearly be marked in capital
letters: ``PRIVACY ACT ACCOUNTING REQUEST.'' Failure to properly mark
or address the request may slow its processing. The request shall not
be deemed to have been received by Ex-Im Bank until the Freedom of
Information and Privacy Office receives the request. The letter must
clearly identify the particular record for which the accounting is
requested.
(c) Initial determination. The Freedom of Information and Privacy
Office shall notify the requester whether the request will be granted
or denied within ten working days of receipt of a valid request for an
accounting. Ex-Im Bank
[[Page 14381]]
shall not charge for processing such a request.
(d) Exceptions. Ex-Im Bank shall not be required to provide an
accounting to an individual when the accounting relates to a disclosure
made:
(1) To an employee within the agency;
(2) Under the FOIA; or
(3) To a law enforcement agency for an authorized law enforcement
activity in response to a written request from such agency which
specified the law enforcement activity for which the disclosure was
sought.
Sec. 404.20 Notice of court-ordered and emergency disclosures.
(a) Court-ordered disclosures. When a record pertaining to an
individual is required to be disclosed by a court order, the Assistant
General Counsel for Administration shall make reasonable efforts to
provide notice to the subject individual. Notice shall be given within
a reasonable time after Ex-Im Bank's receipt of the order, except that
in a case in which the order is not a matter of public record, notice
shall be given only after the order becomes public. Such notice shall
be mailed to the individual's last known address and shall contain a
copy of the order and a description of the information disclosed.
(b) Emergency disclosures. If a record has been disclosed by Ex-Im
Bank under compelling circumstances affecting the health or safety of
any person, then, within ten working days, the Assistant General
Counsel for Administration shall notify the subject individual of the
disclosure at his or her last known address. The notice of such
disclosure shall be in writing and shall state the:
(1) Nature of the information disclosed;
(2) Person, organization or agency to which it was disclosed;
(3) Date of disclosure; and
(4) Compelling circumstances justifying the disclosure.
Sec. 404.21 Submission of social security and passport numbers.
(a) Policy. Ex-Im Bank recognizes the importance of assessing, to
the extent reasonably possible, the risks associated with transactions
supported by Ex-Im Bank. It is often difficult to assess risks related
to individuals and non-publicly trade entities. Therefore, when an
individual or a non-publicly traded entity applies for participation in
an Ex-Im Bank program or is proposed as a guarantor for an Ex-Im Bank
transaction, Ex-Im Bank may request social security and/or U.S.
passport numbers from such individual or from the principals of such
entity. Ex-Im Bank shall not require submission of this information,
and unwillingness or inability to provide a social security or passport
number shall not affect Ex-Im Bank's decision on an application for Ex-
Im Bank assistance.
(b) Use. Ex-Im Bank shall use social security and passport numbers
to assess the creditworthiness of Ex-Im Bank program participants and
as a mechanism for enforcing agreements with Ex-Im Bank. Such
information shall not be disclosed, except as warranted by law and
regulation.
(c) Notice. Whenever Ex-Im Bank requests a social security or
passport number, Ex-Im Bank shall place an appropriate Privacy Act
notification on the form used to collect the information.
Sec. 404.22 Government contracts.
(a) Approval by Assistant General Counsel for Administration. Ex-Im
Bank shall not contract for the operation of a system of records or for
an activity that requires access to a system of records without the
express, written approval of the Assistant General Counsel for
Administration.
(b) Contract clauses. Any contract authorized under paragraph (a)
of this section shall contain the standard contract clauses required by
the Federal Acquisition Regulation (48 CFR 24.104) to ensure compliance
with the requirements imposed by the Privacy Act. The division within
Ex-Im Bank that is responsible for technical supervision of the
contract shall be responsible for ensuring that the contractor complies
with the Privacy Act contract requirements.
(c) Contractor status. Any contractor that operates an Ex-Im Bank
system of records or engages in an activity that requires access to an
Ex-Im Bank system of records shall be considered an Ex-Im Bank employee
for purposes of this subpart. Ex-Im Bank shall supply any such
contractor with a copy of the regulations in this subpart upon entering
into a contract with Ex-Im Bank.
Sec. 404.23 Other rights and services.
Nothing in this subpart shall be construed to entitle any person to
any service or to the disclosure of any record to which such person is
not entitled under the Privacy Act.
Subpart C--[Reserved]
Subpart D--[Reserved]
Subpart E--[Reserved]
PART 405--[REMOVED AND RESERVED]
2. 12 CFR part 405 is removed and reserved.
Dated: March 16, 1999.
Kenneth W. Hansen,
General Counsel.
[FR Doc. 99-7283 Filed 3-24-99; 8:45 am]
BILLING CODE 6690-01-P
