Freedom of Information Act Requirements
| Citation | 87 FR 16107 |
| Record Number | 2022-05322 |
| Published date | 22 March 2022 |
| Section | Proposed rules |
| Court | Export-import Bank |
Federal Register, Volume 87 Issue 55 (Tuesday, March 22, 2022)
[Federal Register Volume 87, Number 55 (Tuesday, March 22, 2022)]
[Proposed Rules]
[Pages 16107-16117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05322]
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EXPORT-IMPORT BANK
12 CFR Part 404
[Docket No. EIB-2022-0001]
Freedom of Information Act Requirements
AGENCY: Export-Import Bank of the United States.
ACTION: Proposed rule.
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SUMMARY: The Export-Import Bank of the United States (EXIM) is
publishing for comment proposed revisions to its regulations under the
Freedom of Information Act (FOIA). The revisions are intended to
incorporate amendments to the FOIA under the FOIA Improvement Act of
2016, developments in the case law, and changes in Federal and EXIM
policies. The proposed revisions are also intended to clarify
procedural requirements. The proposed revisions occur throughout the
FOIA regulations and are predominantly procedural in nature.
DATES: Comments should be received by April 21, 2022.
ADDRESSES: You may submit comments by any of the following methods:
The Federal eRulemaking Portal located at https://www.regulations.gov, following the instructions for providing comment;
Email to [email protected], including ``Proposed Rule
Comments'' in the subject line.
Mail to the Chief Freedom of Information Act Officer,
Export-Import Bank of the United States, 811 Vermont Ave. NW,
Washington, DC 20571; and
Instructions: All submissions should refer to File Number EIB-2022-
0001. To help us process and review your comments more efficiently,
please use only one method of providing comments. Comments submitted by
mail will be accepted as timely if they are postmarked on or before
April 21, 2022. Electronic comments may be submitted via
www.regulations.gov prior to midnight Eastern Standard Time on April
21, 2022. Comments submitted via email will be accepted as timely if
they are date stamped on or before the comment date.
Do not include any sensitive information in your submission. All
comments received will be posted without change to regulations.gov,
including any personal information provided.
FOR FURTHER INFORMATION CONTACT: Chief Freedom Information Act Officer
Lisa Terry at lisa.t[email protected]; (202) 565-3290.
SUPPLEMENTARY INFORMATION:
I. Background
EXIM is proposing revisions to its regulations under the FOIA, 5
U.S.C. 552. The revisions incorporate changes in law under the FOIA
Improvement Act of 2016, developments in case law, and changes in
Federal and EXIM policies. While incorporating these changes, EXIM has
also sought to simplify and clarify its regulations. Due to the scope
of the proposed revisions, the proposed rule would replace EXIM's
current FOIA regulations in their entirety (12 CFR 404.1 through
404.11).
II. Discussion of Changes in Proposed Rule
The numbered paragraphs immediately below provide an overview of
the proposed changes to the regulations. At the conclusion of this
preamble, the new proposed regulations are set forth in their entirety.
1. Amended: Authority
The authority citation for part 404 would be amended to include
additional cites to EXIM's statutory charter (12 U.S.C. 635(a)(1)) and
the rulemaking provisions of the Administrative Procedures Act (5
U.S.C. 553). Citations to Executive orders imposing administrative
requirements on EXIM would be removed. The amended general authority
would be 12 U.S.C. 635(a)(1); 5 U.S.C. 552, 5 U.S.C. 552(a), 5 U.S.C.
553.
2. Redesignate Sec. Sec. 404.24 Through 404.36
------------------------------------------------------------------------
Old section New section
------------------------------------------------------------------------
404.24.................................................. 404.26
404.25.................................................. 404.27
404.26.................................................. 404.28
404.27.................................................. 404.29
404.28.................................................. 404.30
404.29.................................................. 404.31
404.30.................................................. 404.32
404.31.................................................. 404.33
404.32.................................................. 404.34
404.33.................................................. 404.35
404.34.................................................. 404.36
404.35.................................................. 404.37
404.36.................................................. 404.38
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3. Redesignate Sec. Sec. 404.12 Through 404.23
------------------------------------------------------------------------
Old section New section
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404.12.................................................. 404.14
404.13.................................................. 404.15
404.14.................................................. 404.16
404.15.................................................. 404.17
404.16.................................................. 404.18
404.17.................................................. 404.19
404.18.................................................. 404.20
404.19.................................................. 404.21
404.20.................................................. 404.22
404.21.................................................. 404.23
404.22.................................................. 404.24
404.23.................................................. 404.25
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4. Amended: Sec. 404.1, General Provisions
This section would be amended to clarify the purpose and scope of
the FOIA regulations and to remove the current paragraph (b) setting
forth EXIM policy. EXIM policies comply with the FOIA and related
guidance, as set forth in the remainder of the regulations, and the
current (un-amended) paragraph (b) is either duplicative or could cause
confusion.
Current paragraphs (d) and (e) describe EXIM's proactive
disclosures and provide EXIM's internet address and mailing address.
This information would be amended and moved to proposed Sec. Sec.
404.2, Proactive disclosures, and 404.3, Request requirements.
5. Removed: Current Sec. 404.2, Definitions
This section would be eliminated, with most of the definitions
relocated to the sections in which the defined terms are used. The
majority of the relocated
[[Page 16108]]
definitions pertain to current Sec. 404.16, Schedule of fees. The
definitions of ``Confidential business information'' and ``Submitter''
would be relocated to the section currently labelled ``Confidential
business information.'' The proposed regulations would change the
phrase ``confidential business information'' to ``confidential
commercial information'' for greater consistency with the statutory
language, related case law, and applicable guidance. ``Working days''
was relocated to the section addressing time for processing, previously
at Sec. 404.5.
Several other definitions would be eliminated as unnecessary due to
their being common usage, duplicative of information contained
elsewhere, or otherwise sufficiently clear in meaning from the context
in which they are used. These terms would be eliminated for purposes of
brevity and clarity. This includes the definitions of appeal, final
determination, initial determination, person, redaction, request, and
requester.
The current definition of ``trade secrets'' would be eliminated as
legally incorrect.
6. Amended: Proposed Sec. 404.2, Proactive Disclosures
This section would be renumbered from current Sec. 404.3 to Sec.
404.2 and renamed ``Proactive disclosures.'' The current wording
describes procedures for accessing a physical reading room at EXIM's
headquarters, while the proposed revision would include the online
reading room now required by the FOIA. The amended section would also
state that EXIM's FOIA Liaison is available to help requesters locate
information online. In addition, the amended section would newly
describe the data that EXIM posts at data.exim.gov on EXIM's
transactions.
7. Amended: Proposed Sec. 404.3, Request Requirements
This section would be renumbered from current Sec. 404.4 to Sec.
404.3. This section would encourage potential requesters to review the
information publicly available on the EXIM website before submitting a
request. EXIM believes it is in requesters' best interest to review the
significant amount of information available online before submitting a
request.
This section also would newly state the electronic means for
submitting a request, including by email to [email protected] and through
the online portal at www.exim.gov/about/foia. The current requirement
that requesters sign their request would be eliminated as inconsistent
with the FOIA and EXIM's past practice of accepting unsigned electronic
submissions. Requesters would instead need to provide contact
information.
In the proposed regulations, the current statement that a general
request to pay applicable fees is deemed a request to pay up to $50.00
would be eliminated. This statement is viewed as potentially
inconsistent with the Office of Management and Budget's (OMB's) FOIA
Fee Guidelines, which requires agencies to notify requesters of fees
exceeding $25.00.
This section would also clarify and update the language that sets
forth the process for obtaining records by the requester him or herself
(or a third party), and the need for a request to provide an adequate
description of the records. The section would also provide for FOIA
Public Liaison assistance in reformulating a request.
8. Added: Proposed Sec. 404.5, Responsibility for Responding to
Requests
This newly added section would provide the Freedom of Information
and Privacy Office the authority to respond to requests, establish a
``cut off'' date for searches at the time the search is conducted,
address classified information, and describe EXIM's procedures for
working with other agencies in the processing of requests--including
through consultations, referrals, and other types of coordination.
9. Amended: Proposed Sec. 404.6, Time for Processing
This section would be renumbered from current Sec. 404.5 to Sec.
404.6. It would newly incorporate the statutory definition of ``unusual
circumstances'' and ``working days.'' This section would also newly
provide for multitrack processing, with the following tracks:
Expedited, simple, and complex. This section would also seek to clarify
the current language and add additional detail to the expedited
processing provisions.
10. Amended: Proposed Sec. 404.7, Release of Records
This section would be renumbered from current Sec. 404.6 to Sec.
404.7 and renamed. It would newly include the foreseeable harm
requirement for discretionary exemptions, added by the FOIA Improvement
Act of 2016.
The current paragraph (a), addressing the ``creation of records,''
would be eliminated as both inconsistent with the FOIA and unnecessary.
Even if this subsection is eliminated, EXIM would retain the authority
to create appropriate records.
As indicated above, the current paragraph (d) addressing the ``cut
off'' date for searches would be amended and relocated to Sec. 404.5.
11. Amended: Proposed Sec. 404.8, Responses to Requests
Section 404.8, Initial determination, would be renamed for purposes
of clarity and greater consistency with other agency FOIA regulations.
The section would also newly provide for communication with requesters
by email and EXIM's online portal, newly provide for the
acknowledgement of requests, and more fully describe EXIM obligations
when there is either a full grant of the requested records or an
adverse determination of some kind. This section would also newly
address FOIA exclusions under 5 U.S.C. 552(c).
As required by the FOIA Improvement Act of 2016, this section would
also require EXIM to notify requesters of the services provided by the
Office of Government Information Services (OGIS).
12. Amended: Proposed Sec. 404.9, Confidential Commercial Information
This section would be renumbered from current Sec. 404.7,
Confidential business information, to Sec. 404.9 and renamed. The
title ``confidential business information'' would be changed to
``confidential commercial information'' to better match the wording of
the requirements in Exemption 4, case law, related guidance, and other
agency FOIA regulations. The protections and procedures would remain
the same and are in accordance with Executive Order 12600, but the
proposed amendments here seek to provide additional detail and clarity
for requesters based on the legal standards applicable under Exemption
4.
13. Amended: Proposed Sec. 404.10, Schedule of Fees
This section would be renumbered from current Sec. 404.9 to Sec.
404.10. As referenced above, this section would newly incorporate
amended versions of the definitions that are currently located in a
general definitions section at Sec. 404.2. The amended language would
also update and provide additional detail on EXIM's fee practices,
consistent with OMB's Fee Guidelines.
The rate for clerical search and review time would be increased
from $16.00/hour to $33.00/hour. The rate for professional search and
review time would be increased from $32.00/hour to $57.00/hour. This
proposal reflects
[[Page 16109]]
increased labor rates since the regulations were last updated in 1999.
Notice of anticipated fees would generally be provided when the
estimated fees exceed $25.00, unless a requester has already agreed to
pay more or has received a waiver. This is lowered from the current
$50.00 to better match OMB's Fee Guidelines.
14. Amended: Proposed Sec. 404.11, Fee Waivers or Reductions
This section would be renumbered from current Sec. 404.10 to Sec.
404.11. As with the prior two sections addressed above, this section
would be expanded to provide additional guidance and clarity for
requesters. The substantive standards for seeking fee waivers are
governed by the FOIA and related case law, however, and would remain
unchanged. Current paragraph (e), Employee Requests, would be removed
because the FOIA is generally not needed for employees or applicants to
obtain information related to a complaint of discrimination.
Discrimination complaints are governed by procedures established by the
Equal Employment Opportunity Commission and, regardless, EXIM would
retain the authority to grant discretionary fee waivers and reductions.
15. Amended: Proposed Sec. 404.12, Administrative Appeals
This section would be renumbered from current Sec. 404.11 to Sec.
404.12. The proposed changes would provide for the electronic
submission of appeals and notify appellants of the ability to seek
assistance from OGIS.
16. Amended: Proposed Sec. 404.13, Preservation of Records
This newly added section would provide for the preservation of all
correspondence associated with a request, as well as all requested
records, under appropriate records schedules. It would also prohibit
the destruction or modification of records while they are subject to a
pending request, administrative appeal, or lawsuit.
17. Amended: Subparts B and C
Cross references in subparts B and C are updated to reflect section
redesignations in the subparts.
Regulatory Flexibility Act Certification
When an agency issues a rulemaking proposal, the Regulatory
Flexibility Act (RFA) requires the agency to ``prepare and make
available for public comment an initial regulatory flexibility
analysis'' which will ``describe the impact of the proposed rule on
small entities.'' (5 U.S.C. 603(a)). Section 605 of the RFA allows an
agency to certify a rule, in lieu of preparing an analysis, if the
proposed rulemaking is not expected to have a significant economic
impact on a substantial number of small entities.
The proposed changes to EXIM's FOIA regulations are predominantly
procedural in nature and many incorporate already binding law and
policy. While the proposed changes also increase the rates that EXIM
uses to charge certain FOIA requesters the direct costs of responding
to a request, this updated fee schedule reflects current EXIM costs and
EXIM remains only able to charge its direct costs of searching for,
reviewing, and duplicating the records processed for requesters. There
are a number of possible exceptions and waivers that reduce the number
of requesters and small entities that may be affected by the proposed
fee changes and, even when charged, these fees are typically small.
When needed, EXIM is able to work with requesters to modify their
request to reduce the chargeable fees while still obtaining the core
information they seek.
As a result, the proposed changes are unlikely to have an economic
impact on requesters regardless of their size and resources.
Accordingly, EXIM hereby certifies that these proposed amendments to
the FOIA regulations, if adopted, would not have a significant economic
impact on a substantial number of small entities. EXIM requests comment
from members of the public regarding the appropriateness and accuracy
of this analysis and certification.
Executive Order 12866
This proposed rule is not a ``significant regulatory action'' for
purposes of Executive Order 12866.
Executive Order 13771
This proposed rule is not a regulatory action under Section 2 of
Executive Order 13771 because it is not significant under Executive
Order 12866 and does not constitute a significant guidance document.
Paperwork Reduction Act
This regulation does not contain a ``collection of information'' as
defined by the Paperwork Reduction Act, 44 U.S.C. 3501, et seq.
List of Subjects in 17 CFR Part 404
Administrative procedures, Freedom of information.
Text of Proposed Amendments
For the reasons stated in the preamble, EXIM proposes to amend 12
CFR part 404 as follows:
PART 404--INFORMATION DISCLOSURE
0
1. The authority citation for part 404 is revised to read as follows:
Authority: 12 U.S.C. 635(a)(1); 5 U.S.C. 552, 5 U.S.C. 552(a), 5
U.S.C. 553.
Section 404.7 also issued under E.O. 12600, 52 FR 23781, 3 CFR,
1987 Comp., p. 235.
Section 404.21 also issued under 5 U.S.C. 552a note.
Subpart C also issued under 5 U.S.C. 301, 12 U.S.C. 635.
Sec. Sec. 404.24 through 404.36 [Redesignated as Sec. Sec. 404.26
through 404.38]
0
2. Redesignate Sec. Sec. 404.24 through 404.36 as Sec. Sec. 404.26
through 404.38.
Sec. Sec. 404.12 through 404.23 [Redesignated as Sec. Sec. 404.14
through 404.25]
0
3. Redesignate Sec. Sec. 404.12 through 404.23 as Sec. Sec. 404.14
through 404.25.
0
4. Revise subpart A to read as follows:
Subpart A--Procedures for Disclosure of Records Under the Freedom
of Information Act
Sec.
404.1 General provisions.
404.2 Proactive disclosures.
404.3 Request requirements.
404.5 Responsibility for responding to requests.
404.6 Time for processing response to requests.
404.7 Release of records.
404.8 Responses to requests.
404.9 Confidential commercial information.
404.10 Schedule of fees.
404.11 Fee waivers or reductions.
404.12 Administrative appeals.
404.13 Preservation of records.
Sec. 404.1 General provisions.
(a) Purpose. This subpart contains the rules that the Export-Import
Bank of the United States (EXIM) follows in processing requests for
records under the Freedom of Information Act (FOIA), 5 U.S.C. 552. This
subpart should be read in conjunction with the text of the FOIA and the
Uniform Freedom of Information Fee Schedule and Guidelines published by
the Office of Management and Budget (OMB Guidelines).
(b) Scope. Requests made by individuals for records about
themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed
in accordance with EXIM's Privacy Act regulations in subpart B of this
part as well as under this subpart.
(c) Delegation. Any action or determination in this subpart which
is
[[Page 16110]]
the responsibility of a specific EXIM employee may be delegated.
Sec. 404.2 Proactive disclosures.
(a) Records that the FOIA requires agencies to make available for
public inspection in an electronic format may be accessed through the
EXIM internet site at https://www.exim.gov/about/foia/frequently-requested-records-and-proactive-disclosures and https://data.exim.gov/.
EXIM is responsible for determining which records must be made publicly
available, for identifying additional records of interest to the public
that are appropriate for public disclosure, and for posting and
indexing such records. EXIM must ensure that its website of posted
records and indices is reviewed and updated on an ongoing basis. EXIM's
FOIA Public Liaison can assist individuals in locating records
particular to the agency. The contact information for the Public
Liaison is available at https://www.exim.gov/about/foia, along with
other FOIA resources.
(b) EXIM proactively discloses information at data.exim.gov on
applications and transactions, whether denied or authorized, including:
Unique identifiers EXIM assigns; approval and declination decisions;
the expiration date for a guarantee or insurance policy; whether an
insurance policy was brokered or not; whether an approved transaction
was cancelled after approval; the country where the credit risk is; the
financing program or product that was applied for, including the type
of any insurance; the primary export product; a product description;
the length of financing on a deal; the principal applicant; the
principal lender; the principal exporter; the city and state of the
primary exporter; the company name of the principal borrower; the
primary source of repayment; the amount of financing approved or
declined; the amount of the loan or guarantee that has been disbursed
or the amount that has been shipped on an insurance policy; the
undisbursed exposure amount; the portion of the disbursed/shipped
amount that has not been repaid; the portion of an approved amount that
assisted a small business; the portion of an approved company that
assisted a woman owned company; the portion of an approved amount that
assisted a minority owned company; the interest rate being applied to a
direct loan; and whether a working capital amount is pursuant to an
extension of a previously approved working capital facility.
Sec. 404.3 Request requirements.
(a) Before submitting a FOIA request, potential requesters are
encouraged to review the information publicly available at https://www.exim.gov/about/foia/frequently-requested-records-and-proactive-disclosures and https://data.exim.gov/. The material you seek may be
immediately available at no cost.
(b)(1)(i) A request for records must be made directly to EXIM in
writing. Requests may be submitted to the EXIM FOIA Office:
(A) By email to [email protected];
(B) Using the online form available at https://www.exim.gov/about/foia;
(C) Using the online FOIAXpress PAL Portal available at https://palprod.eximefoia.com/; and
(D) By mail addressed to the Freedom of Information and Privacy
Office, 811 Vermont Ave. NW, Washington, DC 20571.
(ii) Additional resources and contact information are available at
https://www.exim.gov/about/foia.
(2) A requester who is making a request for records about himself
or herself must comply with the verification of identity requirements
as set forth at Sec. 404.16(d). This requires your request and
signature to be notarized. You may instead submit a statement under 28
U.S.C. 1746, a law that permits statements to be made under penalty of
perjury as a substitute for notarization.
(3) Where a request for records pertains to another individual, a
requester may receive greater access by submitting either a notarized
authorization signed by that individual or a declaration made in
compliance with the requirements set forth in 28 U.S.C. 1746 by that
individual authorizing disclosure of the records to the requester, or
by submitting proof that the individual is deceased (e.g., a copy of a
death certificate or an obituary). As an exercise of administrative
discretion, EXIM can require a requester to supply additional
information if necessary, in order to verify that a particular
individual has consented to disclosure.
(c)(1) Each request must describe the records sought in sufficient
detail to enable EXIM personnel to locate the record with a reasonable
amount of effort. To the extent possible, requesters should include
specific information that may help EXIM identify the requested records,
such as relevant dates, format, subject matter, title, transaction or
reference number, and the name of any person to whom the record is
known to relate. For assistance in drafting a records request,
requesters can contact EXIM's FOIA Public Liaison.
(2) If after receiving a request EXIM determines that it does not
reasonably describe the records sought, EXIM must inform the requester
what additional information is needed or why the request is otherwise
insufficient. Requesters who are attempting to reformulate or modify
such a request may discuss their request with EXIM's FOIA contact or
FOIA Public Liaison. If EXIM is unable to clarify the timeframe for
which a particular request seeks records, EXIM may deem the request to
be a request for records created within the preceding twelve months.
(d) Requests may specify the preferred form or format (including
electronic formats) for the records you seek. EXIM will accommodate
your request if the record is readily reproducible in that form or
format.
(e) Requesters must provide contact information, such as their
phone number, email, and mailing address, to assist EXIM in
communicating with them and providing released records.
(f) A request must state the requester's willingness to pay any
applicable fees or contain a request for a fee waiver. A requester may
set a maximum amount the requester is willing to pay. The fee schedule
and related provisions are provided in Sec. 404.10. The ability to
request fee waivers is set forth at Sec. 404.11. EXIM will not process
your request while clarifying fee issues.
Sec. 404.5 Responsibility for responding to requests.
(a) In general. In determining which records are responsive to a
request, EXIM ordinarily will only include records that qualify as
agency records under the FOIA on the date EXIM begins its search. If
any other date is used, EXIM must inform the requester of that date. A
record that is excluded from the requirements of the FOIA pursuant to 5
U.S.C. 552(c), is not considered responsive to a request.
(b) Authority to grant or deny requests. The Freedom of Information
and Privacy Office is authorized to grant or deny any requests for
records. This is the initial determination that can be appealed. The
Freedom of Information and Privacy Office is also responsible for
coordinating the search for responsive records and other matters
concerning the processing of the request.
(c) Consultation, referral, and coordination. When reviewing
records located by EXIM in response to a request, EXIM will determine
whether another agency of the Federal Government is better able to
determine whether the record is exempt from disclosure under the FOIA.
With any
[[Page 16111]]
such record, EXIM must proceed in one of the following ways:
(1) Consultation. When records originated with EXIM, but contain
within them information of interest to another agency or Federal
Government office, EXIM will typically consult with that other entity
prior to making a release determination.
(2) Referral. (i) When EXIM determines that a different agency is
best able to determine whether to disclose the record, EXIM will
typically refer the responsibility for responding to the request
regarding that record to that agency. Ordinarily, the agency that
originated the record is presumed to be the best agency to make the
disclosure determination. However, if the agency processing the request
and the originating agency jointly agree that the agency processing the
request is in the best position to respond regarding the record, then
the record may be handled as a consultation.
(ii) Whenever EXIM refers any part of the responsibility for
responding to a request to another agency, it must document the
referral, maintain a copy of the record that it refers, and notify the
requester of the referral, informing the requester of the name(s) of
the agency to which the record was referred, including that agency's
FOIA contact information.
(3) Coordination. The standard referral procedure in paragraph
(c)(2) of this section is not appropriate where disclosure of the
identity of the agency to which the referral would be made could harm
an interest protected by an applicable exemption under FOIA, such as
the exemptions that protect personal privacy or national security
interests. For example, if a non-law enforcement agency responding to a
request for records on a living third party locates within its files
records originating with a law enforcement agency, and if the existence
of that law enforcement interest in the third party was not publicly
known, then to disclose that law enforcement interest could cause an
unwarranted invasion of the personal privacy of the third party.
Similarly, if an agency locates within its files material originating
with an Intelligence Community agency, and the involvement of that
agency in the matter is classified and not publicly acknowledged, then
to disclose or give attribution to the involvement of that Intelligence
Community agency could cause national security harms. In such
instances, in order to avoid harm to an interest protected by an
applicable exemption, EXIM will typically coordinate with the
originating agency to seek its views on the releasability of the
record. Subsequently, EXIM will convey the release determination for
the record that is the subject of the coordination to the requester.
(d) Classified information. On receipt of any request involving
classified information, EXIM must determine whether the information is
currently and properly classified in accordance with applicable laws.
When a request involves a record containing information that has been
classified or may be appropriate for classification by another agency
under an applicable Executive order, EXIM must refer the request for
response to the agency that classified the information, or should
consider the information for classification. Whenever an agency's
record contains information that has been derivatively classified (for
example, when it contains information classified by another agency),
EXIM must refer the responsibility for responding to that portion of
the request to the agency that classified the underlying information.
(e) Timing of responses to consultations and referrals. All
consultations and referrals received by EXIM will be handled according
to the date that the first agency received the FOIA request.
(f) Agreements regarding consultations and referrals. EXIM may
establish agreements with other agencies to eliminate the need for
consultations or referrals with respect to particular types of records.
Sec. 404.6 Time for processing response to requests.
(a) In general. EXIM is obligated to respond to requests within 20
working days of the date of receipt of the request unless unusual
circumstances exist. EXIM ordinarily processes requests according to
their order of receipt.
(b) Definitions. As used in this section:
(1) Unusual circumstances means, only to the extent reasonably
necessary to the proper process of requests:
(i) The need to search for and collect requested records from
facilities that are separate from the office processing the request;
(ii) 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
(iii) The need for consultation with another agency that has a
substantial interest in the determination of the request or among two
or more components of the agency having substantial subject matter
interest therein. EXIM shall conduct any such consultations with all
practicable speed.
(2) Working days means all calendar days excluding Saturdays,
Sundays, and Federal Government holidays.
(c) Date of receipt. A request will 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
mandatory requirements of Sec. 404.4. EXIM will notify the requester
of the date on which a request was officially received in the
acknowledgment correspondence.
(d) Order of processing. EXIM will ordinarily process requests in
order of receipt within their processing track.
(e) Multitrack processing. EXIM has designated processing tracks
that distinguish between expedited, simple, and complex requests based
on the estimated amount of work or time needed to process the request.
Among the factors EXIM considers are the number of offices involved,
the number of pages involved in processing the request and the need for
consultation or referrals. EXIM will advise requesters of the track
into which their request falls and, when appropriate, EXIM may offer
the requester an opportunity to narrow or modify their request so that
it can be placed in a different processing track.
(f) Unusual circumstances. When EXIM cannot meet the statutory time
limit for processing a request because of ``unusual circumstances,'' as
defined in the FOIA, and extends the time limit on that basis, EXIM
must, before expiration of the 20-day period to respond, notify the
requester in writing of the unusual circumstances involved and of the
date by which EXIM estimates processing of the request will be
completed. Where the extension exceeds 10 working days, EXIM must
provide the requester with an opportunity to modify the request or
arrange an alternative time period for processing the original or
modified request. EXIM's FOIA contact or Public Liaison is available
for this purpose. EXIM will also alert requesters to the availability
of the Office of Government Information Services (OGIS) to provide
dispute resolution services.
(g) Aggregating request. To satisfy unusual circumstances under the
FOIA, EXIM may aggregate requests in cases where it reasonably appears
that multiple requests, submitted either by a requester or by a group
of requesters acting in concert, constitute a single request that would
otherwise involve unusual circumstances. EXIM cannot aggregate multiple
requests that involve unrelated matters.
(h) Expedited processing. (1) EXIM must process requests and
appeals on an
[[Page 16112]]
expedited basis when EXIM determines that the requester or appellant
has demonstrated:
(i) Circumstances in which the lack of expedited processing could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(ii) In the case of a requester who is primarily engaged in
disseminating information, an urgency to inform the public concerning
actual or alleged Federal Government activity. A requester who is not a
full-time member of the news media must establish that the requester is
a person whose primary professional activity or occupation is
information dissemination, though it need not be the requester's sole
occupation. Such a requester also must establish a particular urgency
to inform the public about the Government activity involved in the
request--one that extends beyond the public's right to know about
Government activity generally. The existence of numerous articles
published on a given subject can be helpful in establishing the
requirement that there be an ``urgency to inform'' the public on the
topic.
(2) A request for expedited processing may be made at any time.
When making a request for expedited processing of an administrative
appeal, the request should be submitted to the EXIM's Assistant General
Counsel for Administrative Law and Board Support.
(3) A request for expedited processing and other submissions in
support of the request must be accompanied by a statement certified by
the requester to be true and correct to the best of his or her
knowledge and belief. EXIM may waive this formal certification
requirement as a matter of discretion. The statement must be in the
form prescribed by 28 U.S.C. 1746:
(i) If executed within the United States: ``I declare (or certify,
verify, or state) under penalty of perjury that the foregoing is true
and correct to the best of my knowledge and belief. Executed on [date].
(signature).''
(ii) If executed outside the United States: ``I declare (or
certify, verify, or state) under penalty of perjury that the foregoing
is true and correct. Executed on (date). (Signature).''
(i) Determination. Upon receipt of a request for expedited
processing, EXIM will consider the request and notify the requester of
its determination within 10 calendar days of receipt of the request. If
a request for expedited treatment is granted, the request will be given
priority and will be placed in a processing track for expedited
requests and processed as soon as practicable.
(j) Appeal. A requester may file an administrative appeal, as set
forth at Sec. 404.12, based on a denial of a request for expedited
processing. EXIM will grant expeditious consideration to any such
appeal. The appeal should be clearly marked ``Appeal for Expedited
Processing.''
Sec. 404.7 Release of records.
(a) Discretionary release. As required by the FOIA, EXIM will
disclose material unless it reasonably foresees that disclosure would
harm an interest protected by an exemption or disclosure is prohibited
by law.
(b) Segregable records. Whenever it is determined that a portion of
a record is exempt from disclosure, any reasonably segregable portion
of the record will be provided to the requester after redaction of the
exempt material.
Sec. 404.8 Responses to requests.
(a) General. EXIM, to the extent practicable, will communicate with
requesters having access to the internet electronically through email
or web portal available at https://www.exim.gov/about/foia.
(b) Acknowledgment of request. EXIM must acknowledge all FOIA
requests in writing and assign a request number for reference and
tracking the status of the request online. EXIM must also include in
the acknowledgment a brief description of the records sought to allow
requesters to more easily keep track of their request.
(c) Estimated dates of completion and interim responses. Upon
request, EXIM will provide an estimated date by which EXIM expects to
provide a response to the requester. If a request involves a voluminous
amount of material or searches in multiple locations, EXIM may provide
interim responses, releasing the records on a rolling basis.
(d) Grants of request. Once EXIM has made a determination to grant
a request in whole or in part, it will notify the requester in writing.
EXIM also will inform the requester of any fees charged under Sec.
404.10 and will disclose the requested records to the requester
promptly upon payment of any applicable fees. EXIM's FOIA Public
Liaison is available to offer assistance.
(e) Adverse determination. EXIM will notify the requester in
writing if it makes an adverse determination denying a request in any
respect. Adverse determination or denials of request may include
decisions that: the requested records are exempt in whole or in part;
the request does not reasonably describe the records sought; the
information requested is not a record subject to the FOIA; the
requested records do not exist, cannot be located or have been
destroyed; or the requested record is not readily reproducible in the
form or format sought by the requester. Adverse determinations also
include denials involving fees or fee waiver matters or denials of
requests for expedited processing. Whenever EXIM makes an adverse
determination, the denial notice will be signed by the Chief FOIA
Officer or other appropriate executive or designee and include:
(1) The name and title or position of the person responsible for
the denial.
(2) A brief statement of the reasons for the denial, including any
FOIA exemption applied in denying the request.
(3) An estimate of the volume of any records or information
withheld, such as the number of pages or some other reasonable form of
estimation, although such an estimate is not required if the volume is
otherwise indicated by deletions marked on records that are 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 Sec.
404.12(a) and a description of the requirements of Sec. 404.12(a).
(5) A statement notifying the requester of the assistance available
from FOIA Public Liaison and the dispute resolution services offered by
the Office of Government Information Services (OGIS).
(f) Markings on released documents. Markings on released documents
must be clearly visible to the requester. Records disclosed in part
will be marked 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.
(g) Use of record exclusions. (1) In the event that EXIM identifies
records that may be subject to exclusion from the requirements of the
FOIA pursuant to 5 U.S.C. 552(c), EXIM must confer with the Department
of Justice (DOJ) Office of Information Privacy (OIP) to obtain approval
to apply the exclusion.
(2) When invoking an exclusion EXIM will maintain an administrative
record of the process of invocation and approval of the exclusion by
OIP.
Sec. 404.9 Confidential commercial information.
(a) Definitions--As used in this section:
(1) Confidential commercial information. Trade secrets and
commercial or financial information obtained by EXIM from a submitter
that
[[Page 16113]]
may be protected from disclosure under Exemption 4 of the FOIA, 5
U.S.C. 552(b)(4).
(2) Submitter. 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) Submitter designation. All submitters of confidential
commercial information must use good faith efforts to designate, by
appropriate markings, at the time of submission, any portion of their
submissions that they consider to be exempt from disclosure under
Exemption 4. This obligation continues after submission, such that a
submitter should inform EXIM if it later identifies submitted
information that was not marked or newly considers submitted
information to be protected by Exemption 4.
(c) Pre-disclosure notice to the submitter. EXIM must provide
prompt written notice to the submitter of information that is
potentially confidential commercial information whenever records
containing such information are requested under the FOIA if EXIM
determines that it may be required to disclose the records and:
(1) The requested information has been designated by the submitter
as information considered protected from disclosure under Exemption 4;
or
(2) EXIM 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.
(d) Notice requirements. 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, EXIM 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.
(e) When notice is not required. EXIM does not need to send the
notice called for by paragraph (c) of this section if:
(1) EXIM determines that the information is exempt under the FOIA,
and therefore will not be disclosed;
(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 submitter under paragraph (b) of
this section appears obviously frivolous. In such case, EXIM must give
the submitter written notice of any final decision to disclose the
information within a reasonable number of days prior to a specified
disclosure date, as specified in paragraph (g) of this section for
disclosures made over a submitter's objection.
(f) Opportunity to object to disclosure--(1) Timeline for a
response. (i) A submitter located within the United States will have 10
working days from and including the date of the notification letter to
respond to an EXIM notice sent under paragraph (c) of this section,
unless another time period is specified in EXIM's notice.
(ii) A submitter located outside the United States will have 20
working from and including the date of the notification letter to
respond to an EXIM notice sent under paragraph (c) of this section,
unless another time period is specified in EXIM's notice.
(iii) EXIM may extend the time for objection upon timely request
from the submitter and for good cause shown.
(2) Content of submitter's response. (i) If a submitter has any
objections to EXIM's disclosure of the information identified in the
notice, the submitter should specify all grounds for EXIM to withhold
the particular information under the FOIA.
(ii) In order to rely on Exemption 4 as a basis for EXIM
withholding any of the information as confidential commercial
information, the submitter must provide a specific and detailed written
explanation of why the information constitutes a trade secret or
commercial or financial information that is confidential. A submitter
invoking Exemption 4 in its response should consider including or
addressing the following:
(A) Why the information qualifies as a trade secret; or
(B) Why the information is privileged or confidential commercial or
financial information, including all of the following that apply:
(1) Whether the submission was voluntary or required. Information
that a person must submit to apply for an EXIM product will generally
be deemed a required submission.
(2) If voluntarily submitted, whether the information is of a kind
that the submitter does not customarily release to the public.
(3) If a required submission, whether EXIM's disclosure would
likely cause substantial harm to the submitter's competitive position.
(4) In all cases, how EXIM's disclosure could impair the
Government's ability to obtain similar information in the future.
(5) Any other relevant governmental or private interests that could
be impacted by releasing the information.
(6) A certification that the information has not been disclosed to
the public by the submitter and is not routinely available to the
public from other sources.
(iii) A submitter who fails to respond within the time period
specified will be considered to have no objection to disclosure of the
information. EXIM is not required to consider any information received
after the date of any disclosure decision.
(iv) Any information provided by a submitter under this subpart may
itself be subject to disclosure under the FOIA and should be
appropriately marked if confidential.
(g) Notices to the requester. EXIM will notify the requester in
writing whenever EXIM provides a submitter the opportunity to object to
disclosure of records pursuant to paragraph (b) of this section;
whenever EXIM notifies the submitter of EXIM's intent to disclose
information; and whenever a submitter files a lawsuit to prevent the
disclosure of the information.
(h) Consideration of a submitter's response. EXIM must consider a
submitter's timely response prior to making its disclosure decision,
including all objections and specific grounds for nondisclosure under
the FOIA.
(i) Notice of intent to disclose. Whenever EXIM decides to disclose
information over the objection of a submitter, EXIM must notify the
submitter, in writing, of EXIM's determination. EXIM must include in
this notice:
(1) The reasons for the disclosure decision, including a response
to each of the submitter's disclosure objections; and
(2) A description of the information to be disclosed or copies of
the records as EXIM intends to release them; and
(3) A specified disclosure date, which must provide the submitter a
reasonable time after the notice to file suit to prevent the
disclosure. This time period will be at least 10 working days from
EXIM's mailing of the notice of intent to disclose.
(j) Appeals by requesters. In response to a requester's
administrative appeal of a withholding under Exemption 4, EXIM will
comply with the provisions of this section before disclosing any such
information.
[[Page 16114]]
(k) Notice of requester's FOIA lawsuit. EXIM must promptly notify
the submitter whenever a requester brings suit against EXIM seeking to
compel the disclosure of confidential commercial information.
(l) Publicly available information. EXIM may, upon request or on
its own initiative, publicly disclose the information contained at
exim.data.gov, listed at Sec. 404.2, including the parties to
transactions for which EXIM approves support, the amount of such
support, the identity of any primary participants involved, a general
description of the related U.S. exports, and the country to which such
exports are destined.
Sec. 404.10 Schedule of fees.
(a) In general. EXIM will charge fees to recover the full allowable
direct costs it incurs in processing requests under the FOIA in
accordance with the provisions of this section and OMB Guidelines. OMB
Guidelines are accessible at https://www.justice.gov/oip/foia-resources. Requesters may seek a fee waiver. EXIM will consider
requests for fee waiver in accordance with the requirements in Sec.
404.11. To resolve any fee issues that arise under this section, EXIM
may contact a requester for additional information. EXIM will attempt
to conduct searches in the most efficient manner to minimize costs.
EXIM ordinarily will collect all applicable fees before sending copies
of records to a requester. Requesters must pay fees by check or money
order made payable to the Treasury of the United States, or another
method EXIM determines.
(b) Definitions. For purposes of this section:
(1) Commercial use request. A request for a use or purpose that
furthers the commercial, trade or profit interest of the requester,
which can include furthering those interests through litigation.
(2) Direct costs. Expenditures EXIM incurs in searching for and
duplicating (and, in the case of commercial use requests, reviewing)
records in response to a FOIA request. For example, direct costs
include the salary of the employee performing the work (i.e., the basic
rate of pay for the employee, including locality pay adjustment, plus
16 percent of that rate to cover benefits), fees associated with the
return of records stored offsite, the cost of operating computers and
other electronic equipment, such as photocopiers and scanners. Direct
costs do not include overhead expenses such as the costs of space, and
of heating or lighting a facility.
(3) Duplication. Is reproducing a copy of a record, or of the
information contained in it, necessary to respond to a FOIA request.
Copies can take the form of paper, audiovisual materials, or electronic
records, among others.
(4) Educational institution. Any school that operates a program of
scholarly research. A requester in the fee category in this paragraph
(b)(4) must show that the request is made in connection with his or her
role at the education institution. EXIM may seek verification from the
requester that the request is in furtherance of scholarly research and
will advise requesters of their placement in this category.
(i) Example 1. A request from a professor of geology at a
university for records relating to soil erosion, written on letterhead
of the Department of Geology, would be presumed to be from an
educational institution.
(ii) Example 2. A request from the same professor of geology
seeking drug information from the Food and Drug Administration in
furtherance of a murder mystery he is writing would not be presumed to
be an institutional request, regardless of whether it was written on
institutional stationery.
(iii) Example 3. A student who makes a request in furtherance of
their coursework or other school-sponsored activities and provides a
copy of a course syllabus or other reasonable documentation to indicate
the research purpose for the request, would qualify as part of this fee
category.
(5) Non-commercial scientific institution. An institution that is
not operated on a ``commercial'' basis, as defined in paragraph (b)(1)
of this section for purposes of a ``commercial use request,'' and is
operated solely for the purpose of conducting scientific research the
results of which are not intended to promote any particular product or
industry. A requester in the fee category in this paragraph (b)(5) must
show that the request is authorized by and is made under the auspices
of a qualifying institution and that the records are sought to further
scientific research and are not for commercial use. EXIM will advise
requesters of their placement in this category.
(6) Representative of the news media. Any person or entity that
gathers information of potential interest to a segment of the public,
uses its editorial skills to turn the raw material into a distinct
work, and distributes that work to an audience. The term ``news'' means
information that is about current events or that would be of current
interest to the public. Examples of news media entities include
television or radio stations that broadcast ``news'' to the public at
large and publishers of periodicals that disseminate ``news'' and make
their products available through a variety of means to the general
public, including news organizations that disseminate solely on the
internet. A request for records supporting the news-dissemination
function of the requester will not be considered to be for a commercial
use. ``Freelance'' journalists who demonstrate a solid basis for
expecting publication through a news media entity will be considered as
a representative of the news media. A publishing contract would provide
the clearest evidence that publication is expected; however EXIM can
also consider a requester's past publication record in making this
determination. EXIM will advise requesters of their placement in the
fee category in this paragraph (b)(6).
(7) Review. The process of examining a record in response to a
request to determine whether any portion is exempt from disclosure.
Review time includes processing any record for disclosure, such as
doing all that is necessary to prepare the record for disclosure,
including the process of redacting the record and marking the
appropriate exemptions. Review costs are properly charged even if a
record ultimately is not disclosed. Review time also includes time
spent both obtaining and considering any formal objection to disclosure
made by confidential commercial information submitter under Sec.
404.9, but it does not include time spent resolving general legal or
policy issues regarding the application of exemptions.
(8) Search. The process of looking for, identifying, and collecting
records responsive to a request. For fee purposes, this refers to all
time spent looking for materials that is responsive to a request.
Searches may be conducted manually or by electronic means. Search time
includes page-by-page or line-by-line identification of information
within records and the reasonable efforts expended to locate and
retrieve information from electronic records.
(c) Categories of requesters. Fees will be assessed depending on
the category of the requester. The specific schedule of fees for each
requester category is prescribed as follows:
(1) Commercial use requesters. EXIM will charge the full costs for
search, review, and duplication.
(2) Educational, non-commercial scientific institution, and
representatives of the news media requesters. When the records are not
sought for commercial use, EXIM will charge only for the cost of
duplication
[[Page 16115]]
in excess of 100 pages and no fee will be charged for search or review.
(3) All other requesters. For requesters who are not covered by
paragraphs (c)(1) and (2) of this section, EXIM will charge for the
cost of search and duplication, except that the first 100 pages of
duplication (or the cost equivalent of other media) and two hours of
search time will be furnished without charge.
(d) Search and review fees. Subject to the restrictions in
paragraph (i) of this section and in accordance with the applicable
requester categories in paragraph (c) of this section, EXIM will charge
the following fees for search and review, based on:
(1) Clerical. Hourly rate--$33.00.
(2) Professional. Hourly rate--$57.00.
(3) Computer searches. Hourly rate--based upon the salary of the
employee performing (base salary, including locality pay adjustment,
and 16 percent for benefits).
(4) Direct cost. Hourly rate--based upon the salary of the employee
performing (base salary, including locality pay adjustment, and 16
percent for benefits). May also include fees for the return of records
stored offsite, the cost of operating computers and other electronic
equipment.
(5) Quarter-hour period. No search or review fees will be charged
for a quarter-hour period unless more than half of that period is
required for search or review.
(6) No fee. No fee will be charged when the total fee, after
deducting the 100 free pages (or its cost equivalent) and the first two
hours of search, is equal to or less than $25.
(e) Search. (1) Subject to the restrictions in paragraph (i) of
this section EXIM will charge search fees.
(2) EXIM may properly charge for time spent searching even if EXIM
does not locate any responsive records or if EXIM determines that the
records are entirely exempt from disclosure.
(3) EXIM will charge the direct cost associated with conducting any
search that requires the creation of a new computer program to locate
the requested records. EXIM must notify the requester of the cost
associated with creating such a program, and the requester must agree
to pay the associated cost before the costs may be incurred.
(4) For requests that require the retrieval of records stored by
EXIM at a records storage facility, including a Federal records center
operated by the National Archives and Records Administration (NARA),
EXIM will charge additional costs in accordance with the Transactional
Billing Rate Schedule established by NARA.
(f) Duplication. EXIM will charge duplication fees to all
requesters, subject to the restrictions of paragraph (b) of this
section. EXIM must honor a requester's preference for receiving a
record in a particular form or format where EXIM can readily produce it
in the form or format requested. Where photocopies are supplied, EXIM
will provide one copy per request at the cost of $.10 per page. For
copies of records produced on disk or other media, EXIM will charge the
direct cost of producing the copy, including operator time. Where paper
documents must be scanned in order to comply with a requester's
preference to receive the records in an electronic format, the
requester must also pay the direct costs associated with scanning those
materials. For other forms of duplication, EXIM will charge the direct
costs. EXIM may also offer the requester the opportunity to alter the
request in order to reduce duplication costs.
(g) Review. EXIM will charge review fees to requesters who make
commercial use requests. Review fees will be assessed in connection
with the initial review of the record, i.e., the review conducted by
EXIM to determine whether an exemption applies to a particular record
or portion of a record. No charge will be made for review at the
administrative appeal stage of exemptions applied at the initial review
stage. However, if a particular exemption is deemed to no longer apply,
any costs associated with EXIM's re-review of the records in order to
consider the use of other exemptions may be assessed as review fees.
Review fees will be charged at the same rates as those charged for a
search under paragraph (e) of this section.
(h) Special services charges. Complying with requests for special
services such as those listed in this paragraph (h) is entirely at the
discretion of EXIM. EXIM will recover the full costs of providing such
services to the extent that it elects to provide them.
(1) Certifications. EXIM will charge $25.00 to certify the
authenticity of any EXIM record or any copy of such record.
(2) Special shipping. EXIM 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.
EXIM will not charge for ordinary packaging and mailing.
(i) Restrictions on charging fees. (1) When EXIM determines that a
requester is an educational institution, non-commercial scientific
institution, or representative of the news media, and the records are
not sought for commercial use, it will not charge search fees.
(2) If EXIM fails to comply with the FOIA's time limits in which to
respond to a request:
(i) It will not charge search fees, or, in the instance of request
from requesters described in paragraph (d)(1) of this section, may not
charge duplication fees, except as follows in paragraphs (d)(2)(ii)
through (iv) of this section.
(ii) If EXIM has determined that unusual circumstances, as defined
by the FOIA, apply and EXIM provided timely written notice to the
requester in accordance with the FOIA, a failure to comply with the
time limit shall be excused for an additional 10 calendar days.
(iii) If EXIM has determined that unusual circumstances, as defined
by the FOIA, apply and more than 5,000 pages are necessary to respond
to the request, EXIM may charge search fees, or in the case of
requesters described in paragraph (d)(1) of this section, may charge
duplication fees, if the following steps are taken. EXIM must have
provided timely written notice of unusual circumstances to the
requester in accordance with the FOIA and EXIM must have discussed with
the requester via written mail, email, or telephone (or made not less
than three good-faith attempts to do so) how the requester could
effectively limit the scope of the request in accordance 5 U.S.C.
552(a)(6)(B)(ii). If the exception in this paragraph (d)(2)(iii) is
satisfied, EXIM may charge all applicable fees incurred in the
processing of the request.
(iv) If a court has determined that exceptional circumstances
exist, as defined by the FOIA, a failure to comply with the time limits
shall be excused for the length of time provided by the court order.
(j) Notice of anticipated fees in excess of $25.00. (1) When EXIM
determines or estimates that the fees to be assessed in accordance with
this section will exceed $25.00, EXIM must notify the requester of the
actual or estimated amount of the fees, including a breakdown of the
fees for search, review, or duplication, unless the requester has
indicated a willingness to pay fees as high as those anticipated. If
only a portion of the fees can be estimated readily, EXIM will advise
the requester accordingly. If the request is not for noncommercial use,
the notice will specify that the requester is entitled to the statutory
entitlements of 100 pages of duplication at no charge and, if the
requester is charged search fees, two hours of search time at no
charge, and will advise the requester
[[Page 16116]]
whether those entitlements have been provided.
(2) If EXIM notifies the requester that the actual or estimated
fees are in excess of $25.00, the request will not be considered
received and further work will not be completed until the requester
commits in writing to pay actual or estimated total fees, or designates
some amount of fees the requester is willing to pay, or in the case of
a non-commercial use requester who has not yet been provided with the
requester's statutory entitlements, designates that the requester seeks
only that which can be provided by statutory entitlements. The
requester must provide the commitment or designation in writing, and
must, when applicable, designate an exact dollar amount the requester
is willing to pay. EXIM will not accept payments in installments.
(3) If the requester has indicated a willingness to pay some
designated amount of fees, but EXIM estimates that the total fee will
exceed that amount, EXIM will toll the processing of the request when
it notifies the requester of the estimated fees in excess of the amount
the requester has indicated a willingness to pay. EXIM will inquire
whether the requester wishes to revise the amount of fees the requester
is willing to pay or modify the request. Once the requester responds,
the time to respond will resume from where it was at the date of
notifications.
(4) EXIM's FOIA Public Liaison or another FOIA professional is
available to assist any requester in reformulating a request to meet
the requester's needs at a lower cost.
(k) Charging interest. EXIM may charge interest on any unpaid bill
starting on the 31st day following the date of billing the requester.
Interest charges will be assessed at the rate provided by 31 U.S.C.
3717 and will accrue from the billing date until payment is received by
EXIM. EXIM follow the provisions of the Debt Collection Act of 1982
(Pub. L. 97-365, 96 Stat.1749), as amended, and its administrative
procedures, including the use of consumer reporting agencies,
collection agencies, and offset.
(l) Aggregating requests for fee purposes. When EXIM reasonably
believes that a requester or a group of requesters acting in concert is
attempting to divide a single request into a series of requests for the
purpose of avoiding fees, EXIM may aggregate those requests and charge
accordingly. EXIM may presume that multiple requests of this type made
within a 30-day period have been made in order to avoid fees. For
requests separated by a longer period, EXIM will aggregate them only
where there is a reasonable basis for determining that aggregation is
warranted in view of all the circumstances involved. Multiple requests
involving unrelated matters cannot be aggregated.
(m) Advance payments. (1) For requests other than those described
in paragraph (n)(2) or (3) of this section, EXIM cannot require the
requester to make an advance payment before work is commenced or
continues on a request. Payment owed for work already completed (i.e.,
payment before copies are sent to the request) is not an advance
payment.
(2) When EXIM determines or estimates that a total fee to be
charged under this section will exceed $250.00, it may require that the
requester make an advance payment up to the amount of the entire
anticipated fee before beginning to process the request. EXIM may elect
to process the request prior to collecting fees when it receives a
satisfactory assurance of full payment from a requester with a history
of prompt payment.
(3) Where a requester has previously failed to pay a properly
charged FOIA fee to any agency within 30 calendar days of the billing
date, EXIM may require that the requester pay the full amount due, plus
any applicable interest on that prior request, and EXIM may require
that the requester make an advance payment of the full amount of any
anticipated fee before EXIM begins to process a new request or
continues to process a pending request or any pending appeal. Where
EXIM has a reasonable basis to believe that a requester has
misrepresented the requester's identity in order to avoid paying
outstanding fees, it may require that the requester provide proof of
identity.
(4) In cases in which EXIM requires advance payment, the request
will not be considered received and further work will not be completed
until the required payment is received. If the requester does not pay
the advance payment within 30 calendar days after the date of EXIM's
fee determination, the request will be closed.
(n) Other statutes specifically providing for fees. The fee
schedule of this section does not apply to fees charged under any
statute that specifically requires an agency to set and collect fees
for particular types of records. In instances where records responsive
to a request are subject to a statutorily-based fee schedule program,
EXIM must inform the requester of the contact information for that
program.
Sec. 404.11 Fee waivers or reductions.
(a) General. Upon request, EXIM will consider a discretionary fee
waiver or reduction of the fees chargeable under Sec. 404.10.
Requesters may seek a waiver of fees by submitting a written request
demonstrating how disclosure of the requested information is in the
public interest because it is likely to contribute significantly to
public understanding of the operations or activities of the Government
and is not primarily in the commercial interest of the requester.
(b) Form of request for fee waiver. EXIM must furnish records
responsive to a request without charge or at a reduced rate when it
determines, based on all available information, that the factors
described in paragraphs (b)(1) through (3) of this section are
satisfied:
(1) Disclosure of the requester information would shed light on the
operations or activities of the Government. The subject of the request
must concern identifiable operations or activities of the Federal
Government with a connection that is direct and clear, not remote or
attenuated.
(2) Disclosure of the requested information is likely to contribute
to the public understanding of those operations or activities. This
factor is satisfied when the following criteria are met:
(i) Disclosure of the requested records must be meaningfully
informative about Government operations or activities. The disclosure
of information that already is in the public domain, in either the same
or substantially identical for, would not be meaningfully informative
if nothing new would be added to the public understanding.
(ii) The disclosure must contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the individual understanding of the requester. A requester's
expertise in the subject area as well as the requester's ability and
intention to effectively convey information to the public must be
considered.
(3) The disclosure must not be primarily in the commercial interest
of the requester. To determine whether disclosure of the requested
information is primarily in the commercial interest of the requester,
EXIM will consider the following criteria:
(i) EXIM must identify whether the requester has any commercial
interest that would be furthered by the requested disclosure. A
commercial interest includes any commercial, trade, or profit interest.
Requesters must be given an opportunity to provide explanatory
information regarding this consideration.
[[Page 16117]]
(ii) If there is an identified commercial interest EXIM must
determine whether that is the primary interest furthered by the
request.
(4) A waiver or reduction of fees is justified when the
requirements of paragraphs (b)(1) and (2) of this section are satisfied
and any commercial interest is not the primary interest furthered by
the request. EXIM ordinarily will presume that when a news media
requester has satisfied paragraphs (b)(1) and (2), the request is not
primarily in the commercial interest of the requester. Disclosure to
data brokers or others who merely compile and market government
information for direct economic return will not be presumed to
primarily serve the public interest.
(5) Where only some of the records to be released satisfy the
requirements for a waiver of fees under this section, a waiver must be
granted for those records.
(6) Requests for a waiver or reduction of fees should be made when
the request is first submitted to EXIM and should address the criteria
referenced in paragraphs (b)(1) through (5) of this section. A
requester may submit a fee waiver request at a later time so long as
the underlying record request is pending or on administrative appeal.
When a requester who has committed to pay fees subsequently asks for a
waiver of those fees and that waiver is denied, the requester must pay
any costs incurred up to the date the fee waiver request was received.
(7) In all cases, the requester has the burden of presenting
sufficient evidence or information to justify the fee waiver or
reduction. The requester may use the procedures set forth in Sec.
404.12 to appeal a denial of a fee waiver request.
Sec. 404.12 Administrative appeals.
(a) General requirements for making an appeal. A requester may
appeal any adverse determination to the EXIM's Assistant General
Counsel for Administrative Law and Board Support. Requesters can submit
appeals by mail or via email at [email protected] in accordance
with the following requirements: Appeals must be made in writing and
contain the appellant's contact information, such as return address,
email, or telephone number. To be timely it must be postmarked, or in
the case of electronic submissions, transmitted within 90 calendar days
after the date of the final response. The appeal should clearly
identify the EXIM determination that is being appealed and the assigned
request number. To facilitate handling, the requester should mark both
appeal letter and envelope, or subject line of the electronic
transmission, ``Freedom of Information Act Appeal.''
(b) Adjudication of appeals. (1) The Assistant General Counsel for
Administrative Law and Board Support or designee will act on behalf of
EXIM's Chief FOIA officer on all appeals under this section.
(2) An appeal ordinarily will not be adjudicated if the request
becomes a matter of litigation.
(3) On receipt of any appeal involving classified information, EXIM
must take appropriate action to ensure compliance with applicable
classification laws.
(c) Decisions on appeals. EXIM must provide its decision on an
appeal in writing within 20 working days of the date of receipt of the
appeal. A decision that upholds an agency's determination, in whole or
in part, must contain a statement that identifies the reasons for the
affirmance, including any FOIA exemptions applied. The decision must
provide the requester with notification of the statutory right to file
a lawsuit and will inform the requester of the mediation services
offered by the Office of Government Information Service (OGIS) of
National Archives and Records Administration as a non-exclusive
alternative to litigation. If EXIM's initial determination is remanded
or modified on appeal, EXIM will notify the requester of that
determination in writing. EXIM will then further process the request in
accordance with that appeal determination and will respond directly to
the requester.
(d) Engaging in dispute resolution services provided by OGIS.
Mediation is a voluntary process. If EXIM agrees to participate in the
mediation services provided by OGIS, it will actively engage as a
partner to the process in an attempt to resolve the dispute.
(e) When appeal is required. Before seeking review by a court of an
adverse determination, a requester generally must submit a timely
administrative appeal.
Sec. 404.13 Preservation of records.
EXIM will preserve all correspondence pertaining to the request
that it receives under this subpart, as well as copies of all requested
records, until disposition or destruction is authorized pursuant to
title 44 of the United States Code or the General Records Schedule 4.2
of the National Archives and Records Administration. EXIM will not
dispose or destroy records while they are the subject of a pending
request, appeal, or lawsuit under the FOIA.
Sec. 404.14 [Amended]
0
5. Amend newly redesignated Sec. 404.14 in paragraph (b) by removing
``Sec. 404.13'' and adding ``Sec. 404.15'' in its place.
Sec. 404.16 [Amended]
0
6. Amend newly redesignated Sec. 404.16 as follows:
0
a. In paragraph (a), removing ``Sec. 404.12(e)'' and adding ``Sec.
404.14(e)'' in its place; and
0
b. In paragraph (c) introductory text, removing ``Sec. 404.16(d)'' and
adding ``Sec. 404.18(d)'' in its place.
Sec. 404.17 [Amended]
0
7. Amend newly redesignated Sec. 404.17 in paragraph (b)(2)(iii) by
removing ``Sec. 404.17'' and adding ``Sec. 404.19'' in its place.
Sec. 404.19 [Ameded]
0
8. Amend newly redesignated Sec. 404.19 in paragraph (a) introductory
text by removing ``Sec. 404.12(e)'' and adding ``Sec. 404.14(e)'' in
its place.
Sec. 404.20 [Amended]
0
9. Amend newly redesignated Sec. 404.20 as follows:
0
a. In paragraph (a), removing ``Sec. 404.12(e)'' and ``Sec. 404.14(d)
and (e)'' and adding ``Sec. 404.14(e)'' and ``Sec. 404.16(d) and
(e)'' in their places, respectively.
0
b. In paragraphs (c) introductory text and (e), removing ``Sec.
404.12(e)'' and adding ``Sec. 404.14(e)'' in its place.
Sec. 404.21 [Amended]
0
10. Amend newly redesignated Sec. 404.21 in paragraph (b) by removing
``Sec. 404.14(d) and (e)'' and ``Sec. 404.12(e)'' and adding ``Sec.
404.16(d) and (e)'' and ``Sec. 404.14(e)'' in their places,
respectively.
Sec. 404.35 [Amended]
0
11. Amend newly redesignated Sec. 404.35 by removing ``Sec. 404.32''
and adding ``Sec. 404.34'' in its place.
Joyce B. Stone,
Assistant Corporate Secretary.
[FR Doc. 2022-05322 Filed 3-21-22; 8:45 am]
BILLING CODE 6690-01-P
