Freedom of Information Act Requirements

Citation87 FR 16107
Record Number2022-05322
Published date22 March 2022
SectionProposed rules
CourtExport-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 []
                [FR Doc No: 2022-05322]
                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.
                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, 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
       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,
                including any personal information provided.
                FOR FURTHER INFORMATION CONTACT: Chief Freedom Information Act Officer
                Lisa Terry at lisa.t[email protected]; (202) 565-3290.
                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
                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.
                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
                3. Redesignate Sec. Sec. 404.12 Through 404.23
                 Old section New section
                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
                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
                 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
                 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 on EXIM's
                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
                 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 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
                 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
                 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
                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:
                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]
                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]
                3. Redesignate Sec. Sec. 404.12 through 404.23 as Sec. Sec. 404.14
                through 404.25.
                4. Revise subpart A to read as follows:
                Subpart A--Procedures for Disclosure of Records Under the Freedom
                of Information Act
                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
                [[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 and
                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, along with
                other FOIA resources.
                 (b) EXIM proactively discloses information at 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 and 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;
                 (C) Using the online FOIAXpress PAL Portal available at; 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
                 (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
                 (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
                 (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].
                 (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
                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
                 (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
                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
                [[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;
                 (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
                 (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
                [[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
      , 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 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
                 (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
                [[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
                 (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
                 (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
                 (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
                 (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
                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
                 (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
                 (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
                 (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
                 (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]
                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]
                6. Amend newly redesignated Sec. 404.16 as follows:
                a. In paragraph (a), removing ``Sec. 404.12(e)'' and adding ``Sec.
                404.14(e)'' in its place; and
                b. In paragraph (c) introductory text, removing ``Sec. 404.16(d)'' and
                adding ``Sec. 404.18(d)'' in its place.
                Sec. 404.17 [Amended]
                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]
                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]
                9. Amend newly redesignated Sec. 404.20 as follows:
                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.
                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]
                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,
                Sec. 404.35 [Amended]
                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

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