[Federal Register Volume 64, Number 57 (Thursday, March 25, 1999)]
[Rules and Regulations]
[Pages 14373-14381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7283]


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EXPORT-IMPORT BANK OF THE UNITED STATES

12 CFR Parts 404 and 405


Comprehensive Revision of Export-Import Bank of the United States 
Freedom of Information Act, Privacy Act and other Information 
Disclosure Regulations and Implementation of Electronic Freedom of 
Information Act Amendments of 1996

AGENCY: Export-Import Bank of the United States.

ACTION: Final rule.

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SUMMARY: This document sets forth comprehensive revisions of the 
Export-Import Bank's information disclosure regulations. The 
regulations are intended to supersede the Export-Import Bank's current 
Freedom of Information Act (FOIA) and Privacy Act regulations, found at 
12 CFR parts 404 and 405, respectively. The Export-Import Bank (Ex-Im 
Bank) has implemented the following revisions in order to provide more 
``user-friendly'' regulations that are consistent with current law, 
including the Electronic Freedom of Information Act Amendments of 1996. 
The regulations also include updated fee schedules.

DATES: Effective April 26, 1999.

FOR FURTHER INFORMATION CONTACT: Howard A. Schweitzer, Counsel for 
Administration, (202) 565-3229.

SUPPLEMENTARY INFORMATION: This is a comprehensive revision of 12 CFR 
part 404 (Ex-Im Bank's current FOIA regulations) and 12 CFR part 405 
(Ex-Im Bank's current Privacy Act regulations). Part 404 contains Ex-Im 
Bank's regulations for the FOIA, found in subpart A, and the Privacy 
Act, found in subpart B. Part 404 does not contain any regulations 
concerning ``appearance and testimony by Ex-Im Bank officers and 
employees,'' currently found at 12 CFR 404.8. Ex-Im Bank has removed 
and is reserving part 405 for publication of new regulations entitled 
``production and disclosure in federal or state proceedings.''
    The FOIA and related disclosure regulations, in addition to setting 
forth Ex-Im Bank's basic FOIA policy and procedure, include provisions, 
found in Sec. 404.7, to implement Executive Order 12600, 
``Predisclosure Notification Procedures for Confidential Commercial 
Information.'' The regulations also set forth a revised ``schedule of 
fees,'' found in Sec. 404.8. The changes include increases in the 
hourly fees for clerical and professional time to $16.00 and $32.00, 
respectively, and a decrease in duplication charges, from $.25 to $.10 
per photocopy. New provisions implementing the Electronic Freedom of 
Information Act Amendments of 1996 (Pub. L. 104-231) can be found in 
Sec. 404.3 (public reference facilities), Sec. 404.5 (time for 
processing), and Sec. 404.8(d) (material withheld). The regulations 
also establish, in Sec. 404.11 (administrative appeal), the Ex-Im Bank 
Assistant General Counsel for Administration as the appellate authority 
for administrative appeals under the FOIA. This final rule does not 
include certain provisions that were published at 63 FR 48452, August 
4, 1998, in an amendment to the proposed rule. Due to comments received 
from relevant sources, Ex-Im Bank has decided to withdraw the 
substantive

[[Page 14374]]

provisions of the proposed amendments.
    The Privacy Act regulations set forth Ex-Im Bank's basic Privacy 
Act policy and procedures. The regulations also include the following 
provisions concerning matters not previously addressed: Sec. 404.19 
(Request for accounting of record disclosures); Sec. 404.20 (Notice of 
court-ordered and emergency disclosures); Sec. 404.21 (Submission of 
social security and passport numbers); and Sec. 404.22 (Government 
contracts). The regulations do not include a section published in the 
proposed rule concerning employee standards of conduct. Ex-Im Bank 
determined that existing statutes and regulations adequately provide 
for the protection of information covered by the Privacy Act.

Regulatory Flexibility Act

    The Ex-Im Bank President and Chairman, in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)), has certified that this 
regulation will not have a significant economic impact on a substantial 
number of small entities. Under the Freedom of Information Act, 
agencies may recover only the direct costs of searching for, reviewing, 
and duplicating the records processed for requesters. Under the Privacy 
Act, agencies may recover only duplication costs. Thus, fees assessed 
by Ex-Im Bank under these regulations will be nominal. Also, Ex-Im Bank 
receives, on average, less than two hundred FOIA and Privacy Act 
requests per year, and only one in four of those requests is made by a 
small entity

Certification

    In accordance with the Regulatory Flexibility Act, I hereby certify 
that the Freedom of Information Act and Privacy Act regulations of the 
Export-Import Bank of the United States will not have a significant 
economic impact on a substantial number of small entities.

James A. Harmon,
President & Chairman.
    Dated: November 20, 1997.

Executive Order 12866

    This regulation has been drafted and reviewed in accordance with 
the Executive Order. The Office of Management and Budget has determined 
that this rule is not a ``significant regulatory action,'' as defined 
by the Executive Order.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local, and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a ``major rule,'' as defined by the Small Business 
Enforcement Fairness Act of 1996. This rule will not result in an 
annual effect on the economy of $100,000,000 or more; a major increase 
in cost or prices; or significant adverse effects on competition, 
employment, investment, productivity, innovation, or on the ability of 
United States-based companies to compete with foreign-based companies 
in domestic and export markets.

List of Subjects

12 CFR Part 404

    Administrative practice and procedure, Confidential business 
information, Freedom of information, Privacy.

12 CFR Part 405

    Administrative practice and procedure, Privacy.
    For the reasons stated in the preamble, Ex-Im Bank amends 12 CFR 
chapter IV as follows:
    1. 12 CFR part 404 is revised to read as follows:

PART 404--INFORMATION DISCLOSURE

Subpart A--Procedures for Disclosure of Records Under the Freedom of 
Information Act.

Sec.
404.1  General provisions.
404.2  Definitions.
404.3  Public reference facilities.
404.4  Request requirements.
404.5  Time for processing.
404.6  Release of records under the Freedom of Information Act.
404.7  Confidential business information.
404.8  Initial determination.
404.9  Schedule of fees.
404.10  Fee waivers or reductions.
404.11  Administrative appeal.

Subpart B--Protection of Privacy and Access to Records Under the 
Privacy Act of 1974

Sec.
404.12  General provisions.
404.13  Definitions.
404.14  Requirements of request for access.
404.15  Initial determination.
404.16  Schedule of fees.
404.17  Appeal of denials of access.
404.18  Requests for correction of records.
404.19  Request for accounting of record disclosures.
404.20  Notice of court-ordered and emergency disclosures.
404.21  Submission of social security and passport numbers.
404.22  Government contracts.
404.23  Other rights and services.

Subpart C--[Reserved]

Subpart D--[Reserved]

Subpart E--[Reserved]

    Authority: 5 U.S.C. 552 and 552a.

    Section 404.7 also issued under E.O. 12600, 52 F.R. 23781, 3 
CFR, 1987 Comp., p. 235.

    Section 404.21 also issued under 5 U.S.C. 552a note.

Subpart A--Procedures for Disclosure of Records Under the Freedom 
of Information Act.


Sec. 404.1  General provisions.

    (a) Purpose. This subpart establishes policy, procedures, 
requirements, and responsibilities for administration of the Freedom of 
Information Act (FOIA), 5 U.S.C. 552, at the Export-Import Bank of the 
United States (Ex-Im Bank).
    (b) Policy. It is Ex-Im Bank's policy to honor all requests for the 
disclosure of its records, provided that disclosure would not adversely 
affect a legitimate public or private interest and would not impose an 
unreasonable burden on Ex-Im Bank. However, this subpart also 
recognizes that the soundness of many Ex-Im Bank programs depends upon 
the receipt of reliable commercial, technical, financial, and business 
information relating to applicants for Ex-Im Bank assistance and that 
receipt of such information depends on Ex-Im Bank's ability to hold 
such information in confidence. Consequently, except as provided by 
applicable law and this regulation, information provided to Ex-Im Bank 
in confidence will not be disclosed without the submitter's consent.
    (c) Scope. All record requests made to Ex-Im Bank shall be 
processed under this subpart, except that information customarily 
furnished to the public in the regular course of the performance of 
official duties may continue to be furnished to the public without 
complying with this subpart. Requests made by individuals under the 
Privacy Act of 1974 which are processed under subpart B of this part 
also shall be processed under this subpart A.
    (d) Ex-Im Bank Internet site. Ex-Im Bank maintains an Internet site 
at http://www.exim.gov. The site contains information on Ex-Im Bank 
functions, activities, programs, and transactions.

[[Page 14375]]

Web site visitors have access to Board of Directors and Loan Committee 
meeting minutes, country information, and Ex-Im Bank press releases, 
among other information. Ex-Im Bank encourages all prospective FOIA 
requesters to visit the site prior to submission of a FOIA request.
    (e) Delegation. Any action or determination in this subpart which 
is the responsibility of a specific Ex-Im Bank employee, may be 
delegated to a duly designated alternate.
    (f) Ex-Im Bank address. The Export-Import Bank of the United States 
is located at 811 Vermont Avenue, NW, Washington, DC 20571.


Sec. 404.2  Definitions.

    For purposes of this subpart, the following definitions shall 
apply:
    All other requesters--Requesters other than commercial use 
requesters, educational and non-commercial scientific requesters, or 
representatives of the news media.
    Appeal--A written request to the Ex-Im Bank Assistant General 
Counsel for Administration for reversal of an adverse initial 
determination.
    Business information--Potentially confidential commercial or 
financial information that is provided to Ex-Im Bank.
    Business submitter--Any person who provides business information to 
Ex-Im Bank.
    Commercial use request--A request for a use or purpose that 
furthers the commercial, trade or profit interest of the requester.
    Direct costs--Expenditures incurred in the search, review, and 
duplication of records in response to a FOIA request.
    Educational institution--A preschool, a public or private 
elementary or secondary school, an institution of undergraduate or 
graduate higher education, or an institution of professional or 
vocational education.
    Final determination--The written decision by the Assistant General 
Counsel for Administration on an appeal.
    Initial determination--The initial written determination by Ex-Im 
Bank regarding disclosure of requested records.
    Non-commercial scientific institution--An institution that is 
operated for the purpose of conducting scientific research the results 
of which are not intended to promote any particular product or industry 
and that is not operated solely for purposes of furthering a business, 
trade or profit interest.
    Person--An individual, partnership, corporation, association or 
organization other than a federal government agency.
    Record--All papers, memoranda or other documentary material, or 
copies thereof, regardless of physical form or characteristics, created 
or received by Ex-Im Bank and preserved as evidence of the activities 
of Ex-Im Bank. ``Record'' does not include publications which are 
available to the public through the Federal Register, sale or free 
distribution.
    Redaction--The process of removing non-disclosable material from a 
record so that the remainder may be released.
    Representative of the news media--A person actively gathering 
information on behalf of an entity organized and operated to publish or 
broadcast news to the public. Freelance journalists shall qualify as 
representatives of the news media when they can demonstrate that a 
request is reasonably likely to lead to publication.
    Request--Any record request made to Ex-Im Bank under the FOIA.
    Requester--Any person making a request.
    Review--The process of examining a record to determine whether any 
portion is required to be withheld. It includes redaction, duplication, 
and any other preparation for release. Review does not include time 
spent resolving general legal and policy issues regarding the 
application of exemptions.
    Search--The process of identifying and collecting records pursuant 
to a request.
    Trade secrets--All forms and types of financial, business, 
scientific, technical, economic or engineering information, including, 
but not limited to, patterns, plans, compilations, program devices, 
formulas, designs, prototypes, methods, techniques, processes, 
procedures, programs or codes.
    Unusual circumstances--The need to search for and collect requested 
records from facilities that are separate from Ex-Im Bank headquarters; 
the need to search for, collect, and appropriately examine a voluminous 
amount of separate and distinct records which are demanded in a single 
request; or the need for consultation with another agency a person that 
has a substantial interest in the determination of the request.
    Working days--All calendar days excluding Saturdays, Sundays, and 
Federal Government holidays.


Sec. 404.3  Public reference facilities.

    Ex-Im Bank maintains a public reading room which contains the Ex-Im 
Bank records that the FOIA requires to be made available for public 
inspection and copying. The records available under this section 
include copies of records released pursuant to the FOIA that Ex-Im Bank 
determines have, or are likely to, become the subject of subsequent 
requests for substantially the same records. Requesters shall be 
responsible for the cost of duplicating such material in accordance 
with the provisions of Sec. 404.9(e). Persons desiring to use the 
reading room should contact the Ex-Im Bank Freedom of Information and 
Privacy Office, either in writing at the address at Sec. 404.1(f) or by 
telephone at (202) 565-3946 or (800) 565-3946, to arrange a time to 
inspect the available records.


Sec. 404.4  Request requirements.

    (a) Form. Requests must be made in writing and must be signed by, 
or on behalf of, the requester. Requests should be addressed to the 
Freedom of Information and Privacy Office at the address in 
Sec. 404.1(f) and should contain both the return address and telephone 
number of the requester.
    (b) Description of records requested. Each request must describe 
the records sought in sufficient detail so as to enable a professional 
employee of Ex-Im Bank familiar with the subject matter of the request 
to locate the record with a reasonable amount of effort. A request 
shall not be deemed to have been received until such time as the 
request adequately identifies the records sought. To the extent 
practicable, a description should include relevant dates, format, 
subject matter, and the name of any person to whom the record is known 
to relate. A general request for records with no accompanying date 
restriction, either express or implied, shall be deemed to be a request 
for records created within the preceding twelve months.
    (c) Fee statement. The request must contain a statement expressing 
willingness to pay fees for the requested records or a request for a 
fee waiver (see Sec. 404.10) before the request shall be deemed to have 
been received. A fee statement may specify the maximum amount a 
requester is willing to pay for processing the request.
    (1) Whenever a requester submits a FOIA request that does not 
contain a fee statement or a request for a fee waiver, Ex-Im Bank shall 
advise the requester of the requirements of this paragraph. If the 
requester fails to respond within ten working days of such 
notification, then the Freedom of Information and Privacy Office shall 
notify the requester, in writing, that Ex-Im Bank will not process the 
request.
    (2) A general statement by the requester expressing willingness to 
pay all applicable fees under Sec. 404.9 shall be deemed an agreement 
to pay up to $50.00. If Ex-Im Bank estimates that the

[[Page 14376]]

fees for a request will exceed $50.00, then Ex-Im Bank shall offer the 
requester the opportunity to agree, in writing, either to pay a greater 
fee or to modify the request as a means of limiting the cost.
    (d) Written notice of amendment. The requester should provide any 
amendment to the original request in writing to Ex-Im Bank.
    (e) Requester assistance. Ex-Im Bank shall make reasonable efforts 
to assist a requester in complying with the requirements of this 
section.


Sec. 404.5  Time for processing.

    (a) General. Ex-Im Bank shall respond to requests within twenty 
working days of the date of receipt of the request unless unusual 
circumstances exist. Ex-Im Bank shall provide written notice to the 
requester whenever such unusual circumstances necessitate an extension. 
If the extension is expected to exceed ten working days, then Ex-Im 
Bank shall offer the requester the opportunity to:
    (1) Alter the request so that it may be processed within the time 
limit; or
    (2) Propose an alternative, feasible time frame for processing the 
request.
    (b) Date of receipt. A request shall be deemed to have been 
received on the date that the request is received in the Freedom of 
Information and Privacy Office, provided that the requester has met all 
the requirements of Sec. 404.4. Ex-Im Bank shall notify the requester 
of the date on which a request was officially received.
    (c) Order of processing. Ex-Im Bank ordinarily shall process 
requests according to their order of receipt.
    (d) Expedited processing. A request for expedited processing must 
be included in the original request for records and may be granted at 
the discretion of Ex-Im Bank based upon the requester's demonstration 
of:
    (1) An imminent threat to the life or physical safety of an 
individual; or
    (2) In the case of a requester who is a representative of the news 
media, an urgency to inform the public concerning actual or alleged 
Federal Government activity. Ex-Im Bank shall provide notice of its 
determination on expedited processing to the requester. A requester may 
file an administrative appeal, as set forth at Sec. 404.11, based on a 
denial of a request for expedited processing. Ex-Im Bank shall grant 
expeditious consideration to any such appeal.


Sec. 404.6  Release of records under the Freedom of Information Act.

    (a) Creation of records. A reasonable request for material not in 
existence may be honored at Ex-Im Bank's discretion when tabulation or 
compilation will not significantly burden Ex-Im Bank, its programs or 
its activities.
    (b) Discretionary release. Consistent with federal government 
policy, material technically qualifying for exemption from disclosure 
under 5 U.S.C. 552(b)(5) may be made available when disclosure would 
not adversely affect legitimate public or private interests, violate 
law or impose an unreasonable burden on Ex-Im Bank. This policy does 
not, however, create any right enforceable in a court of law.
    (c) Segregable records. Whenever it is determined that a portion of 
a record is exempt from disclosure, any reasonably segregable portion 
of the record shall be provided to the requester after redaction of the 
exempt material. If segregation would render the document meaningless, 
Ex-Im Bank shall withhold the entire record.
    (d) Date for determining responsive records. Only those records 
within Ex-Im Bank's possession and control as of the date of receipt of 
a request shall be deemed to be responsive to a request.


Sec. 404.7  Confidential business information.

    (a) Scope. This section applies to all business information, as 
defined in Sec. 404.2. Such information shall only be disclosed 
pursuant to a FOIA request in accordance with this section.
    (b) Submitter designation. All business submitters should 
designate, by appropriate markings, either at the time of submission or 
at a reasonable time thereafter, any portion of any submission that 
they consider to be exempt from disclosure under 5 U.S.C. 552(b)(4).
    (c) Pre-disclosure notice to the business submitter. Whenever Ex-Im 
Bank receives a FOIA request seeking disclosure of business 
information, Ex-Im Bank shall provide prompt written notice to the 
submitter of such information. This notice shall include a description 
or a copy of the records containing the business information. Such 
notice shall not be required, however, if:
    (1) Ex-Im Bank determines that the records shall not be disclosed;
    (2) The records have been published or otherwise made available to 
the public; or
    (3) disclosure of the records is required by law.
    (d) Opportunity to object to disclosure. The business submitter 
shall have ten working days from and including the date of the 
notification letter to provide Ex-Im Bank with a detailed statement of 
any objection to disclosure of the records. A submitter located outside 
the United States shall have twenty working days to object to 
disclosure. Ex-Im Bank may extend the time for objection upon timely 
request from the submitter and for good cause shown. A statement of 
objection must specify all grounds under the FOIA for withholding the 
information.
    (e) Notice to the requester. The Freedom of Information and Privacy 
Office shall notify the requester in writing whenever a business 
submitter is afforded the opportunity to object to disclosure of 
records pursuant to paragraph (c) of this section.
    (f) Disclosure of confidential business information. Ex-Im Bank 
shall consider any objections raised by the business submitter prior to 
making its disclosure decision.
    (g) Notice of intent to disclose. Whenever Ex-Im Bank determines to 
disclose business information over the objection of a business 
submitter, Ex-Im Bank shall notify the business submitter, in writing, 
of such determination, the reasons for the decision, and the expected 
disclosure date. This notification--which shall be provided at least 
ten days prior to the planned disclosure date and which shall include a 
copy or description of the records at issue--is intended to afford the 
submitter the opportunity to seek judicial review.
    (h) Notice to requester of disclosure date. If Ex-Im Bank 
determines to disclose records over a business submitter's objection, 
then Ex-Im Bank shall notify the requester of the expected disclosure 
date.
    (i) Appeal. Whenever Ex-Im Bank determines to disclose, pursuant to 
an administrative appeal, business information that initially was 
withheld from disclosure under 5 U.S.C. 552(b)(4), Ex-Im Bank shall 
notify the business submitter. Such notice shall be in writing and 
shall be provided ten working days prior to the proposed disclosure 
date. It shall include a copy or description of the records at issue 
and a statement of Ex-Im Bank's reasons for disclosure.
    (j) Notice of FOIA lawsuit. Ex-Im Bank shall promptly notify the 
submitter whenever a requester brings suit against Ex-Im Bank seeking 
to compel the release of business information covered by this section. 
Ex-Im Bank shall promptly notify the requester when a submitter brings 
suit against Ex-Im seeking to restrict the release of business 
information that is covered by this section.
    (k) Exception. Notwithstanding the foregoing provisions of this 
part, Ex-Im Bank may, upon request or on its own initiative, publicly 
disclose the parties to transactions for which Ex-Im Bank

[[Page 14377]]

approves support, the amount of such support, the identity of any 
participants involved, a general description of the related U.S. 
exports, and the country to which such exports are destined.


Sec. 404.8  Initial determination.

    (a) Authority to grant or deny requests. The Freedom of Information 
and Privacy Office shall be responsible for search, review, and the 
initial determination.
    (b) Referrals to other government agencies. A requested record in 
Ex-Im Bank's possession that was created or classified by another 
Federal agency shall be referred to such agency for direct response to 
the requester. The Freedom of Information and Privacy Office shall 
notify the requester of any such referral, the number of documents so 
referred, and the name and address of each agency to which the request 
has been referred.
    (c) Notification of Ex-Im Bank action. The Freedom of Information 
and Privacy Office shall notify the requester in writing of its 
decision to grant or deny the request.
    (1) If the decision is made to grant a request, then Ex-Im Bank 
shall promptly disclose the requested records and shall inform the 
requester of any fee payable under Sec. 404.9.
    (2) A denial is a determination to withhold any requested record in 
whole or in part, a determination that a requested record does not 
exist or cannot be located or a determination that what has been 
requested is not a record subject to the FOIA. Whenever Ex-Im Bank 
withholds information, such notice shall include:
    (i) The name, title, and signature of the person responsible for 
the determination;
    (ii) The statutory basis for non-disclosure; and
    (iii) A statement that any denial may be appealed under Sec. 404.11 
and a brief description of the requirements of that section.
    (d) Material withheld. Ex-Im Bank shall make reasonable efforts to 
inform the requester of the volume of material withheld pursuant to a 
full or partial denial and the extent of any redaction. Ex-Im Bank 
shall not, however, indicate the extent of any denial when doing so 
could harm an interest protected by an applicable exemption.


Sec. 404.9  Schedule of fees.

    (a) General. Ex-Im Bank shall charge fees to recover the full 
allowable direct costs it incurs in processing requests. Ex-Im Bank 
shall attempt to conduct searches in the most efficient manner to 
minimize costs for both Ex-Im Bank and the requester.
    (b) Categories of requesters. Fees shall be assessed according to 
the status of the requester. The specific schedule of fees for each 
requester category (each as defined in Sec. 404.2) is prescribed as 
follows:
    (1) Commercial use requesters. Ex-Im Bank shall charge the full 
costs for search, review, and duplication.
    (2) Educational and non-commercial scientific institution 
requesters. Ex-Im Bank shall charge only for the cost of duplication in 
excess of 100 pages. No fee will be charged for search or review.
    (3) Representatives of the news media. Ex-Im Bank shall charge only 
for the cost of duplication in excess of 100 pages. No fee will be 
charged for search or review.
    (4) All other requesters. Ex-Im Bank shall charge for the cost of 
search, review, and duplication, except that 100 pages of duplication 
and two hours of professional search time shall be furnished without 
charge.
    (c) Search and review fees. Ex-Im Bank shall charge the following 
fees for search and review:
    (1) Clerical. Hourly rate--$16.00.
    (2) Professional. Hourly rate--$32.00.
    (3) Computer Searches. Hourly rate--based upon the salary of the 
employee performing the work and the cost of operating any equipment.
    (d) Administrative appeals. Ex-Im Bank shall not charge for 
administrative review of an exemption applied in an initial 
determination. Ex-Im Bank shall charge, however, for search and review 
pursuant to an administrative appeal if the appeal is based on a claim 
other than the application of an exemption in the initial 
determination.
    (e) Duplication. Ex-Im Bank shall charge $.10 per page for paper 
copy duplication. Ex-Im Bank shall charge the actual or estimated cost 
of copies prepared by computer, such as tape or printouts, or for other 
methods of duplication. When duplication charges are expected to exceed 
$50.00, Ex-Im Bank shall seek the requester's consent to be responsible 
for the estimated charges unless a requester has already expressed a 
willingness to pay duplication fees in excess of $50.00. Ex-Im Bank 
shall also offer the requester the opportunity to alter the request in 
order to reduce duplication costs.
    (f) Fees for searches that produce no records. Fees shall be 
payable as provided in this section even though searches and review do 
not generate any disclosable records.
    (g) Aggregating requests. A requester, or a group of requesters 
acting in concert, shall not file multiple requests, seeking portions 
of a record or similar or related records, in order to avoid payment of 
fees. Ex-Im Bank shall aggregate any such requests and charge as if the 
requests were a single request.
    (h) Special services charges. Complying with requests for special 
services such as those listed in this paragraph is entirely at the 
discretion of Ex-Im Bank. Ex-Im Bank shall recover the full costs of 
providing such services to the extent that it elects to provide them.
    (1) Certifications. Ex-Im Bank shall charge $25.00 to certify the 
authenticity of any Ex-Im Bank record or any copy of such record.
    (2) Special shipping. Ex-Im Bank may ship by special means (e.g., 
express mail) if the requester so desires, provided that the requester 
has paid or has expressly undertaken to pay all costs of such special 
services. Ex-Im Bank shall not charge for ordinary packaging and 
mailing.
    (i) Minimum fee. Ex-Im Bank shall waive a final fee of $5.00 or 
less.
    (j) Advance payment. Whenever Ex-Im Bank estimates that the fees 
are likely to exceed $250.00, Ex-Im Bank shall notify the requester of 
the likely cost and shall require an advance payment of an amount up to 
the full estimated charges.
    (k) Failure to pay fee. Ex-Im Bank shall not process a request by a 
requester who has failed to pay a fee for a previous request unless and 
until such a requester had paid the full amount owed and also has paid, 
in advance, the total estimated charges for the new request. The 
administrative time limits for the new request--set forth in 
Sec. 404.5--shall begin to run only after Ex-Im Bank has received the 
payments described in this section.


Sec. 404.10  Fee waivers or reductions.

    (a) General. Upon request, Ex-Im Bank shall consider a 
discretionary fee waiver or reduction of the fees chargeable under 
Sec. 404.9.
    (b) Form of request for fee waiver. Ex-Im Bank shall deny a request 
for a waiver or reduction of fees that does not clearly address each of 
the following:
    (1) The proposed use of the records and whether the requester will 
derive income or other benefit from such use;
    (2) An explanation of the reasons why the public will benefit from 
such use; and
    (3) If specialized use of the records is contemplated, a statement 
of the requester's qualifications that are relevant to the specialized 
use.
    (d) Burden of proof. In all cases, the requester has the burden of 
presenting sufficient evidence or information to

[[Page 14378]]

justify the fee waiver or reduction. The requester may use the 
procedures set forth in Sec. 404.11 to appeal a denial of a fee waiver 
request.
    (e) Employee requests. Fees of less than $50.00 shall be waived in 
connection with any request by an employee, former employee, or 
applicant for employment, related to a grievance or complaint of 
discrimination against Ex-Im Bank.


Sec. 404.11  Administrative appeal.

    (a) General. Whenever a request for records, a fee waiver or 
expedited processing has been denied, the requester may appeal the 
denial within thirty days of the date of Ex-Im Bank's issuance of 
notice of such action. Any denial under this subpart must be appealed 
according to this section before a requester is eligible to seek 
judicial review.
    (b) Form. Appeals must be made in writing and must be signed by the 
appellant. Appeals should be addressed to the Assistant General Counsel 
for Administration at the address at Sec. 404.1(f). Both the envelope 
and the appeal letter should be clearly marked in capital letters: 
``FREEDOM OF INFORMATION ACT APPEAL.'' Failure to properly mark or 
address the appeal may slow its processing. The letter should include:
    (1) A copy of the denied request or a description of the records 
requested;
    (2) The name and title of the Ex-Im Bank employee who denied the 
request;
    (3) The date on which the request was denied;
    (4) The Ex-Im Bank identification number assigned to the request; 
and
    (5) The return address and telephone number of the appellant.
    (c) Processing schedule. Appeals shall not be deemed to have been 
received until the Assistant General Counsel for Administration 
receives the appeal. Ex-Im Bank shall notify the requester of the date 
on which an appeal was officially received. The disposition of an 
appeal shall be made in writing within twenty working days after the 
date of receipt of an appeal. The Assistant General Counsel for 
Administration may extend the time for response an additional ten 
working days if unusual circumstances exist, provided that the 
Assistant General Counsel for Administration notifies the requester in 
writing.
    (d) Ex-Im Bank decision. A final determination which affirms an 
adverse initial determination shall set forth the reasons for affirming 
the denial and shall advise the requester of the right to seek judicial 
review. If the initial determination is reversed on appeal, the request 
shall be remanded to the Freedom of Information and Privacy Office to 
be processed promptly in accordance with the decision on appeal, 
subject to Sec. 404.7(i).

Subpart B--Access to Records Under the Privacy Act of 1974


Sec. 404.12  General provisions.

    (a) Purpose. This subpart establishes policies, procedures, 
requirements, and responsibilities for administration of the Privacy 
Act of 1974, 5 U.S.C. 552a, at the Export-Import Bank of the United 
States (Ex-Im Bank).
    (b) Relationship to the Freedom of Information Act. The Privacy Act 
applies to records contained in a systems of records, as defined in 
Sec. 404.13. If an individual submits a request for access to records 
and cites the Privacy Act, but the records sought are not contained in 
a Privacy Act system of records, then the request shall be processed 
only under subpart A of this part, Procedures for Disclosure of Records 
Under the Freedom of Information Act. All requests properly processed 
under this subpart B shall also be processed under subpart A of this 
part.
    (c) Appellate authority. The Ex-Im Bank Assistant General Counsel 
for Administration is the appellate authority for all Privacy Act 
requests.
    (d) Delegation. Any action or determination in this subpart which 
is the responsibility of a specific Ex-Im Bank employee may be 
delegated to a duly designated alternate.
    (e) Ex-Im Bank address. The Export-Import Bank of the United States 
is located at 811 Vermont Avenue, NW, Washington, DC 20571.


Sec. 404.13  Definitions.

    For purposes of this subpart, the following definitions shall 
apply:
    Appeal--A written request to the Ex-Im Bank Assistant General 
Counsel for Administration for reversal of an adverse initial 
determination.
    Final determination--The written decision by the Assistant General 
Counsel for Administration on an appeal.
    Individual--A citizen of the United States or an alien lawfully 
admitted for permanent residence.
    Initial determination--The initial written determination in 
response to a Privacy Act request.
    Record--Any item, collection or grouping of information about an 
individual that is maintained within a system of records and that 
contains the individual's name or an identifying number, symbol or 
other identifying particular assigned to the individual.
    Redaction--The process of removing non-disclosable material from a 
record so that the remainder may be released.
    Request for access--A request to view a record.
    Request for accounting--A request for a list of all disclosures of 
a record.
    Request for correction--A request to modify a record.
    Requester--An individual who makes a request under the Privacy Act.
    Review--The process of examining a record to determine whether any 
portion is required to be withheld.
    Search--The process of identifying and collecting records pursuant 
to a request.
    System of records--A group of any records under the control of an 
agency from which information is retrieved by the name of the 
individual or some identifying number, symbol or other identifying 
particular assigned to the individual.
    Working days--All calendar days excluding Saturdays, Sundays, and 
Federal Government holidays.


Sec. 404.14  Requirements of request for access.

    (a) Form. Requests for access must be made in writing and must be 
signed by the requester. Requests should be addressed to the Freedom of 
Information and Privacy Office at the address in Sec. 404.12(e) and 
should contain both the return address and telephone number of the 
requester.
    (b) Description of records sought. A request for access must 
describe the records sought in sufficient detail so as to enable Ex-Im 
Bank personnel to locate the system of records containing the records 
with a reasonable amount of effort. To the extent practicable, such 
description should include the nature of the record sought, the date of 
the record or the period in which the record was compiled, and the name 
or identifying number of the system of records in which the requester 
believes the record is kept. A requester may include his or her social 
security number in the request in order to facilitate the 
identification and location of the requested records.
    (c) Fee statement. The request must contain a statement expressing 
willingness to pay fees for processing the request or a request for a 
fee waiver (see Sec. 404.16(d)).
    (1) Whenever a requester submits a request for access that does not 
contain a fee statement or a request for a fee waiver, Ex-Im Bank shall 
advise the requester of the requirements of this section. If the 
requester fails to respond within ten working days of such 
notification, then the Freedom of

[[Page 14379]]

Information and Privacy Office shall notify the requester, in writing, 
that Ex-Im Bank will not process the request.
    (2) A general statement by the requester expressing willingness to 
pay all applicable fees shall be deemed an agreement to pay up to 
$25.00. If Ex-Im Bank estimates that the fees for a request will exceed 
$25.00, then Ex-Im Bank shall notify the requester. Ex-Im Bank shall 
offer the requester the opportunity to agree, in writing, either to pay 
a greater fee or to modify the request as a means of limiting the cost.
    (3) Whenever the estimated fee chargeable under this section 
exceeds $25.00, Ex-Im Bank reserves the right to require a requester to 
make an advance payment prior to processing the request.
    (4) Ex-Im Bank shall not process a request by a requester who has 
failed to pay a fee for a previous request unless and until such 
requester had paid the full amount owed and also has paid, in advance, 
the total estimated charges for the new request.
    (d) Verification of identity. An individual who submits a request 
for access must verify his or her identity. The request must include 
the requesters full name, current address, and date and place of birth. 
In addition, such requester must provide a notarized statement 
attesting to his or her identity.
    (e) Verification of guardianship. When a parent or guardian of a 
minor or the guardian of a person judicially determined to be 
incompetent submits a request for access to records that relate to the 
minor or incompetent, such parent or guardian must establish:
    (1) His or her own identity and the identity of the subject of the 
record in accordance with paragraph (d) of this section; and
    (2) Parentage or guardianship of the subject of the record, either 
by providing a copy of the subject's birth certificate showing 
parentage or by providing a court order establishing guardianship.
    (f) Written notice of amendment. The requester must provide any 
amendment to the original request in writing to Ex-Im Bank.
    (g) Requester assistance. Ex-Im Bank shall make reasonable efforts 
to assist a requester in complying with the requirements of this 
section.
    (h) Date of receipt. Requests for access shall be deemed to have 
been received on the date that the request is received by the Freedom 
of Information and Privacy Office, provided that all the requirements 
of this section have been met. Ex-Im Bank shall notify the requester of 
the date on which it officially received a request.


Sec. 404.15  Initial determination.

    (a) Time for processing. The Freedom of Information and Privacy 
Office shall respond to valid requests for access within twenty working 
days of the date of receipt of the request letter. The time for 
response may be extended an additional ten working days for good cause, 
provided that the Freedom of Information and Privacy Office notifies 
the requester in writing.
    (b) Notice regarding request for access. The Freedom of Information 
and Privacy Office shall notify the requester in writing of its 
decision to grant or deny a request for access.
    (1) If the request is granted, then the notice shall either include 
the requested records, in releasable form, or shall describe the manner 
in which access to the record will be granted. The notice also shall 
inform the requester of any processing fee.
    (2) A denial is a determination to withhold any requested record in 
whole or in part or a determination that the requested record does not 
exist or cannot be located. If the request is denied, then the denial 
notice shall state:
    (i) The name, signature, and title or position of the person 
responsible for the denial;
    (ii) The reasons for the denial; and
    (iii) The procedure for appeal of the denial under Sec. 404.17 and 
a brief description of the requirements of that section.
    (c) Form of record disclosure. Ex-Im Bank shall grant access to the 
requested records either by providing the requester with a copy of the 
record or, at the requester's option, by making the record available 
for inspection at a reasonable time and place. If Ex-Im Bank makes the 
record available for inspection, such inspection shall not unreasonably 
disrupt Ex-Im Bank operations. In addition, the requester must provide 
a form of official photographic identification--such as a passport, 
driver's license or identification badge--and any other form of 
identification bearing his or her name and address prior to inspection 
of the requested records. Records may be inspected by the requester in 
the presence of another individual, provided that the requester signs a 
form stating that Ex-Im Bank is authorized to disclose the record in 
the presence of both individuals.


Sec. 404.16  Schedule of fees.

    (a) Search and review. Ex-Im Bank shall not charge for search and 
review.
    (b) Duplication. Ex-Im Bank shall charge $.10 per page for paper 
copy duplication. Ex-Im Bank shall charge the actual or estimated cost 
of copies prepared by computer, such as tape or printouts, or for other 
methods of reproduction or duplication.
    (c) Minimum fee. Ex-Im Bank shall waive final fees of $5.00 or 
less.
    (d) Fee waivers. Ex-Im Bank may waive fees whenever it is 
determined to be in the public interest. Fees of less than $50.00 shall 
be waived in connection with any request by an employee, former 
employee or applicant for employment, related to a grievance or 
complaint of discrimination against Ex-Im Bank.
    (e) Special services charges. Complying with requests for special 
services such as those listed in this paragraph is entirely at the 
discretion of Ex-Im Bank. Ex-Im Bank shall recover the full costs of 
providing such services to the extent that it elects to provide them.
    (1) Certifications. Ex-Im Bank shall charge $25.00 to certify the 
authenticity of any Ex-Im Bank record or any copy of such record.
    (2) Special shipping. Ex-Im Bank may ship by special means (e.g., 
express mail) if the requester so desires, provided that the requester 
has paid or has expressly undertaken to pay all costs of such special 
services. Ex-Im Bank shall not charge for ordinary packaging and 
mailing.


Sec. 404.17  Appeal of denials of access.

    (a) Appeals to the Assistant General Counsel for Administration. 
Whenever Ex-Im Bank denies a request for access or for waiver or 
reduction of fees, the requester may appeal the denial to the Assistant 
General Counsel for Administration within 30 working days of the date 
of Ex-Im Bank's issuance of notice of such action. Appeals must be made 
in writing and must be signed by the appellant. Appeals should be 
addressed to the Assistant General Counsel for Administration at the 
address in Sec. 404.12(e). Both the envelope and the appeal letter 
should be clearly marked in capital letters: ``PRIVACY ACT APPEAL.'' 
Failure to properly mark or address the appeal may slow its processing. 
An appeal shall not be deemed to have been received by Ex-Im Bank until 
the Assistant General Counsel for Administration receives the appeal 
letter. The letter should include:
    (1) A copy of the denied request or a description of the records 
requested;
    (2) The name and title of the Ex-Im Bank employee who denied the 
request;
    (3) The date on which the request was denied; and
    (4) The Ex-Im Bank identification number assigned to the request.

[[Page 14380]]

    (b) Final determination. The disposition of an access appeal shall 
be made in writing within twenty working days after the date of receipt 
of the appeal. The Assistant General Counsel for Administration may 
extend the time for response an additional ten working days for good 
cause, provided that the requester is notified in writing. A decision 
affirming the denial of a request for access shall include a brief 
statement of the reasons for affirming the denial and shall advise the 
requester of the right to seek judicial review. If the initial 
determination is reversed, then the request shall be remanded to the 
Freedom of Information and Privacy Office to be processed in accordance 
with the decision on appeal.


Sec. 404.18  Requests for correction of records.

    (a) Form. Requests for correction must be made in writing and must 
be signed by the requester. Requests should be addressed to the Freedom 
of Information and Privacy Office at the address in Sec. 404.12(e) and 
should contain both the return address and telephone number of the 
requester. The request must identify the particular record in question, 
state the correction sought, and set forth the justification for the 
correction. The requester also must verify his or her identity in 
accordance with the procedures set forth at Sec. 404.14(d) and (e). 
Both the envelope and the request for correction itself should be 
clearly marked in capital letters: ``PRIVACY ACT CORRECTION REQUEST.''
    (b) Initial determination. The Freedom of Information and Privacy 
Office shall respond to valid correction requests within ten working 
days of receipt of the request letter. If Ex-Im Bank grants the request 
for correction, then the Freedom of Information and Privacy Office 
shall advise the requester of his or her right to obtain a copy, in 
releasable form, of the corrected record. A denial notice shall state 
the reasons for the denial and shall advise the requester of the right 
to appeal. Ex-Im Bank shall not charge for processing requests for 
correction.
    (c) Appeal of denial of request for correction. Whenever Ex-Im Bank 
denies a request for correction, the requester may appeal the denial to 
the Assistant General Counsel for Administration within thirty working 
days of Ex-Im Bank's issuance of notice of such action. Appeals must be 
made in writing and must be signed by the appellant. Appeals should be 
addressed to the Assistant General Counsel for Administration at the 
address set forth in Sec. 404.12(e). Both the envelope and the appeal 
letter should be clearly marked in capital letters: ``PRIVACY ACT 
CORRECTION APPEAL.'' Failure to properly mark or address the appeal may 
slow its processing. An appeal shall not be deemed to have been 
received by Ex-Im Bank until the Assistant General Counsel for 
Administration receives the appeal letter. The letter must include:
    (1) A copy of the denied request or a description of the correction 
sought;
    (2) The name and title of the Ex-Im Bank employee who denied the 
request;
    (3) The date on which the request was denied;
    (4) The Ex-Im Bank identification number assigned to the request; 
and
    (5) Any information said to justify the correction.
    (d) Final determination on correction appeal. (1) The disposition 
of an appeal shall be made in writing within twenty working days after 
the date of receipt of an appeal. The Assistant General Counsel for 
Administration may extend the time for response an additional ten 
working days for good cause, provided that the requester is notified in 
writing.
    (2) A decision affirming the denial of a request for access shall 
advise the appellant of the:
    (i) Reasons for affirming the denial;
    (ii) Right to seek judicial review; and
    (iii) Right to file a statement of disagreement, as provided in 
paragraph (e) of this section.
    (3) If the initial determination is reversed, then the request 
shall be remanded to the Freedom of Information and Privacy Office to 
be processed in accordance with the decision on appeal.
    (e) Statement of disagreement. Upon denial of a correction appeal, 
the appellant shall have the right to file a statement of disagreement 
with Ex-Im Bank, setting forth his or her reasons for disagreeing with 
the Agency's action. The statement should be addressed to the Freedom 
of Information and Privacy Office at the address in Sec. 404.12(e) and 
must be received within thirty working days of Ex-Im Bank's issuance of 
the denial notice. A statement of disagreement must not exceed one 
typed page per fact disputed. Statements exceeding this limit shall be 
returned to the requester for editing. Upon receipt of a statement of 
disagreement under this section, the Freedom of Information and Privacy 
Office shall have the statement included in the system of records in 
which the disputed record is maintained and shall have the disputed 
record marked so as to indicate that a Statement of Disagreement has 
been filed. Ex-Im Bank may also append to the disputed record a written 
statement regarding Ex-Im Bank's reasons for denying the request to 
correct the record.
    (f) Notices of correction or disagreement. In any disclosure of a 
record for which Ex-Im Bank has received a statement of disagreement, 
Ex-Im Bank shall clearly note any portion of the record which is 
disputed and shall provide a copy of the statement of disagreement. Ex-
Im Bank also may provide its own statement regarding the disputed 
record. In addition, whenever Ex-Im Bank corrects a record or receives 
a statement of disagreement, Ex-Im Bank shall, as is reasonable under 
the circumstances, advise any person or agency to which it previously 
disclosed such record of the correction or statement, provided that an 
accounting of such disclosure exists.


Sec. 404.19  Request for accounting of record disclosures.

    (a) Required information. With respect to each system of records 
under Ex-Im Bank control, Ex-Im Bank shall maintain an accurate 
accounting of the date, nature, and purpose of each external disclosure 
of a record and the name and address of all persons, organizations, and 
agencies to which disclosure has been made. Ex-Im Bank shall retain 
this accounting for at least five years or the life of the record, 
whichever is longer.
    (b) Form. An individual may obtain an accounting of all disclosures 
of a record, provided that such individual establishes his or her 
identity as the subject of such record in accordance with the 
procedures set forth at Sec. 404.14(d) and (e). A request for an 
accounting must be made in writing and must be signed by the requester. 
The request should be addressed to the Freedom of Information and 
Privacy Office at the address in Sec. 404.12(e) and should contain both 
the return address and telephone number of the requester. Both the 
envelope and the request itself should be clearly be marked in capital 
letters: ``PRIVACY ACT ACCOUNTING REQUEST.'' Failure to properly mark 
or address the request may slow its processing. The request shall not 
be deemed to have been received by Ex-Im Bank until the Freedom of 
Information and Privacy Office receives the request. The letter must 
clearly identify the particular record for which the accounting is 
requested.
    (c) Initial determination. The Freedom of Information and Privacy 
Office shall notify the requester whether the request will be granted 
or denied within ten working days of receipt of a valid request for an 
accounting. Ex-Im Bank

[[Page 14381]]

shall not charge for processing such a request.
    (d) Exceptions. Ex-Im Bank shall not be required to provide an 
accounting to an individual when the accounting relates to a disclosure 
made:
    (1) To an employee within the agency;
    (2) Under the FOIA; or
    (3) To a law enforcement agency for an authorized law enforcement 
activity in response to a written request from such agency which 
specified the law enforcement activity for which the disclosure was 
sought.


Sec. 404.20  Notice of court-ordered and emergency disclosures.

    (a) Court-ordered disclosures. When a record pertaining to an 
individual is required to be disclosed by a court order, the Assistant 
General Counsel for Administration shall make reasonable efforts to 
provide notice to the subject individual. Notice shall be given within 
a reasonable time after Ex-Im Bank's receipt of the order, except that 
in a case in which the order is not a matter of public record, notice 
shall be given only after the order becomes public. Such notice shall 
be mailed to the individual's last known address and shall contain a 
copy of the order and a description of the information disclosed.
    (b) Emergency disclosures. If a record has been disclosed by Ex-Im 
Bank under compelling circumstances affecting the health or safety of 
any person, then, within ten working days, the Assistant General 
Counsel for Administration shall notify the subject individual of the 
disclosure at his or her last known address. The notice of such 
disclosure shall be in writing and shall state the:
    (1) Nature of the information disclosed;
    (2) Person, organization or agency to which it was disclosed;
    (3) Date of disclosure; and
    (4) Compelling circumstances justifying the disclosure.


Sec. 404.21  Submission of social security and passport numbers.

    (a) Policy. Ex-Im Bank recognizes the importance of assessing, to 
the extent reasonably possible, the risks associated with transactions 
supported by Ex-Im Bank. It is often difficult to assess risks related 
to individuals and non-publicly trade entities. Therefore, when an 
individual or a non-publicly traded entity applies for participation in 
an Ex-Im Bank program or is proposed as a guarantor for an Ex-Im Bank 
transaction, Ex-Im Bank may request social security and/or U.S. 
passport numbers from such individual or from the principals of such 
entity. Ex-Im Bank shall not require submission of this information, 
and unwillingness or inability to provide a social security or passport 
number shall not affect Ex-Im Bank's decision on an application for Ex-
Im Bank assistance.
    (b) Use. Ex-Im Bank shall use social security and passport numbers 
to assess the creditworthiness of Ex-Im Bank program participants and 
as a mechanism for enforcing agreements with Ex-Im Bank. Such 
information shall not be disclosed, except as warranted by law and 
regulation.
    (c) Notice. Whenever Ex-Im Bank requests a social security or 
passport number, Ex-Im Bank shall place an appropriate Privacy Act 
notification on the form used to collect the information.


Sec. 404.22  Government contracts.

    (a) Approval by Assistant General Counsel for Administration. Ex-Im 
Bank shall not contract for the operation of a system of records or for 
an activity that requires access to a system of records without the 
express, written approval of the Assistant General Counsel for 
Administration.
    (b) Contract clauses. Any contract authorized under paragraph (a) 
of this section shall contain the standard contract clauses required by 
the Federal Acquisition Regulation (48 CFR 24.104) to ensure compliance 
with the requirements imposed by the Privacy Act. The division within 
Ex-Im Bank that is responsible for technical supervision of the 
contract shall be responsible for ensuring that the contractor complies 
with the Privacy Act contract requirements.
    (c) Contractor status. Any contractor that operates an Ex-Im Bank 
system of records or engages in an activity that requires access to an 
Ex-Im Bank system of records shall be considered an Ex-Im Bank employee 
for purposes of this subpart. Ex-Im Bank shall supply any such 
contractor with a copy of the regulations in this subpart upon entering 
into a contract with Ex-Im Bank.


Sec. 404.23  Other rights and services.

    Nothing in this subpart shall be construed to entitle any person to 
any service or to the disclosure of any record to which such person is 
not entitled under the Privacy Act.

Subpart C--[Reserved]

Subpart D--[Reserved]

Subpart E--[Reserved]

PART 405--[REMOVED AND RESERVED]

    2. 12 CFR part 405 is removed and reserved.

    Dated: March 16, 1999.
Kenneth W. Hansen,
General Counsel.
[FR Doc. 99-7283 Filed 3-24-99; 8:45 am]
BILLING CODE 6690-01-P