[Federal Register Volume 77, Number 90 (Wednesday, May 9, 2012)]
[Proposed Rules]
[Pages 27140-27142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-10903]


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EXPORT-IMPORT BANK OF THE UNITED STATES

12 CFR Part 404

[EXIM-OIG-2012-0010]
RIN 3048-AA02


Privacy Act of 1974: Implementation of Exemptions; Export-Import 
Bank of the United States Office of Inspector General--Office of 
Inspector General Investigative Records

AGENCY: The Export-Import Bank of the United States.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Export-Import Bank of the United States (hereafter known 
as ``Ex-Im Bank''), Office of Inspector General (hereafter known as 
``OIG'' or ``Ex-Im Bank OIG'') is giving concurrent notice of a new 
system of records entitled, ``EIB-35-Office of Inspector General 
Investigative Records.'' In this proposed rulemaking, Ex-Im Bank 
proposes to exempt portions of this system of records from one or more 
provisions of the Privacy Act because of criminal, civil, and 
administrative enforcement requirements.

DATES: Comments should be received on or before July 9, 2012 to be 
assured of consideration.

ADDRESSES: You may submit comments, identified by Docket Number EIB-
2011-0010 by one of the following methods:
     Electronically through the eRulemaking Portal at http://www.regulations.gov. Follow the instructions for submitting comments. 
Please search for EIB-2011-0010.
     By Mail/Hand Delivery/Courier: Alberto Rivera-Fournier, 
Ex-Im Bank,

[[Page 27141]]

Office of Inspector General/811 Vermont Avenue NW., Rm. 976, 
Washington, DC 20571. Please allow sufficient time for mailed comments 
to be received before the close of the comment period.
    Instructions: All submissions received must include the agency name 
and docket number for this notice. All comments received before the end 
of the comment period will be posted on http://www.regulations.gov for 
public viewing, including any personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Alberto Rivera-Fournier, Ex-Im Bank, 
Office of Inspector General, 811 Vermont Avenue NW., Rm. 976, 
Washington, DC 20571 or by telephone (202) 565-3908 or facsimile (202) 
565-3988.

SUPPLEMENTARY INFORMATION: Concurrently with the publication of this 
notice of proposed rulemaking, the Ex-Im Bank OIG is publishing a new 
system of records notice that is subject to the Privacy Act of 1974, 5 
U.S.C. 552a. The system is entitled, ``EIB-35-Office of Inspector 
General Investigative Records''. The system of records is necessary in 
order for Ex-Im Bank OIG to carry out its investigative 
responsibilities pursuant to the Inspector General Act of 1978, as 
amended.
    Ex-Im Bank is proposing to exempt this system, in part, from 
certain provisions of the Privacy Act. The OIG is responsible for 
conducting and supervising independent and objective audits, 
inspections, and investigations of the programs and operations of Ex-Im 
Bank. The OIG promotes economy, efficiency, and effectiveness within 
the Ex-Im Bank and prevents and detects fraud, waste, and abuse in its 
programs and operations. The OIG's Office of Investigations 
investigates allegations of criminal, civil, and administrative 
misconduct involving Ex-Im Bank employees, contractors, programs and 
activities. These investigations can result in criminal prosecutions, 
fines, civil monetary penalties, and administrative sanctions.
    The new system of records assists the OIG with receiving and 
processing allegations of violation of criminal, civil, and 
administrative laws and regulations relating to Ex-Im Bank employees, 
contractors, and other individuals and entities associated with Ex-Im 
Bank. The system includes both paper investigative files and the 
``Inspector General Information System'' (IGIS), an electronic case 
management and tracking information system, which also generates 
reports. IGIS allows the OIG to manage information provided during the 
course of its investigations, and, in the process, to facilitate its 
management of investigations and investigative resources.
    The Privacy Act embodies fair information principles in a statutory 
framework governing the means by which the United States Government 
collects, maintains, uses, and disseminates personally identifiable 
information. The Privacy Act applies to information that is maintained 
in a ``system of records.'' A ``system of records'' is a group of any 
records under the control of an agency from which information is 
retrieved by the name of the individual or by some identifying number, 
symbol, or other identifying particular assigned to the individual. 
Individuals may request their own records that are maintained in a 
system of records in the possession or under the control of Ex-Im Bank 
by complying with Ex-Im Bank Privacy Act regulations, 12 CFR part 404.
    The Privacy Act requires each agency to publish in the Federal 
Register a description of the type and character of each system of 
records that the agency maintains, and the routine uses that are 
contained in each system in order to make agency recordkeeping 
practices transparent, to notify individuals regarding the uses to 
which personally identifiable information is put, and to assist 
individuals in finding such files within the agency.
    The Privacy Act allows government agencies to exempt certain 
records from the access and amendment provisions. If an agency claims 
an exemption, however, it must issue a Notice of Proposed Rulemaking to 
make clear to the public the reasons why a particular exemption is 
claimed.
    Ex-Im Bank is claiming exemptions from certain requirements of the 
Privacy Act for the ``EIB-35-Office of Inspector General Investigative 
Records'' because information in this system of records relates to 
official law enforcement activities. These exemptions are needed to 
protect information relating to Ex-Im Bank OIG activities from 
disclosure to subjects of investigations and others related to these 
activities.
    Specifically, the exemptions are required to preclude subjects of 
investigations from frustrating the investigative process; to avoid 
disclosure of investigative techniques; to protect the identities and 
physical safety of confidential informants and law enforcement 
personnel; to ensure Ex-Im Bank OIG's ability to obtain information 
from third parties and other sources; to protect the privacy of third 
parties; to fulfill commitments made to protect the confidentiality of 
sources; and to safeguard confidential information. Disclosure of 
information to the subject of the inquiry could also permit the subject 
to avoid detection or apprehension.
    The exemptions proposed here are standard law enforcement 
exemptions exercised by a large number of Federal law enforcement and 
intelligence agencies. In appropriate circumstances, where compliance 
would not appear to interfere with or adversely affect the law 
enforcement purposes of this system and the overall law enforcement 
process, the applicable exemptions may be waived on a case by case 
basis.

List of Subjects in 12 CFR Part 404

    Information disclosure.

    For the reasons stated in the preamble, Ex-Im Bank proposes to 
amend chapter IV of Title 12, Code of Federal Regulations, as follows:

PART 404--INFORMATION DISCLOSURE

    1. The authority citation for part 404 continues to read as 
follows:

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

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

    2. Add Sec.  404.24 to subpart B to read as follows:


Sec.  404.24  Exemptions: EIB-35--Office of Inspector General 
Investigative Records

    (a) Criminal Law Enforcement. (1) Exemption. Under the authority 
granted by 5 U.S.C. 552a(j)(2), Ex-Im Bank hereby exempts the system of 
records entitled ``EIB-35--Office of Inspector General Investigative 
Records'' from the provisions of 5 U.S.C. 552a(c)(3), (c)(4), (d)(1) 
through (4), (e)(1) through (3), (e)(4)(G) and (H), (e)(5), (e)(8), 
(f), and (g) because the system contains information pertaining to the 
enforcement of criminal laws. ``EIB-35--Office of Inspector General 
Investigative Records'' is maintained by the Ex-Im Bank Office of 
Inspector General (``OIG'' or ``Ex-Im Bank OIG'').
    (2) Reasons for exemption. The reasons for asserting this exemption 
are:
    (i) Disclosure to the individual named in the record pursuant to 5 
U.S.C. 552a(c)(3), (c)(4), or (d)(1) through (4) could seriously impede 
or compromise

[[Page 27142]]

the investigation by alerting the target(s), subjecting a potential 
witness or witnesses to intimidation or improper influence, and leading 
to destruction of evidence. Disclosure could enable suspects to take 
action to prevent detection of criminal activities, conceal evidence, 
or escape prosecution.
    (ii) Application of 5 U.S.C. 552a(e)(1) is impractical because the 
relevance of specific information might be established only after 
considerable analysis and as the investigation progresses. Effective 
law enforcement requires the OIG to keep information that may not be 
relevant to a specific OIG investigation, but which may provide leads 
for appropriate law enforcement and to establish patterns of activity 
that might relate to the jurisdiction of the OIG and/or other agencies.
    (iii) Application of 5 U.S.C. 552a(e)(2) would be counterproductive 
to the performance of a criminal investigation because it would alert 
the individual to the existence of an investigation. In any 
investigation, it is necessary to obtain evidence from a variety of 
sources other than the subject of the investigation in order to verify 
the evidence necessary for successful litigation or prosecution.
    (iv) Application of 5 U.S.C. 552a(e)(3) could discourage the free 
flow of information in a criminal law enforcement inquiry.
    (v) The requirements of 5 U.S.C. 552a(e)(4)(G) and (H), and (f) 
would be counterproductive to the performance of a criminal 
investigation. To notify an individual at the individual's request of 
the existence of records in an investigative file pertaining to such 
individual, or to grant access to an investigative file could interfere 
with investigative and enforcement proceedings, deprive co-defendants 
of a right to a fair trial or other impartial adjudication, constitute 
an unwarranted invasion of personal privacy of others, disclose the 
identity or confidential sources, reveal confidential information 
supplied by these sources and disclose investigative techniques and 
procedures. Nevertheless, Ex-Im Bank OIG has published notice of its 
notification, access, and contest procedures because access may be 
appropriate in some cases.
    (vi) Although the OIG endeavors to maintain accurate records, 
application of 5 U.S.C. 552a(e)(5) is impractical because maintaining 
only those records that are accurate, relevant, timely, and complete 
and that assure fairness in determination is contrary to established 
investigative techniques. Information that may initially appear 
inaccurate, irrelevant, untimely, or incomplete may, when collated and 
analyzed with other available information, become more pertinent as an 
investigation progresses.
    (vii) Application of 5 U.S.C. 552a(e)(8) could prematurely reveal 
an ongoing criminal investigation to the subject of the investigation.
    (viii) The provisions of 5 U.S.C. 552a(g) do not apply to this 
system if an exemption otherwise applies.
    (b) Other Law Enforcement. (1) Exemption. Under the authority 
granted by 5 U.S.C. 552a(k)(2), Ex-Im Bank hereby exempts the system of 
records entitled ``EIB-35--Office of Inspector General Investigative 
Records'' from the provisions of 5 U.S.C. 552a(c)(3), (d)(1) through 
(4), (e)(1), (e)(4)(G) and (H), and (f) for the same reasons as stated 
in paragraph (a)(2) of this section, that is, because the system 
contains investigatory material compiled for law enforcement purposes 
other than material within the scope of 5 U.S.C. 552a(j)(2).
    (2) Reasons for exemption. The reasons for asserting this exemption 
are because the disclosure and other requirements of the Privacy Act 
could substantially compromise the efficacy and integrity of OIG 
operations. Disclosure could invade the privacy of other individuals 
and disclose their identity when they were expressly promised 
confidentiality. Disclosure could interfere with the integrity of 
information which would otherwise be subject to privileges (see, e.g., 
5 U.S.C. 552(b)(5)), and which could interfere with other important law 
enforcement concerns (see, e.g., 5 U.S.C. 552(b)(7)).
    (c) Federal Civilian or Contract Employment. (1) Exemption. Under 
the authority granted by 5 U.S.C. 552a(k)(5), Ex-Im Bank hereby exempts 
the system of records entitled ``EIB-35--Office of Inspector General 
Investigative Records'' from the provisions of 5 U.S.C. 552a(c)(3), 
(d)(1) through (4), (e)(1), (e)(4)(G) and (H), and (f) because the 
system contains investigatory material compiled for the purpose of 
determining eligibility or qualifications for federal civilian or 
contract employment.
    (2) Reasons for exemption. The reasons for asserting this exemption 
are the same as described in paragraph (a)(2) of this section.

    Dated: May 1, 2012.
Sharon A. Whitt,
Agency Clearance Officer.
[FR Doc. 2012-10903 Filed 5-8-12; 8:45 am]
BILLING CODE 6690-01-P