[Federal Register Volume 87, Number 55 (Tuesday, March 22, 2022)]
[Proposed Rules]
[Pages 16107-16117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05322]


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EXPORT-IMPORT BANK

12 CFR Part 404

[Docket No. EIB-2022-0001]


Freedom of Information Act Requirements

AGENCY: Export-Import Bank of the United States.

ACTION: Proposed rule.

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SUMMARY: The Export-Import Bank of the United States (EXIM) is 
publishing for comment proposed revisions to its regulations under the 
Freedom of Information Act (FOIA). The revisions are intended to 
incorporate amendments to the FOIA under the FOIA Improvement Act of 
2016, developments in the case law, and changes in Federal and EXIM 
policies. The proposed revisions are also intended to clarify 
procedural requirements. The proposed revisions occur throughout the 
FOIA regulations and are predominantly procedural in nature.

DATES: Comments should be received by April 21, 2022.

ADDRESSES: You may submit comments by any of the following methods:
     The Federal eRulemaking Portal located at https://www.regulations.gov, following the instructions for providing comment;
     Email to [email protected], including ``Proposed Rule 
Comments'' in the subject line.
     Mail to the Chief Freedom of Information Act Officer, 
Export-Import Bank of the United States, 811 Vermont Ave. NW, 
Washington, DC 20571; and
    Instructions: All submissions should refer to File Number EIB-2022-
0001. To help us process and review your comments more efficiently, 
please use only one method of providing comments. Comments submitted by 
mail will be accepted as timely if they are postmarked on or before 
April 21, 2022. Electronic comments may be submitted via 
www.regulations.gov prior to midnight Eastern Standard Time on April 
21, 2022. Comments submitted via email will be accepted as timely if 
they are date stamped on or before the comment date.
    Do not include any sensitive information in your submission. All 
comments received will be posted without change to regulations.gov, 
including any personal information provided.

FOR FURTHER INFORMATION CONTACT: Chief Freedom Information Act Officer 
Lisa Terry at [email protected]; (202) 565-3290.

SUPPLEMENTARY INFORMATION:

I. Background

    EXIM is proposing revisions to its regulations under the FOIA, 5 
U.S.C. 552. The revisions incorporate changes in law under the FOIA 
Improvement Act of 2016, developments in case law, and changes in 
Federal and EXIM policies. While incorporating these changes, EXIM has 
also sought to simplify and clarify its regulations. Due to the scope 
of the proposed revisions, the proposed rule would replace EXIM's 
current FOIA regulations in their entirety (12 CFR 404.1 through 
404.11).

II. Discussion of Changes in Proposed Rule

    The numbered paragraphs immediately below provide an overview of 
the proposed changes to the regulations. At the conclusion of this 
preamble, the new proposed regulations are set forth in their entirety.

1. Amended: Authority

    The authority citation for part 404 would be amended to include 
additional cites to EXIM's statutory charter (12 U.S.C. 635(a)(1)) and 
the rulemaking provisions of the Administrative Procedures Act (5 
U.S.C. 553). Citations to Executive orders imposing administrative 
requirements on EXIM would be removed. The amended general authority 
would be 12 U.S.C. 635(a)(1); 5 U.S.C. 552, 5 U.S.C. 552(a), 5 U.S.C. 
553.

2. Redesignate Sec. Sec.  404.24 Through 404.36

------------------------------------------------------------------------
                       Old section                          New section
------------------------------------------------------------------------
404.24..................................................          404.26
404.25..................................................          404.27
404.26..................................................          404.28
404.27..................................................          404.29
404.28..................................................          404.30
404.29..................................................          404.31
404.30..................................................          404.32
404.31..................................................          404.33
404.32..................................................          404.34
404.33..................................................          404.35
404.34..................................................          404.36
404.35..................................................          404.37
404.36..................................................          404.38
------------------------------------------------------------------------

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 
confusion.
    Current paragraphs (d) and (e) describe EXIM's proactive 
disclosures and provide EXIM's internet address and mailing address. 
This information would be amended and moved to proposed Sec. Sec.  
404.2, Proactive disclosures, and 404.3, Request requirements.

5. Removed: Current Sec.  404.2, Definitions

    This section would be eliminated, with most of the definitions 
relocated to the sections in which the defined terms are used. The 
majority of the relocated

[[Page 16108]]

definitions pertain to current Sec.  404.16, Schedule of fees. The 
definitions of ``Confidential business information'' and ``Submitter'' 
would be relocated to the section currently labelled ``Confidential 
business information.'' The proposed regulations would change the 
phrase ``confidential business information'' to ``confidential 
commercial information'' for greater consistency with the statutory 
language, related case law, and applicable guidance. ``Working days'' 
was relocated to the section addressing time for processing, previously 
at Sec.  404.5.
    Several other definitions would be eliminated as unnecessary due to 
their being common usage, duplicative of information contained 
elsewhere, or otherwise sufficiently clear in meaning from the context 
in which they are used. These terms would be eliminated for purposes of 
brevity and clarity. This includes the definitions of appeal, final 
determination, initial determination, person, redaction, request, and 
requester.
    The current definition of ``trade secrets'' would be eliminated as 
legally incorrect.

6. Amended: Proposed Sec.  404.2, Proactive Disclosures

    This section would be renumbered from current Sec.  404.3 to Sec.  
404.2 and renamed ``Proactive disclosures.'' The current wording 
describes procedures for accessing a physical reading room at EXIM's 
headquarters, while the proposed revision would include the online 
reading room now required by the FOIA. The amended section would also 
state that EXIM's FOIA Liaison is available to help requesters locate 
information online. In addition, the amended section would newly 
describe the data that EXIM posts at data.exim.gov on EXIM's 
transactions.

7. Amended: Proposed Sec.  404.3, Request Requirements

    This section would be renumbered from current Sec.  404.4 to Sec.  
404.3. This section would encourage potential requesters to review the 
information publicly available on the EXIM website before submitting a 
request. EXIM believes it is in requesters' best interest to review the 
significant amount of information available online before submitting a 
request.
    This section also would newly state the electronic means for 
submitting a request, including by email to [email protected] and through 
the online portal at www.exim.gov/about/foia. The current requirement 
that requesters sign their request would be eliminated as inconsistent 
with the FOIA and EXIM's past practice of accepting unsigned electronic 
submissions. Requesters would instead need to provide contact 
information.
    In the proposed regulations, the current statement that a general 
request to pay applicable fees is deemed a request to pay up to $50.00 
would be eliminated. This statement is viewed as potentially 
inconsistent with the Office of Management and Budget's (OMB's) FOIA 
Fee Guidelines, which requires agencies to notify requesters of fees 
exceeding $25.00.
    This section would also clarify and update the language that sets 
forth the process for obtaining records by the requester him or herself 
(or a third party), and the need for a request to provide an adequate 
description of the records. The section would also provide for FOIA 
Public Liaison assistance in reformulating a request.

8. Added: Proposed Sec.  404.5, Responsibility for Responding to 
Requests

    This newly added section would provide the Freedom of Information 
and Privacy Office the authority to respond to requests, establish a 
``cut off'' date for searches at the time the search is conducted, 
address classified information, and describe EXIM's procedures for 
working with other agencies in the processing of requests--including 
through consultations, referrals, and other types of coordination.

9. Amended: Proposed Sec.  404.6, Time for Processing

    This section would be renumbered from current Sec.  404.5 to Sec.  
404.6. It would newly incorporate the statutory definition of ``unusual 
circumstances'' and ``working days.'' This section would also newly 
provide for multitrack processing, with the following tracks: 
Expedited, simple, and complex. This section would also seek to clarify 
the current language and add additional detail to the expedited 
processing provisions.

10. Amended: Proposed Sec.  404.7, Release of Records

    This section would be renumbered from current Sec.  404.6 to Sec.  
404.7 and renamed. It would newly include the foreseeable harm 
requirement for discretionary exemptions, added by the FOIA Improvement 
Act of 2016.
    The current paragraph (a), addressing the ``creation of records,'' 
would be eliminated as both inconsistent with the FOIA and unnecessary. 
Even if this subsection is eliminated, EXIM would retain the authority 
to create appropriate records.
    As indicated above, the current paragraph (d) addressing the ``cut 
off'' date for searches would be amended and relocated to Sec.  404.5.

11. Amended: Proposed Sec.  404.8, Responses to Requests

    Section 404.8, Initial determination, would be renamed for purposes 
of clarity and greater consistency with other agency FOIA regulations. 
The section would also newly provide for communication with requesters 
by email and EXIM's online portal, newly provide for the 
acknowledgement of requests, and more fully describe EXIM obligations 
when there is either a full grant of the requested records or an 
adverse determination of some kind. This section would also newly 
address FOIA exclusions under 5 U.S.C. 552(c).
    As required by the FOIA Improvement Act of 2016, this section would 
also require EXIM to notify requesters of the services provided by the 
Office of Government Information Services (OGIS).

12. Amended: Proposed Sec.  404.9, Confidential Commercial Information

    This section would be renumbered from current Sec.  404.7, 
Confidential business information, to Sec.  404.9 and renamed. The 
title ``confidential business information'' would be changed to 
``confidential commercial information'' to better match the wording of 
the requirements in Exemption 4, case law, related guidance, and other 
agency FOIA regulations. The protections and procedures would remain 
the same and are in accordance with Executive Order 12600, but the 
proposed amendments here seek to provide additional detail and clarity 
for requesters based on the legal standards applicable under Exemption 
4.

13. Amended: Proposed Sec.  404.10, Schedule of Fees

    This section would be renumbered from current Sec.  404.9 to Sec.  
404.10. As referenced above, this section would newly incorporate 
amended versions of the definitions that are currently located in a 
general definitions section at Sec.  404.2. The amended language would 
also update and provide additional detail on EXIM's fee practices, 
consistent with OMB's Fee Guidelines.
    The rate for clerical search and review time would be increased 
from $16.00/hour to $33.00/hour. The rate for professional search and 
review time would be increased from $32.00/hour to $57.00/hour. This 
proposal reflects

[[Page 16109]]

increased labor rates since the regulations were last updated in 1999.
    Notice of anticipated fees would generally be provided when the 
estimated fees exceed $25.00, unless a requester has already agreed to 
pay more or has received a waiver. This is lowered from the current 
$50.00 to better match OMB's Fee Guidelines.

14. Amended: Proposed Sec.  404.11, Fee Waivers or Reductions

    This section would be renumbered from current Sec.  404.10 to Sec.  
404.11. As with the prior two sections addressed above, this section 
would be expanded to provide additional guidance and clarity for 
requesters. The substantive standards for seeking fee waivers are 
governed by the FOIA and related case law, however, and would remain 
unchanged. Current paragraph (e), Employee Requests, would be removed 
because the FOIA is generally not needed for employees or applicants to 
obtain information related to a complaint of discrimination. 
Discrimination complaints are governed by procedures established by the 
Equal Employment Opportunity Commission and, regardless, EXIM would 
retain the authority to grant discretionary fee waivers and reductions.

15. Amended: Proposed Sec.  404.12, Administrative Appeals

    This section would be renumbered from current Sec.  404.11 to Sec.  
404.12. The proposed changes would provide for the electronic 
submission of appeals and notify appellants of the ability to seek 
assistance from OGIS.

16. Amended: Proposed Sec.  404.13, Preservation of Records

    This newly added section would provide for the preservation of all 
correspondence associated with a request, as well as all requested 
records, under appropriate records schedules. It would also prohibit 
the destruction or modification of records while they are subject to a 
pending request, administrative appeal, or lawsuit.

17. Amended: Subparts B and C

    Cross references in subparts B and C are updated to reflect section 
redesignations in the subparts.

Regulatory Flexibility Act Certification

    When an agency issues a rulemaking proposal, the Regulatory 
Flexibility Act (RFA) requires the agency to ``prepare and make 
available for public comment an initial regulatory flexibility 
analysis'' which will ``describe the impact of the proposed rule on 
small entities.'' (5 U.S.C. 603(a)). Section 605 of the RFA allows an 
agency to certify a rule, in lieu of preparing an analysis, if the 
proposed rulemaking is not expected to have a significant economic 
impact on a substantial number of small entities.
    The proposed changes to EXIM's FOIA regulations are predominantly 
procedural in nature and many incorporate already binding law and 
policy. While the proposed changes also increase the rates that EXIM 
uses to charge certain FOIA requesters the direct costs of responding 
to a request, this updated fee schedule reflects current EXIM costs and 
EXIM remains only able to charge its direct costs of searching for, 
reviewing, and duplicating the records processed for requesters. There 
are a number of possible exceptions and waivers that reduce the number 
of requesters and small entities that may be affected by the proposed 
fee changes and, even when charged, these fees are typically small. 
When needed, EXIM is able to work with requesters to modify their 
request to reduce the chargeable fees while still obtaining the core 
information they seek.
    As a result, the proposed changes are unlikely to have an economic 
impact on requesters regardless of their size and resources. 
Accordingly, EXIM hereby certifies that these proposed amendments to 
the FOIA regulations, if adopted, would not have a significant economic 
impact on a substantial number of small entities. EXIM requests comment 
from members of the public regarding the appropriateness and accuracy 
of this analysis and certification.

Executive Order 12866

    This proposed rule is not a ``significant regulatory action'' for 
purposes of Executive Order 12866.

Executive Order 13771

    This proposed rule is not a regulatory action under Section 2 of 
Executive Order 13771 because it is not significant under Executive 
Order 12866 and does not constitute a significant guidance document.

Paperwork Reduction Act

    This regulation does not contain a ``collection of information'' as 
defined by the Paperwork Reduction Act, 44 U.S.C. 3501, et seq.

List of Subjects in 17 CFR Part 404

    Administrative procedures, Freedom of information.

Text of Proposed Amendments

    For the reasons stated in the preamble, EXIM proposes to amend 12 
CFR part 404 as follows:

PART 404--INFORMATION DISCLOSURE

0
1. The authority citation for part 404 is revised to read as follows:

    Authority: 12 U.S.C. 635(a)(1); 5 U.S.C. 552, 5 U.S.C. 552(a), 5 
U.S.C. 553.
    Section 404.7 also issued under E.O. 12600, 52 FR 23781, 3 CFR, 
1987 Comp., p. 235.
    Section 404.21 also issued under 5 U.S.C. 552a note.
    Subpart C also issued under 5 U.S.C. 301, 12 U.S.C. 635.


Sec. Sec.  404.24 through 404.36  [Redesignated as Sec. Sec.  404.26 
through 404.38]

0
2. Redesignate Sec. Sec.  404.24 through 404.36 as Sec. Sec.  404.26 
through 404.38.


Sec. Sec.  404.12 through 404.23  [Redesignated as Sec. Sec.  404.14 
through 404.25]

0
3. Redesignate Sec. Sec.  404.12 through 404.23 as Sec. Sec.  404.14 
through 404.25.
0
4. Revise subpart A to read as follows:

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

Sec.
404.1 General provisions.
404.2 Proactive disclosures.
404.3 Request requirements.
404.5 Responsibility for responding to requests.
404.6 Time for processing response to requests.
404.7 Release of records.
404.8 Responses to requests.
404.9 Confidential commercial information.
404.10 Schedule of fees.
404.11 Fee waivers or reductions.
404.12 Administrative appeals.
404.13 Preservation of records.


Sec.  404.1  General provisions.

    (a) Purpose. This subpart contains the rules that the Export-Import 
Bank of the United States (EXIM) follows in processing requests for 
records under the Freedom of Information Act (FOIA), 5 U.S.C. 552. This 
subpart should be read in conjunction with the text of the FOIA and the 
Uniform Freedom of Information Fee Schedule and Guidelines published by 
the Office of Management and Budget (OMB Guidelines).
    (b) Scope. Requests made by individuals for records about 
themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed 
in accordance with EXIM's Privacy Act regulations in subpart B of this 
part as well as under this subpart.
    (c) Delegation. Any action or determination in this subpart which 
is

[[Page 16110]]

the responsibility of a specific EXIM employee may be delegated.


Sec.  404.2  Proactive disclosures.

    (a) Records that the FOIA requires agencies to make available for 
public inspection in an electronic format may be accessed through the 
EXIM internet site at https://www.exim.gov/about/foia/frequently-requested-records-and-proactive-disclosures and https://data.exim.gov/. 
EXIM is responsible for determining which records must be made publicly 
available, for identifying additional records of interest to the public 
that are appropriate for public disclosure, and for posting and 
indexing such records. EXIM must ensure that its website of posted 
records and indices is reviewed and updated on an ongoing basis. EXIM's 
FOIA Public Liaison can assist individuals in locating records 
particular to the agency. The contact information for the Public 
Liaison is available at https://www.exim.gov/about/foia, along with 
other FOIA resources.
    (b) EXIM proactively discloses information at data.exim.gov on 
applications and transactions, whether denied or authorized, including: 
Unique identifiers EXIM assigns; approval and declination decisions; 
the expiration date for a guarantee or insurance policy; whether an 
insurance policy was brokered or not; whether an approved transaction 
was cancelled after approval; the country where the credit risk is; the 
financing program or product that was applied for, including the type 
of any insurance; the primary export product; a product description; 
the length of financing on a deal; the principal applicant; the 
principal lender; the principal exporter; the city and state of the 
primary exporter; the company name of the principal borrower; the 
primary source of repayment; the amount of financing approved or 
declined; the amount of the loan or guarantee that has been disbursed 
or the amount that has been shipped on an insurance policy; the 
undisbursed exposure amount; the portion of the disbursed/shipped 
amount that has not been repaid; the portion of an approved amount that 
assisted a small business; the portion of an approved company that 
assisted a woman owned company; the portion of an approved amount that 
assisted a minority owned company; the interest rate being applied to a 
direct loan; and whether a working capital amount is pursuant to an 
extension of a previously approved working capital facility.


Sec.  404.3  Request requirements.

    (a) Before submitting a FOIA request, potential requesters are 
encouraged to review the information publicly available at https://www.exim.gov/about/foia/frequently-requested-records-and-proactive-disclosures and https://data.exim.gov/. The material you seek may be 
immediately available at no cost.
    (b)(1)(i) A request for records must be made directly to EXIM in 
writing. Requests may be submitted to the EXIM FOIA Office:
    (A) By email to [email protected];
    (B) Using the online form available at https://www.exim.gov/about/foia;
    (C) Using the online FOIAXpress PAL Portal available at https://palprod.eximefoia.com/; and
    (D) By mail addressed to the Freedom of Information and Privacy 
Office, 811 Vermont Ave. NW, Washington, DC 20571.
    (ii) Additional resources and contact information are available at 
https://www.exim.gov/about/foia.
    (2) A requester who is making a request for records about himself 
or herself must comply with the verification of identity requirements 
as set forth at Sec.  404.16(d). This requires your request and 
signature to be notarized. You may instead submit a statement under 28 
U.S.C. 1746, a law that permits statements to be made under penalty of 
perjury as a substitute for notarization.
    (3) Where a request for records pertains to another individual, a 
requester may receive greater access by submitting either a notarized 
authorization signed by that individual or a declaration made in 
compliance with the requirements set forth in 28 U.S.C. 1746 by that 
individual authorizing disclosure of the records to the requester, or 
by submitting proof that the individual is deceased (e.g., a copy of a 
death certificate or an obituary). As an exercise of administrative 
discretion, EXIM can require a requester to supply additional 
information if necessary, in order to verify that a particular 
individual has consented to disclosure.
    (c)(1) Each request must describe the records sought in sufficient 
detail to enable EXIM personnel to locate the record with a reasonable 
amount of effort. To the extent possible, requesters should include 
specific information that may help EXIM identify the requested records, 
such as relevant dates, format, subject matter, title, transaction or 
reference number, and the name of any person to whom the record is 
known to relate. For assistance in drafting a records request, 
requesters can contact EXIM's FOIA Public Liaison.
    (2) If after receiving a request EXIM determines that it does not 
reasonably describe the records sought, EXIM must inform the requester 
what additional information is needed or why the request is otherwise 
insufficient. Requesters who are attempting to reformulate or modify 
such a request may discuss their request with EXIM's FOIA contact or 
FOIA Public Liaison. If EXIM is unable to clarify the timeframe for 
which a particular request seeks records, EXIM may deem the request to 
be a request for records created within the preceding twelve months.
    (d) Requests may specify the preferred form or format (including 
electronic formats) for the records you seek. EXIM will accommodate 
your request if the record is readily reproducible in that form or 
format.
    (e) Requesters must provide contact information, such as their 
phone number, email, and mailing address, to assist EXIM in 
communicating with them and providing released records.
    (f) A request must state the requester's willingness to pay any 
applicable fees or contain a request for a fee waiver. A requester may 
set a maximum amount the requester is willing to pay. The fee schedule 
and related provisions are provided in Sec.  404.10. The ability to 
request fee waivers is set forth at Sec.  404.11. EXIM will not process 
your request while clarifying fee issues.


Sec.  404.5  Responsibility for responding to requests.

    (a) In general. In determining which records are responsive to a 
request, EXIM ordinarily will only include records that qualify as 
agency records under the FOIA on the date EXIM begins its search. If 
any other date is used, EXIM must inform the requester of that date. A 
record that is excluded from the requirements of the FOIA pursuant to 5 
U.S.C. 552(c), is not considered responsive to a request.
    (b) Authority to grant or deny requests. The Freedom of Information 
and Privacy Office is authorized to grant or deny any requests for 
records. This is the initial determination that can be appealed. The 
Freedom of Information and Privacy Office is also responsible for 
coordinating the search for responsive records and other matters 
concerning the processing of the request.
    (c) Consultation, referral, and coordination. When reviewing 
records located by EXIM in response to a request, EXIM will determine 
whether another agency of the Federal Government is better able to 
determine whether the record is exempt from disclosure under the FOIA. 
With any

[[Page 16111]]

such record, EXIM must proceed in one of the following ways:
    (1) Consultation. When records originated with EXIM, but contain 
within them information of interest to another agency or Federal 
Government office, EXIM will typically consult with that other entity 
prior to making a release determination.
    (2) Referral. (i) When EXIM determines that a different agency is 
best able to determine whether to disclose the record, EXIM will 
typically refer the responsibility for responding to the request 
regarding that record to that agency. Ordinarily, the agency that 
originated the record is presumed to be the best agency to make the 
disclosure determination. However, if the agency processing the request 
and the originating agency jointly agree that the agency processing the 
request is in the best position to respond regarding the record, then 
the record may be handled as a consultation.
    (ii) Whenever EXIM refers any part of the responsibility for 
responding to a request to another agency, it must document the 
referral, maintain a copy of the record that it refers, and notify the 
requester of the referral, informing the requester of the name(s) of 
the agency to which the record was referred, including that agency's 
FOIA contact information.
    (3) Coordination. The standard referral procedure in paragraph 
(c)(2) of this section is not appropriate where disclosure of the 
identity of the agency to which the referral would be made could harm 
an interest protected by an applicable exemption under FOIA, such as 
the exemptions that protect personal privacy or national security 
interests. For example, if a non-law enforcement agency responding to a 
request for records on a living third party locates within its files 
records originating with a law enforcement agency, and if the existence 
of that law enforcement interest in the third party was not publicly 
known, then to disclose that law enforcement interest could cause an 
unwarranted invasion of the personal privacy of the third party. 
Similarly, if an agency locates within its files material originating 
with an Intelligence Community agency, and the involvement of that 
agency in the matter is classified and not publicly acknowledged, then 
to disclose or give attribution to the involvement of that Intelligence 
Community agency could cause national security harms. In such 
instances, in order to avoid harm to an interest protected by an 
applicable exemption, EXIM will typically coordinate with the 
originating agency to seek its views on the releasability of the 
record. Subsequently, EXIM will convey the release determination for 
the record that is the subject of the coordination to the requester.
    (d) Classified information. On receipt of any request involving 
classified information, EXIM must determine whether the information is 
currently and properly classified in accordance with applicable laws. 
When a request involves a record containing information that has been 
classified or may be appropriate for classification by another agency 
under an applicable Executive order, EXIM must refer the request for 
response to the agency that classified the information, or should 
consider the information for classification. Whenever an agency's 
record contains information that has been derivatively classified (for 
example, when it contains information classified by another agency), 
EXIM must refer the responsibility for responding to that portion of 
the request to the agency that classified the underlying information.
    (e) Timing of responses to consultations and referrals. All 
consultations and referrals received by EXIM will be handled according 
to the date that the first agency received the FOIA request.
    (f) Agreements regarding consultations and referrals. EXIM may 
establish agreements with other agencies to eliminate the need for 
consultations or referrals with respect to particular types of records.


Sec.  404.6  Time for processing response to requests.

    (a) In general. EXIM is obligated to respond to requests within 20 
working days of the date of receipt of the request unless unusual 
circumstances exist. EXIM ordinarily processes requests according to 
their order of receipt.
    (b) Definitions. As used in this section:
    (1) Unusual circumstances means, only to the extent reasonably 
necessary to the proper process of requests:
    (i) The need to search for and collect requested records from 
facilities that are separate from the office processing the request;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded 
in a single request; or
    (iii) The need for consultation with another agency that has a 
substantial interest in the determination of the request or among two 
or more components of the agency having substantial subject matter 
interest therein. EXIM shall conduct any such consultations with all 
practicable speed.
    (2) Working days means all calendar days excluding Saturdays, 
Sundays, and Federal Government holidays.
    (c) Date of receipt. A request will be deemed to have been received 
on the date that the request is received in the Freedom of Information 
and Privacy Office, provided that the requester has met all the 
mandatory requirements of Sec.  404.4. EXIM will notify the requester 
of the date on which a request was officially received in the 
acknowledgment correspondence.
    (d) Order of processing. EXIM will ordinarily process requests in 
order of receipt within their processing track.
    (e) Multitrack processing. EXIM has designated processing tracks 
that distinguish between expedited, simple, and complex requests based 
on the estimated amount of work or time needed to process the request. 
Among the factors EXIM considers are the number of offices involved, 
the number of pages involved in processing the request and the need for 
consultation or referrals. EXIM will advise requesters of the track 
into which their request falls and, when appropriate, EXIM may offer 
the requester an opportunity to narrow or modify their request so that 
it can be placed in a different processing track.
    (f) Unusual circumstances. When EXIM cannot meet the statutory time 
limit for processing a request because of ``unusual circumstances,'' as 
defined in the FOIA, and extends the time limit on that basis, EXIM 
must, before expiration of the 20-day period to respond, notify the 
requester in writing of the unusual circumstances involved and of the 
date by which EXIM estimates processing of the request will be 
completed. Where the extension exceeds 10 working days, EXIM must 
provide the requester with an opportunity to modify the request or 
arrange an alternative time period for processing the original or 
modified request. EXIM's FOIA contact or Public Liaison is available 
for this purpose. EXIM will also alert requesters to the availability 
of the Office of Government Information Services (OGIS) to provide 
dispute resolution services.
    (g) Aggregating request. To satisfy unusual circumstances under the 
FOIA, EXIM may aggregate requests in cases where it reasonably appears 
that multiple requests, submitted either by a requester or by a group 
of requesters acting in concert, constitute a single request that would 
otherwise involve unusual circumstances. EXIM cannot aggregate multiple 
requests that involve unrelated matters.
    (h) Expedited processing. (1) EXIM must process requests and 
appeals on an

[[Page 16112]]

expedited basis when EXIM determines that the requester or appellant 
has demonstrated:
    (i) Circumstances in which the lack of expedited processing could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (ii) In the case of a requester who is primarily engaged in 
disseminating information, an urgency to inform the public concerning 
actual or alleged Federal Government activity. A requester who is not a 
full-time member of the news media must establish that the requester is 
a person whose primary professional activity or occupation is 
information dissemination, though it need not be the requester's sole 
occupation. Such a requester also must establish a particular urgency 
to inform the public about the Government activity involved in the 
request--one that extends beyond the public's right to know about 
Government activity generally. The existence of numerous articles 
published on a given subject can be helpful in establishing the 
requirement that there be an ``urgency to inform'' the public on the 
topic.
    (2) A request for expedited processing may be made at any time. 
When making a request for expedited processing of an administrative 
appeal, the request should be submitted to the EXIM's Assistant General 
Counsel for Administrative Law and Board Support.
    (3) A request for expedited processing and other submissions in 
support of the request must be accompanied by a statement certified by 
the requester to be true and correct to the best of his or her 
knowledge and belief. EXIM may waive this formal certification 
requirement as a matter of discretion. The statement must be in the 
form prescribed by 28 U.S.C. 1746:
    (i) If executed within the United States: ``I declare (or certify, 
verify, or state) under penalty of perjury that the foregoing is true 
and correct to the best of my knowledge and belief. Executed on [date]. 
(signature).''
    (ii) If executed outside the United States: ``I declare (or 
certify, verify, or state) under penalty of perjury that the foregoing 
is true and correct. Executed on (date). (Signature).''
    (i) Determination. Upon receipt of a request for expedited 
processing, EXIM will consider the request and notify the requester of 
its determination within 10 calendar days of receipt of the request. If 
a request for expedited treatment is granted, the request will be given 
priority and will be placed in a processing track for expedited 
requests and processed as soon as practicable.
    (j) Appeal. A requester may file an administrative appeal, as set 
forth at Sec.  404.12, based on a denial of a request for expedited 
processing. EXIM will grant expeditious consideration to any such 
appeal. The appeal should be clearly marked ``Appeal for Expedited 
Processing.''


Sec.  404.7  Release of records.

    (a) Discretionary release. As required by the FOIA, EXIM will 
disclose material unless it reasonably foresees that disclosure would 
harm an interest protected by an exemption or disclosure is prohibited 
by law.
    (b) Segregable records. Whenever it is determined that a portion of 
a record is exempt from disclosure, any reasonably segregable portion 
of the record will be provided to the requester after redaction of the 
exempt material.


Sec.  404.8  Responses to requests.

    (a) General. EXIM, to the extent practicable, will communicate with 
requesters having access to the internet electronically through email 
or web portal available at https://www.exim.gov/about/foia.
    (b) Acknowledgment of request. EXIM must acknowledge all FOIA 
requests in writing and assign a request number for reference and 
tracking the status of the request online. EXIM must also include in 
the acknowledgment a brief description of the records sought to allow 
requesters to more easily keep track of their request.
    (c) Estimated dates of completion and interim responses. Upon 
request, EXIM will provide an estimated date by which EXIM expects to 
provide a response to the requester. If a request involves a voluminous 
amount of material or searches in multiple locations, EXIM may provide 
interim responses, releasing the records on a rolling basis.
    (d) Grants of request. Once EXIM has made a determination to grant 
a request in whole or in part, it will notify the requester in writing. 
EXIM also will inform the requester of any fees charged under Sec.  
404.10 and will disclose the requested records to the requester 
promptly upon payment of any applicable fees. EXIM's FOIA Public 
Liaison is available to offer assistance.
    (e) Adverse determination. EXIM will notify the requester in 
writing if it makes an adverse determination denying a request in any 
respect. Adverse determination or denials of request may include 
decisions that: the requested records are exempt in whole or in part; 
the request does not reasonably describe the records sought; the 
information requested is not a record subject to the FOIA; the 
requested records do not exist, cannot be located or have been 
destroyed; or the requested record is not readily reproducible in the 
form or format sought by the requester. Adverse determinations also 
include denials involving fees or fee waiver matters or denials of 
requests for expedited processing. Whenever EXIM makes an adverse 
determination, the denial notice will be signed by the Chief FOIA 
Officer or other appropriate executive or designee and include:
    (1) The name and title or position of the person responsible for 
the denial.
    (2) A brief statement of the reasons for the denial, including any 
FOIA exemption applied in denying the request.
    (3) An estimate of the volume of any records or information 
withheld, such as the number of pages or some other reasonable form of 
estimation, although such an estimate is not required if the volume is 
otherwise indicated by deletions marked on records that are disclosed 
in part, or if providing an estimate would harm an interest protected 
by an applicable exemption.
    (4) A statement that the denial may be appealed under Sec.  
404.12(a) and a description of the requirements of Sec.  404.12(a).
    (5) A statement notifying the requester of the assistance available 
from FOIA Public Liaison and the dispute resolution services offered by 
the Office of Government Information Services (OGIS).
    (f) Markings on released documents. Markings on released documents 
must be clearly visible to the requester. Records disclosed in part 
will be marked to show the amount of information deleted and the 
exemption under which the deletion was made unless doing so would harm 
an interest protected by an applicable exemption.
    (g) Use of record exclusions. (1) In the event that EXIM identifies 
records that may be subject to exclusion from the requirements of the 
FOIA pursuant to 5 U.S.C. 552(c), EXIM must confer with the Department 
of Justice (DOJ) Office of Information Privacy (OIP) to obtain approval 
to apply the exclusion.
    (2) When invoking an exclusion EXIM will maintain an administrative 
record of the process of invocation and approval of the exclusion by 
OIP.


Sec.  404.9  Confidential commercial information.

    (a) Definitions--As used in this section:
    (1) Confidential commercial information. Trade secrets and 
commercial or financial information obtained by EXIM from a submitter 
that

[[Page 16113]]

may be protected from disclosure under Exemption 4 of the FOIA, 5 
U.S.C. 552(b)(4).
    (2) Submitter. Any person or entity, including a corporation, 
State, or foreign government, but not including another Federal 
Government entity, that provides confidential commercial information, 
either directly or indirectly to the Federal Government.
    (b) Submitter designation. All submitters of confidential 
commercial information must use good faith efforts to designate, by 
appropriate markings, at the time of submission, any portion of their 
submissions that they consider to be exempt from disclosure under 
Exemption 4. This obligation continues after submission, such that a 
submitter should inform EXIM if it later identifies submitted 
information that was not marked or newly considers submitted 
information to be protected by Exemption 4.
    (c) Pre-disclosure notice to the submitter. EXIM must provide 
prompt written notice to the submitter of information that is 
potentially confidential commercial information whenever records 
containing such information are requested under the FOIA if EXIM 
determines that it may be required to disclose the records and:
    (1) The requested information has been designated by the submitter 
as information considered protected from disclosure under Exemption 4; 
or
    (2) EXIM has a reason to believe that the requested information may 
be protected from disclosure under Exemption 4, but has not yet 
determined whether the information is protected from disclosure.
    (d) Notice requirements. The notice must either describe the 
commercial information requested or include a copy of the requested 
records or portions of records containing the information. In cases 
involving a voluminous number of submitters, EXIM may post or publish a 
notice in a place or manner reasonably likely to inform the submitters 
of the proposed disclosure, instead of sending individual 
notifications.
    (e) When notice is not required. EXIM does not need to send the 
notice called for by paragraph (c) of this section if:
    (1) EXIM determines that the information is exempt under the FOIA, 
and therefore will not be disclosed;
    (2) The information has been lawfully published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by a statute other 
than the FOIA or by a regulation issued in accordance with the 
requirements of Executive Order 12600 of June 23, 1987; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous. In such case, EXIM must give 
the submitter written notice of any final decision to disclose the 
information within a reasonable number of days prior to a specified 
disclosure date, as specified in paragraph (g) of this section for 
disclosures made over a submitter's objection.
    (f) Opportunity to object to disclosure--(1) Timeline for a 
response. (i) A submitter located within the United States will have 10 
working days from and including the date of the notification letter to 
respond to an EXIM notice sent under paragraph (c) of this section, 
unless another time period is specified in EXIM's notice.
    (ii) A submitter located outside the United States will have 20 
working from and including the date of the notification letter to 
respond to an EXIM notice sent under paragraph (c) of this section, 
unless another time period is specified in EXIM's notice.
    (iii) EXIM may extend the time for objection upon timely request 
from the submitter and for good cause shown.
    (2) Content of submitter's response. (i) If a submitter has any 
objections to EXIM's disclosure of the information identified in the 
notice, the submitter should specify all grounds for EXIM to withhold 
the particular information under the FOIA.
    (ii) In order to rely on Exemption 4 as a basis for EXIM 
withholding any of the information as confidential commercial 
information, the submitter must provide a specific and detailed written 
explanation of why the information constitutes a trade secret or 
commercial or financial information that is confidential. A submitter 
invoking Exemption 4 in its response should consider including or 
addressing the following:
    (A) Why the information qualifies as a trade secret; or
    (B) Why the information is privileged or confidential commercial or 
financial information, including all of the following that apply:
    (1) Whether the submission was voluntary or required. Information 
that a person must submit to apply for an EXIM product will generally 
be deemed a required submission.
    (2) If voluntarily submitted, whether the information is of a kind 
that the submitter does not customarily release to the public.
    (3) If a required submission, whether EXIM's disclosure would 
likely cause substantial harm to the submitter's competitive position.
    (4) In all cases, how EXIM's disclosure could impair the 
Government's ability to obtain similar information in the future.
    (5) Any other relevant governmental or private interests that could 
be impacted by releasing the information.
    (6) A certification that the information has not been disclosed to 
the public by the submitter and is not routinely available to the 
public from other sources.
    (iii) A submitter who fails to respond within the time period 
specified will be considered to have no objection to disclosure of the 
information. EXIM is not required to consider any information received 
after the date of any disclosure decision.
    (iv) Any information provided by a submitter under this subpart may 
itself be subject to disclosure under the FOIA and should be 
appropriately marked if confidential.
    (g) Notices to the requester. EXIM will notify the requester in 
writing whenever EXIM provides a submitter the opportunity to object to 
disclosure of records pursuant to paragraph (b) of this section; 
whenever EXIM notifies the submitter of EXIM's intent to disclose 
information; and whenever a submitter files a lawsuit to prevent the 
disclosure of the information.
    (h) Consideration of a submitter's response. EXIM must consider a 
submitter's timely response prior to making its disclosure decision, 
including all objections and specific grounds for nondisclosure under 
the FOIA.
    (i) Notice of intent to disclose. Whenever EXIM decides to disclose 
information over the objection of a submitter, EXIM must notify the 
submitter, in writing, of EXIM's determination. EXIM must include in 
this notice:
    (1) The reasons for the disclosure decision, including a response 
to each of the submitter's disclosure objections; and
    (2) A description of the information to be disclosed or copies of 
the records as EXIM intends to release them; and
    (3) A specified disclosure date, which must provide the submitter a 
reasonable time after the notice to file suit to prevent the 
disclosure. This time period will be at least 10 working days from 
EXIM's mailing of the notice of intent to disclose.
    (j) Appeals by requesters. In response to a requester's 
administrative appeal of a withholding under Exemption 4, EXIM will 
comply with the provisions of this section before disclosing any such 
information.

[[Page 16114]]

    (k) Notice of requester's FOIA lawsuit. EXIM must promptly notify 
the submitter whenever a requester brings suit against EXIM seeking to 
compel the disclosure of confidential commercial information.
    (l) Publicly available information. EXIM may, upon request or on 
its own initiative, publicly disclose the information contained at 
exim.data.gov, listed at Sec.  404.2, including the parties to 
transactions for which EXIM approves support, the amount of such 
support, the identity of any primary participants involved, a general 
description of the related U.S. exports, and the country to which such 
exports are destined.


Sec.  404.10  Schedule of fees.

    (a) In general. EXIM will charge fees to recover the full allowable 
direct costs it incurs in processing requests under the FOIA in 
accordance with the provisions of this section and OMB Guidelines. OMB 
Guidelines are accessible at https://www.justice.gov/oip/foia-resources. Requesters may seek a fee waiver. EXIM will consider 
requests for fee waiver in accordance with the requirements in Sec.  
404.11. To resolve any fee issues that arise under this section, EXIM 
may contact a requester for additional information. EXIM will attempt 
to conduct searches in the most efficient manner to minimize costs. 
EXIM ordinarily will collect all applicable fees before sending copies 
of records to a requester. Requesters must pay fees by check or money 
order made payable to the Treasury of the United States, or another 
method EXIM determines.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request. A request for a use or purpose that 
furthers the commercial, trade or profit interest of the requester, 
which can include furthering those interests through litigation.
    (2) Direct costs. Expenditures EXIM incurs in searching for and 
duplicating (and, in the case of commercial use requests, reviewing) 
records in response to a FOIA request. For example, direct costs 
include the salary of the employee performing the work (i.e., the basic 
rate of pay for the employee, including locality pay adjustment, plus 
16 percent of that rate to cover benefits), fees associated with the 
return of records stored offsite, the cost of operating computers and 
other electronic equipment, such as photocopiers and scanners. Direct 
costs do not include overhead expenses such as the costs of space, and 
of heating or lighting a facility.
    (3) Duplication. Is reproducing a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, audiovisual materials, or electronic 
records, among others.
    (4) Educational institution. Any school that operates a program of 
scholarly research. A requester in the fee category in this paragraph 
(b)(4) must show that the request is made in connection with his or her 
role at the education institution. EXIM may seek verification from the 
requester that the request is in furtherance of scholarly research and 
will advise requesters of their placement in this category.
    (i) Example 1. A request from a professor of geology at a 
university for records relating to soil erosion, written on letterhead 
of the Department of Geology, would be presumed to be from an 
educational institution.
    (ii) Example 2. A request from the same professor of geology 
seeking drug information from the Food and Drug Administration in 
furtherance of a murder mystery he is writing would not be presumed to 
be an institutional request, regardless of whether it was written on 
institutional stationery.
    (iii) Example 3. A student who makes a request in furtherance of 
their coursework or other school-sponsored activities and provides a 
copy of a course syllabus or other reasonable documentation to indicate 
the research purpose for the request, would qualify as part of this fee 
category.
    (5) Non-commercial scientific institution. An institution that is 
not operated on a ``commercial'' basis, as defined in paragraph (b)(1) 
of this section for purposes of a ``commercial use request,'' and is 
operated solely for the purpose of conducting scientific research the 
results of which are not intended to promote any particular product or 
industry. A requester in the fee category in this paragraph (b)(5) must 
show that the request is authorized by and is made under the auspices 
of a qualifying institution and that the records are sought to further 
scientific research and are not for commercial use. EXIM will advise 
requesters of their placement in this category.
    (6) Representative of the news media. Any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn the raw material into a distinct 
work, and distributes that work to an audience. The term ``news'' means 
information that is about current events or that would be of current 
interest to the public. Examples of news media entities include 
television or radio stations that broadcast ``news'' to the public at 
large and publishers of periodicals that disseminate ``news'' and make 
their products available through a variety of means to the general 
public, including news organizations that disseminate solely on the 
internet. A request for records supporting the news-dissemination 
function of the requester will not be considered to be for a commercial 
use. ``Freelance'' journalists who demonstrate a solid basis for 
expecting publication through a news media entity will be considered as 
a representative of the news media. A publishing contract would provide 
the clearest evidence that publication is expected; however EXIM can 
also consider a requester's past publication record in making this 
determination. EXIM will advise requesters of their placement in the 
fee category in this paragraph (b)(6).
    (7) Review. The process of examining a record in response to a 
request to determine whether any portion is exempt from disclosure. 
Review time includes processing any record for disclosure, such as 
doing all that is necessary to prepare the record for disclosure, 
including the process of redacting the record and marking the 
appropriate exemptions. Review costs are properly charged even if a 
record ultimately is not disclosed. Review time also includes time 
spent both obtaining and considering any formal objection to disclosure 
made by confidential commercial information submitter under Sec.  
404.9, but it does not include time spent resolving general legal or 
policy issues regarding the application of exemptions.
    (8) Search. The process of looking for, identifying, and collecting 
records responsive to a request. For fee purposes, this refers to all 
time spent looking for materials that is responsive to a request. 
Searches may be conducted manually or by electronic means. Search time 
includes page-by-page or line-by-line identification of information 
within records and the reasonable efforts expended to locate and 
retrieve information from electronic records.
    (c) Categories of requesters. Fees will be assessed depending on 
the category of the requester. The specific schedule of fees for each 
requester category is prescribed as follows:
    (1) Commercial use requesters. EXIM will charge the full costs for 
search, review, and duplication.
    (2) Educational, non-commercial scientific institution, and 
representatives of the news media requesters. When the records are not 
sought for commercial use, EXIM will charge only for the cost of 
duplication

[[Page 16115]]

in excess of 100 pages and no fee will be charged for search or review.
    (3) All other requesters. For requesters who are not covered by 
paragraphs (c)(1) and (2) of this section, EXIM will charge for the 
cost of search and duplication, except that the first 100 pages of 
duplication (or the cost equivalent of other media) and two hours of 
search time will be furnished without charge.
    (d) Search and review fees. Subject to the restrictions in 
paragraph (i) of this section and in accordance with the applicable 
requester categories in paragraph (c) of this section, EXIM will charge 
the following fees for search and review, based on:
    (1) Clerical. Hourly rate--$33.00.
    (2) Professional. Hourly rate--$57.00.
    (3) Computer searches. Hourly rate--based upon the salary of the 
employee performing (base salary, including locality pay adjustment, 
and 16 percent for benefits).
    (4) Direct cost. Hourly rate--based upon the salary of the employee 
performing (base salary, including locality pay adjustment, and 16 
percent for benefits). May also include fees for the return of records 
stored offsite, the cost of operating computers and other electronic 
equipment.
    (5) Quarter-hour period. No search or review fees will be charged 
for a quarter-hour period unless more than half of that period is 
required for search or review.
    (6) No fee. No fee will be charged when the total fee, after 
deducting the 100 free pages (or its cost equivalent) and the first two 
hours of search, is equal to or less than $25.
    (e) Search. (1) Subject to the restrictions in paragraph (i) of 
this section EXIM will charge search fees.
    (2) EXIM may properly charge for time spent searching even if EXIM 
does not locate any responsive records or if EXIM determines that the 
records are entirely exempt from disclosure.
    (3) EXIM will charge the direct cost associated with conducting any 
search that requires the creation of a new computer program to locate 
the requested records. EXIM must notify the requester of the cost 
associated with creating such a program, and the requester must agree 
to pay the associated cost before the costs may be incurred.
    (4) For requests that require the retrieval of records stored by 
EXIM at a records storage facility, including a Federal records center 
operated by the National Archives and Records Administration (NARA), 
EXIM will charge additional costs in accordance with the Transactional 
Billing Rate Schedule established by NARA.
    (f) Duplication. EXIM will charge duplication fees to all 
requesters, subject to the restrictions of paragraph (b) of this 
section. EXIM must honor a requester's preference for receiving a 
record in a particular form or format where EXIM can readily produce it 
in the form or format requested. Where photocopies are supplied, EXIM 
will provide one copy per request at the cost of $.10 per page. For 
copies of records produced on disk or other media, EXIM will charge the 
direct cost of producing the copy, including operator time. Where paper 
documents must be scanned in order to comply with a requester's 
preference to receive the records in an electronic format, the 
requester must also pay the direct costs associated with scanning those 
materials. For other forms of duplication, EXIM will charge the direct 
costs. EXIM may also offer the requester the opportunity to alter the 
request in order to reduce duplication costs.
    (g) Review. EXIM will charge review fees to requesters who make 
commercial use requests. Review fees will be assessed in connection 
with the initial review of the record, i.e., the review conducted by 
EXIM to determine whether an exemption applies to a particular record 
or portion of a record. No charge will be made for review at the 
administrative appeal stage of exemptions applied at the initial review 
stage. However, if a particular exemption is deemed to no longer apply, 
any costs associated with EXIM's re-review of the records in order to 
consider the use of other exemptions may be assessed as review fees. 
Review fees will be charged at the same rates as those charged for a 
search under paragraph (e) of this section.
    (h) Special services charges. Complying with requests for special 
services such as those listed in this paragraph (h) is entirely at the 
discretion of EXIM. EXIM will recover the full costs of providing such 
services to the extent that it elects to provide them.
    (1) Certifications. EXIM will charge $25.00 to certify the 
authenticity of any EXIM record or any copy of such record.
    (2) Special shipping. EXIM may ship by special means (e.g., express 
mail) if the requester so desires, provided that the requester has paid 
or has expressly undertaken to pay all costs of such special services. 
EXIM will not charge for ordinary packaging and mailing.
    (i) Restrictions on charging fees. (1) When EXIM determines that a 
requester is an educational institution, non-commercial scientific 
institution, or representative of the news media, and the records are 
not sought for commercial use, it will not charge search fees.
    (2) If EXIM fails to comply with the FOIA's time limits in which to 
respond to a request:
    (i) It will not charge search fees, or, in the instance of request 
from requesters described in paragraph (d)(1) of this section, may not 
charge duplication fees, except as follows in paragraphs (d)(2)(ii) 
through (iv) of this section.
    (ii) If EXIM has determined that unusual circumstances, as defined 
by the FOIA, apply and EXIM provided timely written notice to the 
requester in accordance with the FOIA, a failure to comply with the 
time limit shall be excused for an additional 10 calendar days.
    (iii) If EXIM has determined that unusual circumstances, as defined 
by the FOIA, apply and more than 5,000 pages are necessary to respond 
to the request, EXIM may charge search fees, or in the case of 
requesters described in paragraph (d)(1) of this section, may charge 
duplication fees, if the following steps are taken. EXIM must have 
provided timely written notice of unusual circumstances to the 
requester in accordance with the FOIA and EXIM must have discussed with 
the requester via written mail, email, or telephone (or made not less 
than three good-faith attempts to do so) how the requester could 
effectively limit the scope of the request in accordance 5 U.S.C. 
552(a)(6)(B)(ii). If the exception in this paragraph (d)(2)(iii) is 
satisfied, EXIM may charge all applicable fees incurred in the 
processing of the request.
    (iv) If a court has determined that exceptional circumstances 
exist, as defined by the FOIA, a failure to comply with the time limits 
shall be excused for the length of time provided by the court order.
    (j) Notice of anticipated fees in excess of $25.00. (1) When EXIM 
determines or estimates that the fees to be assessed in accordance with 
this section will exceed $25.00, EXIM must notify the requester of the 
actual or estimated amount of the fees, including a breakdown of the 
fees for search, review, or duplication, unless the requester has 
indicated a willingness to pay fees as high as those anticipated. If 
only a portion of the fees can be estimated readily, EXIM will advise 
the requester accordingly. If the request is not for noncommercial use, 
the notice will specify that the requester is entitled to the statutory 
entitlements of 100 pages of duplication at no charge and, if the 
requester is charged search fees, two hours of search time at no 
charge, and will advise the requester

[[Page 16116]]

whether those entitlements have been provided.
    (2) If EXIM notifies the requester that the actual or estimated 
fees are in excess of $25.00, the request will not be considered 
received and further work will not be completed until the requester 
commits in writing to pay actual or estimated total fees, or designates 
some amount of fees the requester is willing to pay, or in the case of 
a non-commercial use requester who has not yet been provided with the 
requester's statutory entitlements, designates that the requester seeks 
only that which can be provided by statutory entitlements. The 
requester must provide the commitment or designation in writing, and 
must, when applicable, designate an exact dollar amount the requester 
is willing to pay. EXIM will not accept payments in installments.
    (3) If the requester has indicated a willingness to pay some 
designated amount of fees, but EXIM estimates that the total fee will 
exceed that amount, EXIM will toll the processing of the request when 
it notifies the requester of the estimated fees in excess of the amount 
the requester has indicated a willingness to pay. EXIM will inquire 
whether the requester wishes to revise the amount of fees the requester 
is willing to pay or modify the request. Once the requester responds, 
the time to respond will resume from where it was at the date of 
notifications.
    (4) EXIM's FOIA Public Liaison or another FOIA professional is 
available to assist any requester in reformulating a request to meet 
the requester's needs at a lower cost.
    (k) Charging interest. EXIM may charge interest on any unpaid bill 
starting on the 31st day following the date of billing the requester. 
Interest charges will be assessed at the rate provided by 31 U.S.C. 
3717 and will accrue from the billing date until payment is received by 
EXIM. EXIM follow the provisions of the Debt Collection Act of 1982 
(Pub. L. 97-365, 96 Stat.1749), as amended, and its administrative 
procedures, including the use of consumer reporting agencies, 
collection agencies, and offset.
    (l) Aggregating requests for fee purposes. When EXIM reasonably 
believes that a requester or a group of requesters acting in concert is 
attempting to divide a single request into a series of requests for the 
purpose of avoiding fees, EXIM may aggregate those requests and charge 
accordingly. EXIM may presume that multiple requests of this type made 
within a 30-day period have been made in order to avoid fees. For 
requests separated by a longer period, EXIM will aggregate them only 
where there is a reasonable basis for determining that aggregation is 
warranted in view of all the circumstances involved. Multiple requests 
involving unrelated matters cannot be aggregated.
    (m) Advance payments. (1) For requests other than those described 
in paragraph (n)(2) or (3) of this section, EXIM cannot require the 
requester to make an advance payment before work is commenced or 
continues on a request. Payment owed for work already completed (i.e., 
payment before copies are sent to the request) is not an advance 
payment.
    (2) When EXIM determines or estimates that a total fee to be 
charged under this section will exceed $250.00, it may require that the 
requester make an advance payment up to the amount of the entire 
anticipated fee before beginning to process the request. EXIM may elect 
to process the request prior to collecting fees when it receives a 
satisfactory assurance of full payment from a requester with a history 
of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to any agency within 30 calendar days of the billing 
date, EXIM may require that the requester pay the full amount due, plus 
any applicable interest on that prior request, and EXIM may require 
that the requester make an advance payment of the full amount of any 
anticipated fee before EXIM begins to process a new request or 
continues to process a pending request or any pending appeal. Where 
EXIM has a reasonable basis to believe that a requester has 
misrepresented the requester's identity in order to avoid paying 
outstanding fees, it may require that the requester provide proof of 
identity.
    (4) In cases in which EXIM requires advance payment, the request 
will not be considered received and further work will not be completed 
until the required payment is received. If the requester does not pay 
the advance payment within 30 calendar days after the date of EXIM's 
fee determination, the request will be closed.
    (n) Other statutes specifically providing for fees. The fee 
schedule of this section does not apply to fees charged under any 
statute that specifically requires an agency to set and collect fees 
for particular types of records. In instances where records responsive 
to a request are subject to a statutorily-based fee schedule program, 
EXIM must inform the requester of the contact information for that 
program.


Sec.  404.11   Fee waivers or reductions.

    (a) General. Upon request, EXIM will consider a discretionary fee 
waiver or reduction of the fees chargeable under Sec.  404.10. 
Requesters may seek a waiver of fees by submitting a written request 
demonstrating how disclosure of the requested information is in the 
public interest because it is likely to contribute significantly to 
public understanding of the operations or activities of the Government 
and is not primarily in the commercial interest of the requester.
    (b) Form of request for fee waiver. EXIM must furnish records 
responsive to a request without charge or at a reduced rate when it 
determines, based on all available information, that the factors 
described in paragraphs (b)(1) through (3) of this section are 
satisfied:
    (1) Disclosure of the requester information would shed light on the 
operations or activities of the Government. The subject of the request 
must concern identifiable operations or activities of the Federal 
Government with a connection that is direct and clear, not remote or 
attenuated.
    (2) Disclosure of the requested information is likely to contribute 
to the public understanding of those operations or activities. This 
factor is satisfied when the following criteria are met:
    (i) Disclosure of the requested records must be meaningfully 
informative about Government operations or activities. The disclosure 
of information that already is in the public domain, in either the same 
or substantially identical for, would not be meaningfully informative 
if nothing new would be added to the public understanding.
    (ii) The disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area as well as the requester's ability and 
intention to effectively convey information to the public must be 
considered.
    (3) The disclosure must not be primarily in the commercial interest 
of the requester. To determine whether disclosure of the requested 
information is primarily in the commercial interest of the requester, 
EXIM will consider the following criteria:
    (i) EXIM must identify whether the requester has any commercial 
interest that would be furthered by the requested disclosure. A 
commercial interest includes any commercial, trade, or profit interest. 
Requesters must be given an opportunity to provide explanatory 
information regarding this consideration.

[[Page 16117]]

    (ii) If there is an identified commercial interest EXIM must 
determine whether that is the primary interest furthered by the 
request.
    (4) A waiver or reduction of fees is justified when the 
requirements of paragraphs (b)(1) and (2) of this section are satisfied 
and any commercial interest is not the primary interest furthered by 
the request. EXIM ordinarily will presume that when a news media 
requester has satisfied paragraphs (b)(1) and (2), the request is not 
primarily in the commercial interest of the requester. Disclosure to 
data brokers or others who merely compile and market government 
information for direct economic return will not be presumed to 
primarily serve the public interest.
    (5) Where only some of the records to be released satisfy the 
requirements for a waiver of fees under this section, a waiver must be 
granted for those records.
    (6) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to EXIM and should address the criteria 
referenced in paragraphs (b)(1) through (5) of this section. A 
requester may submit a fee waiver request at a later time so long as 
the underlying record request is pending or on administrative appeal. 
When a requester who has committed to pay fees subsequently asks for a 
waiver of those fees and that waiver is denied, the requester must pay 
any costs incurred up to the date the fee waiver request was received.
    (7) In all cases, the requester has the burden of presenting 
sufficient evidence or information to justify the fee waiver or 
reduction. The requester may use the procedures set forth in Sec.  
404.12 to appeal a denial of a fee waiver request.


Sec.  404.12  Administrative appeals.

    (a) General requirements for making an appeal. A requester may 
appeal any adverse determination to the EXIM's Assistant General 
Counsel for Administrative Law and Board Support. Requesters can submit 
appeals by mail or via email at [email protected] in accordance 
with the following requirements: Appeals must be made in writing and 
contain the appellant's contact information, such as return address, 
email, or telephone number. To be timely it must be postmarked, or in 
the case of electronic submissions, transmitted within 90 calendar days 
after the date of the final response. The appeal should clearly 
identify the EXIM determination that is being appealed and the assigned 
request number. To facilitate handling, the requester should mark both 
appeal letter and envelope, or subject line of the electronic 
transmission, ``Freedom of Information Act Appeal.''
    (b) Adjudication of appeals. (1) The Assistant General Counsel for 
Administrative Law and Board Support or designee will act on behalf of 
EXIM's Chief FOIA officer on all appeals under this section.
    (2) An appeal ordinarily will not be adjudicated if the request 
becomes a matter of litigation.
    (3) On receipt of any appeal involving classified information, EXIM 
must take appropriate action to ensure compliance with applicable 
classification laws.
    (c) Decisions on appeals. EXIM must provide its decision on an 
appeal in writing within 20 working days of the date of receipt of the 
appeal. A decision that upholds an agency's determination, in whole or 
in part, must contain a statement that identifies the reasons for the 
affirmance, including any FOIA exemptions applied. The decision must 
provide the requester with notification of the statutory right to file 
a lawsuit and will inform the requester of the mediation services 
offered by the Office of Government Information Service (OGIS) of 
National Archives and Records Administration as a non-exclusive 
alternative to litigation. If EXIM's initial determination is remanded 
or modified on appeal, EXIM will notify the requester of that 
determination in writing. EXIM will then further process the request in 
accordance with that appeal determination and will respond directly to 
the requester.
    (d) Engaging in dispute resolution services provided by OGIS. 
Mediation is a voluntary process. If EXIM agrees to participate in the 
mediation services provided by OGIS, it will actively engage as a 
partner to the process in an attempt to resolve the dispute.
    (e) When appeal is required. Before seeking review by a court of an 
adverse determination, a requester generally must submit a timely 
administrative appeal.


Sec.  404.13  Preservation of records.

    EXIM will preserve all correspondence pertaining to the request 
that it receives under this subpart, as well as copies of all requested 
records, until disposition or destruction is authorized pursuant to 
title 44 of the United States Code or the General Records Schedule 4.2 
of the National Archives and Records Administration. EXIM will not 
dispose or destroy records while they are the subject of a pending 
request, appeal, or lawsuit under the FOIA.


Sec.  404.14  [Amended]

0
5. Amend newly redesignated Sec.  404.14 in paragraph (b) by removing 
``Sec.  404.13'' and adding ``Sec.  404.15'' in its place.


Sec.  404.16  [Amended]

0
6. Amend newly redesignated Sec.  404.16 as follows:
0
a. In paragraph (a), removing ``Sec.  404.12(e)'' and adding ``Sec.  
404.14(e)'' in its place; and
0
b. In paragraph (c) introductory text, removing ``Sec.  404.16(d)'' and 
adding ``Sec.  404.18(d)'' in its place.


Sec.  404.17  [Amended]

0
7. Amend newly redesignated Sec.  404.17 in paragraph (b)(2)(iii) by 
removing ``Sec.  404.17'' and adding ``Sec.  404.19'' in its place.


Sec.  404.19  [Ameded]

0
8. Amend newly redesignated Sec.  404.19 in paragraph (a) introductory 
text by removing ``Sec.  404.12(e)'' and adding ``Sec.  404.14(e)'' in 
its place.


Sec.  404.20  [Amended]

0
9. Amend newly redesignated Sec.  404.20 as follows:
0
a. In paragraph (a), removing ``Sec.  404.12(e)'' and ``Sec.  404.14(d) 
and (e)'' and adding ``Sec.  404.14(e)'' and ``Sec.  404.16(d) and 
(e)'' in their places, respectively.
0
b. In paragraphs (c) introductory text and (e), removing ``Sec.  
404.12(e)'' and adding ``Sec.  404.14(e)'' in its place.


Sec.  404.21  [Amended]

0
10. Amend newly redesignated Sec.  404.21 in paragraph (b) by removing 
``Sec.  404.14(d) and (e)'' and ``Sec.  404.12(e)'' and adding ``Sec.  
404.16(d) and (e)'' and ``Sec.  404.14(e)'' in their places, 
respectively.


Sec.  404.35  [Amended]

0
11. Amend newly redesignated Sec.  404.35 by removing ``Sec.  404.32'' 
and adding ``Sec.  404.34'' in its place.

Joyce B. Stone,
Assistant Corporate Secretary.
[FR Doc. 2022-05322 Filed 3-21-22; 8:45 am]
BILLING CODE 6690-01-P