## Export-Import Bank of the United States

4 CRF Ch 12

Regulatory Agenda

AGENCY: Export-Import Bank of the United States.

ACTION: Semiannual regulatory agenda.

SUMMARY: The Export-Import Bank of the United States, Office of Inspector General is giving

concurrent notice of a new system of records entitled, “EIB-35-Office of Inspector General Investigative

Records.” In this final rule, Export-Import Bank will exempt portions of this system of records from one or

more provisions of the Privacy Act because of criminal, civil, and administrative enforcement

requirements. Effective date of this rule is August 16, 2012.

ADDRESSES: Inspector General Export-Import Bank of the United States, 811 Vermont Ave. N. W.

Washington, D. C. 20571.

FOR FURTHER INFORMATION CONTACT: Sharon Whitt (202) 565-3325.

SUPPLEMENTARY INFORMATION: OMB guidelines dated March 12, 2012, "Fall 2013 Unified Agenda

of Federal Regulatory and Deregulatory Actions," require a regulatory agenda of those regulations under

development and review to be published in the Federal Register each April and October.

DATED: October 24, 2012.

NAME: Sharon A. Whitt,

Director Information Quality and Records Management.The 1 Regulatory Agendas

Export-Import Bank of the United States - Completed Action

Title Regulation
Identifier
Number

Privacy Act of 1974: Implementation of Exemption for the Office of the Inspector General Investigative Records 3048-AA02

Export-Import Bank of the United States ( EXIMBANK ) RIN: 3048-AA02

View Related Documents

Title: Privacy Act of 1974: Implementation of Exemption for the Office of the Inspector General Investigative Records

Abstract: In this proposed rulemaking, Ex-Im Bank Office of the Inspector General (OIG) 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. 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. 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 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 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. Ex-Im Bank proposes to amend chapter 4 of title 12, Code of Federal Regulations, as follows: Part 404- Information Disclosure Subpart B- Protection of Privacy and Access to Records Under the Privacy Act of 1974 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. 2. Add section 404.24 to Subpart B to read as follows: 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. section 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. sections 552a (c)(3), (c)(4), (d), (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. Reasons for exemption. The reasons for asserting this exemption are: (i) Disclosure to the individual named in the record pursuant to subsections (c)(3), (c)(4), or (d) could seriously impede or compromise 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 subsection (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 Office of Inspector General to keep information that may not be relevant to a specific Office of Inspector General investigation, but which may provide leads for appropriate law enforcement and to establish patterns of activity that might relate to the jurisdiction of the Office of Inspector General and/or other agencies. (iii) Application of subsection (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. (iv) Application of subsection (e)(3) could discourage the free flow of information in a criminal law enforcement inquiry. (v) The requirements of subsections (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 Office of Inspector General endeavors to maintain accurate records, application of subsection (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 ofsubsection (e)(8) could prematurely reveal an ongoing criminal investigation to the subject of the investigation. (viii) The provisions of subsection (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), (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 subsection 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 the Office of Inspector General 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. section 552(b)(5)), and which could interfere with other important law enforcement concerns (see, e.g., 5 U.S.C. section 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), (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) Reason for exemption. The reason for asserting this exemption is to protect from disclosure the identity of a confidential source when an express promise of confidentiality has been given to obtain information from sources who would otherwise be unwilling to provide necessary

information.

Priority: Info./Admin./Other Agenda Stage of Rulemaking: Completed Action
Major: No Unfunded Mandates: No

CFR Citation: 12 CFR 404 (To search for a specific CFR, visit the Code of Federal Regulations )
Legal Authority: Privacy Act of 1974
Legal Deadline: None

Regulatory Plan:

Statement of Need:

Legal Basis:

Alternatives:

Costs and Benefits:

Risks:

Timetable:

Action Date FR Cite

NPRM 05/10/2012 77 FR 27140

NPRM Comment Period End 07/09/2012

Final Action 07/17/2012 77 FR 41885

Final Action Effective 08/16/2012

Regulatory Flexibility Analysis Required: No Government Levels Affected: No

Small Entities Affected: No Federalism: No
Energy Affected: No Agency Contact: Sharon A Whitt Director Information Quality & Records Management Export-Import Bank of the United States 811 Vermont Avenue, NW., Washington, DC 20571 Washington , DC 20571

Phone: 202 565-3325

E-Mail: sharon.whitt@exim.gov