41032 Federal Register / Vol. 87, No. 131 / Monday, July 11, 2022 / Rules and Regulations 

EXPORT-IMPORT BANK 

12 CFR Part 404 

[Docket No. EIB–2022–0004] 

Freedom of Information Act 

Requirements 

AGENCY: Export-Import Bank of the 

United States. 

ACTION: Final rule. 

SUMMARY: The Export-Import Bank of 

the United States (EXIM) is publishing 

revised regulations under the Freedom 

of Information Act (FOIA). The 

revisions incorporate amendments to 

the FOIA under the FOIA Improvement 

Act of 2016, developments in case law, 

and changes in Federal and EXIM 

policies. The revisions also clarify 

procedural requirements. 

DATES: This rule is effective August 10, 

2022. 

FOR FURTHER INFORMATION CONTACT: 

Chief Freedom Information Act Officer 

Lisa Terry at lisa.terry@exim.gov; (202) 

565–3290. 

SUPPLEMENTARY INFORMATION: 

I. Background 

EXIM has revised 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. The final rule 

replaces EXIM’s current FOIA 

regulations in their entirety (12 CFR 

404.1 through 404.11). 

II. Discussion 

The numbered paragraphs 

immediately below provide an overview 

of the changes to the regulations. At the 

conclusion of this preamble, the new 

regulations are set forth in their entirety. 

1. Amended: Authority. 

The authority citation for part 404 is 

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 

are removed. The amended general 

authority is 12 U.S.C. 635(a)(1); 5 U.S.C. 

552, 5 U.S.C. 552(a), 5 U.S.C. 553. 

2. Redesignation of §§ 404.12 through 

404.23. 

Old section New section 

404.12 ..................................... 404.14 

404.13 ..................................... 404.15 

Old section New section 

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 

3. Redesignation of §§ 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 

4. Amended: § 404.1, General 

provisions. 

This section is amended to clarify the 

purpose and scope of the FOIA 

regulations and to remove the current 

paragraph (b) setting forth EXIM policy. 

EXIM policy complies 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 is 

amended and moved to §§ 404.2, 

Proactive disclosures, and 404.3, 

Request requirements. 

5. Removed: Current § 404.2, 

Definitions. 

This section is eliminated, with most 

of the definitions relocated to the 

sections in which the defined terms are 

used. The majority of the relocated 

definitions pertain to current § 404.16, 

Schedule of fees. The definitions of 

‘‘Confidential business information’’ 

and ‘‘Submitter’’ are relocated to the 

section currently labelled ‘‘Confidential 

business information.’’ The regulations 

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 § 404.5. 

Several other definitions are 

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 were 

used. These terms are 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’’ is eliminated as legally 

incorrect. 

6. Amended: § 404.2, Proactive 

disclosures. 

This section is renumbered from 

current § 404.3 to § 404.2 and renamed 

‘‘Proactive disclosures.’’ The current 

wording describes procedures for 

accessing a physical reading room at 

EXIM’s headquarters, while the revision 

includes the online reading room now 

required by the FOIA. The amended 

section also states that EXIM’s FOIA 

Liaison is available to help requesters 

locate information online. In addition, 

the amended section newly describes 

the data that EXIM posts at 

data.exim.gov on EXIM’s transactions. 

7. Amended: § 404.3, Request 

requirements. 

This section is renumbered from 

current § 404.4 to § 404.3. This section 

encourages 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 states the electronic 

means for submitting a request, 

including by email to foia@exim.gov, 

through the online portal at 

www.exim.gov/about/foia or in the 

alternative, to the national request 

portal at https://www/foia.gov. The 

current requirement that requesters sign 

their request was eliminated as 

inconsistent with the FOIA and EXIM’s 

past practice of accepting unsigned 

electronic submissions. Requesters 

would instead need to provide contact 

information. 

The current statement that a general 

request to pay applicable fees is deemed 

a request to pay up to $50.00 was 

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 also clarifies and updates 

the language that sets forth the process 

for obtaining records by the requester 

(or a third party), and the need for a 

request to provide an adequate 


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Federal Register / Vol. 87, No. 131 / Monday, July 11, 2022 / Rules and Regulations 41033 

description of the records. The section 

also provides for FOIA Public Liaison 

assistance in reformulating a request. 

8. Added: § 404.5, Responsibility for 

responding to requests. 

This newly added section provides 

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: § 404.6, Time for 

processing. 

This section is renumbered from 

current § 404.5 to § 404.6. It newly 

incorporates the statutory definition of 

‘‘unusual circumstances’’ and ‘‘working 

days.’’ This section also provides for 

multitrack processing, with the 

following tracks: expedited, simple, and 

complex. This section also seeks to 

clarify the current language and add 

additional detail to the expedited 

processing provisions. 

10. Amended: § 404.7, Release of 

records. 

This section is renumbered from 

current § 404.6 to § 404.7 and renamed. 

It includes the foreseeable harm 

requirement for discretionary 

exemptions, added by the FOIA 

Improvement Act of 2016. 

The current paragraph (a), addressing 

the ‘‘creation of records,’’ was 

eliminated as both inconsistent with the 

FOIA and unnecessary. Even though 

this subsection is eliminated, EXIM 

would retain the authority to create 

appropriate records. 

As indicated in this section, the 

current paragraph (d) addressing the 

‘‘cut off’’ date for searches is amended 

and relocated to § 404.5. 

11. Amended: § 404.8, Responses to 

requests. 

Section 404.8, Initial determination, is 

renamed for purposes of clarity and 

greater consistency with other agency 

FOIA regulations. The section also 

newly provides for communication with 

requesters by email and EXIM’s online 

portal, newly provides 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 also newly addresses FOIA 

exclusions under 5 U.S.C. 552(c). 

As required by the FOIA 

Improvement Act of 2016, this section 

requires EXIM to notify requesters of the 

services provided by the Office of 

Government Information Services 

(OGIS). 

12. Amended: § 404.9, Confidential 

commercial information. 

This section is renumbered from 

current § 404.7, Confidential business 

information, to § 404.9 and renamed. 

The title ‘‘confidential business 

information’’ is 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 remain the same and are in 

accordance with Executive Order 12600, 

but the amendments here seek to 

provide additional detail and clarity for 

requesters based on the legal standards 

applicable under Exemption 4. 

13. Amended: § 404.10, Schedule of 

fees. 

This section is renumbered from 

current § 404.9 to § 404.10. As 

referenced above, this section newly 

incorporates amended versions of the 

definitions that are currently located in 

a general definitions section at § 404.2. 

The amended language also updates and 

provides additional detail on EXIM’s fee 

practices, consistent with OMB’s Fee 

Guidelines. 

The rate for clerical search and review 

time are increased from $16.00/hour to 

$33.00/hour. The rate for professional 

search and review time are increased 

from $32.00/hour to $57.00/hour. This 

reflects increased labor rates since the 

regulations were last updated in 1999. 

Notice of anticipated fees are 

generally 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 match OMB’s Fee 

Guidelines. 

14. Amended: § 404.11, Fee waivers 

or reductions. 

This section is renumbered from 

current § 404.10 to § 404.11. As with the 

prior two sections addressed above, this 

section is 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, are 

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: § 404.12, 

Administrative appeals. 

This section is renumbered from 

current § 404.11 to § 404.12. The 

changes are provided for the electronic 

submission of appeals and to notify 

appellants of the ability to seek 

assistance from OGIS. 

16. Amended: § 404.13, Preservation 

of records. 

This newly added section provides for 

the preservation of all correspondence 

associated with a request, as well as all 

requested records, under appropriate 

records schedules. It also prohibits 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 changes to EXIM’s FOIA 

regulations are predominantly 

procedural in nature and many 

incorporate already binding law and 

policy. While the 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 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 changes are unlikely 

to have an economic impact on 

requesters regardless of their size and 

resources. Accordingly, EXIM hereby 

certifies that these amendments to the 

FOIA regulations would not have a 

significant economic impact on a 

substantial number of small entities. 


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41034 Federal Register / Vol. 87, No. 131 / Monday, July 11, 2022 / Rules and Regulations 

Executive Order 12866 

This final rule is not a ‘‘significant 

regulatory action’’ for purposes of 

Executive Order 12866. 

Executive Order 13771 

This final 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 12 CFR Part 404 

Administrative procedures, Freedom 

of information. 

Text of Amendments 

For the reasons stated in the 

preamble, EXIM amends 12 CFR part 

404 as follows: 

PART 404—INFORMATION 

DISCLOSURE 

■ 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. 

§§ 404.24 through 404.36 [Redesignated as 

§§ 404.26 through 404.38] 

■ 2. Redesignate §§ 404.24 through 

404.36 as §§ 404.26 through 404.38. 

§§ 404.12 through 404.23 [Redesignated as 

§§ 404.14 through 404.25] 

■ 3. Redesignate §§ 404.12 through 

404.23 as §§ 404.14 through 404.25. 

■ 4. Revise subpart A to read as follows: 

Subpart A—Procedures for Disclosure 

of Records Under the Freedom of 

Information Act 

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. 

§ 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 

the responsibility of a specific EXIM 

employee may be delegated. 

§ 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-andproactive-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. 

§ 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-recordsand-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 foia@exim.gov; 

(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. 

(E) In the alternative, requests may be 

submitted to the national request portal 

at https://www.foia.gov. 

(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 § 404.16(d). This requires the 

request and signature to be notarized. 

Requester 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 


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Federal Register / Vol. 87, No. 131 / Monday, July 11, 2022 / Rules and Regulations 41035 

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 

records 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, 

after contacting the requestor, 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 sought. EXIM 

will accommodate your request if the 

records are 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 § 404.10. The ability to 

request fee waivers is set forth at 

§ 404.11. EXIM will not process your 

request while clarifying fee issues. 

§ 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 

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. 


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41036 Federal Register / Vol. 87, No. 131 / Monday, July 11, 2022 / Rules and Regulations 

§ 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 

§ 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 requests. 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 

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 

§ 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.’’ 

§ 404.7 Release of records. 

(a) Foreseeable harm standard. 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. 

§ 404.8 Responses to requests. 

(a) General. To the extent practicable, 

EXIM 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 


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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) Grant 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 § 404.10 and will disclose the 

requested records to the requester 

promptly upon payment of any 

applicable fees. EXIM shall inform the 

requester that 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 § 404.12(a) and a 

description of the requirements of 

§ 404.12(a); and 

(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 Policy (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. 

§ 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 

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 reasonable time 

period is specified in EXIM’s notice. 

(ii) A submitter located outside the 

United States will have 20 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 reasonable 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 


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a specific and detailed written 

explanation of why the information 

constitutes a trade secret or commercial 

or financial information that is 

privileged or 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 is privileged; or 

(B) Why the information is 

confidential commercial or financial 

information. 

(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 will 

not consider any information received 

after this time period. 

(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 transmission 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. 

(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 § 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. 

§ 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 § 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 


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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 § 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-byline 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 

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) 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. 

(4) 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. 

(5) 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, noncommercial scientific institution, or 

representative of the news media, and 

the records are not sought for 

commercial use, it will not charge 

search fees. 


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(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 working 

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 

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. 

§ 404.11 Fee waivers or reductions. 

(a) General. Requesters may seek a 

waiver of fees by submitting a written 

request demonstrating how disclosure of 

the requested information is in the 


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Federal Register / Vol. 87, No. 131 / Monday, July 11, 2022 / Rules and Regulations 41041 

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. 

(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 § 404.12 to 

appeal a denial of a fee waiver request. 

§ 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 FOIA.Appeals@exim.gov 

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. 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 Services 

(OGIS) of National Archives and 

Records Administration as a nonexclusive 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. 

§ 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. 

§ 404.14 [Amended] 

■ 5. Amend newly redesignated 

§ 404.14 in paragraph (b) by removing 

‘‘§ 404.13’’ and adding ‘‘§ 404.15’’ in its 

place. 

§ 404.16 [Amended] 

■ 6. Amend newly redesignated 

§ 404.16 as follows: 


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41042 Federal Register / Vol. 87, No. 131 / Monday, July 11, 2022 / Rules and Regulations 

1The Bureau is generally authorized to issue 

regulations as ‘‘necessary or appropriate to 

administer and carry out the purposes and 

objectives of [the FCRA], and to prevent evasions 

thereof or to facilitate compliance therewith.’’ 15 

U.S.C. 1681s(e)(1). The CFPA did not, however, 

transfer to the Bureau rulemaking authority for 15 

U.S.C. 1681m(e) (‘‘Red Flag Guidelines and 

Regulations Required’’’) and 15 U.S.C. 1681w 

(‘’’Disposal of Records’’). 

2 15 U.S.C. 1681s(b). 

3 15 U.S.C. 1681(c). 

4 15 U.S.C. 1681t(a); see also Davenport v. 

Farmers Ins. Group, 378 F.3d 839, 842 (8th Cir. 

2004) (‘‘The FCRA makes clear that it is not 

intended to occupy the entire regulatory field with 

regard to consumer reports.’’). 

■ a. In paragraph (a), removing 

‘‘§ 404.12(e)’’ and adding ‘‘§ 404.14(e)’’ 

in its place; and 

■ b. In paragraph (c) introductory text, 

removing ‘‘§ 404.16(d)’’ and adding 

‘‘§ 404.18(d)’’ in its place. 

§ 404.17 [Amended] 

■ 7. Amend newly redesignated 

§ 404.17 in paragraph (b)(2)(iii) by 

removing ‘‘§ 404.17’’ and adding 

‘‘§ 404.19’’ in its place. 

§ 404.19 [Ameded] 

■ 8. Amend newly redesignated 

§ 404.19 in paragraph (a) introductory 

text by removing ‘‘§ 404.12(e)’’ and 

adding ‘‘§ 404.14(e)’’ in its place. 

§ 404.20 [Amended] 

■ 9. Amend newly redesignated 

§ 404.20 as follows: 

■ a. In paragraph (a), removing 

‘‘§ 404.12(e)’’ and ‘‘§ 404.14(d) and (e)’’ 

and adding ‘‘§ 404.14(e)’’ and 

‘‘§ 404.16(d) and (e)’’ in their places, 

respectively. 

■ b. In paragraphs (c) introductory text 

and (e), removing ‘‘§ 404.12(e)’’ and 

adding ‘‘§ 404.14(e)’’ in its place. 

§ 404.21 [Amended] 

■ 10. Amend newly redesignated 

§ 404.21 in paragraph (b) by removing 

‘‘§ 404.14(d) and (e)’’ and ‘‘§ 404.12(e)’’ 

and adding ‘‘§ 404.16(d) and (e)’’ and 

‘‘§ 404.14(e)’’ in their places, 

respectively. 

§ 404.35 [Amended] 

■ 11. Amend newly redesignated 

§ 404.35 by removing ‘‘§ 404.32’’ and 

adding ‘‘§ 404.34’’ in its place. 

Joyce B. Stone, 

Assistant Corporate Secretary. 

[FR Doc. 2022–14068 Filed 7–8–22; 8:45 am] 

BILLING CODE 6690–01–P 

BUREAU OF CONSUMER FINANCIAL 

PROTECTION 

12 CFR Part 1022 

The Fair Credit Reporting Act’s Limited 

Preemption of State Laws 

AGENCY: Bureau of Consumer Financial 

Protection. 

ACTION: Interpretive rule. 

SUMMARY: States play an important role 

in the regulation of consumer reporting. 

State laws that are not ‘‘inconsistent’’ 

with the Fair Credit Reporting Act 

(FCRA) are generally not preempted by 

that statute. The FCRA also expressly 

preempts certain categories of State 

laws. This interpretive rule clarifies that 

FCRA’s express preemption provisions 

have a narrow and targeted scope. States 

therefore retain substantial flexibility to 

pass laws involving consumer reporting 

to reflect emerging problems affecting 

their local economies and citizens. For 

example, if a State law were to forbid 

consumer reporting agencies from 

including information about medical 

debt, evictions, arrest records, or rental 

arrears in a consumer report (or from 

including such information for a certain 

period of time), such a law would 

generally not be preempted. Likewise, if 

a State law were to prohibit furnishers 

from furnishing such information to 

consumer reporting agencies, such a law 

would also not generally be preempted. 

Similarly, if a State law required that a 

consumer reporting agency provide 

information required by the FCRA at the 

consumer’s requests in languages other 

than English, such a law would 

generally not be preempted. 

DATES: This interpretive rule is effective 

on July 11, 2022. 

FOR FURTHER INFORMATION CONTACT: 

Shiva Nagaraj, Senior Counsel, Legal 

Division, and Bradley Lipton, Senior 

Counsel, Legal Division, (202) 435– 

7700. If you require this document in an 

alternative electronic format, please 

contact CFPB_Accessibility@cfpb.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Fair Credit Reporting Act 

(FCRA)—which was enacted in 1970 

and has since been amended several 

times—was intended by Congress to 

‘‘ensure fair and accurate credit 

reporting, promote efficiency in the 

banking system, and protect consumer 

privacy.’’ Safeco Ins. Co. of Am. v. Burr, 

551 U.S. 47, 52 (2007). The FCRA 

‘‘imposes a host of requirements 

concerning the creation and use of 

consumer reports.’’ Spokeo, Inc. v. 

Robins, 578 U.S. 330, 335 (2016). 

Among other things, the statute sets 

forth the permissible uses of consumer 

reports, establishes limits for 

information included in consumer 

reports, and creates a process for 

consumers to dispute information in 

their credit files. 

In the Consumer Financial Protection 

Act of 2010, Congress granted the 

Consumer Financial Protection Bureau 

general rulemaking authority over the 

FCRA (except for certain provisions that 

are administered by other Federal 

agencies).1 The Bureau also has 

authority to enforce the FCRA, along 

with other Federal regulators.2

States also play an important role in 

the regulation of consumer reporting. 

The FCRA itself grants States the 

authority to enforce the statute.3

Additionally, in the wake of Congress’s 

enactment of the FCRA, many States 

passed their own versions of the statute. 

States have continued to enact 

legislation regulating the conduct of 

consumer reporting agencies, furnishers, 

and users of consumer reports. In some 

cases, State legislation provides 

protections to consumers that go above 

and beyond the requirements of the 

FCRA. 

These State statutes exist alongside 

the FCRA, which says that—subject to 

certain exceptions—it ‘‘does not annul, 

alter, affect, or exempt any person 

subject to [the FCRA] from complying 

with the laws of any State with respect 

to the collection, distribution, or use of 

any information on consumers, or for 

the prevention or mitigation of identity 

theft, except to the extent that those 

laws are inconsistent with any provision 

of this subchapter, and then only to the 

extent of the inconsistency.’’ 4 In other 

words, State laws that are not 

‘‘inconsistent’’ with the FCRA— 

including State laws that are more 

protective of consumers than the 

FCRA—are generally not preempted. 

The FCRA also expressly preempts 

certain categories of State laws. As 

relevant here, 15 U.S.C. 1681t(b) says 

that ‘‘[n]o requirement or prohibition 

may be imposed under the laws of any 

State with respect to any subject matter 

regulated under’’ certain sections or 

subsections of the FCRA: 

• subsection (c) or (e) of section 

1681b, relating to the prescreening of 

consumer reports; 

• section 1681i, relating to the time 

by which a consumer reporting agency 

must take any action, including the 

provision of notification to a consumer 

or other person, in any procedure 

related to the disputed accuracy of 

information in a consumer’s file, [with 

an exception for laws in effect on 

September 30, 1996]; 

• subsections (a) and (b) of section 

1681m, relating to the duties of a person 


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