PART 404—INFORMATION DISCLOSURE 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. Source: 64 FR 14374, Mar. 25, 1999, unless otherwise noted. Subpart A—Procedures for Disclosure of Records Under the Freedom of Information Act Source: 87 FR 41034, July 11, 2022, unless otherwise noted. § 404.1 General provisions. (a) Purpose. (b) Scope. (c) Delegation. § 404.2 Proactive disclosures. (a) Records that the FOIA requires agencies to make available for public inspection in an electronic format may be accessed through the EXIM internet site at https://www.exim.gov/about/foia/frequently-requested-records-and-proactive-disclosures https://data.exim.gov/. https://www.exim.gov/about/foia, (b) EXIM proactively discloses information at data.exim.gov § 404.3 Request requirements. (a) Before submitting a FOIA request, potential requesters are encouraged to review the information publicly available at https://www.exim.gov/about/foia/frequently-requested-records-and-proactive-disclosures https://data.exim.gov/. (b)(1)(i) A request for records must be made directly to EXIM in writing. Requests may be submitted to the EXIM FOIA Office: (A) By email to [email protected] (B) Using the online form available at https://www.exim.gov/about/foia (C) Using the online FOIAXpress PAL Portal available at https://palprod.eximefoia.com/ (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 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., (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. (b) Authority to grant or deny requests. (c) Consultation, referral, and coordination. (1) Consultation. (2) Referral. (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. (d) Classified information. (e) Timing of responses to consultations and referrals. (f) Agreements regarding consultations and referrals. § 404.6 Time for processing response to requests. (a) In general. (b) Definitions. (1) Unusual circumstances (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 (c) Date of receipt. (d) Order of processing. (e) Multitrack processing. (f) Unusual circumstances. (g) Aggregating requests. (h) Expedited processing. (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. (j) Appeal. § 404.7 Release of records. (a) Foreseeable harm standard. (b) Segregable records. § 404.8 Responses to requests. (a) General. https://www.exim.gov/about/foia. (b) Acknowledgment of request. (c) Estimated dates of completion and interim responses. (d) Grant of request. (e) Adverse determination. (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. (g) Use of record exclusions. (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. (1) Confidential commercial information. (2) Submitter. (b) Submitter designation. (c) Pre-disclosure notice to the submitter. (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. (e) When notice is not required. (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 Timeline for a response. (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. (ii) In order to rely on Exemption 4 as a basis for EXIM withholding any of the information as confidential commercial information, the submitter must provide a specific and detailed written explanation of why the information constitutes a trade secret or commercial or financial information that is 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. (h) Consideration of a submitter's response. (i) Notice of intent to disclose. (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. (k) Notice of requester's FOIA lawsuit. (l) Publicly available information. exim.data.gov, § 404.10 Schedule of fees. (a) In general. https://www.justice.gov/oip/foia-resources. (b) Definitions. (1) Commercial use request. (2) Direct costs. i.e., (3) Duplication. (4) Educational institution. (i) Example 1. (ii) Example 2. (iii) Example 3. (5) Non-commercial scientific institution. (6) Representative of the news media. (7) Review. (8) Search. (c) Categories of requesters. (1) Commercial use requesters. (2) Educational, non-commercial scientific institution, and representatives of the news media requesters. (3) All other requesters. (d) Search and review fees. (1) Clerical. (2) Professional. (3) Direct cost. (4) Quarter-hour period. (5) No fee. (e) Search. (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. (g) Review. i.e., (h) Special services charges. (1) Certifications. (2) Special shipping. e.g., (i) Restrictions on charging fees. (2) If EXIM fails to comply with the FOIA's time limits in which to respond to a request: (i) It will not charge search fees, or, in the instance of request from requesters described in paragraph (d)(1) of this section, may not charge duplication fees, except as follows in paragraphs (d)(2)(ii) through (iv) of this section. (ii) If EXIM has determined that unusual circumstances, as defined by the FOIA, apply and EXIM provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit shall be excused for an additional 10 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. (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. (l) Aggregating requests for fee purposes. (m) Advance payments. i.e., (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. § 404.11 Fee waivers or reductions. (a) General. (b) Form of request for fee waiver. (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. [email protected] (b) Adjudication of appeals. (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. (d) Engaging in dispute resolution services provided by OGIS. (e) When appeal is required. § 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. Subpart B—Access to Records Under the Privacy Act of 1974 § 404.14 General provisions. (a) Purpose. (b) Relationship to the Freedom of Information Act. (c) Appellate authority. (d) Delegation. (e) Ex-Im Bank address. [64 FR 14374, Mar. 25, 1999. Redesignated and amended at 87 FR 41034, 41041, July 11, 2022] § 404.15 Definitions. For purposes of this subpart, the following definitions shall apply: Appeal Final determination Individual Initial determination Record Redaction Request for access Request for accounting Request for correction Requester Review Search System of records Working days [64 FR 14374, Mar. 25, 1999. Redesignated at 87 FR 41034, July 11, 2022] § 404.16 Requirements of request for access. (a) Form. (b) Description of records sought. (c) Fee statement. (1) Whenever a requester submits a request for access that does not contain a fee statement or a request for a fee waiver, Ex-Im Bank shall advise the requester of the requirements of this section. If the requester fails to respond within ten working days of such notification, then the Freedom of Information and Privacy Office shall notify the requester, in writing, that Ex-Im Bank will not process the request. (2) A general statement by the requester expressing willingness to pay all applicable fees shall be deemed an agreement to pay up to $25.00. If Ex-Im Bank estimates that the fees for a request will exceed $25.00, then Ex-Im Bank shall notify the requester. Ex-Im Bank shall offer the requester the opportunity to agree, in writing, either to pay a greater fee or to modify the request as a means of limiting the cost. (3) Whenever the estimated fee chargeable under this section exceeds $25.00, Ex-Im Bank reserves the right to require a requester to make an advance payment prior to processing the request. (4) Ex-Im Bank shall not process a request by a requester who has failed to pay a fee for a previous request unless and until such requester had paid the full amount owed and also has paid, in advance, the total estimated charges for the new request. (d) Verification of identity. (e) Verification of guardianship. (1) His or her own identity and the identity of the subject of the record in accordance with paragraph (d) of this section; and (2) Parentage or guardianship of the subject of the record, either by providing a copy of the subject's birth certificate showing parentage or by providing a court order establishing guardianship. (f) Written notice of amendment. (g) Requester assistance. (h) Date of receipt. [64 FR 14374, Mar. 25, 1999. Redesignated and amended at 87 FR 41034, 41041, July 11, 2022] § 404.17 Initial determination. (a) Time for processing. (b) Notice regarding request for access. (1) If the request is granted, then the notice shall either include the requested records, in releasable form, or shall describe the manner in which access to the record will be granted. The notice also shall inform the requester of any processing fee. (2) A denial is a determination to withhold any requested record in whole or in part or a determination that the requested record does not exist or cannot be located. If the request is denied, then the denial notice shall state: (i) The name, signature, and title or position of the person responsible for the denial; (ii) The reasons for the denial; and (iii) The procedure for appeal of the denial under § 404.19 and a brief description of the requirements of that section. (c) Form of record disclosure. [64 FR 14374, Mar. 25, 1999. Redesignated and amended at 87 FR 41034, 41042, July 11, 2022] § 404.18 Schedule of fees. (a) Search and review. (b) Duplication. (c) Minimum fee. (d) Fee waivers. (e) Special services charges. (1) Certifications. (2) Special shipping. [64 FR 14374, Mar. 25, 1999. Redesignated at 87 FR 41034, July 11, 2022] § 404.19 Appeal of denials of access. (a) Appeals to the Assistant General Counsel for Administration. (1) A copy of the denied request or a description of the records requested; (2) The name and title of the Ex-Im Bank employee who denied the request; (3) The date on which the request was denied; and (4) The Ex-Im Bank identification number assigned to the request. (b) Final determination. [64 FR 14374, Mar. 25, 1999. Redesignated and amended at 87 FR 41034, 41042, July 11, 2022] § 404.20 Requests for correction of records. (a) Form. (b) Initial determination. (c) Appeal of denial of request for correction. (1) A copy of the denied request or a description of the correction sought; (2) The name and title of the Ex-Im Bank employee who denied the request; (3) The date on which the request was denied; (4) The Ex-Im Bank identification number assigned to the request; and (5) Any information said to justify the correction. (d) Final determination on correction appeal. (2) A decision affirming the denial of a request for access shall advise the appellant of the: (i) Reasons for affirming the denial; (ii) Right to seek judicial review; and (iii) Right to file a statement of disagreement, as provided in paragraph (e) of this section. (3) If the initial determination is reversed, then the request shall be remanded to the Freedom of Information and Privacy Office to be processed in accordance with the decision on appeal. (e) Statement of disagreement. (f) Notices of correction or disagreement. [64 FR 14374, Mar. 25, 1999. Redesignated and amended at 87 FR 41034, 41042, July 11, 2022] § 404.21 Request for accounting of record disclosures. (a) Required information. (b) Form. (c) Initial determination. (d) Exceptions. (1) To an employee within the agency; (2) Under the FOIA; or (3) To a law enforcement agency for an authorized law enforcement activity in response to a written request from such agency which specified the law enforcement activity for which the disclosure was sought. [64 FR 14374, Mar. 25, 1999. Redesignated and amended at 87 FR 41034, 41042, July 11, 2022] § 404.22 Notice of court-ordered and emergency disclosures. (a) Court-ordered disclosures. (b) Emergency disclosures. (1) Nature of the information disclosed; (2) Person, organization or agency to which it was disclosed; (3) Date of disclosure; and (4) Compelling circumstances justifying the disclosure. [64 FR 14374, Mar. 25, 1999. Redesignated at 87 FR 41034, July 11, 2022] § 404.23 Submission of social security and passport numbers. (a) Policy. (b) Use. (c) Notice. [64 FR 14374, Mar. 25, 1999. Redesignated at 87 FR 41034, July 11, 2022] § 404.24 Government contracts. (a) Approval by Assistant General Counsel for Administration. (b) Contract clauses. (c) Contractor status. [64 FR 14374, Mar. 25, 1999. Redesignated at 87 FR 41034, July 11, 2022] § 404.25 Other rights and services. Nothing in this subpart shall be construed to entitle any person to any service or to the disclosure of any record to which such person is not entitled under the Privacy Act. [64 FR 14374, Mar. 25, 1999. Redesignated at 87 FR 41034, July 11, 2022] Subpart C—Demands for Testimony of Current and Former Ex-Im Bank Personnel and for Production of Ex-Im Bank Records Source: 71 FR 14361, Mar. 22, 2006, unless otherwise noted. § 404.26 Exemptions: EIB-35—Office of Inspector General Investigative Records. (a) Criminal Law Enforcement Exemption. (2) Reasons for exemption. (i) Disclosure to the individual named in the record pursuant to 5 U.S.C. 552a(c)(3), (c)(4), or (d)(1) through (4) could seriously impede or compromise the investigation by alerting the target(s), subjecting a potential witness or witnesses to intimidation or improper influence, and leading to destruction of evidence. Disclosure could enable suspects to take action to prevent detection of criminal activities, conceal evidence, or escape prosecution. (ii) Application of 5 U.S.C. 552a(e)(1) is impractical because the relevance of specific information might be established only after considerable analysis and as the investigation progresses. Effective law enforcement requires the OIG to keep information that may not be relevant to a specific OIG investigation, but which may provide leads for appropriate law enforcement and to establish patterns of activity that might relate to the jurisdiction of the OIG and/or other agencies. (iii) Application of 5 U.S.C. 552a(e)(2) would be counterproductive to the performance of a criminal investigation because it would alert the individual to the existence of an investigation. In any investigation, it is necessary to obtain evidence from a variety of sources other than the subject of the investigation in order to verify the evidence necessary for successful litigation or prosecution. (iv) Application of 5 U.S.C. 552a(e)(3) could discourage the free flow of information in a criminal law enforcement inquiry. (v) The requirements of 5 U.S.C. 552a(e)(4)(G) and (H) and (f) would be counterproductive to the performance of a criminal investigation. To notify an individual at the individual's request of the existence of records in an investigative file pertaining to such individual, or to grant access to an investigative file could interfere with investigative and enforcement proceedings, deprive co-defendants of a right to a fair trial or other impartial adjudication, constitute an unwarranted invasion of personal privacy of others, disclose the identity or confidential sources, reveal confidential information supplied by these sources and disclose investigative techniques and procedures. Nevertheless, Ex-Im Bank OIG has published notice of its notification, access, and contest procedures because access may be appropriate in some cases. (vi) Although the OIG endeavors to maintain accurate records, application of 5 U.S.C. 552a(e)(5) is impractical because maintaining only those records that are accurate, relevant, timely, and complete and that assure fairness in determination is contrary to established investigative techniques. Information that may initially appear inaccurate, irrelevant, untimely, or incomplete may, when collated and analyzed with other available information, become more pertinent as an investigation progresses. (vii) Application of 5 U.S.C. 552a(e)(8) could prematurely reveal an ongoing criminal investigation to the subject of the investigation. (viii) The provisions of subsection (g) do not apply to this system if an exemption otherwise applies. (b) Other Law Enforcement Exemption. (2) Reasons for exemption. (c) Federal Civilian or Contract Employment Exemption. (2) Reasons for exemption. [77 FR 41886, July 17, 2012, as amended at 77 FR 42949, July 23, 2012. Redesignated at 87 FR 41034, July 11, 2022] § 404.27 Applicability. This subpart applies exclusively to demands for testimony and/or production of records issued to Ex-Im Bank personnel, in connection with legal proceedings to which Ex-Im Bank is not a party, regarding information acquired in the course of the performance of official duties or due to their official status. Nothing in this subpart shall be construed to waive the sovereign immunity of the United States. This subpart shall not apply to the following: (a) Demands for testimony and/or production of records pursuant to a legal proceeding to which Ex-Im Bank is a party: (b) Demands for testimony and/or production of records in those instances in which Ex-Im Bank personnel are asked to disclose information wholly unrelated to their official duties; and (c) Congressional demands and requests for testimony or records. [71 FR 14361, Mar. 22, 2006. Redesignated at 87 FR 41034, July 11, 2022] § 404.28 Definitions. For purposes of this subpart, the following definitions shall apply— Demand Ex-Im Bank personnel Legal proceeding Records Testimony [71 FR 14361, Mar. 22, 2006. Redesignated at 87 FR 41034, July 11, 2022] § 404.29 Demand requirements. A party's demand for testimony and/or production of records by Ex-Im Bank personnel regarding information acquired in the course of their performance of official duties or due to their official status shall be set forth in, or accompanied by, a signed affidavit or other written statement. Such affidavit or written statement must be submitted at least 30 days prior to the date such testimony and/or production of records is requested to be taken and/or produced. A copy of the affidavit or written statement shall be served on the other parties to the legal proceeding. The affidavit or written statement must: (a) Be addressed to the Export-Import Bank of the United States, Office of the General Counsel, 811 Vermont Ave., NW., Washington, DC 20571; (b) State the nature of the legal proceeding, including any docket number, title of the case, and the name of the administrative or adjudicative body before which the proceedings are to be heard; (c) State the nature of the testimony or records sought; (d) State the relevance of the information sought to the legal proceedings; (e) State why such information can only be obtained through testimony or production of records by Ex-Im Bank personnel; and (f) Comply with all procedures governing valid service of process. [71 FR 14361, Mar. 22, 2006. Redesignated at 87 FR 41034, July 11, 2022] § 404.30 Notification of General Counsel required. Ex-Im Bank personnel receiving a demand for testimony and/or production of records regarding information acquired in the course of their performance of official duties, or due to their official status, shall immediately notify the General Counsel of Ex-Im Bank (“General Counsel”) upon receipt of such demand. The General Counsel maintains the exclusive authority to waive the requirements of any or all sections of this subpart and reserves the right to delegate his or her authority under this subpart to other appropriate Ex-Im Bank personnel. [71 FR 14361, Mar. 22, 2006. Redesignated at 87 FR 41034, July 11, 2022] § 404.31 Restrictions on testimony and production of records. Ex-Im Bank personnel may not provide testimony and/or produce records regarding information acquired in the course of their performance of official duties, or due to their official status, in connection with any legal proceeding to which this subpart applies, without authorization by the General Counsel. Such authorization must be in writing, unless the General Counsel determines that circumstances warrant an oral authorization, and such oral authorization is subsequently documented. [71 FR 14361, Mar. 22, 2006. Redesignated at 87 FR 41034, July 11, 2022] § 404.32 Factors General Counsel may consider in determining whether to authorize testimony and/or the production of records. In determining whether to authorize Ex-Im Bank personnel to provide testimony and/or produce records regarding information acquired in the course of their performance of official duties, or due to their official status, the General Counsel may consider factors including, but not limited to, the following: (a) Efficiency—the conservation of the time and resources of Ex-Im Bank personnel for the conduct of official business; (b) Undue burden—whether the demand creates an undue burden upon Ex-Im Bank or is otherwise inappropriate under any applicable administrative or court rules; (c) Appearance of bias—whether the testimony and/or production of records could result in the public perception that Ex-Im Bank is favoring one party over another, or advocating the position of a party to the proceeding; (d) Furtherance of agency policy—whether the testimony and/or production of records is consistent with the policy and mission of the Ex-Im Bank; (e) Prevention of fraud or injustice—whether the disclosure of the information requested is necessary to prevent the perpetration of fraud or injustice; (f) Relevance to litigation—whether the testimony and/or production of records sought is relevant to the subject litigation; (g) Necessity—whether the testimony and/or production of records, including a release of such in camera (h) Availability from another source—whether the information sought through testimony or production of records is available from another source; (i) Violations of laws or regulations—whether the testimony and/or production of records would violate a statute, regulation, executive order, or other official directive; (j) Classified information—whether the testimony and/or production of records would improperly reveal information classified pursuant to applicable statute or Executive Order; and (k) Compromise of rights and interests—whether the testimony and/or production of records would compromise any of the following: law enforcement interests, constitutional rights, national security interests, foreign policy interests, or the confidentiality of commercial and/or financial information. [71 FR 14361, Mar. 22, 2006. Redesignated at 87 FR 41034, July 11, 2022] § 404.33 Procedure for declining to testify and/or produce records. Ex-Im Bank personnel receiving a demand to provide testimony and/or produce records regarding information acquired in the course of their performance of official duties, or due to their official status, and who have not received written authorization from the General Counsel to provide such information, shall: (a) Respectfully decline to answer or appear for examination on the grounds that such testimony is forbidden by this subpart; (b) Request the opportunity to consult with the General Counsel; (c) Explain that only upon consultation may they be granted approval to provide such testimony; (d) Explain that providing such testimony or records absent approval may subject the individual to criminal liability under 18 U.S.C. 641, as well as other applicable laws, and other disciplinary action; and (e) Request a stay of the request or demand pending a determination by the General Counsel. [71 FR 14361, Mar. 22, 2006. Redesignated at 87 FR 41034, July 11, 2022] § 404.34 Procedure in the event a decision concerning a demand is not made prior to the time a response to the demand is required. If response to a demand is required before a determination has been rendered by the General Counsel, the U.S. Attorney or such other attorney as may be designated for the purpose will appear with the Ex-Im Bank personnel upon whom the demand has been made, and will furnish the court or other authority with a copy of the regulations contained in this subpart and inform the court or other authority that the demand has been or is being, as the case may be, referred for prompt consideration of the General Counsel. The court or other authority shall be requested respectfully to stay the demand pending determination by the General Counsel. [71 FR 14361, Mar. 22, 2006. Redesignated at 87 FR 41034, July 11, 2022] § 404.35 Procedure in the event of an adverse ruling. If the court or other authority declines to stay the effect of the demand in response to a request made in accordance with § 404.34 pending a determination by the General Counsel, or if the court or other authority rules that the demand must be complied with irrespective of the instructions from the General Counsel not to produce the material or disclose the information sought, the Ex-Im Bank personnel upon whom the demand has been made shall respectfully decline to comply with the demand ( United States ex rel. Touhy Ragen, [71 FR 14361, Mar. 22, 2006. Redesignated and amended at 87 FR 41034, 41042, July 11, 2022] § 404.36 Procedure for demands for testimony or production of documents regarding confidential information. In addition to compliance with the requirements of this subpart, demands to provide testimony and/or produce records that concern information protected by the Privacy Act, 5 U.S.C. 552a, or any other authority mandating confidentiality of certain classes of records or information, must also satisfy the requirements for disclosure imposed by such authority before records may be produced or testimony given. [71 FR 14361, Mar. 22, 2006. Redesignated at 87 FR 41034, July 11, 2022] § 404.37 Procedures for requests for Ex-Im Bank employees to provide expert or opinion testimony. No Ex-Im Bank personnel may, unless specifically authorized by the General Counsel, testify in any legal proceeding as an expert or opinion witness as to any matter related to his or her duties or the functions of the Ex-Im Bank, including the meaning of Ex-Im Bank documents. Any demand for expert or opinion testimony shall comply with the policies and procedures outlined in this subpart. [71 FR 14361, Mar. 22, 2006. Redesignated at 87 FR 41034, July 11, 2022] § 404.38 No private right of action. Nothing in this subpart shall be construed as creating any right, substantive or procedural, enforceable at law or equity by a party against Ex-Im Bank or the United States. [71 FR 14361, Mar. 22, 2006. Redesignated at 87 FR 41034, July 11, 2022] Subparts D-E [Reserved]