[Federal Register Volume 64, Number 210 (Monday, November 1, 1999)]
[Proposed Rules]
[Pages 58800-58806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-28131]
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FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL
12 CFR Part 1102
[Docket No. AS99-1]
Appraisal Subcommittee; Appraiser Regulation; Disclosure of
Information
AGENCY: Appraisal Subcommittee, Federal Financial Institutions
Examination Council (``ASC'').
ACTION: Proposed rules.
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SUMMARY: The ASC proposes to amend its regulations governing the public
disclosure of information to reflect changes to the Freedom of
Information Act (``FOIA'') as a result of the enactment of the
Electronic Freedom of Information Act Amendments of 1996 (``E-FOIA'').
Among other things, the proposed rules implement expedited FOIA
processing procedures; implement processing deadlines and appeal rights
created by E-FOIA; and describe the expanded range of records available
to the public through the ASC's Internet World Wide Web site (http://
www.asc.gov).
DATES: Comments must be received on or before December 1, 1999.
ADDRESSES: Send written comments to Ben Henson, Executive Director,
Attention: Docket No. AS99-1; ASC, 2000 K Street, NW, Suite 310;
Washington, DC 20006. Comments may be faxed to the ASC at (202) 872-
7501 or sent via Internet e-mail at benhl@asc.gov. Comments may be
inspected and photocopied at the ASC's office between 9:00 a.m. and
4:30 p.m. on business days. Comments also will be posted on the ASC's
Web site for review and downloading.
FOR FURTHER INFORMATION CONTACT: Marc L. Weinberg, General Counsel, at
(202) 872-7520 or marcwl@asc.gov; Appraisal Subcommittee; 2000 K
Street, NW, Suite 310; Washington, DC 20006.
SUPPLEMENTARY INFORMATION:
Section-by-Section Analysis
E-FOIA, Public Law 104-231, amended the Freedom of Information Act
(``FOIA''), 5 U.S.C. 552. Among other things, E-FOIA requires agencies
to promulgate regulations that provide for expedited processing of
certain requests for records. Changes are proposed to 12 CFR part 1102,
subpart D (``subpart'') to comply with the E-FOIA requirements for
expedited processing. In addition, the ASC is proposing changes to the
subpart on fees and fee waivers, and portions of this subpart have been
reorganized.
Section 1102.300 has been expanded to clarify the purpose and scope
of the various sections found within the subpart. Section 1102.301 has
been amended to incorporate several E-FOIA definitions. Section
1102.302 remains unchanged. Section 1102.303 has been updated to
reflect changes in the ASC's office address and staff organization.
Current Sec. 1102.304, which incorporated by reference the FOIA
regulations of the Federal Financial Institutions Examination Council
(``FFIEC''), has been deleted. New Sec. 1102.304 specifies records that
must be published in the Federal Register under FOIA. Section 1102.305
identifies the ASC's Internet World Wide Web site as the primary source
of ASC information and describes the information that is made available
over the Internet as required by E-FOIA. The section also sets out the
categories of information that are publicly available upon request. The
ASC notes that the records provided over the Internet cover a much
smaller scope than those available by request. E-FOIA only requires the
ASC to place on the Internet records created after November 1, 1996.
The ASC, however, is increasing the resources available over the
Internet on its World Wide Web site.
Section 1102.306 describes the ASC's procedures for processing FOIA
requests. This section essentially is new because it no longer
incorporates by reference the FFIEC's FOIA rules. It also reflects the
changes required by E-FOIA. Because of the small size of the ASC and
the dearth of FOIA requests received, the ASC has determined not to
provide multitrack processing. The proposal, however, would provide
expedited processing where a requester has demonstrated a compelling
need for the records, or where the ASC has determined to expedite the
response. The time limit for expedited processing is set at ten
business days, with expedited procedures available for an appeal of the
ASC's determination not to provide expedited processing. Under E-FOIA,
there are only two types of circumstances that can meet the compelling
need standard: Where failure to obtain the records expeditiously could
pose an imminent threat to the life or physical safety of a person, or
where the requester is a person primarily engaged in disseminating
information and there is an urgency to inform the public concerning
actual or alleged agency activity. For ease of administration and
consistency, the proposal uses the term ``representative of the news
media'' to describe a person primarily engaged in disseminating
information. To demonstrate a compelling need, a requester must submit
a certified statement, a sample of which may be obtained from the ASC.
All information requests that do not meet expedited processing
standards will be handled under regular processing procedures, as
required by FOIA and E-FOIA. The statutory time limit for regular-track
processing would be extended to twenty business days, pursuant to E-
FOIA, from the previous ten business days.
Section 1102.306(e) contains the FOIA fees and the standards for
waiver of fees. The fee provisions have been revised to clarify that
the processing time of a FOIA request does not begin until: (1) Payment
is received when payment in advance is required, or (2) a person has
requested a fee waiver and has not agreed to pay the fees if the waiver
request is denied.
New Section 1102.307 covers the disclosure of exempt records. The
section prohibits the disclosure of exempt records, and, at the same
time, authorizes the ASC, through its Chairman or Executive Director,
to release certain types of otherwise exempt records upon receipt of a
written request specifically identifying the subject records and
providing sufficient information for the ASC to evaluate whether good
cause for disclosure exists.
The next two sections, 1102.308 and 1102.309, carry over unchanged
current Secs. 1102.30 and 1102.306, respectively.
The final section, 1102.310, is new. The section describes the
procedures for serving subpoenas or other legal process on the ASC.
The ASC notes that the substantive portions of these proposals are
based on 12 CFR part 309, the Federal Deposit Insurance Corporation's
regulations concerning the disclosure of information.
Regulatory Flexibility Act Analysis
Pursuant to Sec. 605(b) of the Regulatory Flexibility Act (5 U.S.C.
601, et seq.), the ASC certifies that the proposed rule will not have a
significant economic impact on a substantial number of small entities.
These amendments simplify some of the procedures regarding release of
information and require disclosure of information in certain instances
in accordance with law. The requirements to disclose apply to the ASC;
therefore, they should not have a
[[Page 58801]]
significant economic impact on a substantial number of small entities.
Paperwork Reduction Act Analysis
The collection of information contained in this proposed rule is
found at 12 CFR part 1102, subpart D and has been submitted to the
Office of Management and Budget (``OMB'') for review and approval in
accordance with the requirements of the Paperwork Reduction Act of 1995
(``PRA'') (44 U.S.C. 3501 et seq.). Comments are invited on: (a)
Whether the collection of information is necessary for the proper
performance of the ASC's functions, including whether the information
has practical utility; (b) the accuracy of the estimates of the burden
of the information collection; (c) ways to enhance the quality,
utility, and clarity of the information to be collected; and (d) ways
to minimize the burden of the information collection on respondents,
including through the use of automated collection techniques or other
forms of information technology.
Comments should be addressed to the Office of Information and
Regulatory Affairs; Office of Management and Budget; Attention: Desk
Officer Alexander Hunt; New Executive Office Building, Room 3208;
Washington, DC 20503, with copies of such comments to Marc L. Weinberg,
General Counsel; Appraisal Subcommittee; 2000 K Street NW., Suite 310;
Washington, DC 20006. All comments should refer to part 1102, subpart
D. OMB is required to make a decision concerning the collections of
information contained in the proposed regulations between 30 and 60
days after the publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of this publication. This does not
affect the deadline for the public to comment to the ASC on the
proposed regulation.
Title of collection: Requests for records pursuant to the Freedom
of Information Act.
Summary of the collection: The name, address and telephone number
of the requester; a statement whether the requester is an educational
institution, noncommercial scientific institution, or news media
representative; a statement agreeing to pay applicable fees or
requesting a waiver or reduction of fees; and the form or format of
responsive information requested, if other than paper copies.
Respondents--Persons who desire to obtain records pursuant to the
Freedom of Information Act.
Estimate of Annual Burden--
Number of requests--24.
Time required to prepare a request--15 minutes.
Total annual burden hours--6 hours.
List of Subjects in 12 CFR Part 1102
Administrative practice and procedure, Appraisers, Banks, banking,
Freedom of Information, Mortgages, Reporting and recordkeeping
requirements.
Text of the Proposed Rule
For the reasons set forth in the preamble, the ASC is proposing to
amend title 12, chapter XI of the Code of Federal Regulations as
follows:
PART 1102--APPRAISER REGULATION
Subpart D--Description of Office, Procedures, Public Information
1. The authority citation for part 1102, subpart D continues to
read as follows:
Authority: 5 U.S.C. 552, 553(e); and Executive Order 12600, 52
FR 23781 (3 CFR, 1987 Comp., p 235).
2. Section 1102.300 is revised to read as follows:
Sec. 1102.300 Purpose and scope.
This part sets forth the basic policies of the Appraisal
Subcommittee of the Federal Financial Institutions Examination Council
(``ASC'') regarding information it maintains and the procedures for
obtaining access to such information. This part does not apply to the
Federal Financial Institutions Examination Council. Section 1102.301
sets forth definitions applicable to this part 1102, subpart D. Section
1102.302 describes the ASC's statutory authority and functions. Section
1102.303 describes the ASC's organization and methods of operation.
Section 1102.304 describes the types of information and documents
typically published in the Federal Register. Section 1102.305 explains
how to access public records maintained on the ASC's World Wide Web
site and at the ASC's office and describes the categories of records
generally found there. Section 1102.306 implements the Freedom of
Information Act (``FOIA'') (5 U.S.C. 552). Section 1102.307 authorizes
the discretionary disclosure of exempt records under certain limited
circumstances. Section 1102.308 provides anyone with the right to
petition the ASC to issue, amend, and repeal rules of general
application. Section 1102.309 sets out the ASC's confidential treatment
procedures. Section 1102.310 outlines procedures for serving a subpoena
or other legal process to obtain information maintained by the ASC.
3. Section 1102.301 is revised to read as follows:
Sec. 1102.301 Definitions.
For purposes of this subpart:
(a) ASC means the Appraisal Subcommittee of the Federal Financial
Institutions Examination Council.
(b) Commercial use request means a request from, or on behalf of, a
requester who seeks records for a use or purpose that furthers the
commercial, trade, or profit interests of the requester or the person
on whose behalf the request is made. In determining whether a request
falls within this category, the ASC will determine the use to which a
requester will put the records requested and seek additional
information as it deems necessary.
(c) Direct costs means those expenditures the ASC actually incurs
in searching for, duplicating, and, in the case of commercial
requesters, reviewing records in response to a request for records.
(d) Disclose or disclosure mean to give access to a record, whether
by producing the written record or by oral discussion of its contents.
Where the ASC member or employee authorized to release ASC documents
makes a determination that furnishing copies of the documents is
necessary, these words include the furnishing of copies of documents or
records.
(e) Duplication means the process of making a copy of a record
necessary to respond to a request for records or for inspection of
original records that contain exempt material or that cannot otherwise
be directly inspected. Such copies can take the form of paper copy,
microfilm, audiovisual records, or machine readable records (e.g.,
magnetic tape or computer disk).
(f) Educational institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate or
graduate higher education, an institution of professional education,
and an institution of vocational education, which operates a program or
programs of scholarly research.
(g) Field review includes, but is not limited to, formal and
informal investigations of potential irregularities occurring at State
appraiser regulatory agencies involving suspected violations of Federal
or State civil or criminal laws, as well as such other investigations
as may conducted pursuant to law.
(h) Non-commercial scientific institution means an institution that
is not operated on a commercial basis as that term is defined in
paragraph (b) of this section, and which is operated
[[Page 58802]]
solely for the purpose of conducting scientific research, the results
of which are not intended to promote any particular product or
industry.
(i) Record includes records, files, documents, reports
correspondence, books, and accounts, or any portion thereof, in any
form the ASC regularly maintains them.
(j) Representative of the news media means any person primarily
engaged in gathering news for, or a free-lance journalist who can
demonstrate a reasonable expectation of having his or her work product
published or broadcast by, an entity that is organized and operated to
publish or broadcast news to the public. The term news means
information that is about current events or that would be of current
interest to the general public.
(k) Review means the process of examining documents located in a
response to a request that is for a commercial use to determine whether
any portion of any document located is permitted to be withheld. It
also includes processing any documents for disclosure, e.g., doing all
that is necessary to excise them and otherwise prepare them for
release. Review does not include time spent resolving general legal or
policy issues regarding the application of exemptions.
(l) Search includes all time spent looking for material that is
responsive to a request, including page-by-page or line-by-line
identification of material within records. Searches may be done
manually and/or by computer using existing programming.
(m) State appraiser regulatory agency includes, but is not limited
to, any board, commission, individual or other entity that is
authorized by State law to license, certify, and supervise the
activities of persons authorized to perform appraisals in connection
with federally related transactions and real estate related financial
transactions that require the services of a State licensed or certified
appraiser.
4. Section 1102.303 is amended by revising paragraphs (b) and (d)
to read as follows:
Sec. 1102.303 Organization and methods of operation.
(a) * * *
(b) ASC members and staff. The ASC is composed of six members, each
being designated by the head of their respective agencies: the Board of
Governors of the Federal Reserve System, Federal Deposit Insurance
Corporation, Office of the Comptroller of the Currency, National Credit
Union Administration, Office of Thrift Supervision, and the Department
of Housing and Urban Development. Administrative support and
substantive program, policy, and legal guidance for ASC activities are
provided by a small, full-time, professional staff supervised by an
Executive Director.
(c) * * *
(d) ASC Address. ASC offices are located at 2000 K Street, NW,
Suite 310; Washington, DC 20006.
5. Section 1102.304 is revised to read as follows:
Sec. 1102.304 Federal Register publication.
The ASC publishes the following information in the Federal Register
for the guidance of the public:
(a) Descriptions of its organization and the established places at
which, the officers from whom, and the methods whereby, the public may
secure information, make submittals or requests, or obtain decisions;
(b) Statements of the general course and method by which its
functions are channeled and determined, including the nature and
requirements of all formal and informal procedures available;
(c) Rules of procedure, descriptions of forms available or the
places at which forms may be obtained, and instructions as to the scope
and contents of all papers, reports or examinations;
(d) Substantive rules of general applicability adopted as
authorized by law, and statements of general policy or interpretations
of general applicability formulated and adopted by the ASC;
(e) Every amendment, revision or repeal of the foregoing; and
(f) General notices of proposed rulemaking.
6. Section 1102.305 is amended by revising the section heading and
paragraphs (a) and (c) to read as follows:
Sec. 1102.305 Publicly available records.
(a) Records available on the ASC's World Wide Web site--(1)
Discretionary release of documents. The ASC encourages the public to
explore the wealth of resources available on the ASC's Internet World
Wide Web site, located at: http://www.asc.gov. The ASC has elected to
publish a broad range to materials on its Web site.
(2) Documents required to be made available via computer
telecommunications. (i) The following types of documents created on or
after November 1, 1996, and required to be made available through
computer telecommunications, may be found on the ASC's Internet World
Wide Web site located at: http://www.asc.gov:
(A) Final opinions, including concurring and dissenting opinions,
as well as final orders, made in the adjudication of cases;
(B) Statements of policy and interpretations adopted by the ASC
that are not published in the Federal Register;
(C) Administrative staff manuals and instructions to staff that
affect a member of the public;
(D) Copies of all records (regardless of form or format), such as
correspondence relating to field reviews or other regulatory subjects,
released to any person under Sec. 1102.306 that, because of the nature
of their subject matter, the ASC has determined are likely to be the
subject of subsequent requests;
(E) A general index of the records referred to in paragraph
(a)(2)(i)(D) of this section.
(ii) To the extent permitted by law, the ASC may delete identifying
details when it makes available or publishes any records. If redaction
is necessary, the ASC will, to the extent technically feasible,
indicate the amount of material deleted at the place in the record
where such deletion is made unless that indication in and of itself
will jeopardize the purpose for the redaction.
* * * * *
(c) Applicble fees. (i) If applicable, fees for furnishing records
under this section are as set forth in Sec. 1102.306(e).
(ii) Information on the ASC's World Wide Web site is available to
the public without charge. If, however, information available on the
ASC's World Wide Web site is provided pursuant to a Freedom of
Information Act request processed under Sec. 1102.306 then fees apply
and will be assessed pursuant to Sec. 1102.306(e).
7. Sections 1102.306 and 1102.307 are redesignated as
Secs. 1102.309 and 1102.308 respectively.
8. A new Sec. 1102.306 is added to read as follows:
Sec. 1102.306 Procedures for requesting records.
(a) Making a request for records. (1) The request shall be
submitted in writing to the Executive Director:
(i) By facsimile clearly marked ``Freedom of Information Act
Request'' to (202) 872-7501;
(ii) By letter to the Executive Director marked ``Freedom of
Information Act Request''; 2000 K Street, NW, Suite 301; Washington, DC
20006; or
(iii) By sending Internet e-mail to the Executive Director marked
``Freedom of Information Act Request'' at his or her e-mail address
listed on the ASC's World Wide Web site.
(2) The request shall contain the following information:
(i) The name and address of the requester, an electronic mail
address, if available, and the telephone number at
[[Page 58803]]
which the requester may be reached during normal business hours;
(ii) Whether the requester is an educational institution, non-
commercial scientific institution, or news media representative;
(iii) A statement agreeing to pay the applicable fees, or a
statement identifying a maximum fee that is acceptable to the
requester, or a request for a waiver or reduction of fees that
satisfies paragraph (e)(1)(x) of this section; and
(iv) The preferred form and format of any responsive information
requested, if other than paper copies.
(3) A request for identifiable records shall reasonably describe
the records in a way that enables the ASC's staff to identity and
produce the records with reasonable effort and without unduly burdening
or significantly interfering with any ASC operations.
(b) Defective requests. The ASC need not accept or process a
request that does not reasonably describe the records requested or that
does not otherwise comply with the requirements of this subpart. The
ASC may return a defective request, specifying the deficiency. The
requester may submit a corrected request, which will be treated as a
new request.
(c) Processing requests. (1) Receipt of requests. Upon receipt of
any request that satisfies paragraph (a) of this section, the Executive
Director shall assign the request to the appropriate processing track
pursuant to this section. The date of receipt for any request,
including one that is addressed incorrectly or that is referred by
another agency, is the date the Executive Director actually receives
the request.
(2) Expedited processing. (i) Where a person requesting expedited
access to records has demonstrated a compelling need for the records,
or where the ASC has determined to expedite the response, the ASC shall
process the request as soon as practicable. To show a compelling need
for expedited processing, the requester shall provide a statement
demonstrating that:
(A) The failure to obtain the records on an expedited basis could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(B) The requester can establish that it is primarily engaged in
information dissemination as its main professional occupation or
activity, and there is urgency to inform the public of the government
activity involved in the request; and
(C) The requester's statement must be certified to be true and
correct to the best of the person's knowledge and belief and explain in
detail the basis for requesting expedited processing.
(ii) The formality of the certification required to obtain
expedited treatment may be waived by the Executive Director as a matter
of administrative discretion.
(3) A requester seeking expedited processing will be notified
whether expedited processing has been granted within ten (10) working
days of the receipt of the request. If the request for expedited
processing is denied, the requester may file an appeal pursuant to the
procedures set forth in paragraph (g) of this section, and the ASC
shall respond to the appeal within ten (10) working days after receipt
of the appeal.
(4) Priority of responses. Consistent with sound administrative
process, the ASC processes requests in the order they are received.
However, in the ASC's discretion, or upon a court order in a matter to
which the ASC is a party, a particular request may be processed out of
turn.
(5) Notification. (i) The time for response to requests will be
twenty (20) working days except:
(A) In the case of expedited treatment under paragraph (c)(2) of
this section;
(B) Where the running of such time is suspended for the calculation
of a cost estimate for the requester if the ASC determines that the
processing of the request may exceed the requester's maximum fee
provision or if the charges are likely to exceed $250 as provided for
in paragraph (e)(1)(v) of this section;
(C) Where the running of such time is suspended for the payment of
fees pursuant to the paragraph (c)(5)(i)(B) and (e)(1) of this section;
or
(D) In unusual circumstances, as defined in 5 U.S.C. 552(a)(6)(B)
and further described in paragraph (c)(5)(iii) of this section.
(ii) In unusual circumstances as referred to in paragraph
(c)(5)(i)(D) of this section, the time limit may be extended for a
period of:
(A) Ten (10) working days as provided by written notice to the
requester, setting forth the reasons for the extension and the date on
which a determination is expected to be dispatched; or
(B) Such alternative time period as agreed to by the requester or
as reasonably determined by the ASC when the ASC notifies the requester
that the request cannot be processed in the specified time limit.
(iii) Unusual circumstances may arise when:
(A) The records are in facilities that are not located at the ASC's
Washington office;
(B) The records requested are voluminous or are not in close
proximity to one another; or
(C) There is a need to consult with another agency or among two or
more components of the ASC having a substantial interest in the
determination.
(6) Response to request. In response to a request that satisfies
the requirements of paragraph (a) of this section, a search shall be
conducted of records maintained by the ASC in existence on the date of
receipt of the request, and a review made of any responsive information
located. To the extent permitted by law, the ASC may redact identifying
details when it makes available or publishes any records. If redaction
is appropriate, the ASC will, to the extent technically feasible,
indicate the amount of material deleted at the place in the record
where such deletion is made unless that indication in and of itself
will jeopardize the purpose for the redaction. The ASC shall notify the
requester of:
(i) The ASC's determination of the request;
(ii) The reasons for the determination;
(iii) If the response is a denial of an initial request or if any
information is withheld, the ASC will advise the requester in writing:
(A) If the denial is in part or in whole;
(B) The name and title of each person responsible for the denial
(when other than the person signing the notification);
(C) The exemptions relied on for the denial; and
(D) The right of the requester to appeal the denial to the Chairman
of the ASC within 30 business days following receipt of the
notification, as specified in paragraph (h) of this section.
(d) Providing responsive records. (1) Copies of requested records
shall be sent to the requester by regular U.S. mail to the address
indicated in the request, unless the requester elects to take delivery
of the documents at the ASC or makes other acceptable arrangements, or
the ASC deems it appropriate to send the documents by another means.
(2) The ASC shall provide a copy of the record in any form or
format requested if the record is readily reproducible by the ASC in
that form or format, but the ASC need not provide more than one copy of
any record to a requester.
(3) By arrangement with the requester, the ASC may elect to send
the responsive records electronically if a substantial portion of the
request is in electronic format. If the information requested is made
pursuant to the Privacy Act of 1974, 5 U.S.C. 552a, it
[[Page 58804]]
will not be sent by electronic means unless reasonable security
measures can be provided.
(e) Fees (1) General rules. (i) Persons requesting records of the
ASC shall be charged for the direct costs of search, duplication, and
review as set forth in paragraphs (e)(2) and (e)(3) of this section,
unless such costs are less than the ASC's cost of processing the
requester's remittance.
(ii) Requesters will be charged for search and review costs even if
responsive records are not located or, if located, are determined to be
exempt from disclosure.
(iii) Multiple requests seeking similar or related records from the
same requester or group of requesters will be aggregated for the
purposes of this section.
(iv) If the ASC determines that the estimated costs of search,
duplication, or review of requested records will exceed the dollar
amount specified in the request, or if no dollar amount is specified,
the ASC will advise the requester of the estimated costs. The requester
must agree in writing to pay the costs of search, duplication, and
review prior to the ASC initiating any records search.
(v) If the ASC estimates that its search, duplication, and review
costs will exceed $250, the requester must pay an amount equal to 20
percent of the estimated costs prior to the ASC initiating any records
search.
(vi) The ASC ordinarily will collect all applicable fees under the
final invoice before releasing copies of requested records to the
requester.
(vii) The ASC may require any requester who has previously failed
to pay charges under this section within 30 calendar days of mailing of
the invoice to pay in advance the total estimated costs of search,
duplication, and review. The ASC also may require a requester who has
any charges outstanding in excess of 30 calendar days following mailing
of the invoice to pay the full amount due, or demonstrate that the fee
has been paid in full, prior to the ASC initiating any additional
records search.
(viii) The ASC may begin assessing interest charges on unpaid bills
on the 31st day following the day on which the invoice was sent.
Interest will be at the rate prescribed in section 3717 of title 31 of
the United States Code and will accrue from the date of the invoice.
(ix) The time limit for the ASC to respond to a request will not
begin to run until the ASC has received the requester's written
agreement under paragraph (e)(1)(iv) of this section, and advance
payment under paragraph (e)(1)(v) or (vii) of this section, or payment
of outstanding charges under paragraph (e)(1)(vii) or (viii) of this
section.
(x) As part of the initial request, a requester may ask that the
ASC waive or reduce fees if disclosure of the records is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government and is
not primarily in the commercial interest of the requester.
Determinations as to a waiver or reduction of fees will be made by the
Executive Director (or designee), and the requester will be notified in
writing of his or her determination. A determination not to grant a
request for a waiver or reduction of fees under this paragraph may be
appealed to the ASC's Chairman pursuant to the procedure set forth in
paragraph (g) of this section.
(2) Chargeable fees by category of requester. (j) Commercial use
requesters shall be charged search, duplication, and review costs.
(ii) Educational institutions, non-commercial scientific
institutions, and news media representatives shall be charged
duplication costs, except for the first 100 pages.
(iii) Requesters not described in paragraph (e)(2)(i) or (ii) of
this section shall be charged the full reasonable direct cost of search
and duplication, except for the first two hours of search time and
first 100 pages of duplication.
(3) Fee schedule. The dollar amount of fees which the ASC may
charge to records requesters will be established by the Executive
Director. The ASC may charge fees that recoup the full allowable direct
costs it incurs. Fees are subject to change as costs change. The fee
schedule will be published periodically on the ASC's Internet World
Wide Web site (http://www.asc.gov) and will be effective on the date of
publication. Copies of the fee schedule may be obtained by request at
no charge by contacting the Executive Director by letter, Internet
email or facsimile.
(i) Manual searches for records. The ASC will charge for manual
searches for records at the basic rate of pay of the employee making
the search plus 16 percent to cover employee benefit costs.
(ii) Computer searches for records. The fee for searches of
computerized records is the actual direct cost of the search, including
computer time, computer runs, and the operator's time apportioned to
the search multiplied by the operator's basic rate of pay plus 16
percent to cover employee benefit costs.
(iii) Duplication of records. (A) The per-page fee for paper copy
reproduction of documents is $.25.
(B) For other methods of reproduction or duplication, the ASC will
charge the actual direct costs of reproducing or duplicating the
documents, including each involved employee's basic rate of pay plus 16
percent to cover employee benefit costs.
(iv) Review of records. The ASC will charge commercial use
requesters for the review of records at the time of processing the
initial request to determine whether they are exempt from mandatory
disclosure at the basic rate of pay of the employee making the search
plus 16 percent to cover employee benefit costs. The ASC will not
charge at the administrative appeal level for review of an exemption
already applied. When records or portions of records are withheld in
full under an exemption which is subsequently determined not to apply,
the ASC may charge for a subsequent review to determine the
applicability of other exemptions not previously considered.
(v) Other services. Complying with requests for special services,
other than a readily produced electronic form or format, is at the
ASC's discretion. The ASC may recover the full costs of providing such
services to the requester.
(4) Use of contractors. The ASC may contract with independent
contractors to locate, reproduce, and/or disseminate records; provided,
however, that the ASC has determined that the ultimate cost to the
requester will be no greater than it would be if the ASC performed
these tasks itself. In no case will the ASC contract our
responsibilities which FOIA provides that the ASC alone may discharge,
such as determining the applicability of an exemption or whether to
waive or reduce fees.
(f) Exempt information. A request for records may be denied if the
requested record contains information that falls into one or more of
the following categories.\1\ If the requested record contains both
exempt and nonexempt information, the nonexempt portions, which may
reasonably be segregated from the exempt portions, will be released to
the requester. If redaction is necessary, the ASC will, to the extent
technically feasible, indicate the amount of material deleted at the
place in the record where such deletion is made unless that indication
in and of itself will jeopardize the purpose for the
[[Page 58805]]
redaction. The categories of exempt records are as follows:
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\1\ Classification of a record as exempt from disclosure under
the provisions of this paragraph (f) shall not be construed as
authority to withhold the record if it is otherwise subject to
disclosure under the Privacy Act of 1974 (5 U.S.C. 552a) or other
Federal statute, any applicable regulation of ASC or any other
Federal agency having jurisdiction thereof, or any directive or
order of any court of competent jurisdiction.
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(1) Records that are specifically authorized under criteria
established by an Executive Order to be kept secret in the interest of
national defense or foreign policy and are in fact properly classified
pursuant to such Executive Order;
(2) Records related solely to the internal personnel rules and
practices of the ASC;
(3) Records specifically exempted from disclosure by statute,
provided that such statute:
(i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue; or
(ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld;
(4) Trade secrets and commercial or financial information obtained
from a person that is privileged or confidential;
(5) Interagency or intra-agency memoranda or letters that would not
be available by law to a private party in litigation with the ASC;
(6) Personnel, medical, and similar files (including financial
files) the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy;
(7) Records compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement records:
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution which furnished records on a
confidential basis;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual;
(8) Records that are contained in or related to examination,
operating, or condition reports prepared by, on behalf of, or for the
use of the ASC or any agency responsible for the regulation or
supervision of financial institutions; or
(9) Geological and geophysical information and data, including
maps, concerning wells.
(h) Appeals. (1) Appeals should be addressed to the Executive
Director; ASC; 2000 K Street, NW, Suite 310; Washington, DC 20006.
(2) A person whose initial request for records under this section,
or whose request for a waiver of fees under paragraph (e)(1)(x) of this
section, has been denied, either in part or in whole, has the right to
appeal the denial to the ASC's Chairman (or designee) within 30
business days after receipt of notification of the denial. Appeals of
denials of initial requests or for a waiver of fees must be in writing
and include any additional information relevant to consideration of the
appeal.
(3) Except in the case of an appeal for expedited treatment under
paragraph (c)(3) of this section, the ASC will notify the appellant in
writing within 20 business days after receipt of the appeal and will
state:
(i) Whether it is granted or denied in whole or in part;
(ii) The name and title of each person responsible for the denial
(if other than the person signing the notification);
(iii) The exemptions relied upon for the denial in the case of
initial requests for records; and
(iv) The right to judicial review of the denial under the FOIA.
(4) If a requester is appealing for denial of expedited treatment,
the ASC will notify the appellant within ten business days after
receipt of the appeal of the ASC's disposition.
(5) Complete payment of any outstanding fee invoice will be
required before an appeal is processed.
(i) Records of another agency. If a requested record is the
property of another Federal agency or department, and that agency or
department, either in writing or by regulation, expressly retains
ownership of such record, upon receipt of a request for the record the
ASC will promptly inform the requester of this ownership and
immediately shall forward the request to the proprietary agency or
department either for processing in accordance with the latter's
regulations or for guidance with respect to disposition.
9. A new Sec. 1102.307 is added to read as follows:
Secs. 1102.307 Disclosure of exempt records.
(a) Disclosure prohibited. Except as provided in paragraph (b) of
this section or by 12 CFR part 1102, subpart C, no person shall
disclose or permit the disclosure of any exempt records, or information
contained therein, to any persons other than those officers, directors,
employees, or agents of the ASC or a State appraiser regulatory agency
who has a need for such records in the performance of their official
duties. In any instance in which any person has possession, custody or
control of ASC exempt records or information contained therein, all
copies of such records shall remain the property of the ASC and under
no circumstances shall any person, entity or agency disclose or make
public in any manner the exempt records or information without written
authorization from the Executive Director, after consultation with the
ASC General Counsel.
(b) Disclosure authorized. Exempt records or information of the ASC
may be disclosed only in accordance with the conditions and
requirements set forth in this paragraph (b). Requests for
discretionary disclosure of exempt records of information pursuant to
this paragraph (b) may be submitted directly to the Executive Director.
Such administrative request must clearly state that it seeks
discretionary disclosure of exempt records, clearly identify the
records sought, provide sufficient information for the ASC to evaluate
whether there is good cause for disclosure, and meet all other
conditions set forth in paragraph (b)(1) through (3) of this section.
Authority to disclose or authorize disclosure of exempt records of the
ASC is delegated to the Executive Director, after consultation with the
ASC General Counsel.
(1) Disclosure by Executive Director. (i) The Executive Director,
or designee, may disclose or authorize the disclosure of any exempt
record in response to a valid judicial subpoena, court order, or other
legal process, and authorize any current or former member, officer,
employee, agent of the ASC, or third party, to appear and testify
regarding an exempt record or any information obtained in the
performance of such person's official duties, at any administrative or
judicial hearing or proceeding where such person has been served with a
valid subpoena, court order, or other legal process requiring him or
her to testify. The Executive Director shall consider the relevancy of
such exempt records or testimony to the litigation, and the interests
of justice, in determining whether to disclose such records or
testimony. Third parties seeking disclosure of exempt records or
testimony in litigation to which the ASC is not a party shall submit a
request for discretionary disclosure directly to the Executive
Director. Such request shall specify the information sought with
reasonable particularity and shall be
[[Page 58806]]
accompanied by a statement with supporting documentation showing in
detail the relevance of such exempt information to the ligitation,
justifying good cause for disclosure, and a commitment to be bound by a
protective order. Failure to exhaust such administrative request prior
to service of a subpoena or other legal process may, in the Executive
Director's discretion, serve as a basis for objection to such subpoena
or legal process.
(ii) The Executive Director, or designee, may in his or her
discretion and for good cause, disclose or authorize disclosure of any
exempt record or testimony by a current or former member, officer,
employee, agent of the ASC, or third party, sought in connection with
any civil or criminal hearing, proceeding or investigation without the
service of a judicial subpoena, or other legal process requiring such
disclosure or testimony, if he or she determines that the records or
testimony are relevant to the hearing, proceeding or investigation and
that disclosure is in the best interests of justice and not otherwise
prohibited by Federal statute. Where the Executive Director or designee
authorizes a current or former member, officer, director, employee or
agent of the ASC to testify or disclose exempt records pursuant to this
paragraph (b)(1), he or she may, in his or her discretion, limit the
authorization to so much of the record or testimony as is relevant to
the issues at such hearing, proceeding or investigation, and he or she
shall give authorization only upon fulfillment of such conditions as he
or she deems necessary and practicable to protect the confidential
nature of such records or testimony.
(2) Authorization for disclosure by the Chairman of the ASC. Except
where expressly prohibited by law, the Chairman of the ASC may, in his
or her discretion, authorize the disclosure of any ASC records. Except
where disclosure is required by law, the Chairman may direct any
current or former member, officer, director, employee or agent of the
ASC to refuse to disclose any record or to give testimony if the
Chairman determines, in his or her discretion, that refusal to permit
such disclosure is in the public interest.
(3) Limitations on disclosure. All steps practicable shall be taken
to protect the confidentiality of exempt records and information. Any
disclosure permitted by paragraph (b) of this section is discretionary
and nothing in paragraph (b) of this section shall be construed as
requiring the disclosure of information. Further, nothing in paragraph
(b) of this section shall be construed as restricting, in any manner,
the authority of the ASC, the Chairman of the ASC, the Executive
Director, the ASC General Counsel, or their designees, in their
discretion and in light of the facts and circumstances attendant in any
given case, to require conditions upon, and to limit, the form, manner,
and extent of any disclosure permitted by this section. Wherever
practicable, disclosure of exempt records shall be made pursuant to a
protective order and redacted to exclude all irrelevant or non-
responsive exempt information.
10. Section 1102.310 is added as follows:
Sec. 1102.310 Serivce of process.
(a) Service. any subpoena or other legal process to obtain
information maintained by the ASC shall be duly issued by a court
having jurisdiction over the ASC, and served upon the Chairman; ASC;
2000 K Street, NW, Suite 310; Washington, DC 20006. Where the ASC is
named as a party, service of process shall be made pursuant to the
Federal Rules of Civil Procedure upon the Chairman at the above
address. The Chairman shall immediately forward any subpoena, court
order or legal process to the General Counsel. If consistent with the
terms of the subpoena, court order or legal process, the ASC may
require the payment of fees, in accordance with the fee schedule
referred to in Sec. 1102.306(e) prior to the release of any records
requested pursuant to any subpoena or other legal process.
(b) Notification by person served. If any current or former member,
officer, employee or agent of the ASC, or any other person who has
custody of records belonging to the ASC, is served with a subpoena,
court order, or other process requiring that person's attendance as a
witness concerning any matter related to official duties, or the
production of any exempt record of the ASC, such person shall promptly
advise the Executive Director of such service, the testimony and
records described in the subpoena, and all relevant facts that may
assist the Executive Director, in consultation with the ASC General
Counsel, in determining whether the individual in question should be
authorized to testify or the records should be produced. Such person
also should inform the court or tribunal that issued the process and
the attorney for the party upon whose application the process was
issued, if known, of the substance of this section.
(c) Appearance by person served. Absent the written authorization
of the Executive Director or designee to disclose the requested
information, any current or former member, officer, employee, or agent
of the ASC, and any other person having custody of records of the ASC,
who is required to respond to a subpoena or other legal process, shall
attend at the time and place therein specified and respectfully decline
to produce any such record or give any testimony with respect thereto,
basing such refusal on this section.
By the Appraisal Subcommittee of the Federal Financial
Institutions Examination Counsel.
Dated: October 22, 1999.
Ben Henson,
Executive Director.
[FR Doc. 99-28131 Filed 10-29-99; 8:45 am]
BILLING CODE 6201-01-M
