[Federal Register Volume 64, Number 248 (Tuesday, December 28, 1999)]
[Rules and Regulations]
[Pages 72494-72501]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33476]
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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: Final rules.
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SUMMARY: The ASC is adopting amendments to 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 new 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).
EFFECTIVE DATE: January 12, 2000.
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:
I. Authority and 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. On October 22, 1999, the ASC proposed for
comment these amendments to its related regulations in 12 CFR part
1102, subpart D (1999) (``subpart'') to implement E-FOIA. In addition,
the ASC proposed changes to the subpart on fees and fee waivers, and
portions of this subpart have been reorganized. These proposals were
published for comment on November 1, 1999, at 64 FR 58800. No comments
were received, and the ASC is adopting the proposed amendments as
published, with the exception of a few minor stylistic and non-
substantive changes.
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 amendments, 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
[[Page 72495]]
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 amendments use 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 Sec. 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 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 amendments are
based on 12 CFR part 309, the Federal Deposit Insurance Corporation's
regulations concerning the disclosure of information.
II. Administrative Requirements
A. Paperwork Reduction Act
The information collection requirements regarding this collection
of information were submitted to, and approved by, the Office of
Management and Budget (OMB). A copy of this Information Collection
Request document (OMB control number 3139-0006) may be obtained from
Marc L. Weinberg, General Counsel; Appraisal Subcommittee; 2000 K
Street, NW, Suite 310; Washington, DC 20006, or by calling (202) 872-
7520. Today's action has no impact on the information collection burden
estimates made previously. This change does not impose new
requirements. In fact, by implementing E-FOIA, this change reduces
existing burdens.
B. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the ASC
must determine whether the regulatory action is ``significant'' and
therefore subject to review by OMB on the basis of the requirements of
the Executive Order in addition to its normal review requirements. The
Executive Order defines ``significant regulatory action'' as one that
is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Today's action does not fall within any of the four categories
described above. Instead, it reduces the burden on information
requestors implementing E-FOIA's broad electronic disclosure
provisions. Consequently, under Executive Order 12866, this action is
not a ``significant regulatory action'' and is therefore not subject to
review by OMB.
C. Executive Order 13132
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires the ASC to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the states, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Under
Executive Order 13132, the ASC may not issue a regulation that has
federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or the ASC consults with
State and local officials early in the process of developing the
proposed regulation. The ASC also may not issue a regulation that has
federalism implications and that preempts State law unless the ASC
consults with State and local officials early in the process of
developing the proposed regulation.
If the ASC complies by consulting, Executive Order 13132 requires
the ASC to provide to OMB, in a separately identified section of the
preamble to the rule, a federalism summary impact statement (``FSIS'').
The FSIS must include a description of the extent of ASC's prior
consultation with State and local officials, a summary of the nature of
their concerns and the Agency's position supporting the need to issue
the regulation, and a statement of the extent to which the concerns of
State and local officials have been met. Also, when ASC transmits a
draft final rule with federalism implications to OMB for review
pursuant to Executive Order 12866, the ASC must include a certification
from the agency's Federalism Official stating that ASC has met the
requirements of Executive Order 13132 in a meaningful and timely
manner.
This final rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132.
Today's action has minimal, if any, impacts associated with this
action; thus, the requirements of Sec. 6 of the Executive Order do not
apply to this rule.
D. Regulatory Flexibility/Small Business Regulatory Enforcement
Fairness Act of 1996
Under the Regulatory Flexibility Act, Pub. L. 96-354, whenever a
Federal agency publishes any proposed or final rule in the Federal
Register, it must, except under certain circumstances, prepare a
Regulatory Flexibility Analysis (``REA'') that describes the impact of
the rule on small entities (i.e., small businesses, organizations, and
[[Page 72496]]
governmental jurisdictions). That analysis is not necessary if the
agency determines that the rule will not have a significant economic
impact on a substantial number of small entities.
The ASC believes that promulgation of this rule, rather than
imposing additional requirements, reduces previous requirements because
it implements E-FOIA's broad public disclosure provisions. Because the
impacts are anticipated to be insignificant or beneficial, ASC has
concluded that this rule will not have a significant economic impact on
a substantial number of small entities. Consequently, an RFA is not
required.
E. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA''),
Public Law 104-4, establishes requirements for Federal agencies to
assess the effects of their regulatory actions on State, local, and
tribal governments and the private sector. Under Sec. 202 of the UMRA,
ASC generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures to State, local, and tribal
governments, in the aggregate, or to the private sector of $100 million
or more in any one year. Today's rule contains no Federal mandates
(under the regulatory provisions of Title II of the UMRA) for State,
local, or tribal governments or the private sector. Instead, this rule
relieves previous burdens by implementing E-FOIA. Because the rule is
not expected to result in the expenditure by State, local, and tribal
governments or the private sector of $100 million or more in any one
year, the ASC has not prepared a budgetary impact statement or
specifically addressed the selection of the least costly, most
effective, or least burdensome alternative. Because small governments
will not be significantly or uniquely affected by this rule, the ASC is
not required to develop a plan with regard to small governments. For
the reasons stated above, the requirements of the UMRA do not apply to
this section.
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 Rule
For the reasons set forth in the preamble, title 12, chapter XI, of
the Code of Federal Regulations is amended 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 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
[[Page 72497]]
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 or persons authorized to perform appraisals in connections
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) ASD 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) Description 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 re nests, 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 the section heading
and paragraphs (a) and (c) to read as follows:
Sec. 1102.305 Publicly available records.
(a) Records available on the ASCs 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 reduction
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) Applicable fees. (1) If applicable, fees for furnishing records
under this section are as set forth in Sec. 1102.306(e).
(2) 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 g 1102.306 then fees apply and
will be assessed pursuant to Sec. 1102.306(e).
Secs. 1102.306 and 1102.307 [Redesignated as Secs. 1102.309 and
1102.308]
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 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
[[Page 72498]]
(ii) 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 identify 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 re 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)(iv) 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 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
[[Page 72499]]
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 Sec. 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. (i) Commercial use
requesters shall be charged search, duplication, and review costs.
(ii) Educational institutions, noncommercial 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 contact 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
reasonable 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 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:
[[Page 72500]]
(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 trail or an
impartial adjudication;
(ii) 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.
(g) 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.
(h) 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:
Sec. 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 ligation, 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
requests shall specify the information sought with reasonable
particularity and shall be accompanied by a statement with supporting
documentation showing in detail the relevance of such exempt
information to the litigation, justifying good cause for disclosure,
and a commitment to be bound by a protective order. Failure to exhaust
such administration 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
[[Page 72501]]
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, empl9oyee 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 paragrah
(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 Service 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: December 20, 1999.
Herbert S. Yolles,
Chairman.
[FR Doc. 99-33476 Filed 12-27-99; 8:45 am]
BILLING CODE 6201-01-M
