[Code of Federal Regulations]

[Title 12, Volume 7]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 12CFR1102.306]



[Page 258-263]

 

                       TITLE 12--BANKS AND BANKING

 

     CHAPTER XI--FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL

 

PART 1102_APPRAISER REGULATION--Table of Contents

 

     Subpart D_Description of Office, Procedures, Public Information

 

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) 293-6251;

    (ii) By letter to the Executive Director marked ``Freedom of 

Information Act Request''; 2000 K Street, NW., Suite 301; Washington, DC 

20006; or



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    (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

    (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 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



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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 located, are determined to be 

exempt from disclosure.



[[Page 261]]



    (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



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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:

    (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



[[Page 263]]



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.



[64 FR 72497, Dec. 28, 1999; 65 FR 31960, May 19, 2000, as amended at 69 

FR 2501, Jan. 16, 2004]