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8000 - Miscellaneous Statutes and Regulations
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Subpart DDescription of Office, Procedures, Public Information
AUTHORITY: 5 U.S.C. 552, 553(e); and Executive Order 12600, 52 FR
23781 (3 CFR, 1987 Comp.,
p235).
§ 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.
[Codified to 12 C.F.R. § 1102.300]
[Source: Section 1102.300 added at 57 Fed. Reg. 60724,
December 22, 1992; amended at 64 Fed. Reg. 72496, December 28, 1999,
effective January 12,
2000]
§ 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 means 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.
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(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 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.
[Codified to 12 C.F.R. § 1102.301]
[Source: Section 1102.301 added at 57 Fed. Reg. 60724,
December 22, 1992; amended at 64 Fed. Reg. 72496, December 28, 1999,
effective January 12,
2000]
§ 1102.302 ASC authority and functions.
(a) Authority. The ASC was established on August 9,
1989, pursuant to title XI of the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989, as amended ("FIRREA"), 12
U.S.C. 3331 and 3310 through
3351. Title XI is intended "to provide that federal financial and
public policy interests in real estate related transactions will be
protected by requiring that real estate appraisals utilized in
connection with federally related transactions are performed in
writing, in accordance with uniform standards, by individuals whose
competency has been demonstrated and whose professional conduct will be
subject to effective supervision." 12 U.S.C. 3331.
(b) Functions. The ASC's statutory functions are
generally set out in 12 U.S.C. 3332. In summary, the ASC must:
(1) Monitor the requirements established by the states for the
certification and licensing of individuals who are qualified to perform
appraisals in connection with federally related transactions, including
a code of professional responsibility;
(2) Monitor the requirements of the federal financial
institutions regulatory agency and Resolution Trust Corporation with
respect to appraisal standards for federally related transactions and
determinations as to which federally related transactions require the
services of a state certified appraiser and which require the services
of a state licensed appraiser;
(3) Monitor and review the practices, procedures, activities and
organizational structure of the Appraisal Foundation; and
(4) Maintain a national registry of state certified and licensed
appraisers eligible to perform appraisals in federally related
transactions.
[Codified to 12 C.F.R. § 1102.302]
[Source: Section 1102.302 added at 57 Fed. Reg. 60724,
December 22, 1992]
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§ 1102.303 Organization and methods of operation.
(a) Statutory and other guidelines. Statutory
requirements relating to the ASC's organization are stated in
12 U.S.C. 3310,
3333 and
3334. The ASC has adopted and
published Rules of Operation guiding its administration, meetings and
procedures. These Rules of Operation were published at 56 FR 28561
(June 21, 1991) and 56 FR 33451 (July 22, 1991).
(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) FFIEC. Title XI placed the ASC within FFIEC as a
separate, appropriated agency of the United States Government with
specific statutory responsibilities under federal law.
(d) ASC Address. ASC offices are located at 2000 K
Street, N.W., Suite 310, Washington, D.C., 20006.
[Codified to 12 C.F.R. § 1102.303]
[Source: Section 1102.303 added at 57 Fed. Reg. 60725, December
22, 1992; 64 Fed. Reg. December 28, 1999, effective January 12, 2000;
69 Fed. Reg. 2501, January 16,
2004]
§ 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 instruction 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.
[Codified to 12 C.F.R. § 1102.304]
[Source: Section 1102.304 added at 57 Fed. Reg. 60725, December
22, 1992; amend at 64 Fed. Reg. 72497, December 28, 1999, effective
January 12, 2000]
§ 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:
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(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 § 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.
(b) Types of written communications. The following types
of written communications shall be subject to paragraph (a) of this
section:
(1) The ASC's annual report to Congress;
(2) All final opinions and orders made in the adjudication of
cases;
(3) All statements of general policy not published in the
FEDERAL REGISTER.
(4) Requests for the ASC or its staff to provide interpretive
advise with respect to the meaning or application or any statute
administered by the ASC or any rule or regulation adopted thereunder
and any ASC responses thereto;
(5) Requests for a statement that, on the basis of the facts
presented in such a request, the ASC would not take any enforcement
action pertaining to the facts as represented and any ASC responses
thereto; and
(6) Correspondence between the ASC and a State appraiser
regulatory agency arising out of the ASC's field review of the State
agency's appraiser regulatory program.
(c) Applicable fees. (1) If applicable, fees for
furnishing records under this section are as set forth in
§ 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 § 1102.306(e).
[Codified to 12 C.F.R. § 1102.305]
[Section 1102.305 added at 59 Fed. Reg. 1902, January 13, 1994;
effective February 14, 1994]
§ 1102.306 Proceedings 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
(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;
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(ii) Whether the requester is an educational institution,
non-commerical 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 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.
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(ii) In unusual circumstances as referred to in paragraph
(c)(5)(i)(D) of this section, the time 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 1964, 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.
(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
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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 § 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.
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(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:
(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;
(ii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
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(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 date, 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.
[Codified to 12 C.F.R. § 1102.306]
[Section 1102.306 added at 64 Fed. Reg. 72497, December 28, 1999,
effective January 12, 2000; amended at 69 Fed. Reg. 2501, January 16,
2004]
§ 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
{{6-30-05 p.8590.80}}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 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
{{6-30-05 p.8590.81}}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.
[Codified to 12 C.F.R. § 1102.307]
[Section 1102.307 added at 64 Fed. Reg. 72500, December 28, 1999,
effective January 12, 2000]
§ 1102.308 Right to petition for issuance, amendment and repeal
of rules of general application.
Any person desiring the issuance, amendment or repeal of a rule of
general application may file a petition for those purposes with the
Executive Director of the ASC. The petition shall include a statement
setting forth the text or substance of any proposed rule or amendment
desired or shall specify the rule for which repeal is desired. The
petitioner also shall state the nature of his or her interest and the
reasons for seeking ASC action. The Executive Director shall
acknowledge receipt of the petition within ten business days of
receipt. As soon as reasonably practicable, the ASC shall consider the
petition and related staff recommendations and shall take such action
as it deems appropriate. The Executive Director shall notify the
petitioner in writing of the ASC action within ten business days of the
action.
[Codified to 12 C.F.R. § 1102.308]
[Section 1102.308 added at 59 Fed. Reg. 1902, January 13, 1994,
effective February 14, 1994; redesignated at 64 Fed. Reg. 72497,
December 28, 1999, effective January 12, 2000]
§ 1102.309 Confidential treatment procedures.
(a) In general. Any submitter of written information to
the ASC who desires that some or all of his or her submission be
afforded confidential treatment under 5 U.S.C. 552(b)(4)
(i.e., trade secrets and commercial or financial information
obtained from a person and privileged or confidential) shall file a
request for confidential treatment with the Executive Director of the
ASC at the time the written information is submitted to the ASC or
within ten business days thereafter. Nothing in this section limits the
authority of the ASC and its staff to make determinations regarding
access to documents under this subpart.
(b) Form of request. A request for confidential
treatment shall be submitted in a separate letter or memorandum
conspicuously entitled, "Request for Confidential Treatment."
Each request shall state in reasonable detail the facts and arguments
supporting the request and its legal justification. If the submitter
had been required by the ASC to provide the particular information,
conclusory statements that the information would be useful to
competitors or would impair sales or similar statements generally will
not be considered sufficient to justify confidential treatment. When
the submitter had voluntarily provided the particular information to
the ASC, the submitter must specifically identify the documents or
information which are of a kind the submitter would not customarily
make available to the public.
(c) Designation and separation of confidential material.
Submitters shall clearly designate all information considered
confidential and shall clearly separate such information from other
non-confidenital information, whenever possible.
(d) ASC action on request. A request for confidential
treatment of information will be considered only in connection with a
request for access to the information under FOIA as implemented by this
subpart. Upon the receipt of a request for access, the Executive
Director or his or her designee ("ASC Officer") as soon as
possible shall provide the submitter with a written notice describing
the request and shall provide the submitter with a reasonable
opportunity, no longer than ten business days, to submit written
objections to
{{6-30-05 p.8590.82}}disclosure of the information.
Notice may be given orally, and such notice shall be promptly confirmed
in writing. The ASC Officer may provide a submitter with a notice if
the submitter did not request confidential treatment of the requested
information. If the ASC required the submitter to provide the requested
information, the ASC Officer would need substantial reason to believe
that disclosure of the requested information would result in
substantial competitive harm to the submitter. If the submitter
provided the information voluntarily to the ASC, the ASC officer would
need to believe that the information is of a kind the submitter would
not customarily make available to the public. The ASC Officer similarly
shall notify the person seeking disclosure of the information under
FOIA of the existence of a request for confidential treatment. These
notice requirements need not be followed if the ASC Officer determines
under this subpart that the information should not be disclosed; the
information has been published or has been officially made available to
the public; disclosure of the information is required by law (other
than FOIA); or the submitter's request for confidential treatment
appears obviously frivolous, in such instance the submitter shall be
given written notice of the determination to disclose the information
at least five business days prior to release. The ASC Officer shall
carefully consider the issues involved, and if disclosure of the
requested information is warranted, a written notice, containing a
brief description of why the submitter's objections were not
sustained, must be forwarded to the submitter within ten business days.
The time for response may be extended up to ten additional business
days, as provided in 5 U.S.C. 552(a)(6)(B), or for other periods by
agreement between the requester and the ASC Officer. This notice shall
be provided to the submitter at least five business days prior to
release of the requested information.
(e) Notice of lawsuit. The ASC Officer shall notify a
submitter of any filing of any suit against the ASC pursuant to 5
U.S.C. 552 to compel disclosure of documents or information covered by
the submitter's request for confidential treatment within ten business
days of service of the suit. The ASC Officer also shall notify the
requester of the documents or information of any suit filed by the
submitter against the ASC to enjoin their disclosure within ten
business days of service of the suit.
[Codified to 12 C.F.R. § 1102.309]
[Section 1102.309 added at 59 Fed. Reg. 1902, January 13, 1994,
effective February 14, 1994; redesignated at 64 Fed. Reg. 72497,
December 28, 1999, effective January 12, 2000]
§ 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 § 1102.306(e) prior to the release of any records
requested pursuant to any subpoena or other legal process.
(b) Notification of 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.
{{6-30-05 p.8590.83}}
(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.
[Codified to 12 C.F.R. § 1102.310]
[Section 1102.310 added at 64 Fed. Reg. 72501, December 28, 1999,
effective January 12, 2000]
[The page following this is 8591.]
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. Go Back to Text
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