[57 F.R. 60722 (December 22, 1992)]
FR FOIA Implementation Adoption:
FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL
12 CFR part 1102
[Docket No. AS92-4]
APPRAISAL SUBCOMMITTEE; APPRAISAL REGULATION; FREEDOM OF INFORMATION ACT IMPLEMENTATION
AGENCY: Appraisal Subcommittee, Federal Financial Institutions Examination Council.
ACTION: Final Rule.
SUMMARY: The Appraisal Subcommittee ("ASC") of the Federal Financial Institutions Examination Council ("FFIEC") today announced the adoption of 12 CFR part 1102, subpart D ("subpart" or "subpart D"), implementing the ASC's separate procedures pertaining to compliance with the Freedom of Information Act ("FOIA").
EFFECTIVE DATE: [Insert date of publication in the FEDERAL REGISTER].
FOR FURTHER INFORMATION CONTACT: Edwin W. Baker, Executive Director, or Marc L. Weinberg, General Counsel, at (202) 634-6520, Appraisal Subcommittee, 2100 Pennsylvania Avenue, N.W., Suite 200, Washington, D.C. 20037.
I. Introduction and background
On August 9, 1989, Congress adopted Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA"), including ' 1102 of Title XI, which established the ASC and placed it within the FFIEC. The ASC consists of representatives appointed by the heads of the Federal Financial Institutions Regulatory Agencies ("regulatory agencies") and the Department of Housing and Urban Development. Congress intended Title XI of FIRREA and the ASC, the regulatory agencies and the Resolution Trust Corporation ("RTC") (collectively, "Agencies") to protect federal financial and public policy interests in real estate-related financial transactions requiring the services of an appraiser.
The ASC has several statutory duties under Title XI. First, it must monitor the appraisal regulations adopted by the Agencies. Those regulations set out appraisal standards for federally related transactions and define those federally related transactions requiring the services of a State certified or State licensed appraiser. Second, the ASC must monitor and review the practices, procedures, activities, and organizational structure of the Appraisal Foundation. Third, the ASC must monitor the certification and licensing programs for real estate appraisers in each State, territory, commonwealth, and the District of Columbia (collectively "States") and must review the State's compliance with the requirements of Title XI. It also is authorized by Title XI to take action against non-complying States. And lastly, each State with an appraiser certifying and licensing agency is responsible for transmitting to the ASC a roster of State certified and licensed appraisers who are eligible to perform appraisals in federally related transactions, along with an annual registry fee, and the ASC must maintain a national registry of these appraisers.
II. Statutory Authority
FOIA generally requires each Federal agency to make available to the public information regarding its organization and operation and rules of procedure and all substantive rules and interpretations of general applicability and statements of general policy.
In addition, each agency, in accordance with published rules, must "make available for public inspection and copying -- (A) final opinions, . . . as well as orders, made in the adjudication of cases; (B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; and (C) administrative staff manuals and instructions to staff that affect a member of the public . . . ." Certain documents and portions thereof, however, can be withheld from disclosure under one or more statutory exemptions set out in FOIA.
Even though the ASC is within the FFIEC, the ASC is separately subject to FOIA as an "agency" of the Federal Government. In 5 U.S.C. 552(e), an "agency" is defined, in pertinent part, as "any . . . establishment in the executive branch of the Government . . . , or any independent regulatory agency." This definition supplements the definition of "agency" in 5 U.S.C. 551(1), which includes "each authority of the Government of the United States, whether or not it is within or subject to review by another agency . . . , includ[ing] any . . . establishment in the executive branch of the Government . . ., or any independent regulatory agency." There is no doubt of the ASC's status, especially because the ASC is funded independently from the FFIEC as an appropriated entity of the Federal Government, has its own facilities and staff and has its own unique statutory mission and purpose under Federal law.
III. Description of the subpart.
In general, the ASC has determined to adopt by incorporation by reference the FFIEC's FOIA regulations set out in 12 CFR '' 1101.4 and 1101.5. These regulations were initially adopted by the FFIEC in 1980 and were amended by the FFIEC in 1988. On both occasions, the FFIEC's FOIA regulations were adopted after full exposure to public comment. The ASC is not incorporating by reference 12 CFR '' 1101.1, 1101.2 and 1101.3, which pertain respectively to the FFIEC's regulations' scope and purpose, authority and functions and organization and methods of operation. Instead, in compliance with 5 U.S.C. 552(a), the ASC is adopting 12 CFR '' 1102.300, 1102.301, 1102.302 and 1102.303, which are specifically tailored to the ASC.
The FFIEC's FOIA regulations which are being incorporated are unremarkable and provide the expected features of FOIA compliance. For example, 12 CFR ' 1101.4(a), which is incorporated by reference in new 12 CFR ' 1102.304(a), implements the general rule of document availability to the public in 5 U.S.C. 552(a)(1) and (a)(2), and 12 CFR ' 1101.4(b), which is incorporated by reference in new 12 CFR ' 1102.304(a), implements FOIA's: (1) exemptions from general availability; (2) procedures for requesting and obtaining copies of documents and appealing initial adverse FOIA decisions; and (3) fee schedule for FOIA services.
New ' 1102.304(a) also incorporates by reference 12 CFR ' 1101.5, which is entitled "Testimony and production of documents in response to subpoena, order, etc." This section generally provides that only persons with written authorization of the ASC: (1) can testify, in court or otherwise (except before Congress in official matters), as a result of activities on behalf of the agency; or (2) can provide documents in compliance with judicial process. Persons not authorized to testify or produce documents must appear in court and respectfully state that he or she is unable to comply further with the subpoena or order by reason of this provision.
New ' 1102.304(b) generally contains conforming, non-substantive changes designed to tailor 12 CFR '' 1101.4 and 1101.5, as incorporated by reference into subpart D of part 1102, to the ASC's separate administration and organizational structure. The only arguably substantive amendment to the FFIEC's rules, as incorporated into new ' 1102.304(b), is a reduction of the per page copying fee from $.25 to $.15. The ASC believes that this $.15 fee will be sufficient to recover its direct per page copying costs.
IV. Adoption without public comment and immediate effectiveness.
The ASC is adopting subpart D to provide the public with its disclosure rights under FOIA, as required by FOIA, with as little delay as possible. In that regard, the ASC has determined that good cause exists for the immediate effectiveness of subpart D without notice and public procedure ordinarily required by 5 U.S.C. ' 553 because such notice and public procedure and the usual 30-day delay of effectiveness is impracticable, unnecessary, or contrary to the public interest. By adopting subpart D and making it effective immediately, the ASC will put in place definitive ways for the public to obtain information from the ASC, an agency of the U.S. Government, as contemplated by FOIA. Moreover, the ASC believes that notice and public procedure is unnecessary because new subpart D's significant portions and features are identical to those in 12 CFR '' 1101.4 and 1101.5,
which, as noted above, have been fully exposed to notice and public procedure by the FFIEC, of which the ASC is a part.
The ASC is adopting subpart D of part 1102 to implement FOIA without public comment, and subpart D is immediately effective upon publication of this release in the Federal Register.
VI. Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1980, forms, reporting and recordkeeping requirements included in 12 CFR part 1102, subpart D, were submitted for review and approval to the Office of Management of Budget for review and approval on October 6, 1992. OMB approved subpart D on December 3, 1992, through December 31, 1995, and assigned it control number 3139-0006. Subpart D will fully implement FOIA at the ASC. The estimated number of respondents is 11, each submitting one response per year, with an estimated average reporting burden of .33 hours per response and an estimated annual reporting burden of 3.67 hours.
V. Regulatory Flexibility Act Statement
Pursuant to section 605(b) of the Regulatory Flexibility Act, the ASC certifies that part 1102, subpart D is not expected to have a significant economic impact on a substantial number of small entities. The subpart implements FOIA, which provides a general right to the public to obtain copies of certain records of a Federal agency. FOIA does not address business or corporate entities. Accordingly, a regulatory flexibility analysis is not required.
VI. Executive Order 12291 Statement
The ASC has determined that subpart D does not constitute a "major rule" within the meaning of Executive Order 12291. Accordingly, a Regulatory Impact Analysis is not required on the grounds that this subpart: (1) would not have an annual effect on the economy of $100 million or more; (2) would not result in a major increase in the cost of financial institution operations or governmental supervision; and (3) would not have a significant adverse effect on competition (foreign or domestic), employment, investment, productivity or innovation, within the meaning of the Executive Order.
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
Chapter XI, title 12, part 1102 of the Code of Federal Regulations is amended as set forth below:
1. New subpart D is added to read as follows:
PART 1102 -- APPRAISAL REGULATION
Subpart D -- Description of office, procedures, public information.
1102.300 Authority, scope and purpose.
1102.302 ASC authority and functions.
1102.303 Organization and method of operation.
1102.304 General requirements, exemptions, procedures and other matters.
* * * * *
Subpart D - Description of office, procedures, public information.
Authority: 12 U.S.C. 552.
' 1102.300 Authority, scope and purpose.
This subpart implements the Freedom of Information Act ("FOIA"), 5 U.S.C. 552, with respect to the Appraisal Subcommittee of the Federal Financial Institutions Examination Council and establishes related information disclosure procedures and fees.
' 1102.301 Definitions.
(a) ASC means the Appraisal Subcommittee of the Federal Financial Institutions Examination Council.
(b) FFIEC means the Federal Financial Institutions Examination Council.
' 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 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.
' 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 Adminstration, 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 the Executive Director, Associate Director for Administration, Associate Director for Policy and Programs and the General Counsel.
(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 2100 Pennsylvania Avenue, N.W., Suite 200; Washington, D. C. 20037.
' 1102.304 General requirements, exemptions, procedures and other matters.
(a) In general. The ASC, as part of the FFIEC, has determined that the FFIEC's regulations at 12 CFR '' 1101.4 and 1101.5 pertaining to the implementation of FOIA will guide the ASC's implementation of, and compliance with, FOIA. Therefore, the ASC is incorporating by reference into this subpart the FFIEC's regulations at 12 CFR '' 1101.4 and 1101.5, subject to the following conforming changes.
(b) Exceptions. Because the ASC is an appropriated U.S. Government agency with specific statutory responsibilities, the FFIEC's regulations at 12 CFR '' 1101.4 and 1101.5, as incorporated by reference into this subpart, are amended as follows:
(1) All references to the term, "Council," in 12 CFR '' 1101.4 and 1101.5 shall be deleted, and the term, "ASC," shall be inserted;
(2) All references to the term, "Executive Secretary," in 12 CFR '' 1101.4 and 1101.5 shall be deleted, and the term, "Executive Director," shall be inserted;
(3) All references to "' 1101.3(e)" in 12 CFR '' 1101.4(a) and (b)(3)(i) and (iii) shall
be deleted, and new references to "' 1102.303(d)" shall be inserted; and
(4) The reference to "$.25" in 12 CFR ' 1101.4(b)(5)(ii)(C)(1) shall be deleted and "$.15" shall be inserted.
By the Appraisal Subcommittee of the Federal Financial Institutions Examination Council,
Fred D. Finke, Chairman Date
Note. -- The following appendix will not appear in the Code of Federal Regulations
Appendix A--Relevant FFIEC FOIA Rules
12 CFR part 1101
' 1101.4 Disclosure of information, policies, and records
(a) Statements of policy published in the Federal Register or available for public inspection and copying; indices. Under 5 U.S.C. 552(a)(1), the Council publishes general rules, policies and interpretations in the Federal Register. Under 5 U.S.C. 552(a)(2), policies and interpretations adopted by the Council, including instructions to Council staff affecting members of the public, and an index to the same, are available for public inspection and copying at the address set out in ' 1101.3(e) of this part during regular business hours. The preceding materials may be withheld from disclosure under the principles stated in paragraph (b)(1) of this section.
(b) Other records of the Council available for public inspection; procedures -- (1) General rule and exemptions. Under 5 U.S.C. 552(a)(3), all other records of the Council are available for public inspection and copying, except those exempted from disclosure as provided in this paragraph. Except as specifically authorized by the Council, the following records, and portions thereof, are not available to the public:
(i) A record, or portion thereof, which is specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and which is, in fact, properly classified pursuant to such Executive order.
(ii) A record, or portion thereof, relating solely to the internal personnel rules and practices of an agency.
(iii) A record, or portion thereof, specifically exempted from disclosure by statute (other than 5 U.S.C. 552b), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.
(iv) A record, or portion thereof, containing trade secrets and commercial or financial information obtained from a person and privileged or confidential.
(v) An intraagency or interagency memorandum or letter that would not be routinely available by law to a private party in litigation, including, but not limited to, memoranda, reports, and other documents prepared by the personnel of the Council or its constituent agencies.
(vi) A personnel, medical, or similar record, including a financial record, or any portion thereof, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
(vii) Records or information complied for law enforcement purposes, including records relating to a proceeding by a financial institution's regulatory agency for the issuance of a ceaseanddesist order, or order of suspension or removal, or assessment of a civil money penalty and the granting, withholding, or revocation of any approval, permission, or authority, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings; (B) would deprive a person of a right to a fair trial or an impartial adjudication; (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy; (D) 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 information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source; (E) 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 (F) could reasonably be expected to endanger the life or physical safety of any individual.
(viii) A record, or portion thereof, containing, relating to, or derived from an examination, operating, or condition report prepared by, or on behalf of, or for the use of any agency directly or indirectly responsible for the regulation or supervision of financial institutions, relating to the affairs of any financial institution or affiliate thereof, financial institution holding company or subsidiary, broker, finance company, or any other person engaged, or proposing to engage, in the business of operating, managing or controlling financial institutions.
(ix) A record, or portion thereof, which contains or is related to geological and geophysical information and data, including maps, concerning wells.
(2) Waiver of exemption. Notwithstanding the applicability of an exemption, the Council or the Council's designee may elect, under the circumstances of a particular request, to disclose all or a portion of any requested record where permitted by law. Such disclosure has no precedential significance whatsoever.
(3) Procedure for records request -- (i) Initial request. Requests for records shall be submitted in writing to the Executive Secretary of the Council, at the address set out in ' 1101.3(e) of this part. Mailed requests should be marked "Freedom of Information Request," "FOIA Request," or the like on the envelope. Requests must reasonably describe the records sought. The Executive Secretary will aid members of the public in formulating their requests. All requests should give the complete telephone number of the individual seeking the records, if possible.
(ii) Council response to initial requests. The Executive Secretary will respond by mail to all properly submitted initial requests within 10 working days of receipt. The time for response may be extended up to 10 additional working days, as provided in 5 U.S.C. 552(a)(6)(B), or for other periods by agreement between the requesting party and the Executive Secretary.
(iii) Appeals of responses to initial requests. If a request is denied in whole or in part, the individual making the request may appeal in writing, within 35 days of the date of the denial, to the Chairman of the Council, at the address set out in ' 1101.3(e) of this part. Mailed requests should be marked "Freedom of Information Appeal," "FOIA Appeal," or the like on the envelope. Appeals should refer to the date of the original request and the date of the Council's initial ruling. Appeals should include an explanation of the basis
for the appeal.
(iv) Council response to appeals. The Chairman of the Council, or another member designated by the Chairman, will respond by mail to all properly submitted appeals within 20 working days of receipt. The time for response may be extended up to 10 additional working days, as provided in 5 U.S.C. 552(a)(6)(B), or for other periods by agreement between the requesting party and the Chairman or the Chairman's designee.
(4) Procedure for access to records if request is granted. When a request for access to records is granted, in whole or in part, a copy of the records to be disclosed will be promptly delivered to the requesting party or made available for inspection, whichever was requested. Inspection of records, or duplication and delivery of copies of records will be arranged so as not to interfere with their use by the Council and other users of the records.
(5) Fees for document search, review, and duplication; waiver and reduction of fees --
(i) Definitions (A) Direct costs means those expenditures which the Council actually incurs in searching for, duplicating, and reviewing documents to respond to a FOIA request.
(B) Search means all time spent looking for material that is responsive to a request, including pagebypage or linebyline identification of material within documents. Searches may be done manually or by computer using existing programming.
(C) Duplication means the process of making a copy of a document necessary to respond to a FOIA request.
(D) Review means the process of examining documents located in response to a request that is for a commercial use (see ' 1101.4(b)(5)(i)(E)) to determine whether any portion of any document located is permitted to be withheld and processing such documents for disclosure.
(E) Commercial use request means a request from or on behalf of one who seeks information 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.
(F) Educational institution means a preschool, an elementary or secondary school, an institution of undergraduate higher education, an institution of graduate higher education, an institution of professional education, and an institution of vocational education, which operates a program or programs of scholarly research.
(G) Noncommercial scientific institution means an institution that is not operated on a "commercial" basis as that term is referenced in ' 1101.4(b)(i)(E), and which is operated solely for the purposes of conducting scientific research, the results of which are not intended to promote any particular product or industry.
(H) Representative of the news media, means any person actively gathering news for an entity that is organized and operated to publish or broadcast newsto the public. The term "news" means information that is about current events or that would be of current interest to the public.
(ii) Fees to be charged. The Council will charge fees that recoup the full allowable direct costs it incurs. The Council may contract with the private sector to locate, reproduce, and/or disseminate records. Provided, however, that the Council has ensured that the ultimate cost to the requester is no greater than it would be if the Council performed these tasks. Fees are subject to change as costs change. In no case will the Council contract out responsibilities which the FOIA provides that it alone may discharge, such as determining the applicability of an exemption, or determining whether to waive or reduce fees.
(A) Manual searches and review. The Council will charge fees at the following rates for manual searches for and review of records:
(1) If search/review is done by clerical staff, the hourly rate for GS7, step 5, plus 16 percent of the rate to cover benefits;
(2) If search/review is done by professional staff, the hourly rate for GS13, step 5, plus 16 percent of the rate to cover benefits.
(B) Computer searches. The Council will charge fees at the hourly rate for GS13, step 5, plus 16 percent of the rate to cover benefits, plus the hourly cost of operating the computer for computer searches for records.
(C) Duplication of records.
(1) The perpage fee for paper copy reproduction of a document is $ .25;
(2) The fee for documents generated by computer is the hourly rate for the computer operator (at GS 7, step 5, plus 16 percent for benefits if clerical staff, and GS 13, step 5, plus 16 percent for benefits if professional staff) plus the cost of materials (computer paper, tapes, labels, etc.).
(3) If any other method of duplication is used, the Council will charge the actual direct cost of duplicating the documents.
(D) If search, duplication and/or review is provided by personnel of member agencies of the Council, fees will reflect their actual hourly rates, plus 16 percent for benefits.
(E) Fees to exceed $ 25. If the Council estimates that duplication and/or search fees are likely to exceed $ 25, it will notify the requester of the estimated amount of fees, unless the requester has indicated in advance his/her willingness to pay fees as high as those anticipated. In the case of such notification by the Council, the requester will then have the opportunity to confer with Council personnel with the object of reformulating the request to meet his/her needs at a lower cost.
(F) Other services. Complying with requests for special services is entirely at the discretion of the Council. The Council will recover the full costs of providing such services to the extent it elects to provide them.
(G) Restriction on assessing fees. The Council will not charge fees to any requester, including commercial use requesters, if the cost of collecting a fee would be equal to or greater than the fee itself.
(H) Waiving or reducing fees. The Council shall waive or reduce fees under this section whenever disclosure of information 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.
(1) The Council will make a determination of whether the public interest requirement above is met based on the following factors:
(i) The subject of the request: Whether the subject of the requested records concerns the operations or activities of the government;
(ii) The informative value of the information to be disclosed: Whether the disclosure is likely to contribute to an understanding of government operations or activities;
(iii) The contribution to an understanding of the subject by the general public likely to result from disclosure: Whether disclosure of the requested information will contribute to public understanding;
(iv) The significance of the contribution to the public understanding: Whether the disclosure is likely to contribute significantly to public understanding of government operations or activities.
(2) If the public interest requirement is met, the Council will make a determination on the commercial interest requirement based upon the following factors:
(i) The existence and magnitude of a commercial interest: Whether the requester has a commercial interest that would be furthered by the requested disclosure; and if so
(ii) The primary interest in disclosure: Whether the magnitude of the identified commercial interest of the requester is sufficiently large in comparison with the public interest in disclosure; that disclosure is primarily in the commercial interest of the requester. (3) If the required public interest exists and the requester's commercial interest is not primary in comparison to it, the Council will waive or reduce fees.
(iii) Categories of requesters. (A) Commercial use requesters. The Council will assess fees for commercial use requesters which recover the full direct costs of searching for, reviewing for release, the duplicating the records sought. Commercial use requesters are not entitled to two hours of free search time nor 100 free pages of reproduction of documents.
(B) Requesters who are representatives of the news media, educational and noncommercial scientific institution requesters. The Council shall provide documents to requesters in these categories for the cost of reproduction alone, excluding fees for the first 100 pages. (C) All other requesters. The Council shall charge requesters who do not fit into any of the categories above fees which recover the full reasonable direct cost of searching for and reproducing records that are responsive to the request, except that the first 100 pages of reproduction and the first two hours of search time shall be furnished without a fee. (D) All requesters must specifically describe records sought.
(iv) Interest on unpaid fees. The Council may begin assessing interest charges on an unpaid bill starting on the 31st day following the day on which the bill was sent. Interest will be at the rate prescribed in section 3717 of Title 31 U.S.C. and will accrue from the date of the billing.
(v) Fees for unsuccessful search and review. The Council may assess fees for time spent searching and reviewing, even if it fails to locate the records or if records located are determined to be exempt from disclosure.
(vi) Aggregating requests. A requester(s) may not file multiple requests each seeking portions of a document or documents, solely in order to avoid payment of fees. If this is done, the Council may aggregate any such requests and charge accordingly. In no case will the Council aggregate multiple requests on unrelated subjects from the same requester.
(vii) Advance payment of fees. The Council will not require a requester to make an assurance of payment or an advance payment unless:
(A) The Council estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $ 250. The Council will notify the requester of the likely cost and obtain satisfactory assurance of full payment where the requester has a history of prompt payment of FOIA fees, or require an advance payment of an amount up to the full estimated charges in the case of requesters with no history of payment; or
(B) A requester has previously failed to pay a fee charged in a timely fashion. The Council may require the requester to pay the full amount owed plus any applicable interest as provided in ' 1101.4(b)(5)(iv) or demonstrate that he/she has, in fact, paid the fee, and to make an advance payment of the full amount of the estimated fee before the Council begins to process a new request or a pending request from that requester.
(C) When the Council acts under ' 1101.4(b)(5)(vii) (A) or (B), the administrative time limits prescribed in subsection (a)(6) of the FOIA (i.e., 10 working days from receipt of initial requests and 20 working days from receipt of appeals from initial denial, plus permissible extensions of these time limits) will begin only after the Council has received the fee payments described.
(6) 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 Council 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.
' 1101.5 Testimony and production of documents in response to subpoena, order, etc.
No person shall testify, in court or otherwise, as a result of activities on behalf of the Council without prior written authorization from the Council. This section shall not restrict the authority of a Council member to testify before Congress on matters within his or her official responsibilities as a Council member. No person shall furnish documents reflecting information of the Council in compliance with a subpoena, order, or otherwise, without prior written authorization from the Council. The Council may authorize testimony or production of documents after the litigant (or the litigant's attorney) submits an affidavit to the Council setting forth the interest of the litigant and the testimony or documents desired. Authorization to testify or produce documents is limited to authority expressly granted by the Council. When the Council has not authorized testimony or production of documents, the individual to whom the subpoena or order has been directed will appear in court and respectfully state that he or she is unable to comply further with the subpoena or order by reason of this section.