Disclosure of Information

SUMMARY: The Federal Deposit Insurance Corporation (FDIC or

Corporation) is proposing to revise its rule which sets forth the

procedures to be used by members of the public in requesting records

maintained by the FDIC, the amount of fees charged by the Corporation

for responding to requests, the procedures to be used when appealing a

decision to deny access to records or for a waiver of fees,

circumstances and procedures under which exempt records might be

disclosed, and the method by which a party can serve legal process on

the Corporation in order to obtain information. The revisions in the

proposed rule are designed to accommodate changes in the organizational

structure of the Corporation, provide clearer guidance to requesters on

how to obtain records under the Freedom of Information Act (FOIA) as

amended by the Freedom of Information Reform Act (FOIRA), and allow the

Corporation to charge appropriate fees as required under the FOIRA and

the guidelines established by the United States Office of Management

and Budget.

DATES: Comments must be received on before September 5, 1995.

ADDRESSES: Send comments to Jerry L. Langley, Executive Secretary,

FDIC, 550 17th Street, NW, Washington, DC 20429. Comments may be hand-

delivered to room 400, 1776 F Street, NW, Washington, DC 20429 on

business days between 8:30 a.m. and 5 p.m. [FAX number: (202) 898-3604;

Internet: [email protected]]. Comments will be available for inspection

and photocopying at the FDIC's Reading Room, room 7118, 550 17th

Street, NW, Washington, DC 20429, between 9:00 a.m. and 4:30 p.m. on

business days.

FOR FURTHER INFORMATION CONTACT: Paul A. Jeddeloh, Senior Program

Attorney, Office of the Executive Secretary, telephone (202) 898-7161;

Z. Scott Birdwell, Senior Attorney, Corporate and Special Litigation

Section, Legal Division, telephone (202) 736-0536; or Dirck A.

Hargraves, Attorney, Regulation and Legislation Section, Legal

Division, telephone (202) 898-7049, FDIC, 550 17th Street, NW,

Washington, DC 20429.

SUPPLEMENTARY INFORMATION:

I. Background

This proposed rule is intended to revise the Corporation's rule

governing the release of records maintained by the Corporation and sets

forth the procedures to be used by members of the public when

requesting such records from the FDIC, the method used by the

Corporation in determining the amount of fees to be charged to various

categories of requesters, the procedures to be used when appealing a

decision to deny access to records or for a waiver of fees,

circumstances and procedures under which exempt records might be

disclosed, and the method by which a party can serve legal process on

the Corporation in order to obtain information.

II. Amendments to Part 309

1. Purpose and Scope. No changes have been proposed in Sec. 309.1.

2. Definitions. Section 309.2 provides definitions that are used

throughout part 309. Proposed Sec. 309.2(f) recognizes that the FDIC

conducts joint examinations with other federal financial institutions

regulators and clarifies that compliance examination reports are

included within the definition of ``report of examination''. A new

Sec. 309.2(i) has been proposed in order to define the term ``Director

of Division having primary authority'' as including the heads of FDIC

offices which create, maintain custody, or otherwise have primary

responsibility for the handling of FDIC records or information.

3. Federal Register publication. No changes have been proposed in

Sec. 309.3.

4. Publicly available records. Proposed Sec. 309.4 sets forth the

procedure to be followed by requesters who seek publicly available FDIC

records. The FDIC has established a worldwide server on the Internet

whereby users may access information. The address is set forth in the

regulation. Paragraphs (a)(3) through (a)(6) of Sec. 309.4 have been

added to advise requesters that the public portion of Community

Reinvestment Act (CRA) Evaluations, records regarding final compliance

and enforcement actions, Summaries of Deposit Reports, and Annual

Reports of Trust Assets can be obtained from the FDIC's Office of

Corporate Communications.

Proposed Sec. 309.4(b) has been amended by adding the term

``administrative'' to the term ``cases'' in order to clarify the type

of final opinions and orders available through the FDIC's Office of the

Executive Secretary.

Paragraphs (c)(3), (c)(4), and (c)(5) of Sec. 309.4 have been added

to advise requesters that they may obtain from the FDIC's Division of

Supervision the Manual of Trust Examination Policies, the Federal

Financial Institutions Examination Council Information Systems Handbook

and, in the FDIC's discretion, the Consolidated Reports of Income and

Consolidated Reports of Condition.

No changes have been proposed for Sec. 309.4(d).

In proposed Sec. 309.4(e), an updated listing of the manuals

available from the Division of Depositor and Asset Services has been

provided.

Proposed Sec. 309.4(f) has been added to accommodate the creation

of the FDIC's Division of Compliance and Consumer Affairs and its role

as the contact for the Compliance Examination Manual.

Paragraph Sec. 309.4(g) of the current rule has been deleted in the

proposed rule since the information has been consolidated in

Sec. 309.4(e) of the proposed rule.

5. Procedures for requesting records. Proposed Sec. 309.5

implements the procedural provisions of the FOIA, as amended by the

FOIRA, and sets forth the procedures to be followed by members of the

public when requesting records maintained by the Corporation, the

method by which the Corporation would determine and charge fees for

responding to such requests, a delineation of the various categories of

requesters for the purpose of determining the application of fees, and

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the procedures to be followed by requesters when appealing a

determination by the Corporation not to grant a waiver of fees or

release of records.

The FOIA established the statutory framework under which federal

agencies were required to provide nonexempt records to members of the

public upon request and were permitted to recover costs incurred in

responding to such requests. The FOIRA significantly amended the fee

provisions of the FOIA by establishing classes of FOIA requesters and

providing the framework under which fees could be charged to the

individual categories of requesters. The FOIRA also charged the United

States Office of Management and Budget (OMB) with responsibility for

issuing guidelines to be followed by federal agencies in determining

the fees to be charged to requesters. OMB published its guidelines on

March 27, 1987 at 52 FR 10012 and in those guidelines elaborated on the

categories of requesters and stated that the fees to be charged for

processing requests under FOIA should recoup the full allowable direct

costs incurred in the search, review, and duplication of documents. The

proposed changes to Sec. 309.5 are intended to clarify the provisions

relating to the method by which the Corporation charges fees for

responding to requests under the FOIA and how requesters can obtain a

list of such fees, to permit appeals of denials of waiver requests,

conform the provisions of the section to the OMB guidelines, and delete

an obsolete provision.

Section 309.5 has been reorganized and renumbered. The definitions

applicable to Sec. 309.5 were moved to Sec. 309.5(a) in the proposed

rule and were expanded to more fully utilize the definitions

established by the OMB guidelines. For example, the last sentence in

the definition of ``commercial use request'' was added to clarify the

method by which the Corporation would determine whether a request falls

under such category and to match the definition of ``commercial use

request'' as set forth in the OMB guidelines. Likewise, the definition

of ``direct costs'' was taken from the OMB guidelines and added to the

proposed rule since the proposed fee provision found at Sec. 309.5(c)

utilizes such term in arriving at the fees to be charged. The remaining

definitions were also expanded in conformity with the OMB guidelines.

Proposed Sec. 309.5(b)(1) was modified, consistent with the OMB

guidelines, to provide that the Corporation would not require the

payment of fees by a requester when the cost of responding to a request

is less than the Corporation's cost of processing the requester's

remittance.

The provisions of Sec. 309.5(b)(2) and Sec. 309.5(b)(3) were not

changed except for renumbering within the provisions.

Proposed Sec. 309.5(c)(1) was modified to clarify that fees would

not be assessed under circumstances where the total costs involved with

responding to a request for records amount to less than the

Corporation's cost of processing the requester's remittance; that

requests made to the Corporation are for ``records'' maintained by the

Corporation; that an aggregation of requests will be made for purposes

of determining fees when the same ``group of requesters'' submits

multiple requests for similar or related records; that a requester must

agree in writing to pay costs prior to the initiation of a search; that

advance payment might be required when a requester has previously

failed to pay fees assessed within 30 days following mailing of the

invoice; that a requester who has an outstanding fee balance may be

required to pay all amounts outstanding prior to the initiation of any

additional records search; that the time in which the Corporation must

respond to a request for records would be extended until the written

agreement, advance payment, or outstanding charge issues are resolved;

that the Corporation may assess interest on outstanding bills beginning

on the 31st day after mailing of the invoice and which interest

assessment would relate back to the date of the invoice; and appeals of

determinations not to grant a waiver or reduction of fees under

Sec. 309.5(c)(1)(ix) may be appealed to the FDIC's General Counsel.

Proposed Sec. 309.5(c)(2)(iii) was revised to limit the charging of

fees to ``the full reasonable direct cost of search and duplication''

as consistent with the OMB guidelines.

At 12 CFR 309.5(c)(3), the FDIC distinguishes among the various

categories of requesters consistent with the requirements of the FOIRA

and the OMB guidelines. However, the FDIC's fee schedule, as set forth

at Sec. 309.5(b)(4) of the current rule, no longer complies with the

guidelines since it does not provide for the recovery by the

Corporation of its direct costs associated with searches for records as

required. Proposed 309.5(c)(3) would replace the fee schedule set forth

in the current rule and would establish the method by which the

Corporation would determine the fees to be charged requesters for

search, review, and duplication of records. As provided in the proposed

rule, a list of fees would be generated annually by the Corporation's

Division of Finance and would be made available to all requesters at no

charge through the Office of the Executive Secretary. The proposed

changes to the rule would also establish the method by which the

Corporation would charge the various categories of requesters for

services to be provided thereby providing for continuing conformity

with the FOIRA and the OMB guidelines.

In proposed Sec. 309.5(d), a technical correction was made by the

elimination of the parenthetical expression contained in

Sec. 309.5(d)(3).

Paragraph 309.5(h) of the current rule contains obsolete procedures

and information and was deleted from the proposed rule.

6. Disclosure of exempt records (Sec. 309.6). In order to clarify

the exempt record disclosure provisions and eliminate a redundancy,

paragraph 309.6(a) as set forth in the current rule was deleted in the

proposed rule and the paragraphs renumbered accordingly.

In proposed Sec. 309.6(a), the second sentence was added to clarify

that FDIC exempt records remain the property of the FDIC regardless of

custody and that disclosure would be prohibited without the written

permission of the Director of the FDIC's Division which holds primary

authority over such records. A similar provision appears at

Sec. 309.6(b) of the current rule.

In proposed Sec. 309.6(b), a revision was made to the current

Sec. 309.6(c) to reflect changes in the FDIC's organizational structure

and the person to whom authority to disclose or authorize disclosure of

exempt records would be delegated. Additionally, much of current

Sec. 309.6(c) has been removed in the proposed rule, because the

provision unnecessarily repeats provisions set forth in other sections

of the rule.

Proposed Sec. 309.6(b)(1) has been modified to provide that exempt

records pertaining to a depository institution may be disclosed to that

depository institution by the FDIC Division Director having primary

authority over those records. Similarly, proposed Sec. 309.6(b)(2) has

been modified to provide that exempt records pertaining to a state-

chartered depository institution may be disclosed to the state banking

authority that supervises that institution by the FDIC Division

Director having primary authority over that record. Other exempt

records may also be disclosed if requested in writing for a legitimate

supervisory or regulatory purpose.

Under the current rule, Sec. 309.6(c)(3) permits certain FDIC

officials to disclose exempt records to other supervisory agencies.

Proposed Sec. 309.6(b)(3)

[[Page 35150]]

provides that the FDIC Division Director having primary authority over

exempt records may disclose those records to other federal supervisory

agencies and certain non-supervisory federal agencies for any

legitimate purpose. The proposed rule refers the reader to the Right to

Financial Privacy Act of 1978 (RFPA) for a complete list of supervisory

agencies and the RFPA further provides that no notice of the disclosure

of exempt records would be required to be given to customers as a

condition of such disclosure. The proposed rule was also amended to

provide for the disclosure of information obtained in the course of the

FDIC's exercising supervisory or examination authority to any foreign

bank regulatory or supervisory authority per the conditions and

limitations contained in Sec. 206 of the Federal Deposit Insurance

Corporation Improvement Act of 1991.

The current rule set forth at Sec. 309.6(c)(4) has been

substantially rewritten for clarity. The listing of the contents of

criminal referrals has been deleted due to the standardization of

referral forms. In Sec. 309.6(b)(4) of the proposed rule, criminal

referrals may be made to either state or federal authorities without

the provision of notice to customers, as provided in the RFPA.

Additionally, exempt records may be disclosed to appropriate state or

federal authorities by the Director of the Corporation's Division

having primary authority over those records when there is a belief that

there are federal or state civil or criminal law violations. The

listing of exceptions for when notice of a disclosure of records must

be provided to the customer have been deleted and a reference to

applicable provisions of the RFPA has been provided.

In proposed Sec. 309.6(b)(5), modifications were made to provide

that exempt records pertaining to a depository institution may be

disclosed to the servicers of such institution by the FDIC Division

Director having primary authority over those records.

Proposed Sec. 309.6(b)(6) sets forth the conditions under which

exempt records may be disclosed to third parties and was modified to

provide that exempt records may be disclosed to third parties by the

FDIC Division Director with primary authority over such records for

good cause, but only pursuant to a written request, and only after

requiring such conditions as are necessary to protect the

confidentiality of the records. Extraneous language was also deleted

from the provision.

Proposed Sec. 309.6(b)(7) sets forth the conditions under which

depository institutions or other third parties in possession of FDIC

exempt records may be authorized to disclose the records. This

paragraph has been modified to provide that third parties may be

authorized by the FDIC Division Director with primary authority over

those records to disclose any exempt records, but only pursuant to a

written request, and only after requiring such conditions as are

necessary to protect the confidentiality of the records.

Proposed Sec. 309.6(b)(8) permits the General Counsel (or designee)

to disclose or authorize disclosure of exempt records or information

(including testimony) in litigation in response to a subpoena or

otherwise for good cause and in the interests of justice. The

amendments would also clarify the FDIC's current position that the

General Counsel's authority extends to records or information held by

former FDIC employees or officials when the records were obtained in

course of the former employee's employment with the FDIC.

Significantly, the amendments are intended to clarify that, in

situations where the FDIC has not been made a party to litigation,

prior to serving a subpoena or other legal process on the FDIC, a

requester must first exhaust their administrative procedures by seeking

disclosure of FDIC records pursuant to the procedures set forth

Sec. 309.5. Such requirement provides the FDIC with the opportunity to

exercise its discretion regarding whether an exempt record should be

disclosed. The lengthy list of the exceptions for when notice to the

customer must be provided has been deleted and replaced by a simple

citation to the exceptions provided by the RFPA.

Paragraph Sec. 309.6(c)(9) of the current rule was deleted from the

proposed rule since other amendments to the rule clarified the

authority of Division Directors involving records over which they have

primary authority.

Under proposed Sec. 309.6(b)(9), the Chairman would be able to

authorize the disclosure or withholding of exempt records or

information whenever the public interest is served by such action. The

provision extends the Chairman's authority to former employees or

officials and governs testimony as well as records.

Proposed Sec. 309.6(b)(10) clarifies that any disclosure of exempt

records by the FDIC would be discretionary, that FDIC officials have

authority to condition disclosure, that all steps must be taken to

protect the confidentiality of exempt information, and that should

exempt records be disclosed, such disclosure should be pursuant to

appropriate protective orders or confidentiality agreements and with

appropriate redaction.

7. Service of process. Section 309.7 in the proposed rule provides

notice of the appropriate means of serving process on the FDIC, that

persons in possession of FDIC exempt records who receive a subpoena

must notify the FDIC, and that persons in possession of FDIC exempt

records must appear as required and refuse to produce such records or

testify thereon in the absence of authorization from the FDIC. If the

FDIC is named as a party, service of process must conform to Federal

Rules of Civil Procedure. The amendments clarify that former FDIC

employees or officials in possession of FDIC records must notify the

FDIC of any subpoena or legal process served on them which relates to

exempt records or information, and must not disclose such records or

information without the General Counsel's authorization.

8. Generally. The term ``records'' has replaced the terms

``information'' and ``documents'' in appropriate places throughout the

regulation in order to clarify that, in most instances, requests made

under the rule would involve requests for disclosure of records

maintained by the Corporation. The term ``information'' was retained in

various places in the rule in recognition of the limited circumstances

where more than records might be sought.

Certain references to ``Reports of Examination'' have been deleted

to make clear that the regulation governs all exempt records.

Certain references to ``Division of Supervision'' have been deleted

and/or replaced with other office designations to make clear that other

Divisions may have primary authority over an exempt record.

References to ``or anyone he designates in writing'' has been

replaced by ``or designee'' to provide simplicity and a gender neutral

term.

III. Matters of Regulatory Procedure

Administrative Procedure Act

This proposed rulemaking is in compliance with the Administrative

Procedure Act (5 U.S.C. 553) and allows for a 60-day comment period.

Authority

These amendments are promulgated under the FDIC's general authority

to prescribe, through its Board of Directors, such rules and

regulations as it may deem necessary to carry out the provisions of the

Federal Deposit Insurance Act or any other law which the FDIC has the

responsibility of administering or enforcing (except to the extent that

authority to issue such

[[Page 35151]]

rules and regulations has been expressly and exclusively granted to any

other regulatory agency). 12 U.S.C. 1819 ``Seventh'' and ``Tenth''; 5

U.S.C. 552.

Regulatory Flexibility Act

The Board of Directors has concluded that the proposed rule will

not impose a significant economic hardship on small institutions.

Therefore, the Board of Directors hereby certifies pursuant to section

605 of the Regulatory Flexibility Act (5 U.S.C. 605) that the proposed

rule will not have a significant economic impact on a substantial

number of small business entities within the meaning of the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.).

Paperwork Reduction Act

The Board of Directors has determined that this proposed regulation

does not contain any information collection requirements that require

the approval of the Office of Management and Budget pursuant to the

Paperwork Reduction Act (44 U.S.C. 3501 et. seq.).

List of Subjects in 12 CFR Part 309

Banks, banking, Credit, Freedom of information, Privacy.

For the reasons set forth in the preamble, the Federal Deposit

Insurance Corporation is proposing to revise Part 309 of Chapter III of

title 12, of the Code of Federal Regulations to read as follows:

PART 309--DISCLOSURE OF INFORMATION

Sec.

309.1 Purpose and scope.

309.2 Definitions.

309.3 Federal Register publication.

309.4 Publicly available records.

309.5 Procedures for requesting records.

309.6 Disclosure of exempt records.

309.7 Service of process.

Authority: 5 U.S.C. 552; 12 U.S.C. 1819 ``Seventh'' and

``Tenth''.

Sec. 309.1 Purpose and scope.

This part sets forth the basic policies of the Federal Deposit

Insurance Corporation regarding information it maintains and the

procedures for obtaining access to such information.

Sec. 309.2 Definitions.

For purposes of this part:

(a) The term depository institution, as used in Sec. 309.6,

includes depository institutions that have applied to the Corporation

for federal deposit insurance, closed depository institutions,

presently operating federally insured depository institutions, foreign

banks, branches of foreign banks, and all affiliates of any of the

foregoing.

(b) The terms Corporation or FDIC mean the Federal Deposit

Insurance Corporation.

(c) The words disclose or disclosure, as used in Sec. 309.6, mean

to give access to a record, whether by producing the written record or

by oral discussion of its contents. Where the Corporation employee

authorized to release Corporation documents makes a determination that

furnishing copies of the documents is necessary, the words disclose or

disclosure include the furnishing of copies of documents or records. In

addition, disclose or disclosure as used in Sec. 309.6 is synonymous

with the term transfer as used in the Right to Financial Privacy Act of

1978 (12 U.S.C. 3401 et seq.).

(d) The term examination includes, but is not limited to, formal

and informal investigations of irregularities involving suspected

violations of federal or state civil or criminal laws, or unsafe and

unsound practices as well as such other investigations as may be

conducted pursuant to law.

(e) The term record includes records, files, documents, reports,

correspondence, books, and accounts, or any portion thereof.

(f) The term report of examination includes, but is not limited to,

examination reports resulting from examinations of depository

institutions conducted jointly by Corporation examiners and state

banking authority examiners or other federal financial institution

examiners, as well as reports resulting from examinations conducted

solely by Corporation examiners. The term also includes compliance

examination reports.

(g) The term customer financial records, as used in Sec. 309.6,

means an original of, a copy of, or information known to have been

derived from, any record held by a depository institution pertaining to

a customer's relationship with the depository institution but does not

include any record that contains information not identified with or

identifiable as being derived from the financial records of a

particular customer. The term customer as used in Sec. 309.6 refers to

individuals or partnerships of five or fewer persons.

(h) The term Director of the Division having primary authority

includes Deputies to the Chairman and directors of FDIC Divisions and

Offices that create, maintain custody, or otherwise have primary

responsibility for the handling of FDIC records or information.

Sec. 309.3 Federal Register publication.

The FDIC publishes the following information in the Federal

Register for the guidance of the public:

(a) Descriptions of its central and field organization and the

established places at which, the officers from whom, and the methods

whereby, the public may secure information, make submittals or

requests, or obtain decisions;

(b) Statements of the general course and method by which its

functions are channeled and determined, including the nature and

requirements of all formal and informal procedures available;

(c) Rules of procedure, descriptions of forms available or the

places at which forms may be obtained, and instructions as to the scope

and contents of all papers, reports or examinations;

(d) Substantive rules of general applicability adopted as

authorized by law, and statements of general policy or interpretations

of general applicability formulated and adopted by the FDIC;

(e) Every amendment, revision or repeal of the foregoing; and

(f) General notices of proposed rule-making.

Sec. 309.4 Publicly available records.

The following records are available upon request or, as noted,

available for public inspection during normal business hours, at the

listed offices. Certain records are also available on the Internet at

the following address: http://www.fdic.gov. To the extent permitted by

law, the FDIC may delete identifying details when it makes available or

publishes a final opinion, final order, statement of policy,

interpretation or staff manual or instruction. Fees for furnishing

records under this section are as set forth in Sec. 309.5(c).

(a) At the Office of Corporate Communications, Federal Deposit

Insurance Corporation, 550-17th Street, N.W., Washington, D.C. 20429,

(202) 898-6996:

(1) Documents, including press releases, financial institution

letters and proposed and adopted regulations, published by the FDIC and

pertaining to its operations and those of insured depository

institutions that it supervises.

(2) Reports on the competitive factors involved in merger

transactions and the bases for approval of merger transactions as

required by sections 18(c)(4) and 18(c)(9) of the Federal Deposit

Insurance Act (12 U.S.C. 1828(c)(4) and (9)).

(3) Community Reinvestment Act (CRA) Public Evaluations.

[[Page 35152]]

(4) Final decisions and orders concerning compliance, enforcement,

and other related administrative actions.

(5) At the FDIC's discretion, Summary of Deposits filed by insured

depository institutions, except that information on the size and number

of accounts filed before June, 1982 is not available.1

\1\ Summary of Deposits reports are described at 12 CFR 304.5.

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(6) Annual Report of Trust Assets for commercial banks and state

savings banks.2

\2\ Annual Report of Trust Assets, FFIEC Form 001.

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(b) At the Office of the Executive Secretary, Federal Deposit

Insurance Corporation, 550-17th Street, N.W., Washington, D.C. 20429,

which information is available for public inspection:

(1) All final opinions (including concurring and dissenting

opinions) and all final orders made in the adjudication of

administrative cases.

(2) Statements of policy and interpretations which have been

adopted by the FDIC but have not been published in the Federal

Register.

(3) A current index of matters covered by paragraphs (b)(1) and

(b)(2) of this section that were issued, adopted or promulgated after

July 4, 1967. Copies of the index will be provided at the direct cost

of duplication as set forth in Sec. 309.5(b).

(c) At the Division of Supervision, Federal Deposit Insurance

Corporation, 550-17th Street, N.W., Washington, D.C. 20429:

(1) Filings and reports required under the provisions of 12 CFR

Part 335 and the Securities and Exchange Act of 1934, as amended (15

U.S.C. 78a), by insured nonmember banks the securities of which are

registered with the FDIC pursuant to section 12 of that Act (15 U.S.C.

78l). These filings and reports are available for public inspection as

detailed in 12 CFR 335.702.

(2) Manual of Examination Policies.

(3) Manual of Trust Examination Policies.

(4) Federal Financial Institutions Examination Council (FFIEC)

Information Systems Examination Handbook.

(5) In the FDIC's discretion, the Consolidated Reports of Condition

and Income filed by insured nonmember banks (and certain nonfederally

insured depository institutions in the case of reports of condition),

except that select sensitive financial information may be

withheld.3

\3\ Reports of income and of condition are described at 12 CFR

304.4.

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(d) At the regional office of the FDIC for the region in which the

applicant or subject depository institution is located (A list of

FDIC's regional offices is available from the Office of Corporate

Communications, Federal Deposit Insurance Corporation, 550-17th Street,

N.W., Washington, DC 20429, (202) 898-6996):

(1) In the FDIC's discretion, non-confidential portions of

application files as provided in 12 CFR 303.6(g), including

applications for deposit insurance, to establish branches, to relocate

offices and to merge.

(2)(i) After acceptance by the FDIC of a notice filed pursuant to

the Change in Bank Control Act of 1978 (12 U.S.C. 1817(j)) (other than

a notice filed in contemplation of a public tender offer subject to the

Securities Exchange Act of 1934 (15 U.S.C. 78m and 78n) and the FDIC's

tender offer regulations (12 CFR 335.501-335.530), the appropriate FDIC

regional office will make available, on request, the following

information: The name of the depository institution whose stock is to

be acquired; the date the notice was accepted; the identity of the

acquiring person(s); the number of shares to be acquired; and the

number of outstanding shares of stock in the depository institution.

(The mere filing of a notice does not automatically constitute

``acceptance'' by the FDIC; a notice is ``accepted'' when the regional

office determines that the notice contains all the information required

by 12 U.S.C. 1817(j)(6)).

(ii) In the case of a notice filed in contemplation of a public

tender offer that is subject to the Securities Exchange Act of 1934 (15

U.S.C. 78m and 78n) and the FDIC's tender offer regulations (12 CFR

335.501-335.530), when public disclosure is determined under

Sec. 303.4(b)(4) of the FDIC's regulations (12 CFR 303.4(b)(4)) to be

appropriate, the appropriate FDIC regional office will make available,

on request, the information described in paragraph (d)(2)(i) of this

section.

(iii) After a transaction subject to the Change in Bank Control Act

of 1978 has been consummated, the appropriate FDIC regional office will

make available, on request, the following information, in addition to

the information described in paragraph (d)(2)(i) of this section: The

date the shares were acquired; the names of the sellers (or

transferors); and the total number of shares owned by the purchasers

(or acquirors).

(e) At the Division of Depositor and Asset Services, Federal

Deposit Insurance Corporation, 550-17th Street, N.W., Washington, D.C.,

20429:

(1) Credit Manual;

(2) Agriculture Manual;

(3) Claims Manual;

(4) Operations Manual;

(5) Closing Manual;

(6) Environmental Guidelines Manual;

(7) Deposit Insurance Manual;

(8) Settlement Manual.

(f) At the Division of Compliance and Consumer Affairs, Federal

Deposit Insurance Corporation, 550-17th Street, N.W., Washington, D.C.

20429: Compliance Examination Manual.

Sec. 309.5 Procedures for requesting records.

(a) Definitions. For purposes of this section:

(1) 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 FDIC will determine the use to which a

requester will put the records requested and seek additional

information as it deems necessary.

(2) Direct costs means those expenditures the FDIC actually incurs

in searching for, duplicating, and, in the case of commercial

requesters, reviewing records in response to a request for records.

(3) 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).

(4) 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.

(5) Non-commercial scientific institution means an institution that

is not operated on a commercial basis as that term is defined in

paragraph (a)(1) 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.

(6) Representative of the news media means any person actively

gathering news for, or a free-lance journalist who reasonably expects

to have 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

[[Page 35153]]

or that would be of current interest to the general public.

(7) Review means the process of examining records located in

response to a request for records to determine whether any portion of

any record is permitted to be withheld as exempt information. It

includes processing any record for disclosure, e.g., doing all that is

necessary to excise them or otherwise prepare them for release.

(8) 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.

(b) Initial request. (1) Except as provided in paragraphs (d) and

(h) of this section, the FDIC, upon request for any record in its

possession, will make the record available to any person who agrees to

pay the costs of searching, review and duplication as set forth in

paragraph (c) of this section. The request must be in writing, provide

information reasonably sufficient to enable the FDIC to identify the

requested records and specify a dollar limit which the requester is

willing to pay for the costs of searching, review and duplication,

unless the costs are believed to be less than the FDIC's cost of

processing the requester's remittance, which cost will be set forth in

the ``Notice of Federal Deposit Insurance Corporation Records Fees'' as

described in paragraph (c)(3) of this section. Requests under this

paragraph (b) should be addressed to the Office of the Executive

Secretary, FDIC, 550-17th Street, N.W., Washington, DC 20429.

(2) The FDIC will transmit notice to the requester within 10

business days after receipt of the initial request whether it is

granted or denied. Denials of requests will be based on the exemptions

provided for in paragraph (d) of this section.

(3) Notification of a denial of an initial request will be in

writing and will state:

(i) If the denial is in part or in whole;

(ii) The name and title of each person responsible for the denial

(when other than the person signing the notification);

(iii) The exemptions relied on for the denial; and

(iv) The right of the requester to appeal the denial to the FDIC's

General Counsel within 30 business days following receipt of the

notification.

(c) Fees--(1) General rules. (i) Persons requesting records of the

FDIC shall be charged for the direct costs of search, duplication and

review as set forth in paragraphs (c)(2) and (c)(3) of this section,

unless such costs are less than the FDIC'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 and, 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 FDIC 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 FDIC will advise the requester of the estimated costs (if greater

than the FDIC's cost of processing the requester's remittance). The

requester must agree in writing to pay the costs of search, duplication

and review prior to the FDIC initiating any records search.

(v) If the FDIC estimates that its search, duplication and review

costs will exceed $250.00, the requester must pay an amount equal to 20

percent of the estimated costs prior to the FDIC initiating any records

search.

(vi) The FDIC may require any requester who has previously failed

to pay the charges under this section within 30 days of mailing of the

invoice to pay in advance the total estimated costs of search,

duplication and review. The FDIC may also require a requester who has

any charges outstanding in excess of 30 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 FDIC initiating any additional records

search.

(vii) The FDIC may begin assessing interest charges on unpaid bills

on the 31st day following the day on which the notice was sent.

Interest will be at the rate prescribed in section 3717 of Title 31 of

the United States Code and will accrue from the date of the invoice.

(viii) The time limit for FDIC to respond to a request will not

begin to run until the FDIC has received the requester's written

agreement under paragraph (c)(1)(iv) of this section, and advance

payment under paragraph (c)(1)(v) or (vi) of this section, or

outstanding charge under paragraph (c)(1)(vi) of this section.

(ix) As part of the initial request, a requester may ask that the

FDIC 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 Secretary (or designee) and the requester will be notified in

writing of his/her determination. A determination not to grant a

request for a waiver or reduction of fees under this paragraph may be

appealed to the FDIC's General Counsel (or designee) pursuant to the

procedure set forth in paragraph (e) 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, non-commercial scientific

institutions and news media representatives shall be charged

duplication costs, except for the first 100 pages.

(iii) Requesters not within the scope of paragraph (c)(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 FDIC may

charge to records requesters will be established by the Chief Financial

Officer of the FDIC (or designee), and will be set forth in the

``Notice of Federal Deposit Insurance Corporation Records Fees'' issued

in December of each year or in such ``Interim Notice of Federal Deposit

Insurance Corporation Records Fees'' as may be issued. Copies of such

notices may be obtained at no charge from the FDIC's Office of the

Executive Secretary, FOIA Unit, 550 17th Street, N.W., Washington, D.C.

20429. The fees implemented in the December or Interim Notice will be

effective 30 days after issuance. The FDIC may charge fees that recoup

the full allowable direct costs it incurs. The FDIC may contract with

independent contractors to locate, reproduce, and/or disseminate

records; provided however, that the FDIC has determined that the

ultimate cost to the requester will be no greater than it would be if

the FDIC performed these tasks itself. In no case will the FDIC

contract out responsibilities which the Freedom of Information Act

(FOIA) (5 U.S.C. 552) provides that the FDIC alone may discharge, such

as determining the applicability of an exemption or whether to waive or

reduce fees. Fees are subject to change as costs change.

(i) Manual searches for records. The FDIC 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. Where a

single class of personnel (e.g., all clerical, all professional, or all

executive) is used exclusively, the FDIC,

[[Page 35154]]

at its discretion, may establish and charge an average rate for the

range of grades typically involved.

(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 apportionable to

the search. The fee for a computer printout is the actual cost. The

fees for computer supplies are the actual costs. The FDIC may, at its

discretion, establish and charge a fee for computer searches based upon

a reasonable FDIC-wide average rate for central processing unit

operating costs and 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 the average FDIC-wide cost based upon the

reasonable direct costs of making such copies.

(B) For other methods of reproduction or duplication, the FDIC will

charge the actual direct costs of reproducing or duplicating the

documents.

(iv) Review of records. The FDIC 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. Where a single class

of personnel (e.g., all clerical, all professional, or all executive)

is used exclusively, the FDIC, at its discretion, may establish and

charge an average rate for the range of grades typically involved. The

FDIC 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 FDIC 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 is

at the FDIC's discretion. The FDIC may recover the full costs of

providing such services to the extent it elects to provide them.

(d) Exempt information. A request for records may be denied if the

requested record contains information which falls into one or more of

the following categories.4 If the requested record contains both

exempt and nonexempt information, the nonexempt portions which may

reasonably be segregated from the exempt portions will be released to

the requester:

\4\ Classification of a record as exempt from disclosure under

the provisions of Sec. 309.5(d) 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 FDIC 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 which 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 FDIC;

(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 which would

not be available by law to a private party in litigation with the FDIC;

(6) Personnel, medical, and similar files (including financial

files) the disclosure of which would constitute a clearly unwarranted

invasion of personal privacy;

(7) Records compiled for law enforcement purposes, but only to the

extent that the production of such law enforcement records:

(i) Could reasonably be expected to interfere with enforcement

proceedings;

(ii) Would deprive a person of a right to a fair trial or an

impartial adjudication;

(iii) Could reasonably be expected to constitute an unwarranted

invasion of personal privacy;

(iv) Could reasonably be expected to disclose the identity of a

confidential source, including a state, local, or foreign agency or

authority or any private institution which furnished records on a

confidential basis;

(v) Would disclose techniques and procedures for law enforcement

investigations or prosecutions, or would disclose guidelines for law

enforcement investigations or prosecutions if such disclosure could

reasonably be expected to risk circumvention of the law; or

(vi) Could reasonably be expected to endanger the life or physical

safety of any individual;

(8) Records that are contained in or related to examination,

operating, or condition reports prepared by, on behalf of, or for the

use of the FDIC or any agency responsible for the regulation or

supervision of financial institutions; or

(9) Geological and geophysical information and data, including

maps, concerning wells.

(e) Appeals. (1) A person whose initial request for records under

paragraph (a) of this section, or whose request for a waiver of fees

under paragraph (c)(1)(ix) of this section, has been denied, either in

part or in whole, has the right to appeal the denial to FDIC's General

Counsel (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. Appeals should be

addressed to the Office of the Executive Secretary, FDIC, 550-17th

Street, N.W., Washington, DC 20429.

(2) The FDIC will notify the appellant within 20 business days

after receipt of the appeal whether it is granted or denied. Denials of

appeals on initial requests for records will be based on the exemptions

provided for in paragraph (c) of this section.

(3) Notifications of a denial of an appeal will be in writing and

will state:

(i) Whether the denial is in part or in whole;

(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.

(f) Extension of time. (1) Under unusual circumstances the FDIC may

require additional time, up to a maximum of 10 business days, to

determine whether to grant or deny an initial request or to respond to

an appeal of an initial denial. These circumstances would arise in

cases where:

(i) The records are in facilities, such as field offices or storage

centers, that are not part of the FDIC's Washington office;

(ii) The records requested are voluminous and are not in close

proximity to one another; or

(iii) There is a need to consult with another agency or among two

or more components of the FDIC having a substantial interest in the

determination.

[[Page 35155]]

(2) The FDIC will promptly give written notification to the person

making the request of the estimated date it will make its determination

and the reasons why additional time is required.

(g) FDIC procedures. (1) Initial requests for records will be

forwarded by the Executive Secretary to the head of the FDIC division

or office which has primary authority over such records. Where it is

determined that the requested records may be released, the appropriate

division or office head will grant access to the records. A request for

records may be denied only by the Executive Secretary (or designee),

except that a request for records not responded to within 10 business

days following its receipt by the Office of Executive Secretary--by

notice to the requester either granting the request, denying the

request, or extending the time for making a determination on the

request--shall, if the requester chooses to treat such delay in

response as a denial, be deemed to have been denied.

(2) Appeals from a denial of an initial request will be forwarded

by the Executive Secretary to the General Counsel (or designee) for a

determination whether the appeal will be granted or denied. The General

Counsel (or designee) may on his or her own motion refer an appeal to

the Board of Directors for a determination or the Board of Directors

may in its discretion consider such an appeal.

(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

FDIC 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.

Sec. 309.6 Disclosure of exempt records.

(a) Disclosure prohibited. Except as provided in paragraph (b) of

this section or by 12 CFR part 310 5, 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 Corporation who have 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 FDIC exempt

records or information contained therein, all copies of such records

shall remain the property of the Corporation and under no circumstances

shall any person, entity or agency disclose or make public in any

manner the exempt records or information without written authorization

from the Director of the Corporation's Division having primary

authority over the records or information as provided in this section.

\5\ The procedures for disclosing records under the Privacy Act

are separately set forth in 12 CFR part 310.

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(b) Disclosure authorized. Exempt records or information of the

Corporation may be disclosed only in accordance with the conditions and

requirements set forth in this paragraph (b). Requests for

discretionary disclosure of exempt records or information pursuant to

this paragraph (b) may be submitted directly to the Division having

primary authority over the exempt records or information or to the

Office of Executive Secretary for forwarding to the appropriate

Division having primary authority over the records sought. Such

administrative request must clearly state that it seeks discretionary

disclosure of exempt records, clearly identify the records sought,

provide sufficient information for the Corporation to evaluate whether

there is good cause for disclosure, and meet all other conditions set

forth in paragraphs (b)(1) through (10) of this section. Information

regarding the appropriate FDIC Division having primary authority over a

particular record or records may be obtained from the Office of

Executive Secretary. Authority to disclose or authorize disclosure of

exempt records of the Corporation is delegated as follows:

(1) Disclosure to depository institutions. The Director of the

Corporation's Division having primary authority over the exempt

records, or designee, may disclose to any director or authorized

officer, employee or agent of any depository institution, information

contained in, or copies of, exempt records pertaining to that

depository institution.

(2) Disclosure to state banking agencies. The Director of the

Corporation's Division having primary authority over the exempt

records, or designee, may in his or her discretion and for good cause,

disclose to any authorized officer or employee of any state banking or

securities department or agency, copies of any exempt records to the

extent the records pertain to a state-chartered depository institution

supervised by the agency or authority, or where the exempt records are

requested in writing for a legitimate depository institution

supervisory or regulatory purpose.

(3) Disclosure to federal financial institutions supervisory

agencies and certain other agencies. The Director of the Corporation's

Division having primary authority over the exempt records, or designee,

may in his or her discretion and for good cause, disclose to any

authorized officer or employee of any federal financial institution

supervisory agency including the Comptroller of the Currency, the Board

of Governors of the Federal Reserve System, the Office of Thrift

Supervision, the Securities and Exchange Commission, the National

Credit Union Administration, or any other agency included in section

1101(7) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3401

et. seq.) (RFPA), any exempt records for a legitimate depository

institution supervisory or regulatory purpose. The Director, or

designee, may in his or her discretion and for good cause, disclose

exempt records, including customer financial records, to certain other

federal agencies as referenced in section 1113 of the RFPA for the

purposes and to the extent permitted therein, or to any foreign bank

regulatory or supervisory authority as provided, and to the extent

permitted, by section 206 of the Federal Deposit Insurance Corporation

Improvement Act of 1991.

(4) Disclosure to prosecuting or investigatory agencies or

authorities. (i) Reports of Apparent Crime pertaining to suspected

violations of law, which may contain customer financial records, may be

disclosed to federal or state prosecuting or investigatory authorities

without giving notice to the customer, as permitted in the relevant

exceptions of the RFPA.

(ii) The Director of the Corporation's Division having primary

authority over the exempt records, or designee, may disclose to the

proper federal or state prosecuting or investigatory authorities, or to

any authorized officer or employee of such authority, copies of exempt

records pertaining to irregularities discovered in depository

institutions which are believed to constitute violations of any federal

or state civil or criminal law, or unsafe or unsound banking practices,

provided that customer financial records may be disclosed without

giving notice to the customer, only as permitted by the relevant

exceptions of the RFPA. Unless such disclosure is initiated by the

FDIC, customer financial records shall be disclosed only in response to

a written request which:

(A) Is signed by an authorized official of the agency making the

request;

(B) Identifies the record or records to which access is requested;

and

[[Page 35156]]

(C) Gives the reasons for the request.

(iii) When notice to the customer is required to be given under the

RFPA, the Director of the Corporation's Division having primary

authority over the exempt records, or designee, may disclose customer

financial records to any federal or state prosecuting or investigatory

agency or authority, provided, that:

(A) The General Counsel, or designee, has determined that

disclosure is authorized or required by law; or

(B) Disclosure is pursuant to a written request that indicates the

information is relevant to a legitimate law enforcement inquiry within

the jurisdiction of the requesting agency and:

(1) The Director of the Corporation's Division having primary

authority over the exempt records, or designee, certifies pursuant to

section 1112(a) 6 of the RFPA that the records are believed

relevant to a legitimate law enforcement inquiry within the

jurisdiction of the receiving agency; and

\6\ The form of certification generally is as follows.

Additional information may be added:

Pursuant to section 1112(a) of the Right to Financial Privacy

Act of 1978 (12 U.S.C. 3412), I, __________ [name and appropriate

title] hereby certify that the financial records described below

were transferred to (agency or department) in the belief that they

were relevant to a legitimate law enforcement inquiry, within the

jurisdiction of the receiving agency.

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(2) A copy of such certification and the notice required by section

1112(b) 7 of the RFPA is sent within fourteen days of the

disclosure to the customer whose records are disclosed.8

\7\ The form of notice generally is as follows. Additional

information may be added:

Dear Mr./Mrs. __________:

Copies of, or information contained in, your financial records

lawfully in the possession of the Federal Deposit Insurance

Corporation have been furnished to (agency or department) pursuant

to the Right to Financial Privacy Act of 1978 for the following

purpose: __________. If you believe that this transfer has not been

made to further a legitimate law enforcement inquiry, you may have

legal rights under the Right to Financial Privacy Act of 1978 or the

Privacy Act of 1974.

\8\ Whenever the Corporation is subject to a court-ordered delay

of the customer notice, the notice shall be sent immediately upon

the expiration of the court-ordered delay.

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(5) Disclosure to servicers and serviced institutions. The Director

of the Corporation's Division having primary authority over the exempt

records, or designee, may disclose copies of any exempt record related

to a bank data center, a depository institution service corporation or

any other data center that provides data processing or related services

to an insured institution (hereinafter referred to as ``data center'')

to:

(i) The examined data center;

(ii) Any insured institution that receives data processing or

related services from the examined data center;

(iii) Any state agency or authority which exercises general

supervision over an institution serviced by the examined data center;

and

(iv) Any federal financial institution supervisory agency which

exercises general supervision over an institution serviced by the

examined data center. The federal supervisory agency may disclose any

such examination report received from the Corporation to an insured

institution over which it exercises general supervision and which is

serviced by the examined data center.

(6) Disclosure to third parties. (i) Except as otherwise provided

in paragraphs (c) (1) through (5) of this section, the Director of the

Corporation's Division having primary authority over the exempt

records, or designee, may in his or her discretion and for good cause,

disclose copies of any exempt records to any third party where

requested to do so in writing. Any such written request shall:

(A) Specify, with reasonable particularity, the record or records

to which access is requested; and

(B) Give the reasons for the request.

(ii) Either prior to or at the time of any disclosure, the Director

or designee shall require such terms and conditions as he deems

necessary to protect the confidential nature of the record, the

financial integrity of any depository institution to which the record

relates, and the legitimate privacy interests of any individual named

in such records.

(7) Authorization for disclosure by depository institutions or

other third parties. (i) The Director of the Corporation's Division

having primary authority over the exempt records, or designee, may, in

his or her discretion and for good cause, authorize any director,

officer, employee, or agent of a depository institution to disclose

copies of any exempt record in his custody to anyone who is not a

director, officer or employee of the depository institution. Such

authorization must be in response to a written request from the party

seeking the record or from management of the depository institution to

which the report or record pertains. Any such request shall specify,

with reasonable particularity, the record sought, the party's interest

therein, and the party's relationship to the depository institution to

which the record relates.

(ii) The Director of the Corporation's Division having primary

authority over the exempt records, or designee, may, in his or her

discretion and for good cause, authorize any third party, including a

federal or state agency, that has received a copy of a Corporation

exempt record, to disclose such exempt record to another party or

agency. Such authorization must be in response to a written request

from the party that has custody of the copy of the exempt record. Any

such request shall specify the record sought to be disclosed and the

reasons why disclosure is necessary.

(iii) Any subsidiary depository institution of a bank holding

company or a savings and loan holding company may reproduce and furnish

a copy of any report of examination of the subsidiary depository

institution to the parent holding company without prior approval of the

Director of the Division having primary authority over the exempt

records and any depository institution may reproduce and furnish a copy

of any report of examination of the disclosing depository institution

to a majority shareholder if the following conditions are met:

(A) The parent holding company or shareholder owns in excess of 50%

of the voting stock of the depository institution or subsidiary

depository institution;

(B) The board of directors of the depository institution or

subsidiary depository institution at least annually by resolution

authorizes the reproduction and furnishing of reports of examination

(the resolution shall specifically name the shareholder or parent

holding company, state the address to which the reports are to be sent,

and indicate that all reports furnished pursuant to the resolution

remain the property of the Federal Deposit Insurance Corporation and

are not to be disclosed or made public in any manner without the prior

written approval of the Director of the Corporation's Division having

primary authority over the exempt records as provided in paragraph (b)

of this section);

(C) A copy of the resolution authorizing disclosure of the reports

is sent to the shareholder or parent holding company; and

(D) The minutes of the board of directors of the depository

institution or subsidiary depository institution for the meeting

immediately following disclosure of a report state:

(1) That disclosure was made;

(2) The date of the report which was disclosed;

(3) To whom the report was sent; and

(4) The date the report was disclosed.

(iv) With respect to any disclosure that is authorized under

paragraph (b)(7) of this section, the Director of the Corporation's

Division having primary authority over the exempt records, or designee,

shall only permit disclosure of

[[Page 35157]]

records upon determining that good cause exists. If the exempt record

contains information derived from depository institution customer

financial records, disclosure is to be authorized only upon the

condition that the requesting party and the party releasing the records

comply with any applicable provision of the RFPA. Before authorizing

the disclosure, the Director (or designee) may require that both the

party having custody of a copy of a Corporation exempt record and the

party seeking access to the record agree to such limitations as the

Director (or designee) deems necessary to protect the confidential

nature of the record, the financial integrity of any depository

institution to which the record relates and the legitimate privacy

interests of any persons named in such record.

(8) Disclosure by General Counsel. (i) The Corporation's General

Counsel, 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 officer,

director, employee, agent of the Corporation, 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 General Counsel shall consider the relevancy

of such exempt records or testimony to the litigation, and the

interests of justice, in determining whether to disclose such records

or testimony. Third parties seeking disclosure of exempt records or

testimony in litigation to which the FDIC is not a party shall submit a

request for discretionary disclosure directly to the General

Counsel.9 Such request 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 administrative request prior to service of a subpoena, court order

or other legal process may, in the General Counsel's discretion, serve

as a basis for objection to such subpoena, court order or legal

process. Customer financial records may not be disclosed to any federal

agency that is not a federal financial supervisory agency pursuant to

this paragraph unless notice to the customer and certification as

required by the RFPA have been given except where disclosure is subject

to the relevant exceptions set forth in the RFPA.

\9\ This administrative requirement does not apply to subpoenas,

court orders or other legal process issued for records of depository

institutions held by the FDIC as Receiver or Conservator. Subpoenas,

court orders or other legal process issued for such records will be

processed in accordance with State and Federal law, regulations,

rules and privileges applicable to FDIC as Receiver or Conservator.

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(ii) The General Counsel, 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 officer, director, employee,

agent of the Corporation, 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. Customer financial

records shall not be disclosed to any federal agency pursuant to this

paragraph that is not a federal financial supervisory agency, unless

the records are sought under the Federal Rules of Civil Procedure (28

U.S.C. appendix) or the Federal Rules of Criminal Procedure (18 U.S.C.

appendix) or comparable rules of other courts and in connection with

litigation to which the receiving federal agency, employee, officer,

director, or agent, and the customer are parties, or disclosure is

otherwise subject to the relevant exceptions in the RFPA. Where the

General Counsel or designee authorizes a current or former officer,

director, employee or agent of the Corporation to testify or disclose

exempt records pursuant to this paragraph (b)(8), 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.

(9) Authorization for disclosure by the Chairman of the

Corporation's Board of Directors. Except where expressly prohibited by

law, the Chairman of the Corporation's Board of Directors may in his or

her discretion, authorize the disclosure of any Corporation records.

Except where disclosure is required by law, the Chairman may direct any

current or former officer, director, employee or agent of the

Corporation 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.

(10) 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 Board of Directors, the Chairman of

the Board of Directors, the Director of the Corporation's Division

having primary authority over the exempt records, the Corporation's

General Counsel, or their designees, or any other Corporation Division

or Office head, 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.

Sec. 309.7 Service of process.

(a) Service. Any subpoena or other legal process to obtain

information maintained by the FDIC shall be duly issued by a court

having jurisdiction over the FDIC, and served upon either the Executive

Secretary (or designee), FDIC, 550 17th Street, NW., Washington, DC

20429, or the Regional Director or Regional Manager of the FDIC region

where the legal action from which the subpoena or process was issued is

pending. A list of the FDIC's regional offices is available from the

Office of Corporate Communications, FDIC, 550 17th Street, NW.,

Washington, DC 20429 (telephone 202-898-6996). Where the FDIC is named

as a party, service of process shall be made pursuant to the Federal

Rules of Civil Procedure, and upon the Executive Secretary (or

designee), FDIC, 550 17th Street NW., Washington, DC 20429, or upon the

agent designated to receive service of process in the state, territory,

or jurisdiction in which any insured depository institution is located.

Identification of the designated agent in the state, territory, or

jurisdiction may be obtained from the Office of the Executive Secretary

or from the Office of the General Counsel, FDIC, 550 17th Street NW.,

Washington, DC 20429. The Executive Secretary (or designee), Regional

Director or designated agent shall immediately forward any

[[Page 35158]]

subpoena, court order or legal process to the General Counsel.

(b) Notification by person served. If any current or former

officer, director, employee or agent of the Corporation, or any other

person who has custody of exempt records belonging to the FDIC, 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

Corporation, such person shall promptly advise the Office of the

Corporation's General Counsel of such service, of the testimony and

records described in the subpoena, and of all relevant facts which may

be of assistance to the General Counsel in determining whether the

individual in question should be authorized to testify or the records

should be produced. Such person should also inform the court or

tribunal which issued the process and the attorney for the party upon

whose application the process was issued, if known, of the substance of

this section.

(c) Appearance by person served. Absent the written authorization

of the Corporation's General Counsel, or designee, to disclose the

requested information, any current or former officer, director,

employee, or agent of the Corporation, and any other person having

custody of exempt records of the Corporation, who is required to

respond to a subpoena, court order, or other legal process, shall

attend at the time and place therein specified and respectfully decline

to produce any such record or give any testimony with respect thereto,

basing such refusal on this section.

By Order of the Board of Directors.

Dated at Washington, DC this 27th day of June, 1995.

Federal Deposit Insurance Corporation.

Jerry L. Langley,

Executive Secretary.

[FR Doc. 95-16329 Filed 7-5-95; 8:45 am]

BILLING CODE 6714-01-P