I (4) The time reasonably spent in ight of the difficulty or complexity of he issues in the proceeding; and

(5) Such other factors as may bear on the value of the services provided.

(c) Awards for studies. The reasonaple cost of any study, analysis, test, project, or similar matter prepared on pehalf of an applicant may be awarded To the extent that the charge for the ervice does not exceed the prevailing ate payable for similar services, and he study or other matter was necesary for preparation of the applicant's ase and not otherwise required by law r sound business or financial practice.

308.120 Application for awards.

(a) Contents. An application for an ward of fees and expenses under this ubpart shall contain:

(1) The name of the applicant and n identification of the proceeding;

(2) A showing that the applicant has revailed, and an identification of ach issue with regard to which the pplicant believes that the position of the FDIC in the proceeding was not ubstantially justified;

(3) A statement of the amount of ees and expenses for which an award } sought;

(4) If the applicant is not an individal, a statement of the number of its mployees on the date the proceeding as initiated;

- (5) A description of any affiliated inividuals or entities, as defined in 308.103(c)(5), or a statement that one exist;

(6) A declaration that the applicant, gether with any affiliates, had a net orth not more than the ceiling estabshed for it by § 308.103(b) as of the ate the proceeding was initiated; and (7) Any other matters that the applint wishes the FDIC to consider in etermining whether and in what mount an award should be made. (b) Verification. The application all be signed by the applicant or an athorized officer or attorney of the pplicant. It shall also contain or be companied by a written verification der oath or under penalty of perjuthat the information provided in e application and supporting docuents is true and correct.

§ 308.121 Statement of net worth.

(a) General rule. A statement of net worth must be filed with the application for an award of fees. The statement shall reflect the net worth of the applicant and all affiliates of the applicant.

(b) Contents. (1) The statement of net worth may be in any form convenient to the applicant which fully discloses all the assets and liabilities of the applicant and all the assets and liabilities of its affiliates, as of the time of the initiation of the adversary adjudication. Unaudited financial statements are acceptable unless the administrative law judge or the Board otherwise requires. Financial statements or reports to a Federal or State agency, prepared before the initiation of the adversary adjudication for other purposes, and accurate as of a date not more than three months prior to the initiation of the proceeding, are acceptable in establishing net worth as of the time of the initiation of the proceeding, unless the administrative law judge or the Board otherwise requires.

(2) In the case of applicants or affiliates that are not banks, net worth shall be considered for the purposes of this subpart to be the excess of total assets over total liabilities, as of the date the underlying proceeding was initiated, except as adjusted under § 308.103(c)(2). Assets and liabilities of individuals shall include those beneficially owned within the meaning of the FDIC's rules and regulations.

(3) If the applicant or any of its affiliates is a bank, the portion of the statement of net worth which relates to the bank shall consist of a copy of the bank's last Consolidated Report of Condition and Income filed before the initiation of the adversary adjudication. In all cases the administrative law judge or the Board may call for additional information needed to establish the applicant's net worth as of the initiation of the proceeding. Except as adjusted by additional information that was called for under the preceding sentence, net worth shall be considered for the purposes of this subpart to be the total equity capital (or, in the case of mutual savings

banks, the total surplus accounts) as reported, in conformity with applicable instructions and guidelines, on the bank's Consolidated Report of Condition and Income filed for the last reporting date before the initiation of the proceeding.

(c) Statement confidential. Unless otherwise ordered by the Board or required by law, the statement of net worth shall be for the confidential use of counsel for the FDIC, the Board, and the administrative law judge.

§ 308.122 Statement of fees and expenses.

The application shall be accompanied by a statement fully documenting the fees and expenses for which an award is sought. A separate itemized statement shall be submitted for each professional firm or individual whose services are covered by the application, showing the hours spent in work in connection with the proceeding by each individual, a description of the specific services performed, the rate at which each fee has been computed, any expenses for which reimbursement is sought, the total amount claimed, and the total amount paid or payable by the applicant or by any other person or entity for the services performed. The administrative law judge or the Board may require the applicant to provide vouchers, receipts, or other substantiation for any expenses claimed.

§ 308.123 Settlement negotiations.

If counsel for the FDIC and the applicant believe that the issues in a fee application can be settled, they may jointly file with the Executive Secretary a statement of their intent to negotiate a settlement. The filing of this statement shall extend the time for filing an answer under § 308.102 for an additional twenty days, and further extensions may be granted by the administrative law judge upon the joint request of counsel for the FDIC and the applicant.

§ 308.124 Further proceedings.

(a) General rule. Ordinarily, the determination of a recommended award will be made by the administrative law judge on the basis of the written record. However, on request of either

the applicant or the FDIC, or on or her own initiative, the administ tive law judge may order further ceedings such as an informal cont ence, oral argument, additional ten submissions, or an evidentia hearing. Such further proceedings be held only when necessary for and fair resolution of the issues & ing from the application and will conducted promptly and expeditious

(b) Request for further proceedi A request for further proceed under this section shall specifica identify the information sought ort issues in dispute and shall explain additional proceedings are necessar

(c) Hearing. Ordinarily, the admir trative law judge shall hold an evidentiary hearing only on dispu issues of material fact which cannot adequately resolved through writt submissions.

§ 308.125

Recommended decision.

The administrative law judge s file with the Executive Secretary recommended decision on the feel plication not later than ninety d after the filing of the application thirty days after the conclusion of hearing, whichever is later. The ommended decision shall include W ten proposed findings and conclusi on the applicant's eligibility and status as a prevailing party and an planation of the reasons for any ď ference between the amount request and the amount of the recommend award. The recommended decisi shall also include, if at issue, propos findings on whether the FDIC's p tion was substantially justified, whet er the applicant unduly protracted t proceedings, or whether special cumstances make an award unju The administrative law judge shall the record of the proceeding on t fee application and, at the same tir serve upon each party a copy of t recommended decision, findings, c clusions, and proposed order.

§ 308.126 Board action.

(a) Exceptions to recommended det sion. Within twenty days after serv of the recommended decision, fir ings, conclusions, and proposed ord

e applicant or counsel for the FDIC y file with the Executive Secretary itten exceptions thereto. A support5 brief may also be filed.

b) Decision of Board. The Board all render its decision within sixty ys after the matter is submitted to by the Executive Secretary. The Exutive Secretary shall furnish copies the decision and order of the Board the parties. Judicial review of the cision and order may be obtained as ovided in 5 U.S.C. 504(c)(2).

08.127 Payment of awards.

An applicant seeking payment of an ard made by the Board shall submit the Executive Secretary a stateent that the applicant will not seek dicial review of the decision and der or that the time for seeking furer review has passed and no further view has been sought. The FDIC will -y the amount awarded within thirty -ys after receiving the applicant's atement, unless judicial review of e award or of the underlying decion of the adversary adjudication has een sought by the applicant or any her party to the proceeding.

9.3 Federal Register publication. 9.4 Publicly available information. 9.5 Information made available upon request.

9.6 Disclosure of exempt records by FDIC personnel.

-9.7 Service of process.

AUTHORITY: Sec. 2 [9 "Seventh" and Tenth"], Pub. L. No. 797, 64 Stat. 881 as mended by title III, sec. 309. Pub. L. No. 5-630, 92 Stat. 3677 (12 U.S.C. 1819 "Sevath" and "Tenth"); 5 U.S.C. 552

SOURCE: 42 FR 33715, July 1, 1977, unless -herwise noted.

309.1 Purpose and scope.

This regulation sets forth the basic olicies of the Federal Deposit Insurnce Corporation regarding informaon it maintains and the procedures or obtaining access to such informaon.

§ 309.2 Definitions.

For purposes of this part:

(a) The term "bank," as used in § 309.6, includes banks that have applied to the Corporation for federal deposit insurance, closed banks, presently operating banks, foreign banks, branches of foreign banks, and all affiliates of any of the foregoing;

(b) The term "Corporation" means the Federal Deposit Insurance Corporation;

(c) The words "disclose" or "disclosure," as used in § 309.6, mean to give access to a record, whether by producing the written record or by verbal 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 § 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 banking 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 banks conducted jointly by Corporation examiners and State banking authority examiners, as well as reports resulting from examinations conducted solely by Corporation examiners;

(g) The words "he", "his", or "him" shall also refer to the feminine gender where appropriate; and

(h) The term "customer financial records," as used in § 309.6, means an original of, a copy of, or information known to have been derived from, any

cient 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 $25.00. Requests under this paragraph (a) should be addressed to the Office of the Executive Secretary, FDIC, 550-17th Street, NW., Washington, DC 20429.

(2) The FDIC will notify 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 (c) 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.

Definitions.

or

(b) Fees-(1) (i) "Search" includes all time spent looking for material that is responsive to a request, including page-by-page line-by-line identification of material within documents. The term includes the extraction of information from a computer using existing programming.

(ii) "Duplication" refers to the process of making a copy of a document necessary to respond to a request for disclosure of records or for inspection of original records that contain exempt material or that cannot otherwise be directly inspected.

(iii) "Review" refers to the process of examining documents responsive to a commercial use request to determine whether any portion of any document contains exempt material. It includes processing any document for disclosure, e.g. doing all that is necessary to excise them or otherwise prepare them for release.

(iv) "Commercial use request" refers to a request from or on behalf of a requester who seeks information for a use or purpose that furthers the commercial, trade or profit interests of the

requester or the person on whe behalf the request is made.

(v) “Educational institution” refe to a school, an institution of hig education, an institution of professi al education or an institution of vo tional education, which operates ap gram or programs of scholarly: search.

(vi) "Non-commercial scientific" : stitution refers to an institution th is not operated on a commercial ba and which is operated solely for t purpose of conducting scientific search the results of which are not: tended to promote any partic product or industry.

(vii) "Representative of the ne media" refers to any person active gathering news for an entity that organized and operated to publish broadcast news to the public.

(2) General rules. (i) Persons questing records of the FDIC shall charged for the direct costs of sear duplication and review as set forth § 309.5(b)(3), unless such costs are l than $25.00.

(ii) Requesters will be charged search and review costs even if respo sive documents are not located and, located, are determined to be exem from disclosure.

(iii) Multiple requests seeking sim lar or related information from th same requester will be aggregated fr the purposes of this section.

(iv) If the FDIC determines that the estimated costs of search, duplication or review of requested records W exceed the dollar amount specified the request or if no dollar amount specified, the FDIC will advise ther quester of the estimated costs greater than $25.00). The requeste must agree in writing to pay the cost of search, duplication and review.

(v) If FDIC estimates that its search duplication and review costs wi exceed $250.00, the requester must på in advance an amount equal to 20 per cent of the estimated costs.

(vi) Any requester who has previous ly failed to pay the charges under this section within 30 days of receipt of the invoice therefore must pay in advanc the total estimated costs of search, du plication and review.

t of FDIC's regional offices is availle from the Corporate Communicaons Office, Federal Deposit Insurce Corporation, 550-17th Street, W., Washington, DC 20429, (202) 8-6996.):

(1) In the FDIC's discretion, nonnfidential portions of application es as provided in 12 CFR 303.6(g), cluding applications for deposit inrance, to establish branches, to relo-te offices and to merge.

(2)(i) After acceptance by the FDIC

a notice filed pursuant to the nange in Bank Control Act of 1978 2 U.S.C. 1817(j)) (other than a notice ed in contemplation of a public nder offer subject to the Securities xchange Act of 1934 (15 U.S.C. 78m nd 78n) and the FDIC's tender offer gulations (12 CFR 335.501-335.530), he appropriate FDIC regional office ill make available, on request, the llowing information: the name of he bank whose stock is to be acquired; he date the notice was accepted; the entity of the acquiring person(s); the umber of shares to be acquired; and e number of outstanding shares of cock in the bank. (The mere filing of notice does not automatically constiute "acceptance" by the FDIC. A otice is "accepted" when the regional ffice determines that the notice conins all the information required by 2 U.S.C. 1817(j)(6).)

(ii) In the case of a notice filed in ontemplation of a public tender offer hat is subject to the Securities Exhange Act of 1934 (15 U.S.C. 78m and 8n) and the FDIC's tender offer reguations (12 CFR 335.501-335.530), hen public disclosure is determined nder subsection 303.4(b)(4) of the 'DIC's regulations (12 CFR 03.4(b)(4)) to be appropriate, the apropriate FDIC regional office will nake available, on request, the infornation described in subsection 09.4(d)(2)(i).

(iii) After a transaction subject to he Change in Bank Control Act of 978 has been consummated, the appropriate FDIC regional office will nake available, on request, the followng information, in addition to the inormation described in § 309.4(d)(2)(i): he date the shares were acquired; the hames of the sellers (or transferers);

and the total number of shares owned by the purchasers (or acquirers).

(e) At the Information Center Unit, Bank Systems Section, Management Information Services Branch, Division of Accounting and Corporate Services, Federal Deposit Insurance Corporation, 550-17th Street NW., Washington, DC 20429;

(1) At FDIC's discretion, the Consolidated Reports of Income and Consolidated Reports of Condition filed by insured nonmember banks (and certain nonfederally insured banks in the case of reports of condition), except that select sensitive financial information may be withheld.1

(2) At the FDIC's discretion, Summary of Deposits filed by insured banks, except that information on the size and number of accounts filed before June 1982 is not available.2

(f) At the Bank Statistics Branch, Office of Management Systems and Financial Analysis, Federal Deposit Insurance Corporation, 550-17th Street, NW., Washington, DC 20429: Annual Reports of Trust Assets for commercial and mutual savings banks. 3

(g) At the Division of Liquidation, Federal Deposit Insurance Corporation, 550-17th Street, NW., Washington, DC, 20429: Instructions to Liquidators.

[47 FR 39131, Sept. 7, 1982, as amended at 48 FR 28080, June 20, 1983; 49 FR 22069, May 25, 1984; 51 FR 10804, Mar. 31, 1986]

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