[Federal Register Volume 60, Number 230 (Thursday, November 30, 1995)]
[Rules and Regulations]
[Pages 61465-61472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28718]



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 Rules and Regulations
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 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
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  Federal Register / Vol. 60, No. 230 / Thursday, November 30, 1995 / 
Rules and Regulations  

[[Page 61465]]


FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 309

RIN 3064-AB67


Disclosure of Information

AGENCY: Federal Deposit Insurance Corporation.

ACTION: Final rule.

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SUMMARY: The Federal Deposit Insurance Corporation (FDIC or 
Corporation) is issuing a final rule which sets forth the Corporation's 
rules governing disclosure of information to members of the public. The 
final rule will become effective 30 days after the date of publication, 
and will establish the procedures to be used by members of the public 
when 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 final 
rule provides a more streamlined and efficient process under which 
members of the public can obtain information from the Corporation, thus 
meeting the goals of section 303 of the Riegle Community Development 
and Regulatory Improvement Act of 1994.

EFFECTIVE DATE: January 2, 1996.

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

    On July 6, 1995, the Corporation published for comment a proposed 
rule to establish procedures for the disclosure of information to the 
public (60 FR 35148-35158). The proposed rule prescribed a 60-day 
comment period and invited comments from all interested parties. No 
comments were received. The rule was technically corrected for 
clarification through the deletion of the words court order in the 
fifth sentence in Sec. 309.6(b)(8)(i) and 309.7(c); the addition of the 
phrase and not otherwise prohibited by Federal statute to the end of 
the first sentence in Sec. 309.6(b)(8)(ii); the addition of the last 
sentence in Sec. 309.7(a); and the deletion of the word exempt in the 
first sentence of Sec. 309.7(b) and 309.7(c).

II. Matters of Regulatory Procedure

Authority

    This rule is 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 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; 12 U.S.C. 3401 et seq.

Regulatory Flexibility Act

    The Board of Directors has concluded that the final 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 final 
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 final rule 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 revising 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 

[[Page 61466]]
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.
    (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 

[[Page 61467]]
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 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 

[[Page 61468]]
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 NW., Washington, DC 
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, 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; 

[[Page 61469]]

    (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.
    (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 

[[Page 61470]]
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 paragraph (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 (12 U.S.C. 3109).
    (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
    (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.
    (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 
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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./Ms. ______:
    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.
    (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 

[[Page 61471]]

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 this 
paragraph (b)(7), the Director of the Corporation's Division having 
primary authority over the exempt records, or designee, shall only 
permit disclosure of 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 or other 
legal process may, in the General Counsel's discretion, serve as a 
basis for objection to such subpoena 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.
---------------------------------------------------------------------------

    (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 

[[Page 61472]]
subpoena, or other legal process requiring such disclosure or 
testimony, if he or she determines that the records or testimony are 
relevant to the hearing, proceeding or investigation and that 
disclosure is in the best interests of justice and not otherwise 
prohibited by Federal statute. 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, N.W., 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, N.W., 
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 N.W., 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 N.W., Washington, DC 20429. The Executive Secretary (or 
designee), Regional Director or designated agent shall immediately 
forward any subpoena, court order or legal process to the General 
Counsel. The Corporation may require the payment of fees, in accordance 
with the fee schedule referred to in Sec. 309.5(c)(3), prior to the 
release of any records requested pursuant to any subpoena or other 
legal process.
    (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 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 records of the Corporation, who is required to respond to a 
subpoena or other legal process, shall attend at the time and place 
therein specified and respectfully decline to produce any such record 
or give any testimony with respect thereto, basing such refusal on this 
section.

    By Order of the Board of Directors.

    Dated at Washington, DC this 14th day of November, 1995.

Federal Deposit Insurance Corporation.
Robert E. Feldman,
Deputy Executive Secretary.
[FR Doc. 95-28718 Filed 11-29-95; 8:45 am]
BILLING CODE 6714-01-P