cant, together with any affiliates, had a net worth not more than the ceiling established for it by § 308.97(b) as of the date the proceeding was initiated, and (7) any other matters that the applicant wishes the FDIC to consider in determining whether and in what amount an award should be made.

(b) The application shall be signed by the applicant or an authorized officer or attorney of the applicant. It shall also contain or be accompanied by a written verification under oath or under penalty of perjury that the information provided in the application and supporting documents is true and correct.

§ 308.102 Statement of net worth.

(a) A statement of net worth must be filed with the application. It need not be served on parties to the underlying proceeding other than counsel for the FDIC. Unless otherwise ordered by the Board or required by law, the statement shall be for the confidential use of the Board and the administrative law judge.

(b) The statement of net worth shall reflect the net worth of the applicant and all affiliates of the applicant as affiliates are defined in § 308.97(g). To determine eligibility for an award, net worth of affiliates will be aggregated with that of the applicant according to § 308.97(g).

(c) 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 underlying proceeding. Unaudited financial statements are acceptable unless the administrative law judge or the Board shall otherwise require. Financial statements or reports to an agency of the Federal Government or to a State, prepared before the initiation of the underlying proceeding for other purposes, and accurate as of a date not more than three months prior to the initiation of the underlying proceeding, are acceptable in establishing net worth as of the time of the initiation of the underlying proceeding, unless the administrative law judge or the Board shall otherwise require. 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 filed before the initiation of the underlying proceed ing. In all cases the administrative la judge or the Board may call for addi tional information needed to establish the applicant's net worth as of the intiation of the underlying proceeding.

the

(d) In the case of banks, 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 report ed, in conformity with applicable instructions and guidelines, on bank's Consolidated Report of Condition filed for the last reporting date before the initation of the underlying proceeding. In the case of applicants or affiliates that are not banks, net worth shall be considered for the pur poses 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 § 308.97(f). Assets and liabilities of inIdividuals shall include those benefi cially owned within the meaning of § 335.102(e) of the FDIC's rules and regulations.

§ 308.103 Statement of fees and expenses.

The application shall be accompa nied 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 applica tion, 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 of Directors may require the applicant to provide

vouchers, receipts, or other substantiation for any expenses claimed.

S308.104 Filing and service of documents.

(a) Any application for an award and any other pleading or document related to an application shall be filed with the Executive Secretary. It shall conform to the requirements of § 308.19 (on filing papers) and shall be served on all parties to the underlying proceeding in accordance with § 308.21(b) (on service), except as provided in § 308.102(a) for statements of net worth.

(b) An application may be filed with the Executive Secretary whenever the applicant has prevailed in the proceeding or in a discrete significant substantive portion of the proceeding but in no case later than 30 days after service of the final order of the Board of Directors in disposition of the proceeding.

§ 308.105 Answer to application.

(a) Within 20 days after service of an application, counsel for the FDIC may file an answer to the application. Unless counsel for the FDIC requests and is granted an extension of time for filing or files a statement of intent to negotiate under paragraph (b) of this section, failure to file an answer within the 20-day period will be treated as a consent to the award requested.

(b) If counsel for the FDIC and the applicant believe that the issues in the fee application can be settled, they may jointly file a statement of their intent to negotiate a settlement. The filing of this statement shall extend the time for filing an answer for an additional 20 days, and further extensions may be granted by the administrative law judge upon the joint request of counsel for the FDIC and the applicant.

(c) The answer shall explain in detail any objections to the award requested and identify the facts relied on in support of counsel's position. If the answer is based on any alleged facts not already in the record of the proceeding, counsel shall include with the answer either supporting affidavits or a request for further proceedings under § 308.107.

(d) Reply to answer. The applicant may file a reply if counsel for the FDIC has addressed in his or her answer any of the following issues: That the position of the FDIC was substantially justified, that the applicant unduly protracted the proceedings, or that special circumstances make an award unjust. The reply shall be filed within 15 days after service of the answer. If the reply is based on any alleged facts not already in the record of the proceeding, the applicant shall include with the reply either supporting affidavits or a request for further proceedings under § 308.107.

(e) Additional filings in the nature of pleadings may be submitted only by leave of the administrative law judge. § 308.106 Comments by other parties.

Any party to the proceeding, other than the applicant and counsel for the FDIC, may file comments on an application within 20 days after service of the application. If the applicant is entitled to file a reply to an answer under § 308.105(d), another party may file comments on the answer within 15 days after service of the objection. A commenting party may not participate further in proceedings on the application unless the administrative law judge determines that the public interest requires such participation in order to permit additional exploration of matters raised in the comments.

§ 308.107 Further proceedings.

(a) General. 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 counsel for the FDIC, or on his or her initiative, the administrative law judge may order further proceedings such as an informal conference, oral argument, additional written submissions, or an evidentiary hearing. Such further proceedings will be held only when necessary for full and fair resolution of the issues arising from the application and will be conducted as promptly and expeditiously as possible.

(b) Request for further proceedings. A request for further proceedings under this section shall specifically identify the information sought or the issues in dispute and shall explain why additional proceedings are necessary.

(c) Hearing. The administrative law judge shall hold an oral evidentiary hearing only on disputed issues of material fact which cannot be adequately resolved through written submissions.

§ 308.108

Recommended decision.

The administrative law judge shall file a recommended decision on the fee application with the Executive Secretary no later than 90 days after the filing of the application or 30 days after the conclusion of the hearing, whichever is later. The recommended decision shall include written proposed findings and conclusions on the applicant's eligibility and its status as a prevailing party and an explanation of the reasons for any difference between the amount requested and the amount of the recommended award. The recommended decision shall also include, if at issue, proposed findings on whether the FDIC's position was substantially justified, whether the applicant unduly protracted the proceedings, or whether special circumstances make an award unjust. The administrative law judge shall also file with the Executive Secretary the record of the proceeding on the fee application and a proposed order and at the same time serve upon each party a copy of the recommended decision, findings, conclusions, and proposed order.

§ 308.109 Decision of the Board of Directors.

(a) Within 20 days after service of the recommended decision, findings, conclusions, and proposed order, the applicant or counsel for the FDIC may file with the Executive Secretary written exceptions thereto. A supporting brief may also be filed.

(b) The Board of Directors shall render its decision within 60 days after the matter is submitted to it. The Executive Secretary shall furnish copies of the decisions and order of the Board to the parties. Judicial review of the decision and order may be ob

309.3 Federal Register publication. 309.4 Publicly available information. 309.5 Information made available upon re quest.

309.6 Disclosure of exempt records by FDIC personnel. 309.7 Service of process.

AUTHORITY: Sec. 2 [9 "Seventh" and "Tenth"], Pub. L. No. 797, 64 Stat. 881 as amended by title III, sec. 309. Pub. L. No. 95-630, 92 Stat. 3677 (12 U.S.C. 1819 "Sev enth" and "Tenth"); 5 U.S.C. 552

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

(b) The term "Corporation" means he 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 Fiinancial 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, E examination reports resulting from examinations of banks conducted jointly by Corporation examiners and State banking authority examiners, as well Was 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 record held by a bank pertaining to a customer's relationship with the bank 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 § 309.6 refers to individuals or partnerships of five or fewer persons.

[42 FR 33715, July 1, 1977, as amended at 43 FR 17804, Apr. 26, 1978; 45 FR 50551, July 30, 1980]

§ 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 rulemaking.

[47 FR 39130, Sept. 7, 1982]

§ 309.4 Publicly available information.

The following information is available upon request or, as noted, available for public inspection during normal business hours, at the listed offices. 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 information under this § 309.4 are as set forth in § 309.5(b).

(a) At the Office of Information, Federal Deposit Insurance Corporation, 550-17th Street, NW., Washington, DC 20429, (202) 389-4221:

(1) Documents, including press releases, bank letters and proposed and adopted regulations, published by the

FDIC and pertaining to its operations and those of insured banks it supervises.

(2) Reports on the competitive factors involved in merger transactions and the bases for approval of merger transactions as required by section 18(c) (4) and (9) of the Federal Deposit Insurance Act (12 U.S.C. 1828(c) (4) and (9)).

(b) At the Office of the Executive Secretary, Federal Deposit Insurance Corporation, 550-17th Street, NW., Washington, DC 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 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 (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 § 309.5(b).

(c) At the Division of Bank Supervision, Federal Deposit Insurance Corporation, 550-17th Street, NW., Washington, DC 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.787). These filings and reports are available for public inspection as detailed in 12 CFR 335.702.

(2) Manual of Examination Policies. (d) At the regional office of the FDIC for the region in which the applicant or subject bank is located (A list of FDIC's regional offices is available from the Corporate Communications Office, Federal Deposit Insurance Corporation, 550-17th Street, NW., Washington, DC 20429, (202) 898-6996.):

(1) In the FDIC's discretion, nonconfidential portions of application files as provided in 12 CFR 303.6(g), including applications for deposit in

surance, to establish branches, to rel cate offices and to merge.

(2)(i) After acceptance by the FDIC of a notice filed pursuant to the Change in Bank Control Act of 197 (12 U.S.C. 1817(j)) (other than a notic filed in contemplation of a publ: tender offer subject to the Securitie Exchange Act of 1934 (15 U.S.C. 78 and 78n) and the FDIC's tender offer regulations (12 CFR 335.501-335.530 the appropriate FDIC regional offic will make available, on request, the following information: the name of the bank 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 bank. (The mere filing o a notice does not automatically const tute "acceptance" by the FDIC. A notice is "accepted" when the regiona office determines that the notice con tains 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 offe: that is subject to the Securities Ex change Act of 1934 (15 U.S.C. 78m and 78n) and the FDIC's tender offer regu lations (12 CFR 335.501-335.530) when public disclosure is determined under subsection 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 infor mation described in subsection 309.4(d)(2)(i).

(iii) After a transaction subject to the Change in Bank Control Act of 1978 has been consummated, the ap propriate FDIC regional office will make available, on request, the following information, in addition to the information described in § 309.4(d)(2)(i): ; the date the shares were acquired; the names 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 Corpora tion, 550-17th Street NW., Washing ton, DC 20429;