[Rules and Regulations]

[Page 79245-79270]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr27de02-25]

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Part II

Federal Deposit Insurance Corporation

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12 CFR Part 303, et al.

Filing Procedures; Unsafe and Unsound Banking Practices; Registration

of Transfer Agents; International Banking; Management Official

Interlocks; and Golden Parachutes and Indemnification Payments; FDIC

Statement of Policy on Bank Merger Transactions; Application for

Deposit Insurance; Filing Procedures; Corporate Powers; Final Rule,

Proposed Rule, and Notices

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FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 303

RIN 3064-AC51

Filing Procedures; Unsafe and Unsound Banking Practices;

Registration of Transfer Agents; International Banking; Management

Official Interlocks; and Golden Parachutes and Indemnification Payments

AGENCY: Federal Deposit Insurance Corporation (FDIC).

ACTION: Final rule.

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SUMMARY: The FDIC is amending its regulations governing application,

notice and request procedures to reflect changes from an internal

reorganization order, which included the consolidation of the Division

of Supervision and the Division of Compliance and Consumer Affairs into

the Division of Supervision and Consumer Protection. The FDIC has also

determined that the delegations of authority found in its filing

procedures regulation should be removed to allow for greater

flexibility in its delegation and decision making process.

EFFECTIVE DATE: December 27, 2002.

FOR FURTHER INFORMATION CONTACT: Division of Supervision and Consumer

Protection: Steven D. Fritts, Associate Director, 202/898/3723, Mindy

West, Examination Specialist, 202/898/7221. Legal Division: Supervision

and Legislation Branch, Susan van den Toorn, Counsel, 202/898/8707,

Robert C. Fick, Counsel, 202/898/8962, FDIC, Washington, DC 20429.

SUPPLEMENTARY INFORMATION:

I. Background

On July 2, 2002, the FDIC published in the Federal Register a final

rule implementing the decision by the FDIC, through an internal

reorganization order dated June 30, 2002 to merge certain divisions of

the FDIC and, as a result, to change the names of the ``Division of

Supervision'' ``DOS'' and the ``Division of Compliance and Consumer

Affairs'' ``DCA'' to the ``Division of Supervision and Consumer

Protection (DSC)'' and make changes to the names of other divisions of

the FDIC. 67 FR 44351, July 2, 2002. The rule made the name changes to

chapter III of title 12 of the Code of Federal Regulations.

Specifically, the rule changed all references to the ``Division of

Supervision'' and the ``Division of Compliance and Consumer Affairs''

to the ``Division of Supervision and Consumer Protection (DSC).'' The

FDIC noted at that time that it intended to make further revisions to

12 CFR chapter III to reflect other changes as a result of the

reorganization. This final rule constitutes those changes. In chapter

III, part 303 of the FDIC's regulations (12 CFR part 303) (part 303)

contains the procedures to be followed with respect to applications,

notices, or requests (collectively ``filings'') required to be filed by

statute or regulation. With the creation of the new Division of

Supervision and Consumer Protection (DSC), the internal FDIC

administrative scheme set forth in the previous part 303, approved by

the Board in 1998 (63 FR 44686, August 20, 1998), must be amended to

reflect the new organizational structure.

II. Discussion

Throughout part 303 there are numerous references to DOS and DCA

and the Directors and Deputy Directors of those Divisions and an

administrative scheme for the approval, denial or modification of

applications, notices or requests based on the existence of two

separate divisions. The FDIC's internal reorganization of those

divisions thus necessitates a revision of the regulation to reflect the

new structure. The new part 303 reflects that new organizational

structure.

A primary purpose of the new structure was to streamline management

and certain decision making processes. To support these efforts and

provide greater flexibility in the future, the FDIC decided to remove

the delegation authority found in part 303. The FDIC Board of Directors

has affirmed and adopted the delegations of authority for DSC to act on

certain supervisory applications and enforcement actions. In addition,

the Board has also authorized these delegations of authority to be

transferred from its regulation in part 303 and reissued in a Financial

Institution Letter. The delegations of authority state which

individuals within the FDIC are authorized to approve or deny specific

applications and issue enforcement actions and what authority the Board

has retained. While the FDIC has codified these delegations in its

rules and regulations for many years, there is no statutory requirement

that the agency's internal delegations authority be published in its

regulation. In order to provide the maximum amount of flexibility and

efficiency, the FDIC is moving its delegation of authority from the

regulation to its Internet Web site (http://www.fdic.gov), where the

delegations will be maintained. The public will be able to access the

delegations of authority to determine which individuals are authorized

to act on behalf of the FDIC. Instructions relating to the filing of

applications will remain in part 303 of the FDIC's regulations.

III. Public Comment Waiver and Effective Date

As noted, this final rule reflects changes in part 303 as a result

of the FDIC internal reorganization and does not affect any regulatory

requirement imposed by the FDIC on the public. The changes are matters

of ``agency organization, procedure, or practice'' and are thus not

subject to the general requirement of the Administrative Procedure Act

(APA) for notice and comment, pursuant to 5 U.S.C. 553(b)(3)(A). The

changes are technical and non-substantive in nature and impact. Thus,

the FDIC finds, for good cause, that the APA notice-and-comment

provisions are unnecessary. 5 U.S.C. 553(b)(3)(B). This final rule is

also effective immediately, because: (a) The changes are technical and

procedural; (b) the public does not need a delayed period of time to

conform or adjust; and (c) the current part 303 contains references to

offices that have been merged with others and which should be corrected

as promptly as possible. Therefore, it is determined that good cause

exists for making these amendments effective on publication in the

Federal Register, pursuant to 5 U.S.C. 553(d)(3).

IV. Paperwork Reduction Act

This final rule does not create or modify any collection of

information pursuant to the Paperwork Reduction Act (44 U.S.C. 3501 et

seq.). Consequently, no information has been submitted to the Office of

Management and Budget for review.

V. Regulatory Flexibility Act

A regulatory flexibility analysis under the Regulatory Flexibility

Act (RFA) is required only when an agency must publish a notice of

proposed rulemaking. 5 U.S.C. 603 and 604. As already noted, the FDIC

has determined that publication of a notice of proposed rulemaking is

not necessary here. Accordingly, the RFA does not require a regulatory

flexibility analysis.

VI. Assessment of Federal Regulations and Policies on Families

The FDIC has determined that this final rule will not affect family

well being within the meaning of section 654 of the Treasury and

General Government Appropriations Act, 1999, Pub. L. 105-277, 112 Stat.

2681 (1998).

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List of Subjects in 12 CFR Part 303

Administrative practice and procedure, Bank deposit insurance,

Banks, banking, Bank merger, Branching, Foreign branches, Foreign

investments, Golden parachute payments, Reporting and record keeping

requirements.

For the reasons set forth in the preamble and under the authority

of 12 U.S.C. 1819(a)(Tenth), the FDIC Board of Directors hereby revises

12 CFR part 303 as follows:

PART 303--FILING PROCEDURES

Sec.

303.0 Scope.

Subpart A--Rules of General Applicability

303.1 Scope.

303.2 Definitions.

303.3 General filing procedures.

303.4 Computation of time.

303.5 Effect of Community Reinvestment Act performance on filings.

303.6 Investigations and examinations.

303.7 Public notice requirements.

303.8 Public access to filing.

303.9 Comments.

303.10 Hearings and other meetings.

303.11 Decisions.

303.12--303.13 [Reserved]

303.14 Being ``engaged in the business of receiving deposits other

than trust funds.''

303.15--303.19 [Reserved]

Subpart B--Deposit Insurance

303.20 Scope.

303.21 Filing procedures.

303.22 Processing.

303.23 Public notice requirements.

303.24 Application for deposit insurance for an interim institution.

303.25 Continuation of deposit insurance upon withdrawing from

membership in the Federal Reserve System.

303.26--303.39 [Reserved]

Subpart C--Establishment and Relocation of Domestic Branches and

Offices

303.40 Scope.

303.41 Definitions.

303.42 Filing procedures.

303.43 Processing.

303.44 Public notice requirements.

303.45 Special provisions.

303.46--303.59 [Reserved]

Subpart D--Merger Transactions

303.60 Scope.

303.61 Definitions.

303.62 Transactions requiring prior approval.

303.63 Filing procedures.

303.64 Processing.

303.65 Public notice requirements.

303.66--303.79 [Reserved]

Subpart E--Change in Bank Control

303.80 Scope.

303.81 Definitions.

303.82 Transactions requiring prior notice.

303.83 Transactions not requiring prior notice.

303.84 Filing procedures.

303.85 Processing.

303.86 Public notice requirements.

303.87--303.99 [Reserved]

Subpart F-- Change of Director or Senior Executive Officer

303.100 Scope.

303.101 Definitions.

303.102 Filing procedures and waiver of prior notice.

303.103 Processing.

303.104--303.119 [Reserved]

Subpart G--Activities of Insured State Banks

303.120 Scope.

303.121 Filing procedures.

303.122 Processing.

303.123-303.139 [Reserved]

Subpart H-Activities of Insured Savings Associations

303.140 Scope.

303.141 Filing procedures.

303.142 Processing.

303.143-303.159 [Reserved]

Subpart I--Mutual-to-Stock Conversions

303.160 Scope.

303.161 Filing procedures.

303.162 Waiver from compliance.

303.163 Processing.

303.164-303.179 [Reserved]

Subpart J--International Banking

303.180 Scope.

303.181 Definitions.

303.182 Establishing, moving or closing a foreign branch of a state

nonmember bank; Sec. 347.103.

303.183 Investmentby insured state nonmember banks in foreign

organizations; Sec. 347.108.

303.184 Moving an insured branch of a foreign bank.

303.185 Merger transactions involving foreign banks or foreign

organizations.

303.186 Exemptions from insurance requirement for a state branch of

a foreign bank; Sec. 347.206.

303.187 Approval for an insured state branch of a foreign bank to

conduct activities not permissible for federal branches; Sec.

347.213

303.188-303.199 [Reserved]

Subpart K--Prompt Corrective Action

303.200 Scope.

303.201 Filing procedures.

303.202 Processing.

303.203 Applications for capital distribution.

303.204 Applicationsfor acquisitions, branching, and new lines of

business.

303.205 Applications for bonuses and increased compensation for

senior executive officers.

303.206 Application for payment of principal or interest on

subordinated debt.

303.207 Restricted activities for critically undercapitalized

institutions.

303.208-303.219 [Reserved]

Subpart L--Section 19 of the FDI Act (Consent to Service of Persons

Convicted of Certain Criminal Offenses)

303.220 Scope.

303.221 Filing procedures.

303.222 Service at another insured depository institution.

303.223 Applicant's right to hearing following denial.

303.224-303.239 [Reserved]

Subpart M--Other Filings

303.240 General.

303.241 Reduce or retire capital stock or capital debt instruments.

303.242 Exercise of trust powers.

303.243 Brokered deposit waivers.

303.244 Golden parachute and severance plan payments.

303.245 Waiver of liability for commonly controlled depository

institutions.

303.246 Insurance fund conversions.

303.247 Conversion with diminution of capital.

303.248 Continue or resume status as an insured institution

following termination under section 8 of the FDI Act.

303.249 Truth in Lending Act--Relief from reimbursement.

303.250 Management official interlocks.

303.251 Modification of conditions.

303.252 Extension of time.

303.253-303.259 [Reserved]

Subpart N--[Reserved]

Authority: 12 U.S.C. 378, 1813, 1815, 1816, 1817, 1818, 1819,

(Seventh and Tenth), 1820, 1823, 1828, 1831e, 1831p-l, 1835a, 3104,

3105, 3108; 3207; 15 U.S.C. 1601-1607.

Sec. 303.0 Scope.

(a) This part describes the procedures to be followed by both the

FDIC and applicants with respect to applications, requests, or notices

(filings) required to be filed by statute or regulation. Additional

details concerning processing are explained in related FDIC statements

of policy.

(b) Additional application procedures may be found in the following

FDIC regulations:

(1) 12 CFR part 327--Assessments (Request for review of assessment

risk classification);

(2) 12 CFR part 328--Advertisement of Membership (Application for

temporary waiver of advertising requirements);

(3) 12 CFR part 345--Community Reinvestment (CRA strategic plans

and requests for designation as a wholesale or limited purpose

institution);

Subpart A--Rules of General Applicability

Sec. 303.1 Scope.

Subpart A prescribes the general procedures for submitting filings

to the FDIC which are required by statute or regulation. This subpart

also prescribes the procedures to be followed by the

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FDIC, applicants and interested parties during the process of

considering a filing, including public notice and comment. This subpart

explains the availability of expedited processing for eligible

depository institutions (defined in Sec. 303.2(r)). Certain terms used

throughout this part are also defined in this subpart.

Sec. 303.2 Definitions.

For purposes of this part:

(a) Act or FDI Act means the Federal Deposit Insurance Act (12

U.S.C. 1811 et seq.).

(b) Adjusted part 325 total assets means adjusted 12 CFR part 325

total assets as calculated and reflected in the FDIC's Report of

Examination.

(c) Adverse comment means any objection, protest, or other adverse

written statement submitted by an interested party relative to a

filing. The term adverse comment shall not include any comment

concerning the Community Reinvestment Act (CRA), fair lending, consumer

protection, or civil rights that the appropriate regional director or

designee determines to be frivolous (for example, raising issues

between the commenter and the applicant that have been resolved). The

term adverse comment also shall not include any other comment that the

appropriate regional director or designee determines to be frivolous

(for example, a non-substantive comment submitted primarily as a means

of delaying action on the filing).

(d) Amended order to pay means an order to forfeit and pay civil

money penalties, the amount of which has been changed from that

assessed in the original notice of assessment of civil money penalties.

(e) Applicant means a person or entity that submits a filing to the

FDIC.

(f) Application means a submission requesting FDIC approval to

engage in various corporate activities and transactions.

(g) Appropriate FDIC region and appropriate regional director mean,

respectively, the FDIC region and the FDIC regional director which the

FDIC designates as follows:

(1) When an institution or proposed institution that is the subject

of a filing or administrative action is not and will not be part of a

group of related institutions, the appropriate FDIC region for the

institution and any individual associated with the institution is the

FDIC region in which the institution or proposed institution is or will

be located, and the appropriate regional director is the regional

director for that region; or

(2) When an institution or proposed institution that is the subject

of a filing or administrative action is or will be part of a group of

related institutions, the appropriate FDIC region for the institution

and any individual associated with the institution is the FDIC region

in which the group's major policy and decision makers are located, or

any other region the FDIC designates on a case-by-case basis, and the

appropriate regional director is the regional director for that region.

(h) Associate director means any associate director of the Division

of Supervision and Consumer Protection (DSC) or, in the event such

title become obsolete, any official of equivalent authority within the

division.

(i) Book capital means total equity capital which is comprised of

perpetual preferred stock, common stock, surplus, undivided profits and

capital reserves, as those items are defined in the instructions of the

Federal Financial Institutions Examination Council (FFIEC) for the

preparation of Consolidated Reports of Condition and Income for insured

banks.

(j) Comment means any written statement of fact or opinion

submitted by an interested party relative to a filing.

(k) Corporation or FDIC means the Federal Deposit Insurance

Corporation.

(l) CRA protest means any adverse comment from the public related

to a pending filing which raises a negative issue relative to the

Community Reinvestment Act (CRA) (12 U.S.C. 2901 et seq.), whether or

not it is labeled a protest and whether or not a hearing is requested.

(m) Deputy director means the deputy director of the Division of

Supervision and Consumer Protection (DSC) or, in the event such title

become obsolete, any official of equivalent or higher authority within

the division.

(n) Deputy regional director means any deputy regional director of

the Division of Supervision and Consumer Protection (DSC) or, in the

event such title become obsolete, any official of equivalent authority

within the same FDIC region of DSC.

(o) Appropriate FDIC office means the office designated by the

appropriate regional director or designee.

(p) DSC means the Division of Supervision and Consumer Protection

or, in the event the Division of Supervision and Consumer Protection is

reorganized, such successor division.

(q) Director means the Director of the Division of Supervision and

Consumer Protection (DSC) or, in the event such title become obsolete,

any official of equivalent or higher authority within the division.

(r) Eligible depository institution means a depository institution

that meets the following criteria:

(1) Received an FDIC-assigned composite rating of 1 or 2 under the

Uniform Financial Institutions Rating System (UFIRS) as a result of its

most recent federal or state examination;

(2) Received a satisfactory or better Community Reinvestment Act

(CRA) rating from its primary federal regulator at its most recent

examination, if the depository institution is subject to examination

under part 345 of this chapter;

(3) Received a compliance rating of 1 or 2 from its primary federal

regulator at its most recent examination;

(4) Is well-capitalized as defined in the appropriate capital

regulation and guidance of the institution's primary federal regulator;

and

(5) Is not subject to a cease and desist order, consent order,

prompt corrective action directive, written agreement, memorandum of

understanding, or other administrative agreement with its primary

federal regulator or chartering authority.

(s) Filing means an application, notice or request submitted to the

FDIC under this part.

(t) General Counsel means the head of the Legal Division of the

FDIC or any official within the Legal Division exercising equivalent

authority for purposes of this part.

(u) Insider means a person who is or is proposed to be a director,

officer, organizer, or incorporator of an applicant; a shareholder who

directly or indirectly controls 10 percent or more of any class of the

applicant's outstanding voting stock; or the associates or interests of

any such person.

(v) Institution-affiliated party shall have the same meaning as

provided in section 3(u) of the Act (12 U.S.C. 1813(u)).

(w) NEPA means the National Environmental Policy Act of 1969 (42

U.S.C. 4321 et seq.).

(x) NHPA means the National Historic Preservation Act of 1966 (16

U.S.C. 470 et seq.).

(y) Notice means a submission notifying the FDIC that a depository

institution intends to engage in or has commenced certain corporate

activities or transactions.

(z) Notice to primary regulator means the notice described in

section 8(a)(2)(A) of the Act concerning termination of deposit

insurance (12 U.S.C. 1818(a)(2)(A)).

(aa) Regional counsel means a regional counsel of the Legal

Division or, in the event the title becomes

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obsolete, any official of equivalent authority within the Legal

Division.

(bb) Regional director means any regional director in the Division

of Supervision and Consumer Protection (DSC), or in the event such

title become obsolete, any official of equivalent authority within the

division.

(cc) [Reserved]

(dd) Standard conditions means the conditions that the FDIC may

impose as a routine matter when approving a filing, whether or not the

applicant has agreed to their inclusion. The following conditions, or

variations thereof, are standard conditions:

(1) That the applicant has obtained all necessary and final

approvals from the appropriate federal or state authority or other

appropriate authority;

(2) That if the transaction does not take effect within a specified

time period, or unless, in the meantime, a request for an extension of

time has been approved, the consent granted shall expire at the end of

the specified time period;

(3) That until the conditional commitment of the FDIC becomes

effective, the FDIC retains the right to alter, suspend or withdraw its

commitment should any interim development be deemed to warrant such

action; and

(4) In the case of a merger transaction (as defined in ] 303.61(a)

of this part), including a corporate reorganization, that the proposed

transaction not be consummated before the 30th calendar day (or shorter

time period as may be prescribed by the FDIC with the concurrence of

the Attorney General) after the date of the order approving the merger

transaction.

(ee) Tier 1 capital shall have the same meaning as provided in ]

325.2(v) of this chapter (12 CFR 325.2(v)).

(ff) Total assets shall have the same meaning as provided in ]

325.2(x) of this chapter (12 CFR 325.2(x)).

Sec. 303.3 General filing procedures.

Unless stated otherwise, filings should be submitted to the

appropriate FDIC office. Forms and instructions for submitting filings

may be obtained from any FDIC regional director. If no form is

prescribed, the filing should be in writing; be signed by the applicant

or a duly authorized agent; and contain a concise statement of the

action requested. For specific filing and content requirements, consult

the appropriate subparts of this part. The FDIC may require the

applicant to submit additional information.

Sec. 303.4 Computation of time.

For purposes of this part, the FDIC begins computing the relevant

period on the day after an event occurs (e.g., the day after a

substantially complete filing is received by the FDIC or the day after

publication begins) through the last day of the relevant period. When

the last day is a Saturday, Sunday or federal holiday, the period runs

until the end of the next business day.

Sec. 303.5 Effect of Community Reinvestment Act performance on

filings.

Among other factors, the FDIC takes into account the record of

performance under the Community Reinvestment Act (CRA) of each

applicant in considering a filing for approval of:

(a) The establishment of a domestic branch;

(b) The relocation of the bank's main office or a domestic branch;

(c) The relocation of an insured branch of a foreign bank;

(d) A transaction subject to the Bank Merger Act; and

(e) Deposit insurance.

Sec. 303.6 Investigations and examinations.

The FDIC may examine or investigate and evaluate facts related to

any filing under this chapter to the extent necessary to reach an

informed decision and take any action necessary or appropriate under

the circumstances.

Sec. 303.7 Public notice requirements.

(a) General. The public must be provided with prior notice of a

filing to establish a domestic branch, relocate a domestic branch or

the main office, relocate an insured branch of a foreign bank, engage

in a merger transaction, initiate a change of control transaction, or

request deposit insurance. The public has the right to comment on, or

to protest, these types of proposed transactions during the relevant

comment period. In order to fully apprise the public of this right, an

applicant shall publish a public notice of its filing in a newspaper of

general circulation. For specific publication requirements, consult

subparts B (Deposit Insurance), C (Branches and Relocations), D (Merger

Transactions), E (Change in Bank Control), and J (International

Banking) of this part.

(b) Confirmation of publication. The applicant shall mail or

otherwise deliver a copy of the newspaper notice to the appropriate

FDIC office as part of its filing, or, if a copy is not available at

the time of filing, promptly after publication.

(c) Content of notice. (1) The public notice referred to in

paragraph (a) of this section shall consist of the following:

(i) Name and address of the applicant(s). In the case of an

application for deposit insurance for a de novo bank, include the names

of all organizers or incorporators. In the case of an application to

establish a branch, include the location of the proposed branch or, in

the case of an application to relocate a branch or main office, include

the current and proposed address of the office. In the case of a merger

application, include the names of all parties to the transaction. In

the case of a notice of acquisition of control, include the name(s) of

the acquiring parties. In the case of an application to relocate an

insured branch of a foreign bank, include the current and proposed

address of the branch.

(ii) Type of filing being made;

(iii) Name of the depository institution(s) that is the subject

matter of the filing;

(iv) That the public may submit comments to the appropriate FDIC

regional director;

(v) The address of the appropriate FDIC office where comments may

be sent (the same location where the filing will be made);

(vi) The closing date of the public comment period as specified in

the appropriate subpart; and

(vii) That the nonconfidential portions of the application are on

file in the appropriate FDIC office and are available for public

inspection during regular business hours; photocopies of the

nonconfidential portion of the application file will be made available

upon request.

(2) The requirements of paragraphs (c)(1)(iv) through (vii) of this

section may be satisfied through use of the following notice:

Any person wishing to comment on this application may file his or

her comments in writing with the regional director of the Federal

Deposit Insurance Corporation at the appropriate FDIC office [insert

address of office] not later than [insert closing date of the public

comment period specified in the appropriate subpart of part 303].

The non-confidential portions of the application are on file at the

appropriate FDIC office and are available for public inspection

during regular business hours. Photocopies of the nonconfidential

portion of the application file will be made available upon request.

(d) Multiple transactions. The FDIC may consider more than one

transaction, or a series of transactions, to be a single filing for

purposes of the publication requirements of this section. When

publishing a single public notice for multiple transactions, the

applicant shall explain in the public notice how the transactions are

related. The closing date of the comment period shall be the closing

date of the longest public comment period that applies to any of the

related transactions.

[[Page 79250]]

(e) Joint public notices. For a transaction subject to public

notice requirements by the FDIC and another federal or state banking

authority, the FDIC will accept publication of a single joint notice

containing all the information required by both the FDIC and the other

federal agency or state banking authority, provided that the notice

states that comments must be submitted to the appropriate FDIC office

and, if applicable, the other federal or state banking authority.

(f) Where public notice is required, the FDIC may determine on a

case-by-case basis that unusual circumstances surrounding a particular

filing warrant modification of the publication requirements.

Sec. 303.8 Public access to filing.

(a) General. For filings subject to a public notice requirement,

any person may inspect or request a copy of the non-confidential

portions of a filing (the public file) until 180 days following final

disposition of a filing. Following the 180-day period, non-confidential

portions of an application file will be made available in accordance

with ' 303.8(c). The public file generally consists of portions of the

filing, supporting data, supplementary information, and comments

submitted by interested persons (if any) to the extent that the

documents have not been afforded confidential treatment. To view or

request photocopies of the public file, an oral or written request

should be submitted to the appropriate FDIC office. The public file

will be produced for review not more than one business day after

receipt by the appropriate FDIC office of the request (either written

or oral) to see the file. The FDIC may impose a fee for photocopying in

accordance with Sec. 309.5(f) of this chapter at the rates the FDIC

publishes annually in the Federal Register.

(b) Confidential treatment. (1) The applicant may request that

specific information be treated as confidential. The following

information generally is considered confidential:

(i) Personal information, the release of which would constitute a

clearly unwarranted invasion of privacy;

(ii) Commercial or financial information, the disclosure of which

could result in substantial competitive harm to the submitter; and

(iii) Information, the disclosure of which could seriously affect

the financial condition of any depository institution.

(2) If an applicant requests confidential treatment for information

that the FDIC does not consider to be confidential, the FDIC may

include that information in the public file after notifying the

applicant. On its own initiative, the FDIC may determine that certain

information should be treated as confidential and withhold that

information from the public file.

(c) FOIA requests. A written request for information withheld from

the public file, or copies of the public file following closure of the

file 180 days after final disposition, should be submitted pursuant to

the Freedom of Information Act (5 U.S.C. 552) and part 309 of this

chapter to the FDIC, Attn: FOIA/Privacy Group, Legal Division, 550 17th

Street, NW., Washington, DC 20429.

Sec. 303.9 Comments.

(a) Submission of comments. For filings subject to a public notice

requirement, any person may submit comments to the appropriate FDIC

regional director during the comment period.

(b) Comment period--(1) General. Consult appropriate subparts of

this part for the comment period applicable to a particular filing.

(2) Extension. The FDIC may extend or reopen the comment period if:

(i) The applicant fails to file all required information on a

timely basis to permit review by the public or makes a request for

confidential treatment not granted by the FDIC that delays the public

availability of that information;

(ii) Any person requesting an extension of time satisfactorily

demonstrates to the FDIC that additional time is necessary to develop

factual information that the FDIC determines may materially affect the

application; or

(iii) The FDIC determines that other good cause exists.

(3) Solicitation of comments. Whenever appropriate, the appropriate

regional director may solicit comments from any person or institution

which might have an interest in or be affected by the pending filing.

(4) Applicant response. The FDIC will provide copies of all

comments received to the applicant and may give the applicant an

opportunity to respond.

Sec. 303.10 Hearings and other meetings.

(a) Matters covered. This section covers hearings and other

proceedings in connection with filings and determinations for or by:

(1) Deposit insurance by a proposed new depository institution or

operating non-insured institution;

(2) An insured state nonmember bank to establish a domestic branch

or to relocate a main office or domestic branch;

(3) Relocation of an insured branch of a foreign bank;

(4)(i) Merger transaction which requires the FDIC's prior approval

under the Bank Merger Act (12 U.S.C. 1828(c));

(ii) Except as otherwise expressly provided, the provisions of this

Sec. 303.10 shall not be applicable to any proposed merger transaction

which the FDIC Board of Directors determines must be acted upon

immediately to prevent the probable failure of one of the institutions

involved, or must be handled with expeditious action due to an existing

emergency condition, as permitted by the Bank Merger Act (12 U.S.C.

1828(c)(6));

(5) Nullification of a decision on a filing; and

(6) Any other purpose or matter which the FDIC Board of Directors

in its sole discretion deems appropriate.

(b) Hearing requests. (1) Any person may submit a written request

for a hearing on a filing:

(i) To the appropriate regional director before the end of the

comment period; or

(ii) To the appropriate regional director, pursuant to a notice to

nullify a decision on a filing issued pursuant to Sec. 303.11(g)(2)(i)

or (ii).

(2) The request must describe the nature of the issues or facts to be

presented and the reasons why written submissions would be insufficient

to make an adequate presentation of those issues or facts to the FDIC.

A person requesting a hearing shall simultaneously submit a copy of the

request to the applicant.

(c) Action on a hearing request. The appropriate regional director,

after consultation with the Legal Division, may grant or deny a request

for a hearing and may limit the issues that he or she deems relevant or

material. The FDIC generally grants a hearing request only if it

determines that written submissions would be insufficient or that a

hearing otherwise would be in the public interest.

(d) Denial of a hearing request. If the appropriate regional

director, after consultation with the Legal Division, denies a hearing

request, he or she shall notify the person requesting the hearing of

the reason for the denial. A decision to deny a hearing request shall

be a final agency determination and is not appealable.

(e) FDIC procedures prior to the hearing--(1) Notice of hearing.

The FDIC shall issue a notice of hearing if it grants a request for a

hearing or orders a hearing because it is in the public interest. The

notice of hearing shall state the subject and date of the filing, the

time and place of the hearing, and the issues to be addressed. The FDIC

shall send a copy of the notice of hearing to

[[Page 79251]]

the applicant, to the person requesting the hearing, and to anyone else

requesting a copy.

(2) The presiding officer shall be the regional director or

designee or such other person as may be named by the Board or the

Director. The presiding officer is responsible for conducting the

hearing and determining all procedural questions not governed by this

section.

(f) Participation in the hearing. Any person who wishes to appear

(participant) shall notify the appropriate regional director of his or

her intent to participate in the hearing no later than 10 days from the

date that the FDIC issues the Notice of Hearing. At least 5 days before

the hearing, each participant shall submit to the appropriate regional

director, as well as to the applicant and any other person as required

by the FDIC, the names of witnesses, a statement describing the

proposed testimony of each witness, and one copy of each exhibit the

participant intends to present.

(g) Transcripts. The FDIC shall arrange for a hearing transcript.

The person requesting the hearing and the applicant each shall bear the

cost of one copy of the transcript for his or her use unless such cost

is waived by the presiding officer and incurred by the FDIC.

(h) Conduct of the hearing--(1) Presentations. Subject to the

rulings of the presiding officer, the applicant and participants may

make opening and closing statements and present and examine witnesses,

material, and data.

(2) Information submitted. Any person presenting material shall

furnish one copy to the FDIC, one copy to the applicant, and one copy

to each participant.

(3) Laws not applicable to hearings. The Administrative Procedure

Act (5 U.S.C. 551 et seq.), the Federal Rules of Evidence (28 U.S.C.

Appendix), the Federal Rules of Civil Procedure (28 U.S.C. Rule 1 et

seq.), and the FDIC's Rules of Practice and Procedure (12 CFR part 308)

do not govern hearings under this Sec. 303.10.

(i) Closing the hearing record. At the applicant's or any

participant's request, or at the FDIC's discretion, the FDIC may keep

the hearing record open for up to 10 days following the FDIC's receipt

of the transcript. The FDIC shall resume processing the filing after

the record closes.

(j) Disposition and notice thereof. The presiding officer shall

make a recommendation to the FDIC within 20 days following the date the

hearing and record on the proceeding are closed. The FDIC shall notify

the applicant and all participants of the final disposition of a filing

and shall provide a statement of the reasons for the final disposition.

(k) Computation of time. In computing periods of time under this

section, the provisions of Sec. 308.12 of the FDIC's Rules of Practice

and Procedure (12 CFR 308.12) shall apply.

(l) Informal proceedings. The FDIC may arrange for an informal

proceeding with an applicant and other interested parties in connection

with a filing, either upon receipt of a written request for such a

meeting made during the comment period, or upon the FDIC's own

initiative. No later than 10 days prior to an informal proceeding, the

appropriate regional director shall notify the applicant and each

person who requested a hearing or oral presentation of the date, time,

and place of the proceeding. The proceeding may assume any form,

including a meeting with FDIC representatives at which participants

will be asked to present their views orally. The regional director may

hold separate meetings with each of the participants.

(m) Authority retained by FDIC Board of Directors to modify

procedures. The FDIC Board of Directors may delegate authority by

resolution on a case-by-case basis to the presiding officer to adopt

different procedures in individual matters and on such terms and

conditions as the Board of Directors determines in its discretion. The

resolution shall be made available for public inspection and copying in

the Office of the General Counsel, Executive Secretary Section under

the Freedom of Information Act (5 U.S.C. 552(a)(2)).

Sec. 303.11 Decisions.

(a) General procedures. The FDIC may approve, conditionally

approve, deny, or not object to a filing after appropriate review and

consideration of the record. The FDIC will promptly notify the

applicant and any person who makes a written request of the final

disposition of a filing. If the FDIC denies a filing, the FDIC will

immediately notify the applicant in writing of the reasons for the

denial.

(b) Authority retained by FDIC Board of Directors to modify

procedures. In acting on any filing under this part, the FDIC Board of

Directors may by resolution adopt procedures which differ from those

contained in this part when it deems it necessary or in the public

interest to do so. The resolution shall be made available for public

inspection and copying in the Office of the General Counsel, Executive

Secretary Section under the Freedom of Information Act (5 U.S.C.

552(a)(2)).

(c) Expedited processing. (1) A filing submitted by an eligible

depository institution as defined in Sec. 303.2(r) will receive

expedited processing as specified in the appropriate subparts of this

part unless the FDIC determines to remove the filing from expedited

processing for any of the reasons set forth in paragraph (c)(2) of this

section. Except for filings made pursuant to subpart J (International

Banking), expedited processing will not be available for any filing

that the appropriate regional director does not have delegated

authority to approve.

(2) Removal of filing from expedited processing. The FDIC may

remove a filing from expedited processing at any time prior to final

disposition if:

(i) For filings subject to public notice under Sec. 303.7, an

adverse comment is received that warrants additional investigation or

review;

(ii) For filings subject to evaluation of CRA performance under

Sec. 303.5, a CRA protest is received that warrants additional

investigation or review, or the appropriate regional director

determines that the filing presents a significant CRA or compliance

concern;

(iii) For any filing, the appropriate regional director determines

that the filing presents a significant supervisory concern, or raises a

significant legal or policy issue; or

(iv) For any filing, the appropriate regional director determines

that other good cause exists for removal.

(3) For purposes of this section, a significant CRA concern

includes, but is not limited to, a determination by the appropriate

regional director that, although a depository institution may have an

institution-wide rating of satisfactory or better, a depository

institution's CRA rating is less than satisfactory in a state or multi-

state metropolitan statistical area, or a depository institution's CRA

performance is less than satisfactory in a metropolitan statistical

area as defined in 12 CFR 345.12 (MSA) or in the non-MSA portion of a

state in which it seeks to expand through approval of an application

for a deposit facility as defined in 12 U.S.C. 2902(3).

(4) If the FDIC determines that it is necessary to remove a filing

from expedited processing pursuant to paragraph (c)(2) of this section,

the FDIC promptly will provide the applicant with a written explanation

(d) Multiple transactions. If the FDIC is considering related

transactions, some or all of which have been granted expedited

processing, then the longest processing time for any of the related

transactions shall govern for purposes of approval.

(e) Abandonment of filing. A filing must contain all information

set forth in

[[Page 79252]]

the applicable subpart of this part. To the extent necessary to

evaluate a filing, the FDIC may require an applicant to provide

additional information. If information requested by the FDIC is not

provided within the time period specified by the agency, the FDIC may

deem the filing abandoned and shall provide written notification to the

applicant and any interested parties that submitted comments to the

FDIC that the file has been closed.

(f) Appeals and requests for reconsideration--(1) General. Appeal

procedures for a denial of a change in bank control (subpart E), change

in senior executive officer or board of directors (subpart F) or denial

of an application pursuant to section 19 of the FDI Act (subpart L) are

contained in 12 CFR part 308, subparts D, L, and M, respectively. For

all other filings covered by this chapter for which appeal procedures

are not provided by regulation or other written guidance, the

procedures specified in paragraphs (f) (2) and (3) of this section

shall apply. A decision to deny a request for a hearing is a final

agency determination and is not appealable.

(2) Filing procedures. Within 15 days of receipt of notice from the

FDIC that its filing has been denied, any applicant may file a request

for reconsideration with the appropriate regional director.

(3) Content of filing. A request for reconsideration must contain

the following information:

(i) A resolution of the board of directors of the applicant

authorizing filing of the request if the applicant is a corporation, or

a letter signed by the individual(s) filing the request if the

applicant is not a corporation;

(ii) Relevant, substantive information that for good cause was not

previously set forth in the filing; and

(iii) Specific reasons why the FDIC should reconsider its prior

decision.

(4) [Reserved]

(5) [Reserved]

(6) Processing. The FDIC will notify the applicant whether

reconsideration will be granted or denied within 15 days of receipt of

a request for reconsideration. If a request for reconsideration is

granted pursuant to Sec. 303.11(f), the FDIC will notify the applicant

of the final agency decision on such filing within 60 days of its

receipt of the request for reconsideration.

(g) Nullification, withdrawal, revocation, amendment, and

suspension of decisions on filings--(1) Grounds for action. Except as

otherwise provided by law or regulation, the FDIC may nullify,

withdraw, revoke, amend or suspend a decision on a filing if it becomes

aware at anytime:

(i) Of any material misrepresentation or omission related to the

filing or of any material change in circumstance that occurred prior to

the consummation of the transaction or commencement of the activity

authorized by the decision on the filing; or

(ii) That the decision on the filing is contrary to law or

regulation or was granted due to clerical or administrative error.

(iii) Any person responsible for a material misrepresentation or

omission in a filing or supporting materials may be subject to an

enforcement action and other penalties, including criminal penalties

provided in Title 18 of the United States Code.

(2) Notice of intent and temporary order. (i) Except as provided in

Sec. 303.11(g)(2)(ii), before taking action under this Sec.

303.11(g), the FDIC shall issue and serve on an applicant written

notice of its intent to take such action. A notice of intent to act on

a filing shall include:

(A) The reasons for the proposed action; and

(B) The date by which the applicant may file a written response

with the FDIC.

(ii) The FDIC may issue a temporary order on a decision on a filing

without providing an applicant a prior notice of intent if the FDIC

determines that:

(A) It is necessary to reevaluate the impact of a change in

circumstance prior to the consummation of the transaction or

commencement of the activity authorized by the decision on the filing;

or

(B) The activity authorized by the filing may pose a threat to the

interests of the depository institution's depositors or may threaten to

impair public confidence in the depository institution.

(iii) A temporary order shall provide the applicant with an

opportunity to make a written response in accordance with Sec.

303.11(g)(3) of this section.

(3) Response to notice of intent or temporary order. An applicant

may file a written response to a notice of intent or a temporary order

within 15 days from the date of service of the notice or temporary

order. The written response should include:

(i) An explanation of why the proposed action or temporary order is

not warranted; and

(ii) Any other relevant information, mitigating circumstance,

documentation, or other evidence in support of the applicant's

position. An applicant may also request a hearing under Sec. 303.10 of

this part. Failure by an applicant to file a written response with the

FDIC to a notice of intent or a temporary order within the specified

time period, shall constitute a waiver of the opportunity to respond

and shall constitute consent to a final order under this Sec.

303.11(g).

(4) Effective date. All orders issued pursuant to this section

shall become effective immediately upon issuance unless otherwise

stated therein.

Sec. Sec. 303. 12-303.13 [Reserved]

Sec. 303.14 Being ``engaged in the business of receiving deposits

other than trust funds.''

(a) Except as provided in paragraphs (b), (c), and (d) of this

section, a depository institution shall be ``engaged in the business of

receiving deposits other than trust funds'' only if it maintains one or

more non-trust deposit accounts in the minimum aggregate amount of

$500,000.

(b) An applicant for federal deposit insurance under section 5 of

the FDI Act, 12 U.S.C. 1815(a), shall be deemed to be ``engaged in the

business of receiving deposits other than trust funds'' from the date

that the FDIC approves deposit insurance for the institution until one

year after it opens for business.

(c) Any depository institution that fails to satisfy the minimum

deposit standard specified in paragraph (a) of this section as of two

consecutive call report dates (i.e., March 31st, June 30th, September

30th, and December 31st) shall be subject to a determination by the

FDIC that the institution is not ``engaged in the business of receiving

deposits other than trust funds'' and to termination of its insured

status under section 8(p) of the FDI Act, 12 U.S.C. 1818(p). For

purposes of this paragraph, the first three call report dates after the

institution opens for business are excluded.

(d) Notwithstanding any failure by an insured depository

institution to satisfy the minimum deposit standard in paragraph (a) of

this section, the institution shall continue to be ``engaged in the

business of receiving deposits other than trust funds'' for purposes of

section 3 of the FDI Act until the institution's insured status is

terminated by the FDIC pursuant to a proceeding under section 8(a) or

section 8(p) of the FDI Act. 12 U.S.C. 1818(a) or 1818(p).

Sec. Sec. 303.15-303.19 [Reserved]

Subpart B--Deposit Insurance

Sec. 303.20 Scope.

This subpart sets forth the procedures for applying for deposit

insurance for a proposed depository institution or an operating

noninsured depository

[[Page 79253]]

institution under section 5 of the FDI Act (12 U.S.C. 1815). It also

sets forth the procedures for requesting continuation of deposit

insurance for a state-chartered bank withdrawing from membership in the

Federal Reserve System and for interim institutions chartered to

facilitate a merger transaction.

Sec. 303.21 Filing procedures.

(a) Applications for deposit insurance shall be filed with the

appropriate FDIC office. The relevant application forms and

instructions for applying for deposit insurance for an existing or

proposed depository institution may be obtained from any FDIC regional

director.

(b) An application for deposit insurance for an interim depository

institution shall be filed and processed in accordance with the

procedures set forth in Sec. 303.24, subject to the provisions of

Sec. 303.62(b)(2) regarding deposit insurance for interim

institutions. An interim institution is defined as a state- or

federally-chartered depository institution that does not operate

independently but exists solely as a vehicle to accomplish a merger

transaction.

(c) A request for continuation of deposit insurance upon

withdrawing from membership in the Federal Reserve System shall be in

letter form and shall provide the information prescribed in Sec.

303.25.

Sec. 303.22 Processing.

(a) Expedited processing for proposed institutions. (1) An

application for deposit insurance for a proposed institution which will

be a subsidiary of an eligible depository institution as defined in

Sec. 303.2(r) or an eligible holding company will be acknowledged in

writing by the FDIC and will receive expedited processing unless the

applicant is notified in writing to the contrary and provided with the

basis for that decision. An eligible holding company is defined as a

bank or thrift holding company that has consolidated assets of $150

million or more, has an assigned composite rating of 2 or better, and

has at least 75 percent of its consolidated depository institution

assets comprised of eligible depository institutions. The FDIC may

remove an application from expedited processing for any of the reasons

set forth in Sec. 303.11(c)(2).

(2) Under expedited processing, the FDIC will take action on an

application within 60 days of receipt of a substantially complete

application or 5 days after the expiration of the comment period

described in Sec. 303.23, whichever is later. Final action may be

withheld until the FDIC has assurance that permission to organize the

proposed institution will be granted by the chartering authority.

Notwithstanding paragraph (a)(1) of this section, if the FDIC does not

act within the expedited processing period, it does not constitute an

automatic or default approval.

(b) Standard processing. For those applications that are not

processed pursuant to the expedited procedures, the FDIC will provide

the applicant with written notification of the final action when the

decision is rendered.

Sec. 303.23 Public notice requirements.

(a) De novo institutions and operating noninsured institutions. The

applicant shall publish a notice as prescribed in Sec. 303.7 in a

newspaper of general circulation in the community in which the main

office of the depository institution is or will be located. Notice

shall be published as close as practicable to, but no sooner than five

days before, the date the application is mailed or delivered to the

appropriate FDIC office. Comments by interested parties must be

received by the appropriate regional director within 30 days following

the date of publication, unless the comment period has been extended or

reopened in accordance with Sec. 303.9(b)(2).

(b) Exceptions to public notice requirements. No publication shall

be required in connection with the granting of insurance to a new

depository institution established pursuant to the resolution of a

depository institution in default, or to an interim depository

institution formed solely to facilitate a merger transaction, or for a

request for continuation of federal deposit insurance by a state-

chartered bank withdrawing from membership in the Federal Reserve

System.

Sec. 303.24 Application for deposit insurance for an interim

institution.

(a) Application required. Subject to Sec. 303.62(b)(2), a deposit

insurance application is required for a state-chartered interim

institution if the related merger transaction is subject to approval by

a federal banking agency other than the FDIC. A separate application

for deposit insurance for an interim institution is not required in

connection with any merger requiring FDIC approval pursuant to subpart

D of this part.

(b) Content of separate application. A letter application for

deposit insurance for an interim institution, accompanied by a copy of

the related merger application, shall be filed with the appropriate

FDIC office. The letter application shall briefly describe the

transaction and contain a statement that deposit insurance is being

requested for an interim institution that does not operate

independently but exists solely as a vehicle to accomplish a merger

transaction which will be reviewed by a federal banking agency other

than the FDIC.

(c) Processing. An application for deposit insurance for an interim

depository institution will be acknowledged in writing by the FDIC.

Final action will be taken within 21 days after receipt of a

substantially complete application, unless the applicant is notified in

writing that additional review is warranted. If the FDIC does not act

within the expedited processing period, it does not constitute an

automatic or default approval.

Sec. 303.25 Continuation of deposit insurance upon withdrawing from

membership in the Federal Reserve System.

(a) Content of application. To continue its insured status upon

withdrawal from membership in the Federal Reserve System, a state-

chartered bank shall submit a letter application to the appropriate

FDIC office. A complete application shall consist of the following

information:

(1) A copy of the letter, and any attachments thereto, sent to the

appropriate Federal Reserve Bank setting forth the bank's intention to

terminate its membership;

(2) A copy of the letter from the Federal Reserve Bank

acknowledging the bank's notice to terminate membership;

(3) A statement regarding any anticipated changes in the bank's

general business plan during the next 12-month period; and

(4)(i) A statement by the bank's management that there are no

outstanding or proposed corrective programs or supervisory agreements

with the Federal Reserve System.

(ii) If such programs or agreements exist, a statement by the

applicant that its Board of Directors is willing to enter into similar

programs or agreements with the FDIC which would become effective upon

withdrawal from the Federal Reserve System.

(b) Processing. An application for deposit insurance under this

section will be acknowledged in writing by the FDIC. The FDIC shall

notify the applicant, within 15 days of receipt of a substantially

complete application, either that federal deposit insurance will

continue upon termination of membership in the Federal Reserve System

or that additional review is warranted and the applicant will be

notified, in writing, of the FDIC's final

[[Page 79254]]

decision regarding continuation of deposit insurance. If the FDIC does

not act within the expedited processing period, it does not constitute

an automatic or default approval.

Sec. Sec. 303.26--303.39 [Reserved]

Subpart C--Establishment and Relocation of Domestic Branches and

Offices

Sec. 303.40 Scope.

(a) General. This subpart sets forth the application requirements

and procedures for insured state nonmember banks to establish a branch,

relocate a branch or main office, and retain existing branches after

the interstate relocation of the main office subject to the approval by

the FDIC pursuant to sections 13(f), 13(k), 18(d) and 44 of the FDI

Act.

(b) Merger transaction. Applications for approval of the

acquisition and establishment of branches in connection with a merger

transaction under section 18(c) of the FDI Act (12 U.S.C. 1828(c)), are

processed in accordance with subpart D (Merger Transactions) of this

part.

(c) Insured branches of foreign banks and foreign branches of

domestic banks. Applications regarding insured branches of foreign

banks and foreign branches of domestic banks are processed in

accordance with subpart J (International Banking) of this part.

(d) Interstate acquisition of individual branch. Applications

requesting approval of the interstate acquisition of an individual

branch or branches located in a state other than the applicant's home

state without the acquisition of the whole bank are treated as

interstate bank merger transactions under section 44 of the FDI Act (12

U.S.C. 1831a(u)), and are processed in accordance with subpart D

(Merger Transactions) of this part.

Sec. 303.41 Definitions.

For purposes of this subpart:

(a) Branch includes any branch bank, branch office, additional

office, or any branch place of business located in any State of the

United States or in any territory of the United States, Puerto Rico,

Guam, American Samoa, the Trust Territory of the Pacific Islands, the

Virgin Islands, and the Northern Mariana Islands at which deposits are

received or checks paid or money lent. A branch does not include an

automated teller machine, an automated loan machine, or a remote

service unit. The term branch also includes the following:

(1) A messenger service that is operated by a bank or its affiliate

that picks up and delivers items relating to transactions in which

deposits are received or checks paid or money lent. A messenger service

established and operated by a non-affiliated third party generally does

not constitute a branch for purposes of this subpart. Banks contracting

with third parties to provide messenger services should consult with

the FDIC to determine if the messenger service constitutes a branch.

(2) A mobile branch, other than a messenger service, that does not

have a single, permanent site and uses a vehicle that travels to

various locations to enable the public to conduct banking business. A

mobile branch may serve defined locations on a regular schedule or may

serve a defined area at varying times and locations.

(3) A temporary branch that operates for a limited period of time

not to exceed one year as a public service, such as during an emergency

or disaster situation.

(4) A seasonal branch that operates at various periodically

recurring intervals, such as during state and local fairs, college

registration periods, and other similar occasions.

(b) Branch relocation means a move within the same immediate

neighborhood of the existing branch that does not substantially affect

the nature of the business of the branch or the customers of the

branch. Moving a branch to a location outside its immediate

neighborhood is considered the closing of an existing branch and the

establishment of a new branch. Closing of a branch is covered in the

FDIC Statement of Policy Concerning Branch Closing Notices and

Policies. 1 FDIC Law, Regulations, Related Acts 5391; see Sec. 309.4

(a) and (b) of this chapter for availability.

(c) De novo branch means a branch of a bank which is established by

the bank as a branch and does not become a branch of such bank as a

result of:

(1) The acquisition by the bank of an insured depository

institution or a branch of an insured depository institution; or

(2) The conversion, merger, or consolidation of any such

institution or branch.

(d) Home state means the state by which the bank is chartered.

(e) Host state means a state, other than the home state of the

bank, in which the bank maintains, or seeks to establish and maintain,

a branch.

Sec. 303.42 Filing procedures.

(a) General. An applicant shall submit an application to the

appropriate FDIC office on the date the notice required by Sec. 303.44

is published, or within 5 days after the date of the last required

publication.

(b) Content of filing. A complete letter application shall include

the following information:

(1) A statement of intent to establish a branch, or to relocate the

main office or a branch;

(2) The exact location of the proposed site including the street

address. With regard to messenger services, specify the geographic area

in which the services will be available. With regard to a mobile branch

specify the community or communities in which the vehicle will operate

and the manner in which it will be used;

(3) Details concerning any involvement in the proposal by an

insider of the bank as defined in Sec. 303.2(u), including any

financial arrangements relating to fees, the acquisition of property,

leasing of property, and construction contracts;

(4) A statement on the impact of the proposal on the human

environment, including, information on compliance with local zoning

laws and regulations and the effect on traffic patterns for purposes of

complying with the applicable provisions of the NEPA and the FDIC

Statement of Policy on NEPA (1 FDIC Law, Regulations, Related Acts

5185; see Sec. 309.4 (a) and (b) of this chapter for availability);

(5) A statement as to whether or not the site is eligible for

inclusion in the National Register of Historic Places for purposes of

complying with applicable provisions of the NHPA and the FDIC Statement

of Policy on NHPA (1 FDIC Law, Regulations, Related Acts 5175; see

Sec. 309.4 (a) and (b) of this chapter for availability) including

documentation of consultation with the State Historic Preservation

Officer, as appropriate;

(6) Comments on any changes in services to be offered, the

community to be served, or any other effect the proposal may have on

the applicant's compliance with the CRA;

(7) A copy of each newspaper publication required by Sec. 303.44

of this subpart, the name and address of the newspaper, and date of the

publication;

(8) When an application is submitted to relocate the main office of

the applicant from one state to another, a statement of the applicant's

intent regarding retention of branches in the state where the main

office exists prior to relocation.

(c) Undercapitalized institutions. Applications to establish a

branch by applicants subject to section 38 of the FDI Act (12 U.S.C.

1831o) also should provide the information required by Sec. 303.204.

Applications pursuant to sections 38 and 18(d) of the FDI Act (12

[[Page 79255]]

U.S.C. 1831o and 1828(d)) may be filed concurrently or as a single

application.

(d) Additional information. The FDIC may request additional

information to complete processing.

Sec. 303.43 Processing.

(a) Expedited processing for eligible depository institutions. An

application filed under this subpart by an eligible depository

institution as defined in Sec. 303.2(r) will be acknowledged in

writing by the FDIC and will receive expedited processing, unless the

applicant is notified in writing to the contrary and provided with the

basis for that decision. The FDIC may remove an application from

expedited processing for any of the reasons set forth in Sec.

303.11(c)(2). Absent such removal, an application processed under

expedited processing will be deemed approved on the latest of the

following:

(1) The 21st day after receipt by the FDIC of a substantially

complete filing;

(2) The 5th day after expiration of the comment period described

inSec. 303.44; or

(3) In the case of an application to establish and operate a de

novo branch in a state that is not the applicant's home state and in

which the applicant does not maintain a branch, the 5th day after the

FDIC receives confirmation from the host state that the applicant has

both complied with the filing requirements of the host state and

submitted a copy of the application with the FDIC to the host state

bank supervisor.

(b) Standard processing. For those applications which are not

processed pursuant to the expedited procedures, the FDIC will provide

the applicant with written notification of the final action when the

decision is rendered.

Sec. 303.44 Public notice requirements.

(a) Newspaper publications. For applications to establish or

relocate a branch, a notice as described in Sec. 303.7(c) shall be

published once in a newspaper of general circulation. For applications

to relocate a main office, notice shall be published at least once each

week on the same day for two consecutive weeks. The required

publication shall be made in the following communities:

(1) To establish a branch. In the community in which the main

office is located and in the communities to be served by the branch

(including messenger services and mobile branches).

(2) To relocate a main office. In the community in which the main

office is currently located and in the community to which it is

proposed the main office will relocate.

(3) To relocate a branch. In the community in which the branch is

located.

(b) Public comments. Comments by interested parties must be

received by the appropriate regional director within 15 days after the

date of the last newspaper publication required by paragraph (a) of

this section, unless the comment period has been extended or reopened

in accordance with Sec. 303.9(b)(2).

(c) Lobby notices. In the case of applications to relocate a main

office or a branch, a copy of the required newspaper publication shall

be posted in the public lobby of the office to be relocated for at

least 15 days beginning on the date of the last published notice

required by paragraph (a) of this section.

Sec. 303.45 Special provisions.

(a) Emergency or disaster events. (1) In the case of an emergency

or disaster at a main office or a branch which requires that an office

be immediately relocated to a temporary location, applicants shall

notify the appropriate FDIC office within 3 days of such temporary

relocation.

(2) Within 10 days of the temporary relocation resulting from an

emergency or disaster, the bank shall submit a written application to

the appropriate FDIC office, that identifies the nature of the

emergency or disaster, specifies the location of the temporary branch,

and provides an estimate of the duration the bank plans to operate the

temporary branch.

(3) As part of the review process, the FDIC will determine on a

case by case basis whether additional information is necessary and may

waive public notice requirements.

(b) Redesignation of main office and existing branch. In cases

where an applicant desires to redesignate its main office as a branch

and redesignate an existing branch as the main office, a single

application shall be submitted. The FDIC may waive the public notice

requirements in instances where an application presents no significant

or novel policy, supervisory, CRA, compliance or legal concerns. A

waiver will be granted only to a redesignation within the applicant's

home state.

(c) Expiration of approval. Approval of an application expires if

within 18 months after the approval date a branch has not commenced

business or a relocation has not been completed.

Sec. Sec. 303.46-303.59 [Reserved]

Subpart D--Merger Transactions

Sec. 303.60 Scope.

This subpart sets forth the application requirements and procedures

for transactions subject to FDIC approval under the Bank Merger Act,

section 18(c) of the FDI Act (12 U.S.C. 1828(c)). Additional guidance

is contained in the FDIC ``Statement of Policy on Bank Merger

Transactions'' (1 FDIC Law, Regulations, Related Acts 5145; see Sec.

309.4(a) and (b) of this chapter for availability).

Sec. 303.61 Definitions.

For purposes of this subpart:

(a) Merger transaction includes any transaction:

(1) In which an insured depository institution merges or

consolidates with any other insured depository institution or, either

directly or indirectly, acquires the assets of, or assumes liability to

pay any deposits made in, any other insured depository institution; or

(2) In which an insured depository institution merges or

consolidates with any noninsured bank or institution or assumes

liability to pay any deposits made in, or similar liabilities of, any

noninsured bank or institution, or in which an insured depository

institution transfers assets to any noninsured bank or institution in

consideration of the assumption of any portion of the deposits made in

the insured depository institution.

(b) Corporate reorganization means a merger transaction between

commonly-owned institutions, between an insured depository institution

and its subsidiary, or between an insured depository institution and

its holding company, provided that the merger transaction would have no

effect on competition or otherwise have significance under the

statutory standards set forth in section 18(c) of the FDI Act (12

U.S.C. 1828(c)). For purposes of this paragraph, institutions are

commonly-owned if more than 50 percent of the voting stock of each of

the institutions is owned by the same company, individual, or group of

closely-related individuals acting in concert.

(c) Interim merger transaction means a merger transaction (other

than a purchase and assumption transaction) between an operating

depository institution and a newly-formed depository institution or

corporation that will not operate independently and that exists solely

for the purpose of facilitating a corporate reorganization.

(d) Optional conversion (Oakar transaction) means a merger

transaction

[[Page 79256]]

in which an insured depository institution assumes deposit liabilities

insured by the deposit insurance fund (either the Bank Insurance Fund

(BIF) or the Savings Association Insurance Fund (SAIF)) of which that

assuming institution is not a member, and elects not to convert the

insurance covering the assumed deposits. Such transactions are covered

by section 5(d)(3) of the FDI Act (12 U.S.C. 1815(d)(3)).

(e) Resulting institution refers to the acquiring, assuming or

resulting institution in a merger transaction.

Sec. 303.62 Transactions requiring prior approval.

(a) Merger transactions. The following merger transactions require

the prior written approval of the FDIC under this subpart:

(1) Any merger transaction, including any corporate reorganization,

interim merger transaction, or optional conversion, in which the

resulting institution is to be an insured state nonmember bank; and

(2) Any merger transaction, including any corporate reorganization

or interim merger transaction, that involves an uninsured bank or

institution.

(b) Related provisions. Transactions covered by this subpart also

may be subject to other provisions or application requirements,

including the following:

(1) Interstate merger transactions. Merger transactions between

insured banks that are chartered in different states are subject to the

provisions of section 44 of the FDI Act (12 U.S.C. 1831u). In the case

of a merger transaction that consists of the acquisition by an out of

state bank of a branch without acquisition of the bank, the branch is

treated for section 44 purposes as a bank whose home state is the state

in which the branch is located.

(2) Deposit insurance. An application for deposit insurance will be

required in connection with a merger transaction between a state-

chartered interim institution and an insured depository institution if

the related merger application is being acted upon by a federal banking

agency other than the FDIC. If the FDIC is the federal banking agency

responsible for acting on the related merger application, a separate

application for deposit insurance is not necessary. Procedures for

applying for deposit insurance are set forth in subpart B of this part.

An application for deposit insurance will not be required in connection

with a merger transaction (other than a purchase and assumption

transaction) of a federally-chartered interim institution and an

insured institution, even if the resulting institution is to operate

under the charter of the federal interim institution.

(3) Deposit insurance fund conversions. Procedures for conversion

transactions involving the transfer of deposits from BIF to SAIF or

from SAIF to BIF are set forth in subpart M of this part at Sec.

303.246.

(4) Branch closings. Branch closings in connection with a merger

transaction are subject to the notice requirements of section 42 of the

FDI Act (12 U.S.C. 1831r-1), including requirements for notice to

customers. These requirements are addressed in the ``Interagency Policy

Statement Concerning Branch Closings Notices and Policies'' (1 FDIC

Law, Regulations, Related Acts (FDIC) 5391; see Sec. 309.4(a) and (b)

of this chapter for availability.)

(5) Undercapitalized institutions. Applications for a merger

transaction by applicants subject to section 38 of the FDI Act (12

U.S.C. 1831o) should also provide the information required by Sec.

303.204. Applications pursuant to sections 38 and 18(c) of the FDI Act

(12 U.S.C, 1831o and 1828(c)) may be filed concurrently or as a single

application.

(6) Certification of assumption of deposit liability. An insured

depository institution assuming deposit liabilities of another insured

institution must provide certification of assumption of deposit

liability to the FDIC in accordance with 12 CFR part 307.

Sec. 303.63 Filing procedures.

(a) General. Applications required under this subpart shall be

filed with the appropriate FDIC office. The appropriate forms and

instructions may be obtained upon request from any FDIC regional

director.

(b) Merger transactions. Applications for approval of merger

transactions shall be accompanied by copies of all agreements or

proposed agreements relating to the merger transaction and any other

information requested by the FDIC.

(c) Interim merger transactions. Applications for approval of

interim merger transactions and any related deposit insurance

applications shall be made by filing the forms and other documents

required by paragraphs (a) and (b) of this section and such other

information as may be required by the FDIC for consideration of the

request for deposit insurance.

(d) Optional conversions. If the proposed merger transaction is an

optional conversion, the merger application shall include a statement

that the proposed merger transaction is a transaction covered by

section 5(d)(3) of the FDI Act (12 U.S.C. 1815(d)(3)).

Sec. 303.64 Processing.

(a) Expedited processing for eligible depository institutions--(1)

General. An application filed under this subpart by an eligible

depository institution as defined in Sec. 303.2(r) and which meets the

additional criteria in paragraph (a)(4) of this section will be

acknowledged by the FDIC in writing and will receive expedited

processing, unless the applicant is notified in writing to the contrary

and provided with the basis for that decision. The FDIC may remove an

application from expedited processing for any of the reasons set forth

in Sec. 303.11(c)(2).

(2) Under expedited processing, the FDIC will take action on an

application by the date that is the latest of:

(i) 45 days after the date of the FDIC's receipt of a substantially

complete merger application; or

(ii) 10 days after the date of the last notice publication required

under Sec. 303.65 of this subpart; or

(iii) 5 days after receipt of the Attorney General's report on the

competitive factors involved in the proposed transaction; or

(iv) For an interstate merger transaction subject to the provisions

of section 44 of the FDI Act (12 U.S.C. 1831u), 5 days after the FDIC

receives confirmation from the host state (as defined in Sec.

303.41(e)) that the applicant has both complied with the filing

requirements of the host state and submitted a copy of the FDIC merger

application to the host state's bank supervisor.

(3) Notwithstanding paragraph (a)(1) of this section, if the FDIC

does not act within the expedited processing period, it does not

constitute an automatic or default approval.

(4) Criteria. The FDIC will process an application using expedited

procedures if:

(i) Immediately following the merger transaction, the resulting

institution will be ``well-capitalized'' pursuant to subpart B of part

325 of this chapter (12 CFR part 325); and

(ii)(A) All parties to the merger transaction are eligible

depository institutions as defined in Sec. 303.2(r); or

(B) The acquiring party is an eligible depository institution as

defined in Sec. 303.2(r) and the amount of the total assets to be

transferred does not exceed an amount equal to 10 percent of the

acquiring institution's total assets as reported in its report of

condition for the quarter immediately preceding the filing of the

merger application.

(b) Standard processing. For those applications not processed

pursuant to the expedited procedures, the FDIC will provide the

applicant with written

[[Page 79257]]

notification of the final action taken by the FDIC on the application

when the decision is rendered.

Sec. 303.65 Public notice requirements.

(a) General. Except as provided in paragraph (b) of this section,

an applicant for approval of a merger transaction must publish notice

of the proposed transaction on at least three occasions at

approximately equal intervals in a newspaper of general circulation in

the community or communities where the main offices of the merging

institutions are located or, if there is no such newspaper in the

community, then in the newspaper of general circulation published

nearest thereto.

(1) First publication. The first publication of the notice should

be as close as practicable to the date on which the application is

filed with the FDIC, but no more than 5 days prior to the filing date.

(2) Last publication. The last publication of the notice shall be

on the 25th day after the first publication or, if the newspaper does

not publish on the 25th day, on the newspaper's publication date that

is closest to the 25th day.

(b) Exceptions--(1) Emergency requiring expeditious action. If the

FDIC determines that an emergency exists requiring expeditious action,

notice shall be published twice. The first notice shall be published as

soon as possible after the FDIC notifies the applicant of such

determination. The second notice shall be published on the 7th day

after the first publication or, if the newspaper does not publish on

the 7th day, on the newspaper's publication date that is closest to the

7th day.

(2) Probable failure. If the FDIC determines that it must act

immediately to prevent the probable failure of one of the institutions

involved in a proposed merger transaction, publication is not required.

(c) Content of notice--(1) General. The notice shall conform to the

public notice requirements set forth in Sec. 303.7.

(2) Branches. If it is contemplated that the resulting institution

will operate offices of the other institution(s) as branches, the

following statement shall be included in the notice required in Sec.

303.7(b):

It is contemplated that all offices of the above-named institutions

will continue to be operated (with the exception of [insert identity

and location of each office that will not be operated]).

(3) Emergency requiring expeditious action. If the FDIC determines

that an emergency exists requiring expeditious action, the notice shall

specify as the closing date of the public comment period the date that

is the 10th day after the date of the first publication.

(d) Public comments. Comments must be received by the appropriate

FDIC office within 30 days after the first publication of the notice,

unless the comment period has been extended or reopened in accordance

with Sec. 303.9(b)(2). If the FDIC has determined that an emergency

exists requiring expeditious action, comments must be received by the

appropriate FDIC office within 10 days after the first publication.

Sec. Sec. 303.66--303.79 [Reserved]

Subpart E--Change in Bank Control

Sec. 303.80 Scope.

This subpart sets forth the procedures for submitting a notice to

acquire control of an insured state nonmember bank pursuant to the

Change in Bank Control Act of 1978, section 7(j) of the FDI Act (12

U.S.C. 1817(j)).

Sec. 303.81 Definitions.

For purposes of this subpart:

(a) Acquisition means a purchase, assignment, transfer, pledge or

other disposition of voting shares, or an increase in percentage

ownership of an insured state nonmember bank resulting from a

redemption of voting shares.

(b) Acting in concert means knowing participation in a joint

activity or parallel action towards a common goal of acquiring control

of an insured state nonmember bank, whether or not pursuant to an

express agreement.

(c) Control means the power, directly or indirectly, to direct the

management or policies of an insured bank or to vote 25 percent or more

of any class of voting shares of an insured bank.

(d) Person means an individual, corporation, partnership, trust,

association, joint venture, pool, syndicate, sole proprietorship,

unincorporated organization, and any other form of entity; and a voting

trust, voting agreement, and any group of persons acting in concert.

Sec. 303.82 Transactions requiring prior notice.

(a) Prior notice requirement. Any person acting directly or

indirectly, or through or in concert with one or more persons, shall

give the FDIC 60 days prior written notice, as specified in Sec.

303.84, before acquiring control of an insured state nonmember bank,

unless the acquisition is exempt under Sec. 303.83.

(b) Acquisitions requiring prior notice--(1) Acquisition of

control. The acquisition of control, unless exempted, requires prior

notice to the FDIC.

(2) Rebuttable presumption of control. The FDIC presumes that an

acquisition of voting shares of an insured state nonmember bank

constitutes the acquisition of the power to direct the management or

policies of an insured bank requiring prior notice to the FDIC, if,

immediately after the transaction, the acquiring person (or persons

acting in concert) will own, control, or hold with power to vote 10

percent or more of any class of voting shares of the institution, and

if:

(i) The institution has registered shares under section 12 of the

Securities Exchange Act of 1934 (15 U.S.C. 78l); or

(ii) No other person will own, control or hold the power to vote a

greater percentage of that class of voting shares immediately after the

transaction. If two or more persons, not acting in concert, each

propose to acquire simultaneously equal percentages of 10 percent or

more of a class of voting shares of an insured state nonmember bank,

each such person shall file prior notice with the FDIC.

(c) Acquisitions of loans in default. The FDIC presumes an

acquisition of a loan in default that is secured by voting shares of an

insured state nonmember bank to be an acquisition of the underlying

shares for purposes of this section.

(d) Other transactions. Transactions other than those set forth in

paragraph (b)(2) of this section resulting in a person's control of

less than 25 percent of a class of voting shares of an insured state

nonmember bank are not deemed by the FDIC to constitute control for

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

(e) Rebuttal of presumptions. Prior notice to the FDIC is not

required for any acquisition of voting shares under the presumption of

control set forth in this section, if the FDIC finds that the

acquisition will not result in control. The FDIC will afford any person

seeking to rebut a presumption in this section an opportunity to

present views in writing or, if appropriate, orally before its

designated representatives at an informal meeting.

Sec. 303.83 Transactions not requiring prior notice.

(a) Exempt transactions. The following transactions do not require

notice to the FDIC under this subpart:

(1) The acquisition of additional voting shares of an insured state

nonmember bank by a person who:

(i) Held the power to vote 25 percent or more of any class of

voting shares of that institution continuously since

[[Page 79258]]

March 9, 1979, or since that institution commenced business, whichever

is later; or

(ii) Is presumed, under Sec. 303.82(b)(2), to have controlled the

institution continuously since March 9, 1979, if the aggregate amount

of voting shares held does not exceed 25 percent or more of any class

of voting shares of the institution or, in other cases, where the FDIC

determines that the person has controlled the bank continuously since

March 9, 1979;

(2) The acquisition of additional shares of a class of voting

shares of an insured state nonmember bank by any person (or persons

acting in concert) who has lawfully acquired and maintained control of

the institution (for purposes of Sec. 303.82) after complying with the

procedures of the Change in Bank Control Act to acquire voting shares

of the institution under this subpart;

(3) Acquisitions of voting shares subject to approval under section

3 of the Bank Holding Company Act (12 U.S.C. 1842(a)), section 18(c) of

the FDI Act (12 U.S.C. 1828(c)), or section 10 of the Home Owners' Loan

Act (12 U.S.C. 1467a);

(4) Transactions exempt under the Bank Holding Company Act:

foreclosures by institutional lenders, fiduciary acquisitions by banks,

and increases of majority holdings by bank holding companies described

in sections 2(a)(5), 3(a)(A), or 3(a)(B) respectively of the Bank

Holding Company Act (12 U.S.C. 1841(a)(5), 1842(a)(A), and 1842(a)(B));

(5) A customary one-time proxy solicitation;

(6) The receipt of voting shares of an insured state nonmember bank

through a pro rata stock dividend; and

(7) The acquisition of voting shares in a foreign bank, which has

an insured branch or branches in the United States. (This exemption

does not extend to the reports and information required under

paragraphs 9, 10, and 12 of the Change in Bank Control Act of 1978 (12

U.S.C. 1817(j) (9), (10), and (12)).

(b) Prior notice exemption. (1) The following acquisitions of

voting shares of an insured state nonmember bank, which otherwise would

require prior notice under this subpart, are not subject to the prior

notice requirements if the acquiring person notifies the appropriate

FDIC office within 90 calendar days after the acquisition and provides

any relevant information requested by the FDIC.

(i) The acquisition of voting shares through inheritance;

(ii) The acquisition of voting shares as a bona fide gift; or

(iii) The acquisition of voting shares in satisfaction of a debt

previously contracted in good faith, except that the acquiror of a

defaulted loan secured by a controlling amount of a state nonmember

bank's voting securities shall file a notice before the loan is

acquired.

(2) The following acquisitions of voting shares of an insured state

nonmember bank, which otherwise would require prior notice under this

subpart, are not subject to the prior notice requirements if the

acquiring person notifies the appropriate FDIC office within 90

calendar days after receiving notice of the acquisition and provides

any relevant information requested by the FDIC.

(i) A percentage increase in ownership of voting shares resulting

from a redemption of voting shares by the issuing bank; or

(ii) The sale of shares by any shareholder that is not within the

control of a person resulting in that person becoming the largest

shareholder.

(3) Nothing in paragraph (b)(1) of this section limits the

authority of the FDIC to disapprove a notice pursuant to Sec.

303.85(c).

Sec. 303.84 Filing procedures.

(a) Filing notice. (1) A notice required under this subpart shall

be filed with the appropriate FDIC office and shall contain all the

information required by paragraph 6 of the Change in Bank Control Act,

section 7 (j) of the FDI Act, (12 U.S.C. 1817(j)(6)), or prescribed in

the designated interagency form which may be obtained from any FDIC

regional director.

(2) The FDIC may waive any of the informational requirements of the

notice if the FDIC determines that it is in the public interest.

(3) A notificant shall notify the appropriate FDIC office

immediately of any material changes in a notice submitted to the FDIC,

including changes in financial or other conditions.

(4) When the acquiring person is an individual, or group of

individuals acting in concert, the requirement to provide personal

financial data may be satisfied by a current statement of assets and

liabilities and an income summary, as required in the designated

interagency form, together with a statement of any material changes

since the date of the statement or summary. The FDIC may require

additional information if appropriate.

(b) Other laws. Nothing in this subpart shall affect any obligation

which the acquiring person(s) may have to comply with the federal

securities laws or other laws.

Sec. 303.85 Processing.

(a) Acceptance of notice. The 60-day notice period specified in

Sec. 303.82 shall commence on the date of receipt of a substantially

complete notice. The FDIC shall notify the person or persons submitting

a notice under this subpart in writing of the date the notice is

accepted for processing. The FDIC may request additional information at

any time.

(b) Time period for FDIC action; consummation of acquisition. (1)

The notificant(s) may consummate the proposed acquisition 60 days after

submission to the appropriate FDIC office of a substantially complete

notice under paragraph (a) of this section, unless within that period

the FDIC disapproves the proposed acquisition or extends the 60-day

period.

(2) The notificant(s) may consummate the proposed transaction

before the expiration of the 60-day period if the FDIC notifies the

notificant(s) in writing of its intention not to disapprove the

acquisition.

(c) Disapproval of acquisition of control. Subpart D of 12 CFR part

308 sets forth the rules of practice and procedure for a notice of

disapproval.

Sec. 303.86 Public notice requirements.

(a) Publication--(1) Newspaper announcement. Any person(s) filing a

notice under this subpart shall publish an announcement soliciting

public comment on the proposed acquisition. The announcement shall be

published in a newspaper of general circulation in the community in

which the home office of the state nonmember bank to be acquired is

located. The announcement shall be published as close as is practicable

to the date the notice is filed with the appropriate FDIC office, but

in no event more than 10 calendar days before or after the filing date.

(2) Contents of newspaper announcement. The newspaper announcement

shall conform to the public notice requirements set forth in Sec.

303.7.

(b) Delay of publication. The FDIC may permit delay in the

publication required by this section if the FDIC determines, for good

cause, that it is in the public interest to grant such a delay.

Requests for delay of publication may be submitted to the appropriate

FDIC office.

(c) Shortening or waiving notice. The FDIC may shorten the public

comment period to a period of not less than 10 days, or waive the

public comment or newspaper publication requirements of

[[Page 79259]]

this paragraph, or act on a notice before the expiration of a public

comment period, if it determines in writing either that an emergency

exists or that disclosure of the notice, solicitation of public

comment, or delay until expiration of the public comment period would

seriously threaten the safety or soundness of the bank to be acquired.

(d) Consideration of public comments. In acting upon a notice filed

under this subpart, the FDIC shall consider all public comments

received in writing within 20 days following the required newspaper

publication or, if the FDIC has shortened the public comment period

pursuant to paragraph (c) of this section, within such shorter period.

(e) Publication if filing is subsequent to acquisition of control.

(1) Whenever a notice of a proposed acquisition of control is not filed

in accordance with the Change in Bank Control Act and these

regulations, the acquiring person(s) shall, within 10 days of being so

directed by the FDIC, publish an announcement of the acquisition of

control in a newspaper of general circulation in the community in which

the home office of the state nonmember bank to be acquired is located.

(2) The newspaper announcement shall contain the name(s) of the

acquiror(s), the name of the depository institution involved, and the

date of the acquisition of the stock. The announcement shall also

contain a statement indicating that the FDIC is currently reviewing the

acquisition of control. The announcement also shall state that any

person wishing to comment on the change in control may do so by

submitting written comments to the appropriate regional director of the

FDIC (give address of appropriate FDIC office) within 20 days following

the required newspaper publication.

Sec. Sec. 303.87-303.99 [Reserved]

Subpart F--Change of Director or Senior Executive Officer

Sec. 303.100 Scope.

This subpart sets forth the circumstances under which an insured

state nonmember bank must notify the FDIC of a change in any member of

its board of directors or any senior executive officer and the

procedures for filing such notice. This subpart implements section 32

of the FDI Act (12 U.S.C. 1831i).

Sec. 303.101 Definitions.

For purposes of this subpart:

(a) Director means a person who serves on the board of directors or

board of trustees of an insured state nonmember bank, except that this

term does not include an advisory director who:

(1) Is not elected by the shareholders;

(2) Is not authorized to vote on any matters before the board of

d