SUBCHAPTER A-PROCEDURE AND RULES OF PRACTICE asset transactions. 303.7 Delegation of authority to the Direc- tor of the Division of Bank Supervision and to the associate directors and to the regional directors and deputy regional directors to act on certain applications, requests, and notices of acquisitions of 303.8 Other delegations of authority. 303.9 Delegation of authority to act on cer- 303.10 Applications and enforcement mat- tets where authority is not delegated. 303.11 Confirmation limitations, rescis- 303.12 OMB control numbers assigned pur- suant to the Paperwork Reduction Act. AUTHORITY: Sec. 2(5), 2(6), 2(7)(j), 2(8), 2(9 SOURCE: 50 FR 22972, May 30, 1985, unless § 303.0 Scope and definitions. (a) Scope. This part prescribes (1) where applications, requests, and no- tices of acquisition of control (herein- to the associate directors of the Divi- sion of Bank Supervision and to the regional directors and deputy regional directors to act on certain applications and other matters and the conditions, where applicable, that limit such dele- (b) Definitions. For purposes of this (1) The term "division" shall mean the Division of Bank Supervision. (2) The term "Director" shall mean the Director of the Division of Bank Supervision, or in the event the title of Director becomes obsolete, any offi- cial of comparable authority within (3) The term "associate director" (4) The term "regional director" (5) The term "regional counsel" sel or a counsel in the Compliance and Enforcement Section of the Office of the General Counsel in the FDIC'S Washington, DC, office. (6) The term "deputy regional director" shall mean a deputy regional director (Bank Supervision), or in those FDIC regions where there is no deputy regional director, an assistant regional director (Bank Supervision). In the event the title of deputy regional director or assistant regional director becomes obsolete, the term "deputy regional director" shall then mean any official of comparable authority within the same FDIC region of the division. (7) The terms "appropriate FDIC region," "appropriate regional director," "appropriate deputy regional director" and "appropriate regional counsel" shall refer to the FDIC region, the Regional Director (Bank Supervision), the deputy regional director (Bank Supervision), and the regional counsel (Bank Supervision), respectively, of the FDIC region in which (i) The applicant bank, the proposed or newly organized nonmember bank, the insured branch of a foreign bank, the resulting or assuming bank, or the bank in which stock is being acquired, as appropriate, is or will be located, or (ii) A bank, (A) Which is the subject of an administrative action or (B) With which an individual who is the subject of an administrative action is associated, is located. (8) The term "the Act" shall mean the Federal Deposit Insurance Act (12 U.S.C. 1811 et seq.). (9) The term "order of correction" shall mean findings of unsafe or unsound practices or condition and an order of correction issued under section 8(a) of the Act (12 U.S.C. 1818(a)). (10) The term "section 8(a) order" shall mean an order terminating insured status under section 8(a) of the Act (12 U.S.C. 1818(a)). (11) The term "notice of charges" shall mean a notice of charges and of hearing setting forth the allegations of unsafe or unsound practices and/or violations and fixing the time and place of the hearing issued under sec tion 8(b) of the Act (12 U.S.C. 1818(b)). (12) The terms "section 8(b) order" and "cease-and-desist order"shall mean a final order to cease and desist issued under section 8(b) of the Act (12 U.S.C. 1818(b)). (13) The terms "section 8(c) order" and "temporary cease-and-desist order" shall mean a temporary order to cease and desist issued under section 8(c) of the Act (12 U.S.C. 1818(c)). (14) The term "section 8(e) order" shall mean a final order of removal or prohibition issued under section 8(e) of the Act (12 U.S.C. 1818(e)). (15) The term "section 8(e)(4) order" and "temporary section 8(e) order" shall mean a temporary order of suspension or prohibition issued under section 8(e)(4) of the Act (12 U.S.C. 1818(e)(4)). (16) The term "section 8(g) order" shall mean an order of suspension and prohibition issued under section 8(g) of the Act (12 U.S.C. 1818(g)). (17) The term "remote service facility" shall mean an automated teller machine, cash dispensing machine, point-of-sale terminal, or other remote electronic facility where deposits are received, checks paid, or money lent. or (18) The term "notice of assessment of civil money penalties" shall mean a notice of assessment of civil penalties issued pursuant to section 7(j)(15), 8(i) 18(j) of the Act (12 U.S.C 1817(j)(15), 1818(i), or 1828(j)), section 106(b) of the Bank Holding Company Act (12 U.S.C. 1972), or section 910(d) of the International Lending Supervision Act of 1983 (12 U.S.C. 3909). (19) The term "final order to pay" shall mean an order to forfeit and pay civil money penalties which has become final and which has been issued pursuant to sections 7(j)(15), 8(i), or 18(j) of the Act (12 U.S.C. 1817(j)(15), 1818(i), or 1828(j)), section 106(b) of the Bank Holding Company Act (12 U.S.C. 1972), or section 910(d) of the International Lending Supervision Act of 1983 (12 U.S.C. 3909). (20) The term "book capital" shall mean total equity capital (comprised of perpetual preferred stock, common stock, surplus, undivided profits and capital reserves) plus allowance for loan and lease losses, 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. (21) The term "adjusted primary capital" shall mean adjusted primary capital as calculated and reflected in the FDIC's Reports of Examination. (22) The term "total assets" shall mean total assets plus allowance for loan and lease losses as those terms are defined in the instructions of the FFIEC for the preparation of Consolidated Reports of Condition and Income for insured banks. (23) The term "adjusted Part 325 total assets" shall mean adjusted Part 325 total assets as calculated and reflected in the FDIC's Reports of Examination. (24) Any use of the masculine, feminine, or neuter gender shall be read as encompassing all three, if such use would be appropriate. [52 FR 35402, Sept. 21, 1987] § 303.1 Application by nonmember bank 1 for deposit insurance. Application for deposit insurance by an existing or proposed nonmember bank should be filed with the appropriate regional director. The appropriate application forms and instructions may be obtained from the appropriate regional director. § 303.2 Application by insured State nonmember bank to establish a branch 2 or move its main office or branch. (a) Application by an insured state nonmember bank (except a District bank) to establish and operate a new branch (including a remote service facility) or to move its main office or branch should be filed with the appropriate regional director. The application shall be mailed or delivered to the regional director on the date on which 1A nonmember bank is a bank which is not a member of the Federal Reserve System. 2 The term "branch" includes any "domestic branch" or "foreign branch" as the terms are defined in section 3(0) of the Federal Deposit Insurance Act, as amended (12 U.S.C. 1813(o)). the notice required in § 303.6(f)(1) is published or not more than 30 days subsequent to the first required publication of notice. The application shall be in letter form and shall contain the following information: (1) The exact location of the proposed site, including street address (unless one has not been assigned to the location); (2) Details concerning any involvement in the proposal by an insider (a director, an officer, or a shareholder who directly or indirectly controls 5 or more percent of any class of the applicant's outstanding voting stock, or the associates and interests of any such person) of the bank, including any financial arrangements relating to fees, the acquisition of property, leasing of property, and construction contracts; (3) The impact of the proposal on the human environment, specifically, information on compliance with local zoning laws and regulations and the effect on traffic patterns; (4) A statement as to whether or not the site is included in or is eligible for inclusion in the National Register of Historic Places, including evidence that clearance has been obtained from the State Historic Preservation Officer; (5) 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 Community Reinvestment Act; and (6) The name and address of and the date of publication in the newspaper in which the notice required by § 303.6(f)(1) is published. In cases in which additional information is necessary for evaluation of the application, the applicant may be required to furnish specific information on an individual basis. (b) The regional director may delay processing, including extending the comment period, for good cause and must report any delays in processing on at least a quarterly basis to the Board of Directors, stating the reasons the delay was necessary. (c) Special procedures for remote service facilities. (1) For the purposes of this section "establishing" means owning or leasing a remote service fa cility either individually or jointly. An establishing bank or a foreign bank with an insured state branch shall file a letter with the appropriate regional director giving full particulars of the proposal, including the matters listed in paragraph (a) of this section, to establish an initial remote service facility and comply with the provisions of § 303.6(f). Once this application has been approved, an establishing bank or a foreign bank with an insured state branch may establish additional remote service facilities or relocate existing facilities without formal application by notifying the appropriate regional director in writing of the intended action and complying with the notice provisions of § 303.6(f). The notice shall include the matters listed in paragraph (a) of this section. Such informal application shall be deemed to be an application for the purposes of 303.6, 303.7, and 303.11. In the case of additional remote service facilities, unless notified otherwise within 15 days of the last publication of notice as required by § 303.6(f) or within 15 days after the regional office's receipt of the notice, whichever is later, or in the case of relocations, unless otherwise notified within 21 days of the last publication of notice as required by § 303.6(f) or within 21 days after the regional office's receipt of the notice, whichever is later, the additional remote service facility or relocation will be considered approved. If it is determined that the proposal warrants further consideration, the regional director will notify the applicant within the 15- or 21-day period that the remote service facility should not be established or relocated until further action is taken by the FDIC. (2) An establishing bank or foreign bank with an insured State branch having one or more remote service facilities established under preexisting regulations may establish additional remote service facilities or relocate existing remote service facilities without formal application by following the procedures set forth in paragraph (1) of this paragraph (c). [50 FR 22972, May 30, 1985, as amended at 52 FR 35403, Sept. 21, 1987] § 303.3 Application for conversion, merger, consolidation, assumption and sale of asset transactions. (a) Merger, consolidation, asset acquisition or assumption transaction between insured banks. Application by an insured bank for the consent of the Corporation to merge or consolidate with, acquire the assets of, or assume the liability to pay any deposits made in, another insured bank-when the resulting or assuming bank is to be an insured state nonmember bank (except a District bank)-together with copies of all agreements or proposed agreements relating thereto, including the charter or articles of incorporation of the resulting or assuming bank, should be filed with the appropriate regional director. (b) With noninsured bank or institution. Application by an insured bank for the consent of the Corporation to merge or consolidate with a noninsured bank or institution, or to convert inot a noninsured institution, or to assume liability to pay any deposits made in, or similar liabilities of, any noninsured bank or institution, or to transfer assets to any noninsured bank or institution in consideration of the assumption of liability for any portion of the deposits made in such insured bank, together with copies of all agreements or proposed agreements relating thereto, should be filed with the appropriate regional director. (c) Conversion with diminution of capital or surplus. Application for the consent of the Corporation to convert into an insured state nonmember bank (except a District bank)-when the conversion will result in the converted bank's having less capital stock or surplus than the converted bank at the time of the shareholders' meeting approving such conversion-together with copies of the charter and/or articles of association of the converted bank, should be filed with the appropriate regional director. (d) The appropriate application forms and instructions, as well as instructions concerning notice to depositors, may be obtained upon request from the office of said regional director. 8303.4 Change in bank control. 4 Under (a) Acquisitions of control. the Change in Bank Control Act of 1978, acquisitions by a person or persons acting in concert of the power to vote 25 percent or more of a class of voting securities of an insured nonmember bank, unless exempted, require prior notice to the Corporation. In addition, a purchase, assignment, transfer, pledge, or other disposition of voting stock through which any person will acquire ownership, control, or the power to vote ten percent or more of a class of voting securities of an insured state nonmember bank will be presumed to be an acquisition by such person of the power to direct that institution's management or policies if: (1) The institution has issued any class of securities subject to the registration requirements of section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 781); or (2) Immediately after the transaction no other person will own a greater proportion of that class of voting securities. Other transactions resulting in a person's control of less than 25 percent of a class of voting shares of an insured state nonmember bank would not result in control for purposes of the Act. An acquiring person may request an opportunity to contest any presumption established by this paragraph (a) of this subsection with respect to a proposed transaction. The Corporation will afford the person an opportunity to present views in writing, or, where appropriate, orally before its designated representatives either at informal conference discus 'Control is defined in section 7(j)(8)(B) of the Federal Deposit Insurance Act as "the power, directly or indirectly, to direct the management or policies of an insured bank or to vote 25 per centum or more of any class of voting securities of an insured bank." 12 U.S.C. 1817(j)(8)(B). 'Person is defined in section 7(j)(8)(A) of the Federal Deposit Insurance Act as "an individual or a corporation, partnership, trust, association, joint venture, pool, syndicate, sole proprietorship, unincorporated organization, or any other form of entity not specifically listed herein." 12 U.S.C. 1817(j)(8)(A). sions or at informal presentations of evidence. (b) Notices. (1) Notice of a proposed acquisition of control should be filed with the regional director of the FDIC region in which the bank in which stock is being acquired is located. The FDIC will not accept a notice unless the information provided is responsive to every item specified in paragraph 6 of the Change in Bank Control Act of 1978 (12 U.S.C. 1817(j)(6)) and every item prescribed in the appropriate FDIC forms. With respect to personal financial statements required by paragraph 6(b) of the Change in Bank Control Act of 1978, an acquiring person may include a current statement of assets and liabilities, as of a date not more than ninety days prior to the date the notice is filed, a brief income summary, and a statement of material changes since the date of the statement. The regional director, the Director of the Division of Bank Supervision, or the Board of Directors may require additional information with respect to personal financial statements. (2)(i) Except as otherwise provided in paragraph (b)(2) (ii) or (iii) of this section within ten days after receiving confirmation that the appropriate FDIC regional office has accepted the notice, the acquiring person(s) shall publish an announcement of such acceptance in the business section of a newspaper having general circulation in the community in which the home office of the bank whose stock is sought to be acquired is located. Promptly thereafter, the acquiring person(s) shall send a copy of the newspaper announcement and the publisher's affidavit of publication to the regional director of the FDIC region in which the subject bank is located. The newspaper announcement shall contain the name(s) of the proposed acquirer(s), the name of the bank whose stock is sought to be acquired, and the date of acceptance by the FDIC of the notice of acquisition of control. The announcement shall also state that any person wishing to comment on the proposed change in control may do so by submitting written comments to the regional director of the FDIC at (give address of the re |