(A) By the Board of Directors if originally denied by the Board of Directors; or

(B) By the Director, or where confirmed in writing by the Director, by an associate director, if originally denied by the Director, associate director, regional director or deputy regional director.

The decisions by the Director or associate director on petitions for reconsideration are final and not appealable to the Board of Directors.

(f) Notice of filing of application— (1) Notice by publication. (i) In the case of applications in connection with a merger transaction (as defined by the Bank Merger Act, 12 U.S.C. 1828(c)(3)), unless the Board of Directors determines it must act immediately in order to prevent the probable failure of one of the depository institutions involved, the applicant must publish notice of the proposed transaction. This notice shall be published in a newspaper of general circulation in the community or communities where the main offices of the banks or institutions involved are located, or if there is no such newspaper in the community, then in the newspaper of general circulation published nearest thereto. Publication shall be made at least once each week on the same day for five consecutive weeks and, when published in a daily newspaper, one additional publication shall be made on the thirtieth day from the date of the first publication. Where the Board of Directors of the Corporation determines that an emergency exists which requires expeditious action, then notice shall be required to be published daily during a period of at least 10 calender days. The published notice shall include the name and main office location of all banks or institutions involved in the transactions and the subject matter of the application. If it is contemplated that

the continuing bank will operate the offices of the other depository institution(s) as branches, the following statement shall be added to the notice:

It is contemplated that all of the offices of the above named institutions will continue to be operated (with the exception of [identity and location of each office which will not be operated]).

(ii) In the case of all other applications described in paragraph (a) of this section, on the date the deposit insurance application form or the letter application required in § 303.2 is mailed or delivered to the regional director or not more than 30 days prior to that date, the applicant shall publish notice or begin publication of notice if more than one notice is required, of the proposed transaction. Provided however, That no publication shall be required in connection with the granting of insurance to a new depository institution established pursuant to the resolution of a failed institution situation. Publication of notice shall be made at least once each week on the same day for two consecutive weeks for relocation applications and once for other applications described in paragraph (a) of this section and shall be in a newspaper of general circulation in the community or communities referred to below:

(A) Applications to establish α branch. Domestic Branch: In the communities in which the home office and the domestic branch to be established are located; Foreign Branch: In the community in which the home office is located.

(B) Applications to relocate an office. In the communities in which the home office, office to be closed, and office to be opened are located, provided that a foreign bank having an insured branch need only publish such notice in the communities in which the insured branch is located and is to be relocated.

(C) Applications for deposit insurance. In the community in which the home bank office is or will be located, provided that a foreign bank making application for an insured branch need only publish such notice in the community in which the insured branch is to be located.

The published notice required by (f)(1) of this section shall include the name of the applicant, the subject matter of the application, and the location or locations at which the applicant proposes to engage in business.

(iii) In all instances, immediately after final publication, the applicant shall advise the appropriate regional

director that the publication requirements have been met.

(2) Notice by posting. In the case of applications to relocate home offices or branch offices, in addition to the notice by publication described in paragraph (f)(1) of this section, notice of the application shall be posted in the public lobby of the office(s) to be relocated, if such public lobby exists, for at least 21 days beginning with the date of the last published notice required by paragraph (f)(1) of this section.

(3) Comments. Anyone who wishes to comment on an application may do so by filing comments in writing with the appropriate regional director at any time before the FDIC has completed processing the application. Processing will be completed, for applications other than home or branch office relocation and remote service facility relocation applications and merger applications, not less than 15 days after the publication of the notice required by paragraph (f)(1) of this section or 15 days after FDIC's receipt of the application, whichever is later; for home or branch office relocation and remote service facility relocation applications, not less than 21 days after the last publication or 21 days after FDIC's receipt of the application, whichever is later; for merger applications, not less than 30 days after the first publication or 30 days after FDIC's receipt of the application, whichever is later. This time period may be extended by the appropriate regional director for good cause. Such regional director shall report the reasons for such action to the Board of Directors.

(4) Notice of right to comment. In order to fully apprise the public of its rights under paragraph (f)(3) of this section, the notice described in paragraph (f)(1) of this section shall include a statement describing the right to comment upon, or protest the granting of, the application. This notice shall consist of the following statement:

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 its regional office (address of the regional

office) before processing of the application has been completed. Processing will be completed no earlier than the (relocations21st, mergers-30th, other applications described in paragraph (a) of this section15th) day following either the date of the (merger applications—first, all other applications described in paragraph (a)-last) required publication or the date of receipt of the application by the FDIC, whichever is later. The period may be extended by the regional director for good cause. The nonconfidential portion of the application file is available for inspection within one day following the request for such file. It may be inspected in the Corporation's regional office during regular business hours. Photocopies of information in the nonconfidential portion of the application file will be made available upon request. A schedule of charges for such copies can be obtained from the regional office.

(5) Solicitation of comments by regional director. Whenever he deems it appropriate, the regional director may solicit comments from any person or institution which, in his opinion, might have an interest in or be affected by the pending application.

(g) Public access to application file— (1) Inspection of application file. Any person may inspect the nonconfidential portions of an application file. For a period extending until 180 days after final disposition of an application, the nonconfidential portions of the file will be available for inspection in the regional office of the FDIC in which an application has been filed. During this period, the nonconfidential portion of the file will be produced for review not more than one working day after receipt by the regional office of the request (either written or oral) to see the file. Photocopies of the nonconfidential portions of the file will be available, upon request, to any person. A charge for making copies will be made in accordance with the fee schedule contained in § 309.5(b) of this chapter. No charge will be imposed for the search for, and review of, the application file. One hundred and eighty (180) days after the final disposition of an application, the nonconfidential portions of an application file will be made available in accordance with the provisions of § 309.5 of this chapter.

(2) Nonconfidential portions of application file. Subject to the provisions of paragraph (g)(3) of this sec

tion, the following information in an application file will be available for public inspection:

(i) The application with supporting data and supplementary information.

(ii) Data, comments, and other information submitted by interested persons in favor of, or in opposition to, such application.

(iii) Those portions of the investigation report prepared by the Corporation's field examiner in connection with the application which cover the convenience and needs of the community to be served by the applicant or applicants and either the future earnings prospects or the future prospects of the applicant or applicants.

(iv) A summary assessment of the applicant or applicants, based on their Community Reinvestment Act examination.

(v) Where a hearing has been held pursuant to paragraph (i) of this section, any evidence submitted pursuant to paragraph (j)(3) of this section and the hearing transcript described in paragraph (j)(5) of this section.

(3) Withholding of confidential information. No material described in paragraph (g)(2) of this section shall be available if it is determined to be confidential under the provisions of 5 U.S.C. 552. 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 would result in substantial competitive harm to the submitter.

(iii) Information the disclosure of which could seriously affect the financial condition of any financial institution.

(h) Proceedings-(1) Requests for hearing or other proceeding. Anyone who has made a formal comment within the period specified in paragraph (f)(3) of this section may request a hearing or an oral presentation at the time of making the formal comment. If a hearing or an oral presentation is requested, the request must be accompanied by a brief statement by the person requesting the hearing or presentation of his or her interest in the application and of the

matters which he or she wishes to discuss. If the Corporation determines that a hearing or other form of oral presentation should be allowed, the person making the request will be advised of the date, time, and location of the hearing or oral presentation.

(2) Form of proceeding. The Corporation may, at its discretion, decide to hold a hearing on the application in accordance with paragraph (i) of this section; it may decide to hold an informal proceeding in accordance with paragraph (h)(3) of this section; or it may decide not to hold a hearing or an informal proceeding in which case, where there has been a request for an opportunity to be heard pursuant to paragraph (h)(1) of this section, it will so advise the applicant and all persons who requested an opportunity to be heard. A decision as to the form of proceeding to be held will be made not more than 30 days after a request for a hearing or oral presentation has been made pursuant to paragraph (h)(1) of this section.

(3) Informal proceedings. If the Corporation decides to hold an informal proceeding, the regional director shall, not less than 10 days prior thereto, notify the applicant and each person who requested a hearing, or oral presentation in accordance with paragraph (h)(1) of this section, of the date, time, and place of the proceeding. The regional director may, if he deems it advisable, notify other persons who have expressed an interest in the application and invite them to attend. The proceeding may assume any form, including a meeting with Corporation representatives, at which the participants will be asked to present their views orally. The regional director shall also have the discretion to hold separate meetings with each of the participants where he deems it desira

ble.

(i) Hearings. Hearings of the kind provided for in this paragraph will not generally be afforded the participants if they have had the opportunity to participate in prior hearings before the appropriate State authority which covered essentially the same issues or if the regional director determines that less formal proceedings would be adequate.

(1) Notice of hearing—(i) Contents. If the Corporation determines that a hearing on the application is warranted, the regional director shall, not less than 10 days prior thereto, give notice of the scheduling of the hearing, and shall set forth in the notice the subject matter of the application, the significant issues to be presented, and the date, time, and place at which the hearing shall be held.

(ii) To whom sent. The above notice shall be sent by registered or certified mail to the applicant and to each person who requested a hearing in accordance with paragraph (h)(1) of this section. The regional director may also notify other persons who have expressed an interest in the application and invite them to participate in the hearing.

(2) Attendance at hearing. Each interested person who wishes to attend the hearing shall notify the regional director accordingly with 5 days after the date upon which he recieves the above notice. Unless he has already done so, he shall submit a brief written summary of the matters which he wishes to cover at the hearing, together with the number and names of witnesses he wishes to present. The applicant and other interested persons attending the hearing may be represented by counsel.

(3) Presiding officer. The presiding officer at the hearing shall be the regional director, his designee, or such other person as may be named by the Board of Directors or the Director. The presiding officer shall have the authority to appoint a panel to assist him.

(j) Hearing rules-(1) Order of presentation. The following schedule is intended to serve as a general guide to the conduct of the hearing. It is not fixed and may be varied at the discretion of the presiding officer. The presiding officer shall determine the order of opening and closing statements and presentations to be followed by all participants other than the applicant who in each instance shall have the opportunity to speak first.

(i) Opening statements. The applicant and each other participant may make opening statements which

should concisely state what the participant intends to show.

(ii) Applicant's presentation. Following the opening statement(s), the applicant shall present its data and materials orally or in writing.

(iii) Requester's presentation. Following the applicant's presentation, each person who requested the hearing shall present his data and materials orally or in writing. Those who requested the hearing may agree, with the approval of the presiding officer, to have one of their number make their presentation.

(iv) Other interested persons. Following the evidence of the applicant and the requesters, the presiding officer will recognize other interested persons who may present their views with respect to the application under consideration.

(v) Summary statement. After all the above presentations have been concluded, the applicant and each other participant may make a short concise rebuttal.

(2) Witnesses. Each participant is responsible for providing his own witnesses, including the payment of all expenses associated with their appearance at the hearing. All witnesses will be present on their own volition, but any person appearing as a witness may be subject to questioning by any participant, by the presiding officer, or by any member of the panel. The refusal of a witness to answer questions may be considered by the Corporation in determining the weight to be accorded the testimony of that witness. Witnesses shall not be sworn.

(3) Evidence. The presiding officer shall have the authority to exclude data or materials which he deems to be improper, irrelevant, or repetitive. Formal rules of evidence shall not be applicable to these hearings. Documentary material submitted as evidence must be of a size consistent with ease of handling, transportation, and filing. Three copies of all such documentary material shall be furnished to the regional director, and any participant who specifically requests the same shall be furnished a copy at his own expense. While large exhibits may be used during the hearing, copies of such exhibits must be provid

ed by the person in reduced size for submission as evidence.

(4) Procedural questions. The presiding officer, or any designated member of the panel, shall determine all procedural questions not governed by this section. The presiding officer shall have the authority to limit the number of witnesses to be used by any person and to impose reasonable time limitations.

(5) Transcript. A transcript of each hearing will be arranged for by the Corporation. The person or persons who requested the hearing will be expected to pay all the expenses of such service, including the furnishing of one copy of the transcript to the regional director. Provided, however, That the Corporation may, for good cause, waive this requirement in individual cases. Where a hearing is held at the Corporation's initiative, the Corporation shall bear the expense of such service. Copies of the transcript will be furnished to any interested person requesting the same at that person's expense.

(6) The hearing record-(i) Contents. The nonconfidential portions of the application, as described in paragraph (c) of this section, shall automatically be a part of the hearing record.

(ii) Closing the hearing record—additional statements. Any person who participates in the hearing may request that the hearing record remain open for 10 days following receipt of the transcript by the regional director during which time the person may submit corrected copies of the transcript, or additional written statements or materials which he agreed to furnish at the hearing, to the regional director. Such person shall simultaneously mail or have delivered copies of the corrected transcript or additional statements or materials to all other persons who participated in the hearing.

(k) Disposition and notice thereof. (1) The final disposition of any application or other matter under this section need not be determined exclusively by, or be limited to, the information contained in the public file established by paragraph (g) of this section.

(2) The applicant, and any other person who so requests in writing,

shall be notified by the Board of Directors of the final disposition of the application or other matter. The Board of Directors shall also provide a statement of the reasons for the final disposition made."

(1) Computation of time. Section 308.22 shall govern the computation of any period of time prescribed or allowed by this section.

(m) Retained authority. In acting upon any particular application, the Board of Directors may by resolution adopt procedures which differ from this section when it deems it necessary and in the public interest to do so. Such resolution shall be made available for public inspection and copying in the Office of the Executive Secretary of the Corporation in accordance with the requirements of 5 U.S.C. 552(a)(2).

[54 FR 53559, Dec. 29, 1989]

§ 303.7 Delegation of authority to the Director of the Division of Supervision and to the associate directors, regional directors and deputy regional directors to act on certain applications, requests, and notices of acquisition of control. The Board of Directors of the FDIC has delegated to officials in the Division of Supervision and other employees of the FDIC the authority on behalf of the Board of Directors to act (subject to the provisions of § 303.10 of this part) on the following applications, requests, and notices of acquisition of control.

(a) Applications for branches (including remote service facilities, courier services, foreign branches of domestic banks), relocations, and for trust and other banking powers—(1) Branch and relocation applications. (i) Authority is delegated to the Director, and where confirmed in writing by the Director, to an associate director, or to the appropriate regional director or deputy regional director, to approve

"Where final authority to dispose of an application or other matter has been delegated to the Director, an associate director, the regional directors and the deputy regional directors pursuant to § 303.7, the delegate will provide the notice and statement described in this paragraph (k)(2).