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Rule

Filing Procedures, Corporate Powers, International Banking, Management Official Interlocks, Golden Parachute and Indemnification Payments

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Information about this document as published in the Federal Register.

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AGENCY:

Federal Deposit Insurance Corporation (FDIC).

ACTION:

Final rule.

SUMMARY:

The FDIC has adopted a final rule amending its procedures relating to filings, mutual to stock conversions, international banking, management official interlocks and golden parachute payments. The changes are mostly technical in nature or clarify previous FDIC positions; however, the final rule includes a waiver provision to its regulations. The waiver provision grants discretionary power to the FDIC Board of Directors to waive regulatory provisions that are not based on statutory requirements.

DATES:

September 22, 2003.

Start Further Info

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, Robert C. Fick, Counsel, (202) 898-8962, Susan van den Toorn, Counsel, (202) 898-8707.

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SUPPLEMENTARY INFORMATION:

I. Background

Part 303 of the FDIC's regulations (part 303) generally describes the procedures to be followed by both the FDIC and applicants with respect to applications and notices required to be filed by statute or regulation. On December 27, 2002, the FDIC issued in final form a revised part 303 to reflect a recent internal reorganization at the FDIC and to remove the delegations of authority from the regulation. See: 67 FR 79246. On the same date, the FDIC issued the Notice of proposed rulemaking (“the notice of proposed rulemaking”) for revisions to parts 303, 347, 348, and 359 and technical corrections to other regulations in chapter III. See: 67 FR 79271.

II. Final Rule Part 303

The FDIC is amending § 303.2 to clarify how the statutory definitions in the FDI Act apply to part 303. Several provisions in part 303 utilize terms, such as “bank,” “company,” and “depository institution holding company,” that are defined in the FDI Act. The FDIC is clarifying that unless such terms are expressly defined differently in part 303, those terms will have the meanings given them in the FDI Act. Therefore, § 303.2 specifies that wherever a term that is defined in the FDI Act is used in part 303, it will have the meaning given the term in the FDI Act except to the extent part 303 expressly defines that term differently.

The FDIC is amending § 303.4—Computation of time, to clarify when the general rule regarding the commencement of the various time periods in part 303 applies. Several subparts of part 303 include a provision that specifies when a particular time period commences. See, for example, subpart E—Change in Bank Control. It is the FDIC's intention that in those instances where a specific provision exists, the specific provision prevails over the general rule set forth in § 303.4. The FDIC is modifying the first sentence of § 303.4 to clarify that the general rule only applies to the extent there is no specific provision regarding when a particular time period commences.

The FDIC is revising § 303.11(g) to provide a time within which the FDIC has to respond to an institution or institution-affiliated party that files a response to a notice of intent or temporary order issued pursuant to this section. The FDIC believes that 30 days is a reasonable time in which to review any response submitted by an institution or institution-affiliated party. Additionally, the FDIC is placing the last sentence of current § 303.11(g)(3)(ii) into a separate paragraph to clarify that it applies to § 303.11(g)(3) in its entirety, and not only to § 303.11(g)(3)(ii).

The FDIC is adding a provision setting forth its authority to waive any non-statutorily required provision for good cause. New § 303.12 provides that the Board may, for good cause and to the extent permitted by statute, waive the applicability of any provision of chapter III. The provisions could be waived, in whole or in part, at any time by the Board when good cause is shown, subject to the provisions of the Administrative Procedure Act and the provisions of chapter III. Any provision of the rules may be waived by the Board on its own motion or on petition if good cause is shown.

The FDIC is revising § 303.22(a)(1) in order to clarify the rating required for a bank or thrift holding company to be eligible for expedited processing for a proposed institution seeking deposit insurance. The existing § 303.22(a)(1) rating for a thrift holding company of a “2” is inappropriate since the Office of Thrift Supervision has ratings of “A”, “S”, and “U”. Revised § 303.22(a)(1) would provide that an eligible holding company would be defined as a bank or thrift holding company that has consolidated assets of at least $150 million or more; a BOPEC rating of at least “2” for bank holding companies or an above average or “A” rating for thrift holding companies; and at least 75 percent of its consolidated depository institution assets comprised of eligible depository institutions.

The FDIC is amending several sections in subpart E to clarify that the acquisition of control of a parent company of a state nonmember bank generally requires a change in control notice. Section 7(j)(18) of the FDI Act (12 U.S.C. 1817(g)(18)) indicates that the Change in Bank Control Act applies to acquisitions of control of companies that control insured depository institutions. It has long been the FDIC's interpretation that a change in control notice is required whenever any person acquires control of a company that controls, directly or indirectly, a state nonmember bank. Such control could be indirect in that the company exerts control of the bank through one or more intermediate companies of a multi-tiered organization. The amendments merely clarify the regulations in this regard. Specifically, the FDIC is adding a definition of “parent company” to the definitions listed in § 303.81; adding a reference to parent company in the Start Printed Page 50458provisions requiring a change in control notice for a state nonmember bank in § 303.82; adding to § 303.83(a) exemptions for acquisitions of the voting shares of bank holding companies, and for acquisitions of the voting shares of savings and loan holding companies, and adding technical conforming changes to various sections in 12 CFR 303.80 through 303.83.

It has also been the FDIC's practice not to require a change in control notice in those cases where either the Board of Governors of the Federal Reserve System or the Office of Thrift Supervision reviews a change in control notice for the proposed transaction. For example, where a person proposes to acquire control of a bank holding company that controls a state nonmember bank, and the Board of Governors of the Federal Reserve System reviews a change in control notice for the same transaction, the FDIC considers it an unnecessary duplication for the acquirer to also file a change in control notice with the FDIC. The changes codify the FDIC's practice in that regard.

The FDIC is also clarifying when an acquisition subject to the Change in Bank Control Act may be consummated. Section 7(j) of the FDI Act, 12 U.S.C. 1817(j), generally provides that any person acquiring control of an insured depository institution must give the appropriate federal banking agency sixty days prior written notice of such proposed transaction. Previous § 303.85 could be interpreted to permit consummation of the proposed transaction prior to the expiration of that 60-day period. In order to eliminate the potential for misunderstandings regarding the time period available to the FDIC for considering a proposed change in bank control transaction, the FDIC is amending 12 CFR 303.85 (a) and (b) to make clear that the 60-day notice period commences on the day after the date that the appropriate regional director accepts the notice as substantially complete.

In § 303.86 the FDIC is providing a more descriptive heading for paragraph (c) by including the phrase, “waiving publication, acting before close of public comment period” and amending paragraph (c) by substituting “paragraphs (a) and (d)” for “this paragraph.”

The FDIC adopted a technical correction to § 303.244 creating a cross-reference to § 359.4(a)(4) of this chapter regarding golden parachutes and severance plan payments to make clear the responsibilities of an applicant seeking approval of filings. Specifically, insured depository institutions, depository institution holding companies or institution-affiliated parties making requests for such payments often overlook the requirement that a party submitting such an application demonstrate that it does not possess and is not aware of any information, evidence, documents or other materials which would indicate that there is a reasonable basis to believe, at the time such payment is made, that the institution-affiliated party who is to benefit from a golden parachute or severance plan engaged in any breach of fiduciary duty or other misconduct that would have a material adverse effect on the bank; is substantially responsible for the bank's insolvency; violated any law which would have a material effect on the bank; or violated certain federal criminal and currency-reporting laws. In addition, with regard to part 359 of this chapter, the FDIC is revising the reference in § 359.1(f)(1)(ii)(C) to part 303 to read, “303.101(c).”

III. Other Regulatory Changes

Technical corrections are made to part 333.4—Conversions from mutual to stock, form to correct references to part 303 of this chapter. The old citations in § 333.4(a) and (c) is replaced with: “subpart I of part 303 of this chapter.”

A technical correction is made to part 347—International Banking § 347.108(f) to reference the correct citation with regard to procedures for applications and notices for obtaining FDIC approval to invest in foreign organizations. Procedures are set out in subpart J of part 303 of this chapter, not subpart D of part 347 as provided for in the prior regulation.

A technical correction is also being made to part 348—Management Official Interlocks, § 348.2 regarding the definition of Management official to correct the cross-reference to part 303 of this chapter. The correct citation should be to 12 CFR 303.101(b).

IV. Request for Public Comment as Part EGRPRA and Regulatory Flexibility Act Regulatory Review.

Consistent with our obligation pursuant to Section 2222 of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (EGRPRA, 12 U.S.C. 3311), the FDIC requested public comment to identify any areas of part 303, not merely those sections for which changes were being proposed, that are outdated, unnecessary, or unduly burdensome. The FDIC also requested public comment on whether part 303 should be continued without change, amended or rescinded to minimize any significant economic impact it may have on a substantial number of small insured institutions (i.e., those with assets of $150 million or less) consistent with our obligation pursuant to Section 610 of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The FDIC received no comments in response to this EGRPRA request. While no comments were received specifically with regard to the EGRPRA request, the FDIC notes that the federal financial regulatory agencies are soliciting comments on their plan to identify and eliminate outdated, unnecessary or unduly burdensome regulations imposed on insured depository institutions. See: 68 FR 35589 (June 16, 2003). The request for comment includes application regulations such as 12 CFR part 303. Written comments must be received no later than September 15, 2003.

V. Overview of Comments Received

As noted above, FDIC published a notice of proposed rulemaking in the Federal Register on December 27, 2002, and requested comments on the proposed amendments. The FDIC received 3 comment letters from organizations. All of the comment letters were opposed to the waiver provision in the proposed regulation. The organizations filing comments were two national trade organizations and one state-based nonprofit organization. The commenters stated they believed that if the FDIC waived regulations not required by statute, it is likely that the agency will waive public comment, public notice requirements, and other vital parts of the merger application process. Consequently, they argue, the public's input into mergers that affect access to credit and capital for minority and low- and moderate-income communities will be cut-off. Comments further stated that in order for a regulatory process to be fair to all parties, the agency cannot waive a process for some banks and not others. They argue that waivers on a case-by-case basis are arbitrary and result in uneven regulatory enforcement. In the notice of proposed rulemaking, the waiver provision would be limited to non-statutorily required provisions and for good cause. As such, the provision would not permit the FDIC to waive the public comment, public notice requirements of the merger application process since those procedures are required by statute. See: 12 U.S.C. 1828(c)(3). It is the FDIC's intention to utilize the waiver provision only in extraordinary circumstances. For example, the FDIC had seen the need for such a waiver provision from time to Start Printed Page 50459time when an institution has failed to meet the record keeping requirements of the deposit insurance regulations and without a waiver of such requirements, accountholders in a failed bank situation would suffer substantial penalties because of the bank's failure to keep adequate records. Consequently, the FDIC is adopting the waiver provision as proposed.

VI. Regulatory Flexibility Act Analysis

Pursuant to 5 U.S.C. 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., the FDIC hereby certifies that the amendments set forth in this final rule will not have a significant economic impact on a substantial number of small entities. The final rule makes primarily technical changes to the existing rule.

VII. 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.

VIII. Plain Language Requirement

Section 722 of the Gramm-Leach-Bliley Act of 1999 (GLBA) requires the federal banking agencies to use “plain language” in all proposed and final rules published after January 1, 2000. The proposed rule requested comments on how the rule might be changed to reflect the requirements of GLBA. No comments were received.

IX. Assessment of Impact of Federal Regulation on Families

The FDIC has determined that the final rule will not affect family well-being within the meaning the section 654 of the Treasury and General Government Appropriations Act, 1999, enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (Pub. L. 105-277, 112 Stat. 2681).

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List of Subjects

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For the reasons set out in the preamble, the FDIC hereby amends

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PART 303—FILING PROCEDURES

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1. The authority citation for part 303 continues to read as follows:

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Authority: 12 U.S.C. 378, 1813, 1815, 1816, 1817, 1818, 1819, (Seventh and Tenth), 1820, 1823, 1828, 1828a, 1831a, 1831e, 1831o, 1831p-1, 1831w, 1835a, 3104, 3105, 3108, 3207, 15 U.S.C. 1601-1607, 6716.

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[Amended]
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2. In § 303.2 remove the phrase, “For purposes of this part,” and add in its place the phrase, “Except as modified or otherwise defined in this part, terms used in this part that are defined in the Federal Deposit Insurance Act (

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[Amended]
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3. In § 303.4 after the phrase, “For purposes of this part,” add the words, “and except as otherwise specifically provided,”.

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4. In § 303.11, paragraph (9)(3)(ii) is revised to read as follows:

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Decisions.
* * * * *

(g) * * *

(3) * * *

(ii)(A) Any other relevant information, mitigation circumstance, documentation, or other evidence in support of the applicant's position. An applicant may also request a hearing under § 303.10.

(B) 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 paragraph (g). The FDIC shall consider any such response, if filed in a timely manner, within 30 days of receiving the response.

* * * * *
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5. Section 303.12 is added to read as follows:

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Waivers.

(a) The Board of Directors, of the FDIC (Board) may, for good cause and to the extent permitted by statute, waiver the applicability of any provision of this chapter.

(b) The provisions of this chapter may be suspended, revoked, amended or waived for good cause shown, in whole or in part, at any time by the Board, subject to the provisions of the Administrative Procedure Act and the provisions of this chapter. Any provision of the rules may be waived by the Board on its own motion or on petition if good cause thereof is shown.

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6. In § 303.22, paragraph (a)(1) is amended by revising the second sentence to read as follows:

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Processing.

(a) * * *

(1) * * * An eligible holding company is defined as a bank or thrift holding company that has consolidated assets of at least $150 million or more; a BOPEC rating of at least “2” for bank holding companies or an above average or “A” rating for thrift holding companies; and at least 75 percent of its consolidated depository institution assets comprised of eligible depository institutions.

* * * * *
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7. Section 303.80 is revised to read as follows:

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Scope.

This subpart sets forth the procedures for submitting a notice to acquire control of an insured state nonmember bank or a parent company 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)).

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8. Section 303.81 is revised to read as follows:

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Definitions.

For purposes of this subpart:

(a) Acquisition includes a purchase, assignment, transfer, pledge or other disposition of voting shares, or an increase in percentage ownership resulting from a redemption of voting shares of an insured state nonmember bank or a parent company.

(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 or a parent company, whether or not pursuant to an express agreement. Start Printed Page 50460

(c) Control means the power, directly or indirectly, to direct the management or policies of an insured bank or a parent company or to vote 25 percent or more of any class of voting shares of an insured bank or a parent company.

(d) Parent Company means any company that controls, directly or indirectly, an insured state nonmember bank.

(e) 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.

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9. Section 303.82 is amended by revising paragraphs (a), (b), (c) and (d) to read as follows:

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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 § 303.84, before acquiring control of an insured state nonmember bank or any parent company, unless the acquisition is exempt under § 303.83.

(b) Acquisition 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 or a parent company constitutes the acquisition of the power to direct the management or policies of an insured bank or a parent company 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 or a parent company, each such person shall file prior notice with the FDIC.

(c) Acquisition 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 or a parent company to be an acquisition of the underlying shares for purposes of this section.

(d) Other transactions. Acquisitions 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 or a parent company are not deemed by the FDIC to constitute control for purposes of the Change in Bank Control Act.

* * * * *
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10. Section 303.83 is amended by revising paragraphs (a)(1) through (a)(2), (a)(6) and (a)(7), (b)(1) and (b)(2), and by adding a new paragraph (a)(8), to read as follows:

End Amendment Part
Transactions not requiring prior notice.

(a) * * *

(1) The acquisiiton of additional voting shares of an insured state nonmember bank or a parent company by a person who:

(i) Held the power to vote 25 percent or more of any class of voting shares of the institution continuously since the later of March 9, 1979, or the date that the institution commenced business as an insured state nonmember bank or a parent company; or

(ii) Is presumed, under § 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 institution continuously since March 9, 1979;

(2) The acquisition of additional shares of a class of voting shares of an insured state nonmember bank or a parent company by any person (or persons acting in concert) who has lawfully acquired and maintained control of the institution (for purposes of § 303.82) after complying with the procedures of the Change in Bank Control Act to acquire voting shares of the institution under this subpart;

* * * * *

(6) The receipt of voting shares of an insured state nonmember bank or a parent company through a pro rata stock dividend;

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

(8) The acquisition of voting shares of a depository institution holding company that either the Board of Governors of the Federal Reserve System or the Office of Thrift Supervision reviews pursuant to the Change in Bank Control Act (12 U.S.C. 1817(j)).

(b) Prior notice exemption. (1) The following acquisitions of voting shares of an insured state nonmember bank or a parent company, 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 acquirer of a defaulted loan secured by a controlling amount of a state nonmember bank's voting securities or a parent company'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 or a parent company, 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 a parent company; 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.

* * * * *
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11. Section 303.85 is amended by revising paragraphs (a) and (b) to read as follows:

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Processing.

(a) Acceptance of notice, additional information. The FDIC shall notify the person or persons submitting a notice under this subpart in writing of the date the notice is accepted as substantially complete. The FDIC may request additional information at any time.

(b) Commencement of the 60-day notice period: consummation of acquisition. (1) The 60-day notice period specified in § 303.82 shall Start Printed Page 50461commerce on the day after the date of acceptance of a substantially complete notice by the appropriate regional director. The notificant(s) may consummate the proposed acquisition after the expiration of the 60-day notice period, unless the FDIC disapproves the proposed acquisition or extends the notice period.

* * * * *
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12. Section 303.86 is amended by revising paragraph (c) to read as follows:

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Public Notice requirements.
* * * * *

(c) Shortening or waiving public comment period, waiving publications; acting before close of public comment period. 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 paragraph (a) of this section, 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 and soundness of the bank to be acquired.

* * * * *
Start Amendment Part

13. In section 303.244, paragraphs (c)(4) and (c)(5) are revised and new paragraph (c)(6) is added to read as follows:

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Golden parachute and severance plan payments.
* * * * *

(c) * * *

(4) The cost of the proposed payment and its impact on the institution's capital and earnings;

(5) The reasons why the consent to the payment should be granted; and

(6) Certification and documentation as to each of the points cited in § 359.4(a)(4).

* * * * *
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PART 333—EXTENSION OF CORPORATE POWERS

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14. The authority citation for part 333 continues to read as follows:

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Authority: 12 U.S.C. 1816, 1818, 1819 (“Seventh”, “Eighth” and “Tenth”), 1828, 1828(m), 1831p-1(c).

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[Amended]
Start Amendment Part

15. In § 333.4, paragraphs (a) and (c) are amended by removing the words “§ 303.15 of this chapter” and adding in their place the words “subpart I of part 303 of this chapter.”

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PART 347—INTERNATIONAL BANKING

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16. The authority citation for part 347 continues to read as follows:

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Authority: 12 U.S.C. 1813, 1815, 1817, 1819, 1820, 1828, 3103, 3104, 3105, 3108: Title IX, Pub. L. 98-181, 97 Stat. 1153.

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17. Section 347.108 is amended by revising paragraph (f) to read as follows:

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Obtaining FDIC approval to invest in foreign organizations.
* * * * *

(f) Procedures. Procedures for applications and notices under this section are set out in subpart J of part 303 of this chapter.

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PART 348—MANAGEMENT OFFICIAL INTERLOCKS

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18. The authority citation for part 348 continues to read as follows:

End Amendment Part Start Authority

Authority: 12 U.S.C. 1823(k), 3207.

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19. In § 348.2, paragraph (j)(1)(iii) is revised to read as follows:

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Definitions.
* * * * *

(j) * * *

(iii) A senior executive officer as that term is defined in 12 CFR 303.101(b).

* * * * *
Start Part

PART 359—GOLDEN PARACHUTE AND INDEMNIFICATION PAYMENTS

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20. The authority citation for part 359 continues to read as follows:

End Amendment Part Start Authority

Authority: 12 U.S.C. 1828(k).

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[Amended]
Start Amendment Part

21. In § 359.1(f)(1)(ii)(C) remove the reference to “§ 303.14(a)(4)” and add in its place, “§ 303.101(c)”.

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Dated at Washington, DC, this 4th day of August, 2003.

By order of the Board of Directors.

Federal Deposit Insurance Corporation.

Valerie J. Best,

Assistant Executive Secretary.

End Signature End Supplemental Information

[FR Doc. 03-20451 Filed 8-20-03; 8:45 am]

BILLING CODE 6714-01-P