96-30058. Rules, Policies, and Procedures for Corporate Activities  

  • [Federal Register Volume 61, Number 230 (Wednesday, November 27, 1996)]
    [Rules and Regulations]
    [Pages 60342-60387]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 96-30058]
    
    
    
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    _______________________________________________________________________
    
    Part III
    
    
    
    
    
    Department of the Treasury
    
    
    
    
    
    _______________________________________________________________________
    
    
    
    Office of the Comptroller of the Currency
    
    
    
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    12 CFR Part 3 et al.
    
    
    
    Rules, Policies, and Procedures for Corporate Activities; Final Rule
    
    Federal Register / Vol. 61, No. 230 / Wednesday, November 27, 1996 / 
    Rules and Regultions
    
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    DEPARTMENT OF THE TREASURY
    
    Office of the Comptroller of the Currency
    
    12 CFR Parts 3, 5, 7, 16 and 28
    
    [Docket No. 96-24]
    RIN 1557-AB27
    
    
    Rules, Policies, and Procedures for Corporate Activities
    
    AGENCY: Office of the Comptroller of the Currency, Treasury.
    
    ACTION: Final rule.
    
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    SUMMARY: The Office of the Comptroller of the Currency (OCC) is 
    revising its rules governing corporate applications and notices. This 
    final rule is another component of the OCC's Regulation Review Program 
    to update and streamline OCC regulations, focus regulations on key 
    safety and soundness concerns and agency objectives, and reduce 
    unnecessary regulatory costs and other burdens.
        The final rule revises and reorganizes the OCC's regulation for 
    national bank corporate activities and transactions. It also modernizes 
    and clarifies the rules, reduces unnecessary regulatory burden and, 
    consistent with statutory requirements, imposes regulatory requirements 
    only where needed to address safety and soundness concerns or to 
    accomplish other statutory responsibilities of the OCC.
    
    EFFECTIVE DATE: December 31, 1996.
    
    FOR FURTHER INFORMATION CONTACT: Stuart E. Feldstein, Assistant 
    Director, Legislative and Regulatory Activities, (202) 874-5090; Karen 
    McSweeney, Attorney, Legislative and Regulatory Activities, (202) 874-
    5090; Jerome Edelstein, Senior Counsel, Bank Activities and Structure, 
    (202) 874-5300; or Cheryl A. Martin, Senior Licensing Policy and 
    Systems Analyst, Licensing Policy and Systems Division, (202) 874-5060. 
    Office of the Comptroller of the Currency, 250 E Street, SW, 
    Washington, DC 20219.
    
    SUPPLEMENTARY INFORMATION:
    
    The Proposal
    
        On November 29, 1994, the OCC published a notice of proposed 
    rulemaking (59 FR 61034, Nov. 29, 1994) (proposal) to revise 12 CFR 
    part 5--the OCC's rule governing the policies and procedures for 
    national bank corporate transactions and activities.
        The proposal sought to implement the goals of the OCC's Regulation 
    Review Program by eliminating unnecessary regulatory burden and 
    streamlining procedures for corporate applications and transactions 
    while protecting the safety and soundness of the national banking 
    system. The proposal also restructured various sections of part 5 to 
    create a more readable and understandable regulation, and it updated 
    other sections by incorporating interpretive rulings and significant 
    OCC interpretive positions where necessary.
    
    Comments Received and Changes Made
    
        The final rule implements most of the initiatives contained in the 
    proposal. However, the OCC has made a number of changes in the final 
    rule in response to the comments received and to further reduce 
    unnecessary regulatory burden.
        The OCC received 71 comment letters on the proposal. The vast 
    majority of these comments supported the OCC's proposed changes to part 
    5. The comment letters received by the OCC included 34 from banks, bank 
    holding companies, and related entities, 16 from trade associations 
    (including bank, securities, real estate, insurance, newspaper, and 
    travel agency), four from community groups, four from private 
    businesses, five from members of Congress, two from Federal regulators, 
    two from unaffiliated individuals, three from law firms, and one from a 
    clearinghouse.
        Commenters strongly favored reducing unnecessary regulatory burden, 
    updating and clarifying the rules, and streamlining the application 
    process. Overall, most commenters commended the OCC's efforts, and some 
    commenters offered variations on certain of the proposed changes.
    
    Overview of the Final Rule
    
        The OCC reviewed part 5 to update and streamline corporate filing 
    procedures for national banks and to reduce unnecessary regulatory 
    burden consistent with safe and sound banking practices and other 
    regulatory responsibilities of the OCC.
        The final rule contains a fundamental restructuring of the OCC's 
    approach to the corporate application process by creating a new 
    expedited review process for many types of applications submitted by 
    healthy banks whose applications should entail low levels of risk. This 
    new process enables the OCC to calibrate the extent of regulatory 
    review an application receives to focus more resources on applications 
    that are novel, are complex, or present potentially greater risk to the 
    applicant bank.
    
    Section-by-Section Discussion
    
        Most commenters focused on specific provisions of the proposal with 
    many recommending further changes. The OCC carefully considered each of 
    the comment letters and has made a number of changes to the proposal in 
    response to those comments and recommendations. The following section-
    by-section discussion identifies and discusses comments and changes to 
    the proposal. A table summarizing the sections of the former part 5 
    changed by the final rule is included at the end of this preamble.
    
    Scope (Sec. 5.1)
    
        The proposal clarified the purpose of part 5 and transferred 
    information concerning the role of the OCC's Multinational Banking 
    Department to Sec. 5.3, Definitions, and Sec. 5.4, Filing required. The 
    OCC received no comments on this section.
        The OCC adopts the changes contained in the proposal and clarifies 
    the corporate filing procedures for Federal branches and agencies. The 
    final rule also adds a new subpart F, which outlines the filing 
    procedures for Federal branches and agencies and directs readers to 12 
    CFR part 28 for further information.
    
    Rules of General Applicability (Sec. 5.2)
    
        The proposal consolidated the rules of general applicability for 
    part 5 into a single section. The proposal also relocated the 
    definitions to Sec. 5.3, Definitions, and the information regarding 
    denials to Sec. 5.13, Decisions. Proposed Sec. 5.2(b) described the 
    limited circumstances under which the OCC may adopt materially 
    different procedures for a filing or class of filings.
        Two commenters expressed concern that proposed Sec. 5.2(b) would 
    allow the OCC too much latitude to adopt procedures other than those 
    set forth in part 5. One commenter suggested limiting the circumstances 
    under which the OCC may adopt materially different procedures. The OCC 
    has historically limited its discretion under this provision to special 
    circumstances, thus enabling the OCC to respond promptly to emergencies 
    such as Hurricane Andrew. This continues to be the OCC's intent, and 
    the final rule includes this language to reflect this approach.
    
    Definitions (Sec. 5.3)
    
        The proposal consolidated in Sec. 5.3 definitions previously 
    located throughout part 5. The proposal also added new definitions to 
    clarify the part generally and updated existing definitions to make 
    them more accurate and precise.
        The proposal added a definition of ``short-distance relocation,'' 
    used in connection with both branch and main office relocations. 
    ``Short-distance
    
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    relocation'' was defined as moving the premises of a branch or main 
    office within a one thousand-foot radius of the current site if it is 
    located within a central city of a Metropolitan Statistical Area (MSA) 
    designated by the Department of Commerce; a one mile radius of the site 
    if it is located within an MSA designated by the Department of 
    Commerce, but not within a central city; or a two-mile radius of the 
    site if it is not located within an MSA.
        In response to a request by two commenters, the final rule contains 
    a definition of the term ``central city'' used to define a short-
    distance relocation. This definition recognizes that the Office of 
    Management and Budget has succeeded the Commerce Department as the 
    agency that identifies central cities for certain purposes. Under the 
    final rule, a central city is a city or cities identified as a central 
    city by the Director of the Office of Management and Budget. This 
    provides a simple, unambiguous test for determining when relocation 
    applications are subject to a ten-day public comment period instead of 
    a 30-day comment period.
        Another commenter stated that having two designations for sites 
    located within an MSA was confusing. This commenter suggested removing 
    the first prong of the definition (i.e., within a one thousand foot-
    radius of a site located within a central city of an MSA). The OCC 
    believes that the distances in the proposed definition are appropriate 
    for different types of metropolitan areas. Therefore, the final rule 
    does not change this aspect of the proposal.
        Two other commenters urged the OCC to include more flexible 
    language in the definition of ``short-distance relocation.'' However, 
    using any test other than a bright-line test could create further 
    uncertainties. Therefore, the OCC adopts this definition as proposed.
        The final rule also modifies the proposed definition of 
    ``appropriate district office'' by identifying the OCC's International 
    Banking and Finance Department as the ``appropriate district office'' 
    for Federal branches and agencies.
        The proposal also contained a definition of ``eligible bank,'' a 
    concept central to the new system of expedited review for certain 
    applications filed with the OCC. The proposal defined the term 
    ``eligible bank'' as a national bank that is well capitalized as 
    defined in 12 CFR part 6, has a composite rating of 1 or 2 under the 
    Uniform Financial Institutions Rating System (CAMEL), has a CRA rating 
    of ``Satisfactory'' or better, and is not subject to certain formal OCC 
    enforcement actions.
        The OCC received 15 comment letters on the definition of eligible 
    bank. Eleven commenters supported the definition. Four commenters 
    opposed the definition and the concept of expedited processing.
        A number of commenters expressed concern that by making banks with 
    ``Satisfactory'' or ``Outstanding'' CRA ratings eligible for expedited 
    processing, the OCC was establishing a ``safe harbor'' against public 
    challenge to an applicant bank's CRA performance. This is neither the 
    purpose nor the effect of the eligible bank concept. In fact, Sec. 5.13 
    of the final rule explicitly enables the OCC to remove a filing from 
    expedited review procedures if the OCC concludes, among other things, 
    that an adverse comment presents a significant CRA concern that, in the 
    OCC's view, has not previously been satisfactorily resolved. Thus, as 
    discussed in greater detail later, Sec. 5.13 ensures that the OCC will 
    fully and carefully consider all significant adverse CRA comments, 
    including those involving eligible banks.
        Several commenters also expressed concern that CAMEL ratings would 
    become publicly available as a result of this new process. Some 
    commenters suggested eliminating the CAMEL rating from the list of 
    criteria necessary to qualify as an eligible bank, thus placing more 
    emphasis on the capital adequacy of the bank filing the application. 
    Other commenters suggested adopting altogether different criteria such 
    as the Federal Deposit Insurance Corporation's (FDIC's) assessment risk 
    classifications.
        The OCC carefully considered these concerns and concluded that the 
    suggested alternatives do not adequately address the criteria that are 
    critical in permitting a bank to use expedited review. For example, 
    limiting the definition to criteria focused primarily on capital 
    adequacy eliminates important supervisory considerations regarding 
    management of the bank. Moreover, while the FDIC's assessment risk 
    classification system has attractive features, it appears better suited 
    for the FDIC's insurance purposes than for determining which banks 
    would qualify for expedited application processing. Therefore, the OCC 
    adopts the definition of eligible bank as proposed.
        The final rule also adds a definition of ``eligible depository 
    institution,'' a term used in Sec. 5.24, Conversions, and Sec. 5.33, 
    Business combinations. An eligible depository institution is a state 
    bank or a Federal or state savings association that meets the 
    ``eligible bank'' criteria under Sec. 5.3(g) and is FDIC-insured, 
    except that the bank's primary Federal regulator makes the 
    determinations regarding certain of the eligible bank criteria.
        The OCC also adopts the other definitions as proposed with some 
    minor changes.
    
    Filing Required (Sec. 5.4)
    
        The proposal clarified the application and notice filing 
    requirements and permitted an applicant to file with the OCC forms that 
    the applicant had submitted to another Federal agency, if the forms 
    covered the proposed action and contained substantially the same 
    information that the OCC would require.
        Each commenter addressing this section supported the proposal. 
    Therefore, the OCC adopts this section as proposed, with minor 
    modifications and one new burden-reducing feature.
        The final rule contains a new provision that allows an applicant to 
    incorporate by reference information that the applicant submitted to 
    the OCC or another Federal agency with a previous application or other 
    filing. Material incorporated by reference must be current and 
    responsive to the information requested by the OCC, and the applicant 
    must attach a copy of the relevant material to its application. This 
    provision allows an applicant to avoid compiling lengthy background or 
    supporting documentation each time it submits an application to the OCC 
    and also ensures that the information is current, accurate, and 
    accessible to the OCC.
    
    Fees (Sec. 5.5)
    
        The proposal removed unnecessary information from former Sec. 5.5, 
    such as procedures for determining the fee schedule, and referred to 12 
    CFR 8.8 regarding the ``Notice of Comptroller of the Currency fees.'' 
    Two commenters suggested that the OCC create a differential fee 
    structure for eligible banks. The OCC intends to implement this 
    suggestion in the near future. Therefore, the OCC adopts this section 
    as proposed with minor clarifying changes.
    
    Investigations (Sec. 5.7)
    
        The proposal clarified and condensed the relevant information and 
    incorporated the fee provision pertaining to investigations. Two 
    commenters suggested that the OCC limit the circumstances under which 
    it may request additional information in connection with a filing. 
    However, the proposal provides needed flexibility to evaluate factual 
    and legal issues that arise during the course of a filing. Thus, the 
    final rule retains the general authority for the OCC to seek additional 
    information in connection with a filing
    
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    and to deem a filing abandoned if the requested information is not 
    furnished within the specified time period. However, this provision is 
    moved to Sec. 5.13.
    
    Public Notice (Sec. 5.8)
    
        The proposal required an applicant to publish a public notice of 
    its filing in a newspaper widely available in each geographic area in 
    which the applicant proposed to engage in business.
        Several commenters urged the OCC not to make this change, but 
    rather to retain the language in the former regulation. Under former 
    Sec. 5.8(a), a bank must publish public notice in a newspaper of 
    general circulation in the community in which the applicant proposes to 
    engage in business. These commenters stated that the former standard 
    provided more effective notice to the public.
        The OCC agrees with the commenters that the former standard better 
    advises the public of filings submitted to the OCC and does not unduly 
    burden applicants. Thus, the final rule retains the language from the 
    former regulation.
        The proposal also provided under Sec. 5.8(f) that the OCC may 
    require or give public notice and request comment on any filing and in 
    any manner the OCC determines appropriate for the particular filing. In 
    addition, in circumstances where the public notice requirements of 
    Sec. 5.8 do not apply to a particular filing, the OCC may determine to 
    give public notice if the filing presents a significant and novel 
    policy, supervisory, or legal issue. The proposal also authorized the 
    OCC to require public notice in addition to any notice otherwise 
    required under this part.
        The proposal also added several provisions to reduce unnecessary 
    regulatory burden. For example, the proposal allowed an applicant to 
    publish a single notice in certain circumstances for two or more 
    filings and permitted the OCC to accept a notice published by an 
    applicant for another Federal agency in lieu of the public notice 
    requirements of part 5.
        The OCC adopts these proposed changes with some minor 
    modifications. First, in connection with publishing a single notice for 
    multiple transactions, the final rule amends proposed Sec. 5.8(d) to 
    require the applicant to explain in the notice how the transactions 
    that are the subject of the notice are related.
        Second, in Sec. 5.8(e), the final rule clarifies that the OCC may 
    accept a single joint notice containing the information required by the 
    OCC and the other Federal agency, provided that the notice states that 
    comments must be submitted to both the OCC and the other Federal 
    agency.
    
    Public Availability (Sec. 5.9)
    
        The proposal condensed this section to reflect the current OCC 
    practice of granting requests for information on particular filings.
        Two commenters suggested that the OCC include standards for 
    confidential treatment of information concerning applications. The 
    final rule clarifies that the OCC follows the Freedom of Information 
    Act (FOIA), 5 U.S.C. 552, in determining whether to treat information 
    as confidential.
        The OCC final rule also adds language to clarify that requests for 
    the public file on pending applications should be directed to the 
    appropriate district office, and requests for the public file on 
    applications or notices that have been closed or decided should be 
    directed to the Disclosure Officer, Communications Division. The 
    revisions also clarify what constitutes the public file and that an 
    applicant or interested person submitting information may request 
    confidential treatment for specific information.
    
    Comments (Sec. 5.10)
    
        The proposal reorganized this section, removed unnecessary and 
    repetitive information, and clarified the remaining provisions. The 
    proposal also established the time period for interested persons to 
    submit comments.
        The proposal included a provision that allowed the OCC to extend 
    the comment period if the applicant failed to file all required 
    supporting data in time to permit review by interested persons, if any 
    person requesting an extension of time provided ``adequate 
    justification,'' or if the OCC determined that other extenuating 
    circumstances existed. The proposal also removed a provision that 
    automatically granted a 14-day extension of the comment period for 
    individuals whose request for a hearing had been denied.
        Several commenters recommended that the OCC clarify the term 
    ``adequate justification.'' In response to these comments, the final 
    rule removes the phrase ``adequate justification'' and provides that a 
    person requesting an extension of the comment period must 
    satisfactorily demonstrate to the OCC that he or she needs additional 
    time to develop factual information that the OCC determines is 
    necessary to consider the application.
        One commenter also objected to the proposed elimination of the 14-
    day automatic extension of the comment period for interested persons 
    upon the OCC's denial of a hearing request. The commenter suggested 
    that the OCC permit a person to submit additional information at any 
    time once a person has filed timely comments. Other commenters 
    supported the elimination of the 14-day automatic extension of the 
    comment period and suggested placing additional restrictions on the 
    comment period.
        The OCC believes that the proposal strikes an appropriate balance 
    between providing an opportunity for interested persons to comment on 
    an application and the need for an applicant to have some reliable time 
    frame for the application process. In particular, the OCC notes that as 
    a general matter it considers late-filed comments on a filing if doing 
    so would not inappropriately delay action on a filing. The OCC adopts 
    this provision as proposed.
        The final rule also removes the hearing-related provisions from 
    proposed Sec. 5.10, Comments and requests for hearings, and places them 
    in Sec. 5.11, Hearings and other meetings.
    
    Hearings and Other Meetings (Sec. 5.11)
    
        The proposal reorganized and streamlined this section. Under the 
    proposal, any person could submit a written request for a hearing. The 
    proposal noted that the OCC generally grants a hearing request only 
    upon a determination that written submissions would be insufficient or 
    that a hearing would benefit the decisionmaking process or be in the 
    public interest.
        Some commenters recommended that the OCC adopt more stringent 
    requirements for determining when to grant a hearing. Other commenters 
    suggested that the OCC make the standards for granting a hearing more 
    lenient. The OCC believes that this provision represents an equitable 
    and balanced approach because it provides an adequate basis for an 
    individual to request a hearing, but provides more clarity with respect 
    to the circumstances under which the OCC will grant the request. The 
    OCC adopts this provision substantially as proposed.
        The proposal also provided that the person requesting a hearing 
    would no longer bear the cost of the hearing room or the OCC's 
    transcripts. The person requesting the hearing would continue to assume 
    the cost of one copy of the transcript for his or her use.
        Some commenters suggested that the OCC continue to require the 
    person requesting the hearing to bear the cost of the hearing room and 
    transcription of the proceedings. These commenters believed that by not 
    imposing these costs the number of requests might increase. This could 
    increase the burden
    
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    and costs associated with filing an application. However, the ability 
    to cover these costs is not a factor in determining whether to grant a 
    request for a hearing. The OCC has consistently considered requests to 
    waive these costs on a case-by-case basis. Thus, the final rule does 
    not change the proposal in this regard.
        The final rule also adds new provisions for the OCC to arrange 
    meetings between interested parties to an application in settings less 
    formal than a hearing. Under the final rule, the OCC may arrange for a 
    public meeting in connection with an application, either upon receipt 
    of a written request for such a meeting which is made during the 
    comment period or upon the OCC's own initiative. The OCC also may 
    arrange a private meeting with an applicant or other interested parties 
    to an application, or with an applicant and other interested parties to 
    an application, in order to clarify and narrow the range of differences 
    on an application.
        The final rule also makes a structural change to this section and 
    Sec. 5.10, Comments, by adopting proposed Sec. 5.10(c)-(e) as part of 
    Sec. 5.11 to consolidate all the information on hearings into one 
    section.
    
    Computation of Time (Sec. 5.12)
    
        The proposal made no substantive changes to this section, and the 
    OCC received no comments on this section. Therefore, the OCC adopts 
    this section as proposed.
    
    Decisions (Sec. 5.13)
    
        The proposal reorganized and clarified the various types of OCC 
    decisions on filings. It also explained that the OCC grants eligible 
    banks expedited processing for certain filings and clarified the 
    circumstances under which the OCC may determine not to grant expedited 
    processing for a filing by an eligible bank. Under the proposal, the 
    OCC would have decided not to process an application under the 
    expedited procedures if it had concluded that the filing or an adverse 
    public comment received prior to the OCC's decision presented a 
    significant supervisory, CRA (if applicable), or compliance concern, or 
    raised a significant legal or policy issue.
        The great majority of commenters strongly supported the proposed 
    revisions to this section, with a number of commenters suggesting 
    additional changes. In response to the comments, the OCC changed the 
    final rule to clarify both when the expedited review process might be 
    extended and the circumstances under which an application will be 
    removed from the expedited review process. As set forth below, these 
    changes are designed to balance the concerns of those interested in 
    removing undue delays from the application process with the need fairly 
    to assess legitimate CRA concerns.
        Under the final rule, the OCC will remove a filing from the 
    expedited review category if the OCC concludes that the filing, or an 
    adverse comment regarding the filing, presents a significant 
    supervisory, CRA (if applicable), or compliance concern, or raises a 
    significant legal or policy issue requiring additional OCC review. With 
    respect to adverse comments that present CRA concerns, the final rule 
    clarifies that a significant CRA concern exists if the OCC concludes 
    that: (1) a bank's CRA rating is less than satisfactory, institution-
    wide, or, where applicable, in a state or multistate MSA; or (2) a 
    bank's CRA performance is less than satisfactory in an 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. 
    Sec. 2902(3).
        The final rule also adds a new provision to recognize that in 
    certain circumstances it may be necessary to extend the review process 
    in order to evaluate further whether to remove an application from 
    expedited review processing. Under the final rule, the OCC may extend 
    the review process up to an additional ten days in circumstances where 
    a comment contains specific assertions concerning a bank's CRA 
    performance. Under the final rule, the OCC may extend the review period 
    if these specific assertions, if true, would indicate a reasonable 
    possibility that: (1) a bank's CRA rating would be less than 
    satisfactory, institution-wide, or, where applicable, in a state or 
    multistate MSA; or (2) a bank's CRA performance would be less than 
    satisfactory in an 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. Sec. 2902(3). This provision allows 
    the OCC additional time to assess specific CRA assertions by a 
    commenter and determine whether additional review, which would warrant 
    removal of the application from the expedited review category, is 
    needed.
        The OCC notes, however, that it may not be necessary to trigger the 
    extra ten-day review period in all cases. For example, the OCC may 
    already have sufficient current information to permit it to assess the 
    particular assertions contained in the comment. In these cases, the 
    OCC's information would provide the basis for concluding whether or not 
    to remove an application from expedited review processing without 
    extending the period an additional ten days.
        In other circumstances, the OCC is prepared, within the additional 
    time allowed, promptly to conduct a targeted investigation of CRA 
    performance. These inquiries could be conducted, for example, whenever 
    additional detailed information is needed to evaluate CRA comments 
    involving particular branches or assessment areas. In these situations, 
    the information obtained from the inquiry would allow the OCC to 
    determine whether the comment raises a ``significant'' unresolved CRA 
    concern necessitating further review and removal from expedited review 
    processing. The OCC will provide the applicant with a written 
    explanation if it decides not to process an application from an 
    eligible bank under expedited review pursuant to Sec. 5.13(a).
        The OCC also notes that it may deny or condition approval of an 
    application, including under the expedited review procedures, even if 
    the bank has an overall satisfactory CRA rating in order to ensure 
    satisfactory performance in a particular state or multistate MSA, or, 
    where applicable, in an MSA or the non-MSA portion of states.
        The proposal also set forth certain circumstances where adverse CRA 
    comments would not remove an application from expedited review 
    processing. Under the proposal, adverse comments that did not raise 
    significant supervisory, CRA (where applicable), or compliance 
    concerns, or significant legal or policy issues, or that were 
    frivolous, filed primarily to delay action on the filing, or that 
    raised negative CRA issues that already had been resolved between the 
    commenter and the applicant would not prevent an eligible bank's filing 
    from receiving expedited processing. Several commenters suggested that 
    the OCC clarify the phrase ``resolved by the commenter and the 
    applicant.''
        The OCC understands the difficulties in having all parties agree 
    that an issue has been ``resolved.'' Therefore, rather than have the 
    commenter and the applicant decide that an issue has been resolved, the 
    final rule clarifies the circumstances under which the OCC will 
    determine an issue to have been satisfactorily resolved. Under the 
    final rule, the OCC considers a CRA concern to have been satisfactorily 
    resolved if the OCC previously reviewed (e.g., in an examination or in 
    connection with an application) a CRA concern presenting substantially 
    the same issue in substantially the same area during
    
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    substantially the same time, and the OCC determines that the concern 
    would not warrant denial or imposition of a condition on approval of 
    the application. The final rule also removes reference to comments 
    ``filed for competitive reasons'' from these processing criteria 
    because the OCC has concluded that such standard would likely be 
    impractical to apply.
        The proposal also set forth the circumstances under which the OCC 
    would reconsider a denial of a filing and consolidated the paragraph 
    regarding OCC reconsideration of applications.
        One commenter suggested that the OCC include a reference to the 
    OCC's Ombudsman in the regulation. The final rule notes that an 
    applicant may file an appeal with the Ombudsman or the Deputy 
    Comptroller for Bank Organization and Structure.
        The proposal also added a provision explaining that the OCC does 
    not generally grant a national bank an extension of time to commence a 
    corporate activity once approved by the OCC. Some commenters indicated 
    that the OCC should provide more flexibility for certain transactions 
    that are beyond the applicant's control. The OCC recognizes this 
    concern and has modified the rule accordingly. Under the final rule, 
    the OCC generally will not grant an extension of time to commence a new 
    or expanded corporate activity, unless the OCC determines that the 
    delay is beyond the applicant's control.
        The proposal also provided that the OCC could nullify any decision 
    if there was a material misrepresentation or omission in the underlying 
    filing, or if the decision was contrary to law, regulation, or OCC 
    policy, or was granted due to a clerical or administrative error or a 
    material mistake of law or fact. Two commenters suggested that the OCC 
    should revise the proposal regarding its authority to nullify a 
    decision. However, the OCC believes that this approach will not prove 
    burdensome to applicants and will preserve the integrity of the 
    application process. Therefore, the OCC adopts the language contained 
    in the proposal.
        Finally, the OCC has changed this section to clarify that a filing 
    must contain all information required by the relevant regulation and 
    that a filing may be deemed abandoned if required information is not 
    furnished as required or within a specified time period.
    
    Organizing a Bank (Sec. 5.20)
    
        The proposal clarified, streamlined, and reorganized this section 
    to focus on those issues central to charter applications. It also 
    incorporated and consolidated provisions regarding special purpose 
    national banks, such as national banks limited to fiduciary activities.
        The OCC received few comments addressing this section. One 
    commenter recommended an expedited review process for ``well-
    capitalized'' bank holding companies establishing de novo banks. 
    Another commenter urged the OCC to consider the financial and 
    managerial resources of a sponsoring bank holding company rather than 
    those of the organizers.
        The OCC agrees with the commenters that an application to organize 
    a new bank that is sponsored by a bank holding company whose lead 
    depository institution meets certain requirements does not present the 
    same level of safety and soundness and other supervisory concerns as 
    other applications to organize a bank. Thus, the final rule provides 
    that the OCC will preliminarily approve a charter application sponsored 
    by a bank holding company whose lead depository institution is an 
    eligible bank or eligible depository institution, as of the 15th day 
    after the close of the comment period or 45 days after a filing is 
    received by the OCC, whichever is later, unless the OCC notifies the 
    applicant that it is not eligible for expedited review, or the 
    expedited review process is extended, under Sec. 5.13, or the OCC 
    determines that the proposed bank will offer banking services that are 
    materially different from those offered by the lead depository 
    institution. The final rule defines the term ``lead depository 
    institution'' in Sec. 5.20(d)(5) as the largest depository institution 
    controlled by the bank holding company based on a comparison of the 
    average total assets controlled by each depository institution as 
    reported in its Consolidated Report of Condition and Income for the 
    immediately preceding four calendar quarters. The final rule also 
    clarifies that the OCC considers the financial and managerial resources 
    of the sponsor, rather than the organizing group, if the organizing 
    group is sponsored by an existing holding company, individuals 
    currently affiliated with other depository institutions, or individuals 
    who, in the OCC's view, are otherwise collectively experienced in 
    banking and have demonstrated the ability to work together effectively.
        The proposal also maintained the OCC's ability, as a condition of 
    charter approval, to object to and preclude the hiring of any officer, 
    or appointment or election of any director, for two years following the 
    commencement of the bank's business. This provision is retained in the 
    final rule.
        The final rule also provides that a national bank that seeks to 
    invest in a bank with a community development focus must comply with 
    the applicable requirements of 12 CFR part 24.
    
    Conversion (Sec. 5.24)
    
        The proposal reorganized and streamlined the OCC's rules governing 
    charter conversions involving national banks. Among other things, the 
    proposal clarified the types of entities that may convert to a national 
    bank and established procedures for conversions from a national bank to 
    another form of charter. The proposal also added specific language 
    throughout this section to clarify the precise requirements and law 
    applicable to an institution converting to a national bank charter.
        The proposal also provided more explicit procedures for a financial 
    institution converting to a national bank charter. The proposal 
    required institutions converting to a national bank charter to identify 
    all subsidiaries the institution seeks to retain following the 
    conversion and to provide the information and analysis of the 
    subsidiary's activities that would be required under Sec. 5.34. In 
    addition, as did the proposal, the final rule requires institutions 
    converting to a national bank charter to identify nonconforming assets 
    (including nonconforming subsidiaries) and nonconforming activities 
    that the institution holds or engages in. The OCC considers requests to 
    retain nonconforming assets of a state bank pursuant to its authority 
    under 12 U.S.C. 35.
        The OCC adopts the language in the proposal with a few clarifying 
    changes and one additional change intended to reduce regulatory burden. 
    The final rule establishes an expedited review procedure for healthy 
    state banks or Federal or state savings associations (eligible 
    depository institutions as defined in Sec. 5.3(h)) that wish to convert 
    to a national bank charter. Under this provision, an application by an 
    eligible depository institution to convert to a national bank is deemed 
    approved as of the 30th day after a filing is received by the OCC, 
    unless the bank is notified that it is not eligible for expedited 
    review under the standards contained in Sec. 5.13(a)(2).
    
    Fiduciary Powers (Sec. 5.26)
    
        The proposal reorganized the OCC's application procedures for 
    fiduciary powers and clarified the circumstances under which the OCC 
    requires a national bank to obtain approval to
    
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    exercise fiduciary powers. The proposal also provided that a separate 
    application to exercise fiduciary powers was not required when: (1) two 
    or more national banks merge or consolidate and one of the banks has 
    previously received approval to exercise fiduciary powers that is in 
    effect at the time of the merger, or (2) a national bank with fiduciary 
    powers is the resulting bank in a merger or consolidation with a state 
    bank without fiduciary powers. An applicant applying for a charter for 
    a national bank limited to fiduciary activities should file its 
    application under Sec. 5.20.
        Two commenters supported the revisions to Sec. 5.26. The OCC adopts 
    the changes contained in the proposal with two substantive additions 
    intended to further reduce paperwork burdens for a national bank filing 
    an application under this section. Under the final rule, if approval to 
    exercise fiduciary powers is desired in connection with any other 
    transaction subject to an application under this part, an applicant may 
    include its request for approval to exercise fiduciary powers as part 
    of its other application. The OCC does not require a separate 
    application to exercise fiduciary powers in these circumstances.
        The final rule also streamlines the application procedure for a 
    national bank meeting the eligible bank criteria contained in 
    Sec. 5.3(g). Under the final rule, an eligible bank need not submit an 
    opinion of counsel to the OCC. However, in certain circumstances, the 
    OCC may request this information prior to the bank commencing the 
    activity.
        Finally, the final rule clarifies that when a national bank with 
    prior OCC approval to exercise fiduciary powers commences fiduciary 
    activities in a new state, the bank need not file an additional 
    application under this section, and is only required to file a written 
    notice with the OCC within ten days after commencing the activities.
    
    Establishment, Acquisition, and Relocation of a Branch (Sec. 5.30)
    
        The proposal comprehensively revised the OCC's branching regulation 
    to update the definition of the types of facilities that constitute a 
    ``branch'' and to streamline procedures for acquiring and moving 
    branches.
        The OCC received numerous comments on this section. The OCC 
    carefully considered all the comments, and the final rule reflects 
    changes made in response to those comments and also incorporates recent 
    statutory changes.
    A. Definition of ``Branch''
        Proposed Sec. 5.30(d)(1)(ii)(A) excluded from the definition of a 
    branch a facility to which ``the bank does not permit members of the 
    public to have physical access * * * (e.g., an office established by 
    the bank that receives deposits only through the mail).'' This aspect 
    of the proposal reflected the position taken by the OCC in several 
    interpretive letters.
        Several commenters specifically supported this provision but sought 
    further clarification. One commenter was concerned that prohibiting 
    access to ``members of the public'' would prohibit access even to those 
    members of the public, such as delivery people, that are at the site 
    for reasons other than to conduct banking transactions.
        The final rule excludes from the definition of ``branch'' a 
    facility that would otherwise qualify as a branch because it is 
    established by a national bank and engages in one or more branching 
    functions (receipt of deposits, payment of withdrawals, or making 
    loans) but which prohibits access to members of the public for purposes 
    of conducting one or more branching functions. The OCC expects that 
    facilities that come within this exception will not be designed to 
    undertake in-person branching transactions with customers nor would 
    they invite members of the public to visit such sites to conduct 
    branching transactions.
        Proposed Sec. 5.30(d)(1)(ii)(B) clarified that the term ``branch'' 
    does not include a facility that is ``generally available to customers 
    of other banks to receive substantially similar services pertaining to 
    their accounts at other banks on the basis of substantially similar 
    terms and conditions.'' As recognized by a number of commenters, the 
    primary impact of this provision would have been to exclude from the 
    definition of branch ATMs that are linked to networks and, thus, 
    provide services to bank customers and non-customers alike. However, as 
    a result of recent statutory changes contained in Section 2205 of the 
    Economic Growth and Regulatory Paperwork Reduction Act of 1996, Public 
    Law 104-208, Sept. 30, 1996 (110 Stat. 3009), ATMs and remote service 
    units are no longer considered branches and, thus, are not subject to 
    the limitations on national bank branching imposed by the McFadden Act 
    and codified at 12 U.S.C. 36. Consequently, the OCC has deleted this 
    provision from the final rule and has also revised the final rule to 
    state specifically that ATMS and remote service units are not branches. 
    The OCC also recognizes, however, that other situations may still arise 
    where a particular facility should not be considered to be a bank 
    branch because it, in fact, provides services generally on a 
    nondiscriminatory basis with respect to accounts that its customers 
    hold as well as accounts held by noncustomers in other banks and 
    depository institutions. The OCC believes these issues are best 
    considered on a case-by-case basis based on the particular 
    circumstances involved.
    B. Messenger Service
        Proposed Sec. 5.30(f)(2)(iii) sets forth procedural rules specific 
    to the establishment of messenger services. One commenter asked the OCC 
    to define the term ``messenger service.'' The OCC believes that 
    defining the term ``messenger service'' will clarify the applicability 
    of these provisions and thus adds a definition that cross-references 
    the definition of ``messenger service'' in 12 CFR 7.1012. In addition, 
    the provisions permitting multiple messenger service applications to be 
    combined has been retained in the final rule.
    C. Public Notice for a Mobile Branch
        Proposed Sec. 5.30(h)(1) stated the publication requirements for a 
    mobile branch application. One commenter requested clarification on the 
    publication requirements. An applicant must publish public notice for a 
    mobile branch or messenger service application in a newspaper that 
    meets the requirements of Sec. 5.8 for each area in which the mobile 
    facility will provide branching services. An applicant need only 
    publish public notice in one newspaper that meets those requirements in 
    each area that it intends to serve. In addition, the final rule adds a 
    definition of ``mobile branch'' which includes a branch, other than a 
    messenger service facility, that does not have a single, fixed site, 
    such as a van that travels to various public locations to enable 
    customers to conduct their banking business. Each mobile unit requires 
    a branching license. This is because a mobile facility is available at 
    public sites to customers generally, unlike a messenger service 
    facility that only serves specific customers at places such as their 
    homes or businesses.
    D. Reduced Comment Period
        Proposed Sec. 5.30(h)(2) provided a ten-day comment period for an 
    application to establish an ATM branch and to engage in a short-
    distance branch relocation. While many commenters explicitly supported 
    these reduced comment periods, several commenters thought that the OCC 
    should apply the ten-day comment period more broadly.
        In applying a reduced comment period for ATM branches and short-
    distance relocations, the OCC attempted to identify those types of 
    applications
    
    [[Page 60348]]
    
    that are less likely to raise legal and policy concerns which generally 
    lead to public comment. Short-distance relocations, which are unlikely 
    in most states to raise legal concerns and where the relocated branch 
    will serve the same area as the former branch, are less likely to raise 
    concerns giving rise to public comment. Consequently, the final rule 
    does not expand the availability of the reduced comment period. 
    However, because the statutory change excluded ATMs from the term 
    ``branch'' as that term is used in the McFadden Act, the final 
    regulation applies the reduced comment period only to short distance 
    relocations and increases the comment period to 15 days. Similarly, 
    because of the statutory change with respect to ATMs and remote service 
    units, the proposed rule permitting a national bank to seek approval 
    for multiple ATMs and unstaffed branches in one application is no 
    longer necessary.
    E. Temporary Branches
        The proposal requested comment on whether to apply streamlined 
    procedures to temporary branches. All commenters who addressed this 
    issue supported some form of streamlined processing for temporary 
    branches. Therefore, the final rule contains a statement that the OCC 
    will consider a request to waive or reduce the public notice and 
    comment period with respect to an application to restore banking 
    services to a community affected by a disaster or temporarily replace 
    banking facilities where, because of an emergency, the bank temporarily 
    cannot provide or must curtail banking services. Also, the procedures 
    set forth in OCC Advisory Letters 94-3, 94-4, and 94-6 regarding 
    branches at colleges and universities continue to be valid.
        The final rule also provides that the OCC may waive or reduce the 
    public notice and comment period, with respect to an application to 
    establish a temporary branch, if: (1) the applicant bank has a CRA 
    rating of ``Satisfactory'' or better; and (2) the temporary branch, if 
    established by a state bank to operate in the manner proposed, would be 
    permissible under state law without state approval. For these purposes, 
    the final rule defines a temporary branch as a branch that is located 
    at a fixed site and from the time of its opening is scheduled to close, 
    and will permanently close, as of a certain date no longer than one 
    year after it is first opened. Of course, if a proposal for a temporary 
    branch does not meet these requirements, the bank can still apply to 
    establish the branch under the standard branch application procedures.
    
    Business Combinations (Sec. 5.33)
    
        The proposal substantially reorganized, condensed, and simplified 
    this section. The proposal used the term ``business combination,'' 
    rather than ``merger,'' to avoid confusion on specific transactions and 
    incorporated pertinent information regarding interim banks from former 
    Secs. 5.20 and 5.21. The proposal also provided for expedited review of 
    certain corporate reorganizations (e.g., a holding company could 
    combine certain subsidiary banks under an expedited review process).
        The proposal adopted the procedures of 12 U.S.C. 214a, 214c, 215, 
    and 215a for combinations between national banks and Federal savings 
    associations, with appropriate modifications to conform the style of 
    Sec. 5.33(g) with the rest of Sec. 5.33 and part 5. In addition, 
    similar to the treatment of conversions, references in 12 U.S.C. 214c 
    to the ``law of the State in which such national banking association is 
    located'' and ``any State authority'' mean ``the laws and regulations 
    governing Federal savings associations'' and ``Office of Thrift 
    Supervision,'' respectively.
        The proposal also revised this section to reflect certain 
    provisions of the Riegle-Neal Interstate Banking and Branching 
    Efficiency Act of 1994, Public Law 103-328, Sept. 29, 1994, 108 Stat. 
    2338 (Riegle-Neal Act), regarding interstate business combinations.
        The overwhelming number of comments received supported the proposed 
    changes to Sec. 5.33. Therefore, the OCC adopts this section 
    substantially as proposed with an additional burden-reducing feature. 
    This new provision in the final rule permits certain healthy banks to 
    use a streamlined application form under expedited review procedures to 
    effect certain types of business combinations. The OCC believes that 
    this approach will significantly reduce paperwork burden for these 
    banks while maintaining the focus of the OCC's review on those areas 
    that pose significant risks to national banks.
        Under the final rule, an applicant may file an abbreviated 
    application form as instructed in the Manual and qualify for expedited 
    processing of its application if: (1) at least one party to the 
    transaction is an eligible bank and all other parties to the 
    transaction are eligible banks or eligible depository institutions, the 
    resulting national bank will be well capitalized immediately following 
    the consummation of the transaction, and the total assets of the target 
    depository institution are not more than 50 percent of the total assets 
    of the acquiring bank, as reported in each institution's Consolidated 
    Report of Condition and Income filed for the quarter immediately 
    preceding the filing of the application; (2) the acquiring national 
    bank is an eligible bank, the target bank is not an eligible bank or an 
    eligible depository institution, the resulting national bank will be 
    well capitalized immediately following consummation of the transaction, 
    and either (a) the appropriate district office has approved the use of 
    the streamlined form; or (b) the total assets acquired do not exceed 10 
    percent of the total assets of the acquiring national bank, as reported 
    in each institution's Consolidated Report of Condition and Income filed 
    for the quarter immediately preceding the filing of the application. A 
    streamlined application form will, of course, continue to require 
    information necessary for the OCC to make a determination under the 
    standards of the Bank Merger Act and this regulation, which include the 
    convenience and needs of the community to be served and relevant CRA 
    considerations.
        Under the final rule, these applications, together with 
    applications that qualify as ``business reorganizations,'' will be 
    deemed approved by the OCC as of the 45th day after the filing is 
    received by the OCC or the 15th day after the close of the comment 
    period, whichever is later, unless the OCC notifies the bank that the 
    filing is not eligible for expedited review, or the expedited review 
    process is extended, under the standards in Sec. 5.13.
        In addition, with respect to business reorganizations, the final 
    rule incorporates the eligible depository institution concept into the 
    expedited review process for these transactions. Thus, a business 
    combination between an eligible bank and eligible depository 
    institution controlled by the same holding company would receive 
    expedited processing.
    
    Operating Subsidiaries (Sec. 5.34)
    
        The proposal contained comprehensive revisions to Sec. 5.34, 
    Operating subsidiaries, and solicited public comment on a number of 
    issues. The overwhelming majority of commenters supported the changes 
    contained in the proposal. A number of commenters opposed specific 
    provisions, two commenters asserted that the OCC lacked authority to 
    issue the regulation under 12 U.S.C. 93a, and several other commenters 
    urged specific changes. A discussion of the comments and the changes 
    made in the final rule is set forth below.
    
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    A. Procedures
        The proposal restructured the OCC approval requirements for an 
    application by a national bank to establish or acquire an operating 
    subsidiary, or to commence a new activity in an existing operating 
    subsidiary. Essentially, operating subsidiary proposals would fall into 
    one of three categories: (1) after-the-fact notice for certain types of 
    activities; (2) expedited processing for certain other types of 
    activities, when proposed to be conducted by financially strong and 
    well-managed banks; and (3) standard processing in other cases. These 
    revised procedures would expedite application processing for less 
    complex activities and thus reduce unnecessary regulatory burden and 
    enable the OCC to focus attention on novel or complex filings.
        First, the after-the-fact notice procedures required a national 
    bank to file a notice with the OCC within ten days after acquiring or 
    establishing the subsidiary or commencing the new activity. The 
    national bank was required to be ``adequately capitalized'' or ``well 
    capitalized'' and not deemed to have been in ``troubled condition'' for 
    purposes of Sec. 5.51. In addition, the subsidiary could only engage in 
    certain preapproved activities that were listed as eligible for after-
    the-fact notice.
        The second category of procedures provided for expedited review of 
    applications requiring prior OCC approval. To qualify for expedited 
    review, a national bank was required to be an eligible bank, and the 
    activity proposed had to be on the list of activities permissible for 
    expedited processing. These applications were deemed approved 30 days 
    after filing, unless the OCC notified the applicant prior to that date 
    that the application was not eligible for expedited review under 
    Sec. 5.13(a)(2).
        The third category of procedures generally covered all other 
    operating subsidiary situations.
        The OCC received 20 comments addressing these procedures. The 
    majority of commenters supported the proposed changes.
        Four commenters recommended moving certain activities from the 
    expedited review to the notice category. These recommendations 
    generally concerned activities related to foreign exchange, coin and 
    bullion, leasing of personal property, securities brokerage, lending 
    activities and providing investment advice. Two commenters also 
    suggested adding property appraisal services to the notice list.
        In the final rule, the OCC retains the activities in the categories 
    set forth in the proposal with a few changes. The proposal included in 
    the notice category providing financial and transactional advice to 
    customers and assisting customers in structuring, arranging, and 
    executing various financial transactions, provided the bank and its 
    affiliates did not participate as principal. These transactions 
    included mergers and acquisitions, swaps and derivatives, foreign 
    exchange and related transactions, and arranging commercial real estate 
    equity financing. The final rule removes the prohibition on 
    participating as principal with respect to swaps and derivatives and 
    foreign exchange and related transactions, since these are activities 
    frequently undertaken directly by banks as part of their banking 
    business. These notice category provisions relating to swaps and 
    derivatives, and foreign exchange transactions, were then combined with 
    the provision in the expedited category relating to dealing, trading, 
    and investing in foreign exchange, coin and bullion and retained in the 
    expedited processing category.
        The final rule also moves the following activities from the 
    expedited processing category to the notice category: (1) Activities 
    that relate to making, purchasing, selling, servicing and warehousing 
    loans, or interests therein; and (2) activities related to leasing of 
    personal property. However, these activities are not eligible for the 
    notice category where the notice involves the direct or indirect 
    acquisition by the bank of any low-quality asset from an affiliate in 
    connection with any transaction subject to Sec. 5.34. The terms ``low-
    quality asset'' and ``affiliate'' have the same meaning as provided in 
    section 23A of the Federal Reserve Act, 12 U.S.C. 371c.
        In response to comments, the final rule adds to the expedited 
    processing category real estate appraisal services conducted for the 
    subsidiary, the bank, or other financial institutions. The final rule 
    also adds to the notice category establishing and operating a 
    subsidiary to own, hold, or manage all or part of the parent bank's 
    investment securities portfolio.
        Finally, the final rule updates activities relating to data 
    processing to recognize that national banks are engaging in an 
    increasing range of activities through electronic means. Under the 
    final rule, the notice category relating to data processing activities 
    is revised to cover activities involving data processing and 
    warehousing products, services and related activities, including 
    equipment and technology, performed for the operating subsidiary, its 
    parent bank, and their affiliates. The final rule also includes in the 
    expedited processing category data processing and warehousing products, 
    services and related activities, including data processing equipment 
    and technology permissible under 12 U.S.C. 24(Seventh) and 12 CFR 
    7.1019. The activities in the expedited processing category may be 
    performed externally for parties other than the subsidiary itself, its 
    parent bank, and their affiliates.
        The notice category contains less complex, commonly accepted 
    banking-related activities that the OCC has previously approved for 
    operating subsidiaries on a case-by-case basis. The activities in the 
    expedited review category are also activities that the OCC has 
    previously approved but that are more complex, may require more 
    specialized expertise, and, at this time, warrant prior OCC review. The 
    OCC intends to revisit the activities contained in these categories on 
    a regular basis and make changes as experience dictates.
        The final rule also provides that notices and expedited approvals 
    submitted to the OCC must contain a representation and undertaking that 
    the activity will be conducted in accordance with OCC policy contained 
    in published OCC guidance. This provision ensures that banks seeking 
    expedited review and after-the-fact notice procedures conform their 
    activities to parameters defined by the OCC. A bank may also apply 
    through the standard processing procedures to engage in any activity 
    that may not conform with OCC published guidance.
    B. Ownership of the Operating Subsidiary
        Former Sec. 5.34 required a national bank to own at least 80 
    percent of the voting stock of a corporation to qualify as an operating 
    subsidiary. The proposal would have amended this provision to require 
    the parent bank to own more than 50 percent of the voting stock.
        The majority of commenters supported the proposed change, noting 
    that this provision would increase a national bank's flexibility to 
    structure its internal organization.
        A number of commenters also urged the OCC to permit a national bank 
    to own 50 percent or less of a subsidiary under Sec. 5.34 where the 
    bank has effective working control over the subsidiary through other 
    means. The OCC has carefully considered these comments and agrees that 
    the bank's control of the operating subsidiary should be the 
    determinative factor, whether that control is through a majority of the 
    voting interest or though other means. Accordingly, the final rule
    
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    permits a national bank to own more than 50 percent of the voting (or 
    similar type of controlling) interest of an operating subsidiary, or 50 
    percent or less of the voting (or similar) interest of the subsidiary 
    if the bank otherwise controls the subsidiary and no other party 
    controls more than 50 percent of the voting (or similar type of 
    controlling) interest of the subsidiary.
        However, to recognize that effective working control arrangements 
    will come in a variety of forms, the final rule requires a national 
    bank to file an application for OCC approval under the standard 
    application procedures where the national bank proposes to own 50 
    percent or less of the voting (or similar) interest of the subsidiary. 
    Thus, regardless of the type of activity that the subsidiary proposes 
    to engage in, a national bank would not qualify for the notice or 
    expedited review if it proposes to acquire 50 percent or less of the 
    voting (or similar) interest of an operating subsidiary. This will 
    permit the OCC to conduct a case-by-case review to ensure that the 
    national bank has effective control over the subsidiary and that the 
    bank is not exposed to undue risks. In determining whether there is 
    control, one factor the OCC will consider is whether generally accepted 
    accounting principles or Consolidated Reports of Condition and Income 
    instructions would require consolidation of the bank and its 
    subsidiaries.
        The proposal also solicited comment on whether Sec. 5.34 should 
    include interests in entities other than corporations, such as limited 
    liability companies (LLCs). The OCC received 11 comments addressing 
    this issue, all of which supported including LLCs under the operating 
    subsidiary rule. Some commenters also suggested broadening the rule to 
    include other similar entities.
        LLCs and other similar entities, e.g., business trusts, have 
    recently emerged in many states as an alternative to the corporate form 
    of ownership. These entities are hybrid business organizations with 
    characteristics of corporations (limited liability) and partnerships 
    (tax treatment). As such, the entities have certain key attributes of 
    corporations and joint ventures that the OCC has long permitted banks 
    to participate in--bank control of the entity and limitation or 
    insulation of the bank's liability for the entity's activities. 
    Authorizing investments in these and other similar types of entities as 
    operating subsidiaries increases the flexibility of national banks to 
    structure their operations. Moreover, to date, the OCC's experience 
    with LLCs has not revealed any additional risks unique to these 
    entities. Thus, the final rule provides that an operating subsidiary 
    that a national bank may invest in includes a corporation, limited 
    liability company, or similar entity, if the parent bank owns more than 
    50 percent of the entity's voting (or similar type of controlling) 
    interest, or otherwise controls the subsidiary and no other party 
    controls more than 50 percent of the voting (or similar type of 
    controlling) interest in the subsidiary. However, as is the case with 
    national bank investments in operating subsidiaries that are 
    corporations, only the standard application procedures apply to 
    investments of 50 percent or less of the voting (or similar) interest 
    where the parent bank otherwise controls the LLC or similar entity.
        The final rule retains the language in the former rule relating to 
    consolidation of book figures of a parent bank and operating subsidiary 
    with some modifications. Under the final rule, pertinent book figures 
    of the parent bank and its operating subsidiary must be combined in 
    order to apply certain statutory limitations to the parent bank and its 
    subsidiary on a combined basis, such as dividend limitations and 
    lending limits. See e.g., 12 U.S.C. 56, 60, 84 and 371d. However, in 
    determining compliance with statutory limits based on regulatory 
    capital, the bank will be required to make any reductions in regulatory 
    capital required by 5.34(f), discussed later.
    C. Fiduciary Powers
        The proposal also requested comment on whether Sec. 5.34 should 
    require a national bank to obtain approval to exercise fiduciary powers 
    as a precondition to providing investment advice, either in the bank or 
    through a subsidiary.
        The OCC received seven comments on this issue and all opposed the 
    requirement. A number of commenters viewed the requirement as overly 
    broad. Moreover, commenters noted that requiring a national bank to 
    obtain prior OCC approval could result in different treatment for 
    national banks and state-chartered banks.
        The OCC has carefully considered these comments, and the final rule 
    provides that if an operating subsidiary proposes to exercise 
    investment discretion on behalf of customers or to provide investment 
    advice for a fee, the bank must obtain OCC approval to exercise 
    fiduciary powers, and the subsidiary will be subject to the 
    requirements of 12 CFR part 9, except in two circumstances. First, the 
    bank is not required to obtain approval to exercise fiduciary powers if 
    the subsidiary is registered under the Investment Advisers Act of 1940, 
    15 U.S.C. 80b-1 et seq. Second, approval is not required if the 
    subsidiary is registered, or has filed a notice, under the applicable 
    provisions of sections 15, 15B or 15C of the Securities Exchange Act of 
    1934, 15 U.S.C. 78o, 78o-4, or 78o-5, as a broker, dealer, municipal 
    securities dealer, government securities broker or government 
    securities dealer; and the subsidiary's performance of investment 
    advisory services as described in 15 U.S.C. 80b-2(a)(11) is solely 
    incidental to the conduct of its business as broker or dealer and there 
    is no special compensation to the subsidiary for those advisory 
    services. This approach ensures effective regulation of the entity 
    exercising the investment discretion in accordance with industry 
    standards and avoids duplicative layers of regulatory oversight.
    D. New Procedure for Certain Activities
        The proposal revised former Sec. 5.34(d)(2)(i) to provide that 
    ``unless otherwise provided by statute or regulation, or determined by 
    the OCC in writing, all provisions of Federal banking laws and 
    regulations applicable to the operations of the parent bank apply to 
    the operations of the bank's operating subsidiaries.'' (Emphasis 
    added). The proposed revised standard would have allowed the OCC to 
    determine, on a case-by-case basis, whether a bank could conduct 
    through a subsidiary an activity within the business of banking or 
    incidental thereto, but for one reason or another prohibited to a 
    national bank directly to conduct or conduct in that manner, as in the 
    case where (1) a specific prohibition applies to a parent bank but not 
    to the bank's subsidiary, or (2) the legal authority to conduct the 
    activity is otherwise restricted to the subsidiary.
        The OCC received 46 comments on this provision. Approximately 75 
    percent of the commenters supported the provision in some fashion, most 
    very strongly. Among other things, commenters noted that the proposal 
    would: (1) provide banks with corporate flexibility and a meaningful 
    alternative to structure their operations; (2) improve efficiencies; 
    and (3) foster competition in the development and delivery of banking 
    products and services to benefit consumers and businesses.
        Several commenters opposed the proposal, however. These commenters 
    included several trade associations that generally questioned bank 
    entry into certain lines of business. A number of these commenters also 
    urged the OCC not to take action on the proposal until
    
    [[Page 60351]]
    
    Congress acted on the scope of permissible bank affiliate powers.
        Commenters also raised concerns with the OCC's authority to adopt 
    the proposal and with safety and soundness issues associated with the 
    proposal. Among other things, commenters asserted that: (1) the OCC 
    lacks the authority to adopt the provision under 12 U.S.C. 24(Seventh) 
    because the proposal would be inconsistent with the statutory language 
    and legislative history of 12 U.S.C. 24(Seventh); (2) the proposal is 
    inconsistent with past OCC precedent; (3) the provision may be 
    inconsistent with sections 16 and 21 of the Banking Act of 1933 (Act of 
    June 16, 1933, Ch. 89, section 16 and section 21, 48 Stat. 162, 184, 
    and 189) (the 1933 Act or the Glass-Steagall Act); (4) the proposal may 
    be inconsistent with the Bank Holding Company Act because that Act 
    should be viewed as the exclusive method by which bank affiliates may 
    engage in bank-ineligible activities; (5) the OCC lacks the authority 
    to adopt the proposed changes under 12 U.S.C. 93a because that 
    authority does not apply to securities activities of national banks 
    under the Glass-Steagall Act 1; and (6) the proposal would expose 
    national banks to unacceptable safety and soundness risks.
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        \1\  The Securities and Exchange Commission expressed no 
    objection to the OCC's proposal regarding expanded activities for 
    operating subsidiaries subject to the understanding that: (1) the 
    OCC intended that securities activities conducted in operating 
    subsidiaries are subject to regulation under the Federal securities 
    laws, and (2) the OCC's proposal was not intended as a steppingstone 
    to permit activities previously not permitted for a bank to conduct 
    itself to be shifted from an operating subsidiary to the bank. If, 
    in fact, securities activities are approved for an operating 
    subsidiary, these understandings will be correct.
    ---------------------------------------------------------------------------
    
        The OCC has carefully considered all of these concerns, and, for 
    the reasons discussed below, has determined to adopt various changes to 
    this portion of the proposal to address issues raised by the 
    commenters. In sum, under the procedures prescribed by Sec. 5.34 of the 
    final rule, a national bank may establish or acquire an operating 
    subsidiary to conduct, or may conduct in an existing operating 
    subsidiary, activities that are part of or incidental to the business 
    of banking, as determined by the Comptroller of the Currency, pursuant 
    to 12 U.S.C. 24(Seventh), and other activities permitted for national 
    banks or their subsidiaries under other statutory authority. In certain 
    circumstances, as described in Sec. 5.34(f), this may include 
    permitting a national bank to acquire or establish an operating 
    subsidiary to conduct, or to conduct in an existing operating 
    subsidiary, an activity that is permissible for the subsidiary under 
    the foregoing standards but different from that permissible for the 
    parent national bank. In these circumstances the activity will be 
    subject to a number of safeguards, discussed below, and the OCC will 
    publish a notice in the Federal Register and request comment prior to 
    taking action on the application if the proposed activity has not been 
    previously approved by the OCC.2 For subsequent applications for 
    the same activity, the OCC also may publish a notice and seek comment.
    ---------------------------------------------------------------------------
    
        \2\  This new notice process will allow commenters to present 
    any issues they believe the OCC should take into account in 
    connection with the particular bank and its proposed activity, e.g., 
    legal issues, safety and soundness concerns, and service to the 
    bank's community.
    ---------------------------------------------------------------------------
    
        The final rule contains a number of built-in safeguards, responding 
    to issues raised by commenters, to ensure that any new activities are 
    conducted safely and soundly. Moreover, new activities will be approved 
    only after case-by-case consideration has afforded the OCC the 
    opportunity not only to require conformance with the conditions 
    detailed in the final rule but also with any additional conditions that 
    may be appropriate for a particular activity and for the particular 
    applicant bank. This approach--tailoring the scope of the approval, if 
    approval is appropriate, to the circumstances of the activity in 
    question--allows the OCC to fulfill its continuing obligation to ensure 
    that risk is identified, managed and controlled.
        The following sections discuss in detail the particular concerns 
    raised by certain commenters.
    1. Authority Under 12 U.S.C. 24(Seventh) for the Final Operating 
    Subsidiary Rule
        Some commenters asserted that 12 U.S.C. 24(Seventh) prohibits a 
    national bank from owning stock for its own account and that the OCC 
    does not have the authority to permit national bank operating 
    subsidiaries. These commenters also contended that, because of this, 
    the OCC lacks the authority under 12 U.S.C. 24(Seventh) to issue a 
    final rule permitting a national bank subsidiary to conduct an activity 
    deemed to be part of the business of banking or incidental thereto, but 
    different from that permitted for its parent bank to conduct directly.
        The commenters who asserted that 12 U.S.C. 24(Seventh) precludes a 
    national bank from owning any stock in a corporation point to the 
    language in 12 U.S.C. 24(Seventh) that states: ``Except as hereinafter 
    provided or otherwise permitted by law, nothing herein contained shall 
    authorize the purchase [by the bank] of any shares of stock of any 
    corporation.''
        This language, which was added to 12 U.S.C. 24(Seventh) by section 
    16 of the 1933 Act has, for decades, been consistently interpreted by 
    the OCC as preventing national banks from undertaking the types of 
    speculative stock purchases that were the object of the 1933 Act, not 
    as a bar to the ability of national banks to have subsidiaries or to 
    own stock, where such ownership is otherwise authorized. This 
    interpretation is entirely consistent with the language of 12 U.S.C. 
    24(Seventh) cited above--that the new provisions added in 1933 do not 
    authorize national banks to purchase corporate stock, but to the extent 
    other authority exists to do so, that authority remains intact.\3\ 
    Thus, such ownership as is ``otherwise permitted by law'' remains 
    permissible. One such ``law'' is the powers sentence in 12 U.S.C. 
    24(Seventh), which was unaffected by the section 16 changes. This 
    analysis is amply supported by the legislative history accompanying the 
    enactment of this language.\4\
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        \3\ See Legal Opinion from Julie L. Williams, Chief Counsel, to 
    Eugene A. Ludwig, Comptroller of the Currency, ``Legal Authority for 
    Revised Operating Subsidiary Regulation,'' (November 18, 1996), 
    (Legal Opinion), at 9-14.
        \4\ See Legal Opinion at 8-11.
    ---------------------------------------------------------------------------
    
        The key national bank powers portion of section 24(Seventh), which 
    has existed essentially unchanged since its enactment in 1864, states 
    that a national bank is expressly authorized to carry on the business 
    of banking and to exercise ``all such incidental powers as shall be 
    necessary'' to carry on that business. The courts have construed the 
    term ``necessary'' to mean ``convenient and useful''. See Arnold Tours, 
    Inc. v. Camp, 472 F.2d 427 (1st Cir. 1972).
        In NationsBank of North Carolina, N.A. v. Variable Annuity Life 
    Insurance Co., 115 S.Ct. 810, 130 L.Ed. 2d 740 (1995), (VALIC), the 
    Supreme Court confirmed that a national bank's permissible activities 
    are not limited to the five enumerated powers described in the powers 
    sentence of 12 U.S.C. 24(Seventh) and activities incidental to those 
    enumerated powers. ``[T]he Comptroller * * * has discretion to 
    authorize activities beyond those specifically enumerated. The exercise 
    of the Comptroller's discretion, however, must be kept within 
    reasonable bounds.'' Id. at 814, n.2.
        It is clear that the authority under 12 U.S.C. 24(Seventh) includes 
    activities that are incident to being in business generally, and that a 
    bank, as a business, may engage in activities that are
    
    [[Page 60352]]
    
    convenient and useful to the conduct of that business. For example, 
    such powers as having employees and borrowing money to conduct 
    operations fall into this category. Moreover, Congress has repeatedly 
    recognized and regulated these business activities of banks without 
    deeming it necessary to authorize them explicitly because they are 
    authorized by the powers sentence in 12 U.S.C. 24(Seventh). Thus, for 
    example, various statutes refer to duties of bank employees and place 
    limits on the ownership of bank premises, assuming their existence in 
    each case.5
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        \5\ See Legal Opinion at 2-5.
    ---------------------------------------------------------------------------
    
        The use of subsidiaries is convenient and useful to national banks 
    in conducting their banking business, and the ability of national banks 
    to own subsidiaries under the authority of 12 U.S.C. 24(Seventh) is 
    well founded. For example, the changes made to 12 U.S.C. 24(Seventh) by 
    the 1927 McFadden Act, (Act of February 25, 1927, Ch. 191, section 
    2(b), 44 Stat. 1226) (1927 Act) and the 1933 Act confirm that national 
    banks have authority to own subsidiaries pursuant to their incidental 
    powers. In each instance, the statute placed limitations on bank 
    subsidiary activities, presupposing the ability of the bank to own and 
    operate a subsidiary in the first place, even though such ownership was 
    not expressly identified in the statute as a bank power. For example, 
    the 1927 Act limited the amount a national bank could invest in a 
    corporation conducting a safe deposit business, thereby acknowledging 
    that banks already had authority to own this type of corporation under 
    12 U.S.C. 24(Seventh). Similarly, in one of many examples from the 1933 
    Act supporting this proposition, that Act limited the amount that a 
    national bank could invest in a bank premises subsidiary corporation, 
    thereby acknowledging the continued lawfulness of the investment.6 
    The 1933 Act also imposed limits on transactions by national banks (and 
    state member banks) with their ``affiliates,'' which were defined to 
    include companies that were controlled by a bank.7 The scope of 
    these provisions would make no sense unless Congress believed that 
    national banks had the authority in the first place to control a 
    company as a subsidiary.
    ---------------------------------------------------------------------------
    
        \6\ See Legal Opinion at 4-7, 13.
        \7\ See Legal Opinion at 12-14.
    ---------------------------------------------------------------------------
    
        Nor does the OCC believe that the ownership of a subsidiary is 
    convenient or useful to its parent bank only when the subsidiary can do 
    no more than duplicate the activities permissible for its parent bank. 
    Clearly, the ability to operate something other than a precise clone of 
    itself could be convenient or useful to a bank in various situations. 
    Those situations have boundaries, however, since not just the ownership 
    of the subsidiary, but also what it does, must be part of or incidental 
    to the business of banking, or otherwise authorized for the bank or the 
    subsidiary.
        Accordingly, under the final rule, a national bank operating 
    subsidiary remains limited in its activities to those that are part of 
    or incidental to the business of banking as determined by the OCC, or 
    otherwise permissible for national banks or their subsidiaries under 
    other statutory authority. The final rule confirms, however, that this 
    may include activities different from what the parent national bank may 
    conduct directly, if, in the circumstances presented, the reason or 
    rationale for restricting the parent bank's ability to conduct the 
    activity does not apply to the subsidiary, and if the ability of the 
    subsidiary to conduct the activity would not frustrate a congressional 
    purpose of preventing the activity from being undertaken by its parent 
    bank.8
    ---------------------------------------------------------------------------
    
        \8\ See Legal Opinion at 19-24.
    ---------------------------------------------------------------------------
    
        Under the final rule, therefore, the OCC must evaluate an operating 
    subsidiary application involving this type of activity on a case-by-
    case basis. For each activity, the OCC will consider the particular 
    activity at issue, and weigh: (1) the form and specificity of the 
    restriction applicable to the parent bank; (2) why the restriction 
    applies to the parent bank; and (3) whether it would frustrate the 
    purpose underlying the restriction on the parent bank to permit a 
    subsidiary of the bank to engage in the particular activity. The OCC's 
    evaluation of all these factors will also take into account safety and 
    soundness implications of the activity, the regulatory safeguards that 
    apply to the operating subsidiary and to the activity itself, any 
    conditions that may be imposed in conjunction with an application 
    approval, and any additional undertakings by the bank or the operating 
    subsidiary that address the foregoing factors.
    2. Consistency of the Final Rule With Past OCC Precedent
        Some commenters have asserted that prior OCC characterizations of a 
    national bank operating subsidiary as a ``department of the bank'' and 
    other statements on the permissible activities of an operating 
    subsidiary preclude the OCC from determining that an operating 
    subsidiary may conduct an activity not directly permissible for the 
    parent bank, even if the activity is part of or incidental to the 
    business of banking. The OCC recognizes that some may have viewed the 
    terminology it has used as representing a legal conclusion regarding 
    the outer bounds of the activities permissible for a national bank 
    operating subsidiary. However, neither the OCC's position nor judicial 
    precedent is that limiting.
        It is true that the OCC has generally taken a policy position that 
    the Federal banking laws applicable to a national bank should also 
    apply to its operating subsidiary. That this did not represent a legal 
    determination that an operating subsidiary may never permissibly 
    conduct activities different from those allowed its parent bank is 
    illustrated, however, by exceptions contained in even relatively early 
    OCC approvals. See, e.g., Letter from Deputy Comptroller DeShazo 
    (October 25, 1967); Letter from Deputy Comptroller Watson (January 
    1968). See also, Interpretive letter No. 289, reprinted in [1983-1984 
    Transfer Binder] Fed. Banking L. Rep. (CCH) para. 85,453 (approving an 
    operating subsidiary to act as a general partner of a partnership 
    formed to establish ATMs).9 See also Independent Bankers Ass'n of 
    Georgia v. Board of Governors of the Federal Reserve System, 516 F.2d 
    1206 (D.C. Cir. 1975) (a national bank could lawfully conduct, through 
    a subsidiary that was a holding company, banking operations at various 
    locations in a state that would have been barred for the bank directly 
    under the state's branching laws).
    ---------------------------------------------------------------------------
    
        \9\ See Legal Opinion at 21-23.
    ---------------------------------------------------------------------------
    
        The final rule resolves the ambiguities of OCC precedents by 
    clarifying that the permissible activities of an operating subsidiary 
    are not necessarily a carbon copy of the permissible activities of its 
    parent. However, the activities still must qualify as a part of the 
    business of banking or incidental thereto, or be permissible for 
    national banks or their subsidiaries under other statutory authority, 
    and the final rule also provides a specific (and public) process for 
    evaluating applications that involve this type of activity.
        This approach is based not only on extensive reanalysis of the 
    relevant statutes and legislative history, but also on the availability 
    of enhanced supervisory tools for ensuring that these activities are 
    conducted safely and soundly. The OCC is not precluded from modifying 
    its policies where the modification is lawful and where enhanced 
    flexibility can be appropriately monitored and contained via the 
    imposition of conditions as
    
    [[Page 60353]]
    
    warranted and the availability of improved supervisory tools. Cf. 
    Smiley v. Citibank, 116 S.Ct. 1730, 135 L.Ed. 2d 25 (1996). For 
    example, as discussed later, Congress has provided the bank regulatory 
    agencies enhanced authority to levy civil money penalties and issue 
    cease and desist orders to deter unsafe or unsound activities. In 
    addition, an extensive ``prompt corrective action'' regime of mandatory 
    and discretionary supervisory tools was enacted in 1991 to enable 
    regulators to protect the financial stability of all types of insured 
    depository institutions.
    3. Consistency With the Glass-Steagall Act
        Some commenters also suggested that the proposal would not be 
    consistent with various provisions of the Glass-Steagall Act. These 
    commenters contended that Secs. 16 and 21 of the Glass-Steagall Act 
    prevent commercial and investment banking functions from being 
    conducted by a single entity.
        The OCC notes that these comments are premised on the assumption 
    that the OCC will approve specific types of activities under this 
    regulation and go on to provide the commenters' views about the 
    legality of conducting those types of activities in an operating 
    subsidiary. However, the final rule only establishes a process that 
    enables the OCC to consider and act on a broader range of corporate 
    activities than is permitted for operating subsidiaries under former 
    part 5. By issuing this portion of the final rule, the OCC is not 
    addressing or approving any particular activity for national bank 
    operating subsidiaries. The OCC will evaluate applications to engage in 
    any new operating subsidiary activity on a case-by-case basis following 
    a comprehensive review of any supervisory, policy or legal concerns, 
    consistent with the new procedures for public notice and comment set 
    forth in the final rule.
    4. Consistency With the Bank Holding Company Act
        Some commenters asserted that the regulation is inconsistent with 
    the Bank Holding Company Act (BHCA) because the BHCA is the exclusive 
    means by which bank holding company affiliates can engage in activities 
    not permissible for banks to conduct themselves. Some of these 
    commenters asserted, for example, that the BHCA, which permits bank 
    holding companies to engage in ineligible securities activities through 
    nonbank subsidiaries provides the exclusive method by which Congress 
    intended to permit bank affiliates to engage in activities such as 
    ineligible securities activities.
        As noted above, however, this final rule only establishes a process 
    for the OCC to consider a broader range of subsidiary activities. 
    Approval of a particular activity will be subject to the application 
    process set forth in the regulation. To the extent that specific 
    activities are questioned by commenters those issues will be addressed 
    in the context of a specific application; they are not presented by a 
    rule that only establishes an application process. Moreover, the 
    process in the regulation does not authorize ``nonbank'' activities; 
    only activities that are ``part of the business of banking or 
    incidental thereto,'' or permitted for national banks or their 
    subsidiaries under other statutory authority, could be permitted.
        The OCC also notes that courts have specifically held that the BHCA 
    does not govern the permissible activities of banks or their 
    subsidiaries. For example, in Independent Insurance Agents of America, 
    Inc. v. Board of Governors of the Federal Reserve System, 890 F.2d 1275 
    (2d Cir. 1989) (Merchants II), cert. denied, 498 U.S. 810 (1990), the 
    Second Circuit upheld a Federal Reserve Board (FRB) order concluding 
    that the BHCA's activity restrictions did not apply to the activities 
    of a bank subsidiary of a bank holding company. In upholding the order, 
    the court noted that the FRB had a ``reasonable'' interpretation of the 
    BHCA, one that confided decisions regarding the scope of permissible 
    activities of bank subsidiaries to the banks' national and state 
    chartering authorities. Id. at 1284.
        Shortly thereafter, in Citicorp v. Board of Governors of the 
    Federal Reserve System, 936 F.2d 66 (2nd Cir. 1991), cert. denied, 502 
    U.S. 1031 (1992), the court applied the reasoning of Merchants II to a 
    situation involving a subsidiary of a bank in a bank holding company 
    structure. In vacating a FRB order that required a state bank owned by 
    a bank holding company to terminate certain activities conducted 
    through the state bank's subsidiary, the court found that the BHCA 
    ``cannot sensibly be interpreted to reimpose the authority of the [FRB] 
    on a generation-skipping basis to regulate the subsidiary's 
    subsidiary.'' Id. at 68. The activities of the bank's subsidiary in 
    question were, according to the court, appropriately the responsibility 
    of the bank's chartering authority to address.10
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        \10\ Cf. Section (4)(c)(5) of the Bank Holding Company Act, 12 
    U.S.C. 1843(c)(5), that provides that the investment and activities 
    restrictions contained in section 4 of that Act do not apply to 
    ``shares which are of the kinds and amounts eligible for investment 
    by national banking associations'' under section 24 of the National 
    Bank Act.
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    5. OCC Authority Under 12 U.S.C. 93a
        Some commenters asserted that the OCC lacks the authority under 12 
    U.S.C. 93a to issue Sec. 5.34. Federal law at 12 U.S.C. 93a authorizes 
    the Comptroller of the Currency to issue rules and regulations to carry 
    out the responsibilities of the office, except that the authority 
    conferred by 12 U.S.C. 93a does not apply to 12 U.S.C. 36 or the Glass-
    Steagall Act. These commenters contended that 12 U.S.C. 93a does not 
    confer authority on the OCC to establish national bank powers that they 
    do not have under existing law.
        The OCC believes that these commenters misunderstood the effect of 
    the proposal. As already described earlier, the final rule establishes 
    a procedure under which the OCC will consider applications for 
    activities for operating subsidiaries on a case-by-case basis. 
    Moreover, as discussed earlier, these activities must be part of or 
    incidental to the business of banking, or permitted for national banks 
    or their subsidiaries under other statutory authority.
        Further, Sec. 5.34 does not purport to diminish or otherwise affect 
    the application of the Glass-Steagall Act to national banks. Glass-
    Steagall Act prohibitions are still applicable to the same degree as 
    prior to the adoption of the rule. The final rule only recognizes that 
    operating subsidiaries are entities, distinct from a bank, whose 
    activities are not necessarily required to be an exact duplicate of the 
    activities permitted for their parent bank. In other words, the final 
    rule only recognizes the possibility that some activity restrictions 
    that apply to a national bank may not apply to a bank's subsidiary. 
    Thus, in this rulemaking, the OCC has not exercised its authority under 
    12 U.S.C. 93a to adopt that principle as a matter of law or as a final 
    interpretation.
    6. Safety and Soundness Considerations
        Some commenters also argued that the proposal would permit banks 
    through their operating subsidiaries to engage in risky activities that 
    would jeopardize the deposit insurance system.
        The OCC does not today, and will not under this revised rule, 
    approve applications for operating subsidiaries to engage in activities 
    that would endanger the stability of their parent banks. Moreover, the 
    OCC does not assume that new activities would necessarily involve more 
    risk than many well-recognized banking activities conducted by banks 
    today. The OCC also has available a number of measures to address 
    safety and soundness issues that may arise in connection with
    
    [[Page 60354]]
    
    activities conducted under the authority of this section. These 
    safeguards include certain requirements added to the final rule in 
    response to commenters' suggestions, the ability to condition 
    application approvals on a case-by-case basis, and statutory changes in 
    recent years that have provided the banking agencies with additional 
    supervisory tools.
        For example, in the proposal the OCC noted that it would impose 
    appropriate conditions in connection with the approval of a particular 
    operating subsidiary application in order to ensure bank safety and 
    soundness. After careful deliberation, the OCC has decided to include 
    in the final rule a number of additional conditions that would apply to 
    the parent bank and/or the subsidiary when the subsidiary engages in an 
    activity authorized under Sec. 5.34(d), but different from that 
    permitted for the bank directly to conduct.
        The safeguards that are built into the final rule fall into two 
    categories. First, because the use of a separate subsidiary structure 
    can enhance the safety and soundness of conducting new activities by 
    distinguishing the subsidiary's activities from those of the parent 
    bank (as a legal matter) and allowing more focused management and 
    monitoring of its operations,11 the final rule contains a number 
    of requirements that are intended to emphasize the importance of the 
    subsidiary's independent legal and corporate existence.
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        \11\ See e.g., OCC Interpretive Letter No. 725 (May 10, 1996) 
    reprinted in Fed. Banking L. Rep. (CCH) Para. 81,040 (special 
    purpose subsidiary established by NationsBank, N.A.). The FDIC in a 
    recent proposal also recognized that conducting activities in a 
    subsidiary can be helpful in containing risks to the bank. See 61 FR 
    43,486 (August 23, 1996).
    ---------------------------------------------------------------------------
    
        Specifically, the final rule requires the subsidiary to: (1) be 
    physically separate and distinct in its operations from the parent 
    bank, including ensuring that the employees of the subsidiary are 
    compensated by the subsidiary, although this requirement would not be 
    construed to prohibit the parent bank and the subsidiary from sharing 
    the same facility, provided that any area in which the subsidiary 
    conducts business with the public is distinguishable, to the extent 
    practicable, from the area in which customers of the bank conduct 
    business with the bank; (2) be held out as a separate and distinct 
    entity from the bank in its written material and direct contact with 
    outside parties, with all written marketing material clearly stating 
    that the subsidiary is a separate entity from the bank and the 
    obligations of the subsidiary are not obligations of the bank; (3) not 
    have the same name as its parent bank, and if the subsidiary has a name 
    similar to its parent bank to take appropriate steps to minimize the 
    risk of customer confusion, including clarifying the separate character 
    of the two entities and the extent to which their respective 
    obligations are insured or not insured by the Federal Deposit Insurance 
    Corporation; (4) be adequately capitalized according to relevant 
    industry measures and maintain capital adequate to support its 
    activities and to cover reasonably expected expenses and losses; (5) 
    maintain separate accounting and corporate records; (6) conduct its 
    operations pursuant to independent policies and procedures that are 
    also intended to inform customers that the subsidiary is an 
    organization separate from the bank; (7) contract with the bank for any 
    services only on terms and conditions substantially comparable to those 
    available to or from independent entities; (8) observe appropriate 
    separate corporate formalities, such as separate board of directors' 
    meetings; (9) maintain a board of directors at least one-third of whom 
    shall not be directors of the bank and shall have relevant expertise 
    capable of overseeing the subsidiary's activities; and (10) have 
    internal controls appropriate to manage the financial and operational 
    risks associated with the subsidiary. These internal controls should 
    also be maintained by the bank.
        Second, if the subsidiary is engaged in a principal capacity in 
    activities authorized under Sec. 5.34(f), certain supervisory tools 
    will be particularly useful to protect the financial soundness of the 
    bank. For example, the final rule provides that the bank's capital and 
    total assets shall each be reduced by an amount equal to the amount of 
    the bank's equity investment in the subsidiary, and the subsidiary's 
    assets and liabilities shall not be consolidated with those of the 
    bank. For risk-based capital purposes, 50 percent of the bank's equity 
    investment in the subsidiary must be deducted from Tier 1 capital and 
    50 percent from Tier 2 capital. In addition, the OCC may require the 
    bank to calculate its capital on a consolidated basis for purposes of 
    determining whether the bank is adequately capitalized under 12 CFR 
    part 6.
        The final rule also provides that a national bank must satisfy the 
    eligible bank criteria contained in Sec. 5.3(g) before commencement of 
    the activity, and thereafter, taking into account the required capital 
    deduction described above. The eligible bank criteria helps to ensure 
    that only financially strong and well-managed banks will undertake 
    these activities through their subsidiaries. If the bank ceases to be 
    well capitalized for two consecutive quarters, it must submit a plan to 
    the OCC detailing how it will become well capitalized.
        The final rule also contains safeguards on transactions between the 
    bank and this type of subsidiary. Under the final rule, the standards 
    of sections 23A and 23B of the Federal Reserve Act, 12 U.S.C. 371c and 
    371c-1, shall apply to, and shall be enforced and applied by the OCC 
    with respect to, transactions between the bank and the subsidiary. The 
    application of these sections will limit a bank's investments in and 
    extensions of credit to this type of subsidiary to 10 percent of the 
    bank's capital, require extensions of credit to be fully 
    collateralized, and apply arm's-length safeguards to transactions 
    between the bank and the subsidiary.
        Collectively, these conditions will help to contain risk, reduce 
    potential conflicts of interest, and help to ensure the safe and sound 
    operation of the parent bank. The arm's-length standards also address 
    concerns regarding inappropriate subsidization by the bank of its 
    subsidiary. In addition, the OCC retains the authority to impose 
    additional safeguards, either on a case-by-case or activity-by-activity 
    basis, to address safety and soundness issues presented by particular 
    types of operations. To the extent that the OCC's future experience 
    with the safeguards contained in the regulation indicates that the 
    safeguards need to be supplemented, or that other measures would more 
    effectively or efficiently accomplish their intended objectives, the 
    OCC will propose appropriate changes to the regulation.
        Finally, Federal legislation in recent years has provided the 
    federal banking agencies with additional supervisory tools to address 
    promptly supervisory concerns that may arise in connection with 
    activities engaged in by banks or their subsidiaries. For example, the 
    Financial Institutions Reform, Recovery, and Enforcement Act of 1989 
    provided substantial civil money penalties for national banks engaging 
    in unsafe and unsound banking practices or for violations of conditions 
    imposed in writing in connection with the grant of an application or 
    other request by a national bank. Likewise, the Federal Deposit 
    Insurance Corporation Improvement Act of 1991, (Pub. L. 102-242, Dec. 
    19, 1991, 105 Stat. 2236), established a framework for prompt 
    corrective action when banks fail to meet specified capital 
    requirements, including the ability of the OCC to require an 
    undercapitalized institution to divest any subsidiary that may pose
    
    [[Page 60355]]
    
    a significant risk to the parent bank or that is likely to cause a 
    significant dissipation of the institution's assets or earnings. These 
    and other available supervisory actions provide the OCC with a 
    substantial array of tools--not available until relatively recently--to 
    address risks presented by national bank operating subsidiaries.
    
    Bank Service Companies (Sec. 5.35)
    
        Proposed Sec. 5.35 streamlined the application requirements and 
    clarified certain aspects of the rule. The proposal also minimized 
    regulatory burden with respect to low-risk activities by implementing 
    changes resulting from the Riegle Community Development and Regulatory 
    Improvement Act of 1994, Public Law 103-325, Sept. 23, 1994, 108 Stat. 
    2160 (Riegle Act), and conforming Sec. 5.35 with the procedures 
    proposed for operating subsidiaries.
        The commenters supported the proposal, and, specifically, the 
    expedited review procedure and parallel construction to Sec. 5.34.
        The OCC adopts this section as proposed, with modifications and 
    other technical changes to conform this section to Sec. 5.34. The 
    section is also changed from the proposal to account for the new 
    provisions in section 2613 of the Economic Growth and Regulatory 
    Paperwork Reduction Act of 1996 that authorize bank service companies 
    to organize as limited liability companies.
    
    Other Equity Investments (Sec. 5.36)
    
        The proposal restructured the section and removed OCC approval 
    requirements for equity investments in an agricultural credit 
    corporation or in a savings association to be acquired under section 13 
    of the Federal Deposit Insurance Act (FDIA), 12 U.S.C. 1823. Instead, 
    the proposal covered only investments authorized by statutes enacted 
    after February 12, 1990, that are not covered by other OCC regulations.
        The proposal also incorporated an application process that 
    conformed with other sections in part 5. The proposal maintained the 
    30-day time frame for approval of other equity investments but 
    simplified the language to correspond to other similar provisions. The 
    OCC also requested comment on whether to remove the section.
        The OCC received two comment letters, each supporting removal of 
    the provision. However, the OCC continues to believe that although an 
    application may not be warranted, some notification to the OCC of 
    certain equity investments by national banks facilitates examiner 
    supervision and bank safety and soundness. Therefore, the final rule 
    clarifies that 12 U.S.C. 24(Seventh) and other statutes authorize 
    national banks to make various types of equity investments. With 
    respect to equity investments in an agricultural credit corporation, a 
    savings association eligible to be acquired under section 13 of the 
    FDIA, 12 U.S.C. 1823, and equity investments authorized by statute 
    after February 12, 1990 and not covered by other applicable OCC 
    regulation, the OCC will continue to require the bank to file a notice 
    with the appropriate district office within 10 days after the 
    investment. Other types of equity investments permitted for national 
    banks will be reviewed by the OCC, as appropriate, on a case-by-case 
    basis.
    
    Investment in Bank Premises (Sec. 5.37)
    
        The proposal transferred certain provisions previously located in 
    12 CFR part 7, clarified the circumstances under which OCC approval is 
    required for national bank investment in bank premises in excess of the 
    bank's capital stock, and described the procedures for submitting an 
    application for OCC review. The proposal also provided that, 
    notwithstanding the capital stock limitation, an eligible bank may 
    provide an after-the-fact notice for aggregate investments in bank 
    premises up to 20 percent of the bank's ``capital and surplus'' as 
    defined in Sec. 5.3(d).
        Commenters generally supported the proposed provision, especially 
    the expedited review process. However, a number of commenters had 
    additional recommendations. Most suggestions focused on proposed 
    Sec. 5.37(c)(3), which provided for a notice procedure for eligible 
    banks making qualifying investments in bank premises.
        The OCC has reviewed the commenters' suggestions and the after-the-
    fact notice procedures and determined that the examination and 
    supervision process contains sufficient safeguards to prevent excessive 
    investments in bank premises. Therefore, the final rule makes a number 
    of changes to further increase the amount a national bank may invest in 
    bank premises without seeking OCC approval and to conform with recent 
    changes in the Economic Growth and Regulatory Paperwork Reduction Act 
    of 1996. Under the final rule, a bank that has a CAMEL rating of 1 or 2 
    may make an aggregate investment in bank premises up to 150 percent of 
    the bank's capital and surplus (as defined in Sec. 5.3(d)) without 
    submitting an application for prior approval to the appropriate 
    district office, provided that the bank is well capitalized both before 
    and after the loan or investment is made. The bank must provide a 
    description of the investment to the appropriate district office within 
    30 days following the transaction.
        The final rule also defines the term ``bank premises'' by adopting 
    certain provisions of the Call Report line item on Bank Premises and 
    Fixed Assets. Under the final rule, ``bank premises'' is defined as: 
    (1) premises that are owned and occupied (or to be occupied, if under 
    construction) by the bank, its branches, or its consolidated 
    subsidiaries; (2) capitalized leases and leasehold improvements, 
    vaults, and fixed machinery and equipment; (3) remodeling costs to 
    existing premises; (4) real estate acquired and intended, in good 
    faith, for use in future expansion; or (5) parking facilities that are 
    used by customers or employees of the bank, its branches, and its 
    consolidated subsidiaries. The inclusion of this definition will 
    clarify the types of investments and loans subject to this section.
        Another commenter suggested the OCC clarify whether the entire 
    investment in bank premises must be made within eighteen months to 
    avoid the expiration of approval. The changes in the final rule to 
    Sec. 5.13(g) for situations beyond the control of the applicant 
    adequately address this concern.
    
    Change in Location of Main Office (Sec. 5.40)
    
        The proposal reorganized this section and streamlined the 
    procedures to change the location of a national bank's main office.
        All comments received by the OCC on this section supported the 
    proposal. One commenter suggested including a notice procedure for a 
    temporary relocation of a main office in the event that the permanent 
    location is not immediately available. The OCC plans to include further 
    guidance on this issue in the Manual. The OCC adopts this section 
    substantially as proposed.
    
    Corporate Title (Sec. 5.42)
    
        The proposal rearranged this section for greater clarity and 
    specifically alerted banks to the restrictions in 18 U.S.C. 709 
    regarding the use of certain titles. No comments were received on this 
    section. The OCC adopts this section substantially as proposed.
    
    Changes in Permanent Capital (Sec. 5.46)
    
        The proposal restructured and streamlined this section to clarify 
    the requirements for a change to a national bank's permanent capital 
    and to reduce regulatory burden. The proposal no longer required 
    letters of intent, preliminary approval, and notification of changes in 
    par value (unless related
    
    [[Page 60356]]
    
    to selling stock for consideration other than cash). By dividing the 
    relevant information by subject matter, the proposal clarified the 
    procedures by which a national bank may make a change in its permanent 
    capital and drew a clear distinction between procedures increasing and 
    decreasing permanent capital.
        The proposal also sought to facilitate increases in permanent 
    capital by clarifying that most increases in permanent capital do not 
    require OCC approval. Generally, a national bank need only file a 
    letter of notification with the OCC after the sale or completion of the 
    transaction. The proposal also provided an expedited review procedure 
    for eligible banks.
        All the comments received on this section supported the OCC's 
    proposal. The OCC believes these procedures significantly clarify and 
    streamline the process for changes in permanent capital. Therefore, the 
    OCC is adopting this section as proposed with an additional change to 
    further reduce regulatory burden.
        Under proposed Sec. 5.46, a national bank had to submit an 
    application and receive OCC approval each time it intended to decrease 
    its permanent capital. The final rule provides that an eligible bank 
    may submit an application for expedited processing that would cover 
    planned reductions of capital and distributions that would result in a 
    distribution of cash or assets or a transfer to undivided profits for 
    up to four consecutive quarters (i.e., one year), rather than requiring 
    four separate applications and related application fees. To qualify for 
    this treatment, the bank must continue to be an eligible bank following 
    each reduction in its capital. In addition, the application must 
    include the specified information for each quarter covered by the 
    application.
    
    Subordinated Debt as Capital (Sec. 5.47)
    
        Under the proposal, unless the OCC has previously notified a 
    national bank that prior approval is required, a national bank needed 
    no prior approval to prepay subordinated debt.
        Most comments received on proposed Sec. 5.47 supported the OCC's 
    proposal to allow a national bank to issue subordinated debt as Tier 2 
    capital without prior OCC approval. However, one commenter noted that 
    prior regulatory approval and knowledge of reductions in capital may be 
    an important element of monitoring safety and soundness, and thus, 
    prepayments of subordinated debt should be subject to OCC approval.
        The OCC shares the commenter's desire to ensure the safe and sound 
    operation of banks, particularly those institutions that are not well 
    capitalized. Therefore, the OCC has changed the proposal to provide 
    that only banks that remain eligible banks may dispense with prior OCC 
    approval for the prepayment of subordinated debt. This will ensure the 
    continued monitoring of prepayments of subordinated debt by 
    institutions more likely to present safety and soundness concerns 
    (i.e., banks that are not well capitalized, have a CAMEL rating of 3, 
    4, or 5, or are subject to certain OCC orders, agreements or 
    directives). The OCC also retains the authority to notify any other 
    bank that demonstrates safety and soundness concerns that the bank must 
    obtain prior OCC approval to issue or prepay subordinated debt. The OCC 
    believes that this approach ensures continued monitoring of safety and 
    soundness concerns without unduly restricting well-capitalized, well-
    managed banks.
        In addition, the final rule adds provisions relating to the 
    issuance of subordinated debt to count as Tier 3 capital in addition to 
    Tier 2 capital.
    
    Voluntary Liquidation (Sec. 5.48)
    
        The proposal reorganized and simplified this section. It clarified 
    that a national bank preparing to voluntarily liquidate must file a 
    notice with the OCC once the bank's shareholders have voted to 
    voluntarily liquidate the bank pursuant to 12 U.S.C. 182. The proposal 
    stated that the bank must also publish a public notice pursuant to that 
    statute.
        The proposal also reduced the burden of dissolving shell banks 
    remaining after whole-bank purchase and assumptions involving 
    transactions between affiliated or non-affiliated banks, provided the 
    acquiring bank is adequately capitalized.
        The comment received by the OCC supported this provision. 
    Therefore, the OCC adopts this section as proposed with minor 
    clarifying changes.
    
    Change in Bank Control; Reporting of Stock Loans (Sec. 5.50)
    
        The proposal substantially reorganized, clarified, and simplified 
    this section. Among other things, the proposal removed paragraphs that 
    were repetitive or confusing and incorporated a number of OCC 
    interpretations regarding Sec. 5.50. The proposal also applied the 
    standards of the Change in Bank Control Act of 1978 (CBCA), 12 U.S.C. 
    1817(j), to uninsured national banks.
        The comments received by the OCC supported the proposed changes to 
    this section and suggested some additional clarifications. The OCC 
    adopts this section as proposed with a few modifications.
        The newspaper publication required by proposed Sec. 5.50(g)(1) 
    required an applicant to publish a public announcement of its filing in 
    a newspaper widely available in the geographic area where the affected 
    national bank is located. This change is similar to that proposed in 
    Sec. 5.8, and commenters recommended that the OCC retain the language 
    in the former regulation because they believed that it provides the 
    public with more effective notice. The OCC agrees with the commenters, 
    and the final rule retains the language in the former regulation, i.e., 
    requiring banks to publish a public announcement in a newspaper of 
    general circulation in the community where the affected national bank 
    is located.
        Another commenter suggested that the OCC should revise proposed 
    Sec. 5.50(f)(2)(ii) (A) and (B) so that an acquiror must satisfy both 
    factors to create a rebuttable presumption that an acquisition is made 
    by a person with the power to direct the bank's management or policies. 
    The OCC concluded that this change in the OCC's longstanding policy 
    would be too restrictive and, therefore, the final rule adopts this 
    provision as proposed.
        One commenter also suggested that the term ``default'' in the 
    definition of ``good faith'' be defined to mean only a failure to make 
    timely payments of interest or principal or a material default with 
    respect to other obligations in a loan agreement. Because these 
    situations may be fact dependent, the OCC did not add limiting language 
    in the final rule.
        Finally, the final rule reflects recent amendments contained in 
    section 2226 of the Economic Growth and Regulatory Paperwork Reduction 
    Act of 1996 to the CBCA stock loan reporting requirements. These 
    amendments eliminate the stock loan reporting requirements for all 
    entities other than foreign banks and their affiliates. The OCC notes 
    that for purposes of reporting loans secured by the stock of a national 
    bank without FDIC deposit insurance, federal branches and agencies of 
    foreign banks only are subject to these reporting requirements.
    
    Change in Directors or Senior Executive Officers (Sec. 5.51)
    
        The proposal provided for certain exceptions to reduce unnecessary 
    regulatory burden, addressed agency appeal issues, and made additional 
    housekeeping-type changes to conform Sec. 5.51 to the rest of part 5.
    
    [[Page 60357]]
    
        The comments received by the OCC on this section all supported the 
    changes to this section. The final rule adopts this section as proposed 
    with additional changes to conform to the recent changes contained in 
    section 2209 of the Economic Growth and Regulatory Paperwork Reduction 
    Act of 1996. These changes removed the requirement of this section to 
    provide prior written notice to the OCC to add or replace directors or 
    senior executive officers if the national bank: (1) has operated as a 
    depository institution for less than two years; or (2) has undergone a 
    change in control within the preceding two years that required it to 
    file a notice under the CBCA. These changes also extend the prior 
    review period to 90 days and remove the requirements for suspending the 
    review period.
    
    Change of Address (Sec. 5.52)
    
        The proposal added this section to part 5 to require a national 
    bank that changes its address to inform the OCC of that change in a 
    timely manner.
        The OCC received no comments on this section. The final rule adopts 
    this section substantially as proposed.
    
    Dividends--Subpart E
    
        The proposal organized the information in the current Secs. 5.61 
    and 5.62 into a new subpart to communicate better the standards and 
    procedures underlying a national bank's payment of dividends and to 
    conform to recent statutory changes. The proposal also clarified 
    definitions and procedures.
        Commenters generally supported the proposed changes. A few 
    commenters suggested providing circumstances under which a bank could 
    pay dividends in kind without prior OCC approval. The OCC continues to 
    believe, however, that dividends other than for cash raise potential 
    valuation issues and should continue to receive prior OCC review.
        The OCC adopts this subpart substantially as proposed with one 
    exception. The final rule clarifies that Sec. 5.64, which implements 
    the dividend restrictions contained in 12 U.S.C. 60, does not apply to 
    stock dividends. The provision is intended to prevent impairment of the 
    bank's capital structure through payment of excessive dividends. The 
    OCC believes that payments of stock dividends, which do not result in a 
    distribution of cash or assets, do not raise these concerns.
    
    Federal Branches and Agencies--Subpart F
    
        The proposal discussed relocating provisions relating to 
    applications of Federal branches and agencies, former Secs. 5.23, 5.25, 
    5.41, and 5.43, to 12 CFR part 28 to consolidate all of the regulations 
    concerning Federal branches and agencies and international activities 
    of national banks in one regulation. The proposal invited comment on 
    the advisability of relocating these provisions. The OCC received one 
    comment letter generally supporting the relocation of the provisions 
    relating to Federal branches and agencies.
        The OCC determined that while it is desirable to consolidate all of 
    the regulations concerning Federal branches and agencies and 
    international activities of national banks in one regulation, it is 
    also desirable to address all procedures relating to the filing of 
    applications and notices in part 5. Therefore, the final rule includes 
    a new subpart F outlining the corporate procedures for Federal branches 
    and agencies and refers readers to part 28 for substantive rules and 
    policies relating to Federal branches and agencies of foreign banks.
    
    Technical Amendment to 12 CFR Part 3
    
        The final rule contains two technical and conforming amendments to 
    capital adequacy, 12 CFR part 3. These changes clarify that in most 
    circumstances prior OCC approval is not required for the issuance and 
    prepayment of subordinated debt.
    
    Technical Amendment to 12 CFR Part 7
    
        The final rule contains two technical changes to part 7 removing 
    provisions that are now accounted for in part 5. A technical change is 
    also made to Sec. 7.1000 to cross-reference the applicable provisions 
    in part 5 relating to investments in bank premises.
    
    Technical Amendment to 12 CFR Part 16
    
        The final rule contains a technical and conforming change to 12 CFR 
    16.20(d). The final rule changes the reference from Sec. 5.33(b)(6)(ii) 
    to Sec. 5.33(e)(8).
    
    Technical Amendment to 12 CFR Part 28
    
        The final rule contains technical corrections to Sec. 28.2(b) and 
    Sec. 28.10.
    
                                                    Derivation Table                                                
      [This table directs readers to the provision(s) of the former regulation, if any, upon which the provision in 
                                                the final rule is based]                                            
    ----------------------------------------------------------------------------------------------------------------
              Revised provision                  Original provision                        Comments                 
    ----------------------------------------------------------------------------------------------------------------
    Sec.  5.1............................  Sec.  5.1....................  Modified.                                 
    Sec.  5.2(a).........................  Sec.  5.2(a).................  Modified.                                 
        (b)..............................  Sec.  5.2(b).................  Modified.                                 
        (c)..............................  Sec.  5.14...................  Modified.                                 
                                           Sec.  5.3....................  Removed.                                  
    Sec.  5.3(a).........................  .............................  Added.                                    
        (b)..............................  Sec.  5.2(e).................  Significant change.                       
        (c)..............................  .............................  Added.                                    
        (d)..............................  .............................  Added.                                    
        (e)..............................  .............................  Added.                                    
        (f)..............................  .............................  Added.                                    
        (g)..............................  .............................  Added.                                    
        (h)..............................  .............................  Added.                                    
        (i)..............................  .............................  Added.                                    
        (j)..............................  Sec.  5.2(d).................  Modified.                                 
        (k)..............................  .............................  Added.                                    
        (l)..............................  .............................  Added.                                    
    Sec.  5.4(a).........................  Sec.  5.4....................  Significant change.                       
        (b)..............................  Sec.  5.4....................  Modified.                                 
        (c)..............................  .............................  Added.                                    
        (d)..............................  Sec.  5.4....................  Significant change.                       
        (e)..............................  .............................  Added.                                    
    Sec.  5.5............................  Sec.  5.5....................  Significant change.                       
    
    [[Page 60358]]
    
                                                                                                                    
                                           Sec.  5.6....................  Removed.                                  
    Sec.  5.7(a).........................  Sec.  5.7....................  Modified.                                 
        (b)..............................  Secs.  5.5(c), 5.7...........  No change.                                
    Sec.  5.8(a).........................  Sec.  5.8(a).................  Modified.                                 
        (b)..............................  Sec.  5.8(a).................  Modified.                                 
        (c)..............................  Sec.  5.8(a).................  Modified.                                 
        (d)..............................  .............................  Added.                                    
        (e)..............................  .............................  Added.                                    
        (f)..............................  .............................  Added.                                    
    Sec.  5.9(a).........................  Sec.  5.9(b).................  Modified.                                 
        (b)..............................  Sec.  5.9(a).................  Significant change.                       
        (c)..............................  Sec.  5.9(a).................  Significant change.                       
    Sec.  5.10(a)........................  Sec.  5.10(a)................  Modified.                                 
        (b)..............................  Sec.  5.10(a)................  Significant change.                       
    Sec.  5.11(a)........................  Sec.  5.10(b)................  Modified.                                 
        (b)..............................  Sec.  5.10(b)................  Modified.                                 
        (c)..............................  Sec.  5.10(c)................  Modified.                                 
    Sec.  5.11(d)(1).....................  Sec.  5.11(a)................  Modified.                                 
        (d)(2)...........................  Sec.  5.11(d)................  Modified.                                 
        (e)..............................  Sec.  5.11(c)................  Modified.                                 
        (f)..............................  Sec.  5.10(b)(5).............  Modified.                                 
        (g)(1)...........................  Sec.  5.11(e)(1).............  Modified.                                 
        (g)(2)...........................  Sec.  5.11(e)(3).............  Modified.                                 
        (g)(3)...........................  Sec.  5.11(e)(3).............  Significant change.                       
        (h)..............................  Sec.  5.11(f)................  Modified.                                 
        (i)..............................  .............................  Added.                                    
    Sec.  5.12...........................  Sec.  5.12...................  No change.                                
    Sec.  5.13(a)........................  Sec.  5.13 (b), (c)..........  Significant change.                       
        (a)(1)...........................  .............................  Added.                                    
        (a)(2)...........................  .............................  Added.                                    
        (b)..............................  Sec.  5.13(c)................  Significant change.                       
        (c)..............................  Sec.  5.7....................  Modified.                                 
        (d)..............................  Sec.  5.13(a)................  Modified.                                 
        (e)..............................  Sec.  5.13(a)................  Modified.                                 
        (f)..............................  Sec.  5.13(d)................  Significant change.                       
        (g)..............................  .............................  Added.                                    
        (h)..............................  Sec.  5.13(e)................  Significant change.                       
                                           Sec.  5.14...................  Removed.                                  
    Sec.  5.20(a)........................  Sec.  5.20(b)................  Significant change.                       
        (b)..............................  .............................  Added.                                    
        (c)..............................  Secs.  5.20(a), 5.21(a),       Significant change.                       
                                            5.22(a)(2), 5.27(b).                                                    
        (d)(1)...........................  Sec.  5.27(c)................  Modified.                                 
        (d)(2)-(7).......................  .............................  Added.                                    
        (e)(1)...........................  Sec.  5.20(b), (d)(4)(v).....  Significant change.                       
        (e)(2)...........................  Sec.  5.20(b)................  Modified.                                 
        (f)(1)...........................  Sec.  5.20(d)................  Significant change.                       
        (f)(2)...........................  Sec.  5.20(c), (d)...........  Significant change.                       
        (f)(3)...........................  Sec.  5.20(d)(1), (d)(1)(ii).  Modified.                                 
        (g)(1)...........................  Sec.  5.20(d)(2)(i)..........  Modified.                                 
        (g)(2)...........................  Sec.  5.20(d)(3)(ii).........  Modified.                                 
        (g)(3)(i)........................  Sec.  5.20(d)(2)(ii).........  No change.                                
        (g)(3)(ii).......................  Sec.  5.20(d)(2)(iii)........  No change.                                
        (g)(3)(iii)......................  Sec.  5.20(d)(2)(iv).........  No change.                                
        (g)(4)(i)........................  Sec.  5.20(d)(4)(iii)(A).....  Modified.                                 
        (g)(4)(ii).......................  Sec.  5.20(d)(4)(iii)(C).....  Modified.                                 
        (g)(5)...........................  Sec.  5.20(d)(1)(iv),          Significant change.                       
                                            (d)(2)(iii).                                                            
        (h)(1)...........................  Sec.  5.20(d)(1)(i), (d)(3)..  Significant change.                       
        (h)(2)...........................  Sec.  5.20(d)(3)(i)..........  Modified.                                 
        (h)(3)(i)........................  Sec.  5.20(d)(3)(ii)(A)......  Modified.                                 
        (h)(3)(ii).......................  Sec.  5.20(d)(3)(ii)(C)......  Significant change.                       
        (h)(4)...........................  Sec.  5.20(d)(3)(iii)........  Significant change.                       
        (h)(5)(i)........................  Sec.  5.20(d)(3)(iv),          Significant change.                       
                                            (d)(3)(iv)(A).                                                          
        (h)(5)(ii).......................  Sec.  5.20(b), (d)(3)(iv)....  Modified.                                 
        (h)(5)(iii)......................  Sec.  5.20(d)(3)(iv)(B)......  Modified.                                 
        (h)(6)...........................  Sec.  5.20(d)(3)(v),           Modified.                                 
                                            (d)(3)(v)(A).                                                           
        (h)(7)...........................  .............................  Added.                                    
        (i)(1)...........................  Sec.  5.20(e)................  Significant change.                       
        (i)(2)...........................  Sec.  5.20(d)................  Significant change.                       
        (i)(3)...........................  Sec.  5.20(d)(1)(iii)........  Significant change.                       
        (i)(4)...........................  Sec.  5.20(d)(1)(iii)........  Significant change.                       
        (i)(5)(i)........................  Sec.  5.20(f)................  Modified.                                 
    
    [[Page 60359]]
    
                                                                                                                    
        (i)(5)(ii).......................  Sec.  5.20(d)(4)(ii).........  No change.                                
        (i)(5)(iii)......................  Sec.  5.20(d)(3)(iii), (g)...  Modified.                                 
        (j)..............................  .............................  Added.                                    
        (k)(1)...........................  Sec.  5.27(e)(1).............  Modified.                                 
        (k)(2)...........................  Sec.  5.27(e)(2).............  Modified.                                 
        (k)(3)...........................  Sec.  5.27(d)................  Significant change.                       
        (l)..............................  Sec.  5.22(a)(2), (c)........  Significant change.                       
                                           Sec.  5.21...................  Incorporated into Sec.  5.33.             
                                           Sec.  5.22...................  Incorporated into Sec.  5.20.             
                                           Sec.  5.23...................  Incorporated into Sec.  5.70.             
    Sec.  5.24(a)........................  Sec.  5.24(a)................  Modified.                                 
        (b)..............................  .............................  Added.                                    
        (c)..............................  .............................  Added.                                    
        (d)(1)...........................  Sec.  5.24(c)(1).............  Significant change.                       
        (d)(2)(i)........................  .............................  Added.                                    
        (d)(2)(ii).......................  Sec.  5.24(c)(2).............  Significant change.                       
        (d)(2)(iii)......................  .............................  Added.                                    
        (d)(2)(iv).......................  Sec.  5.24(c)(4).............  Modified.                                 
        (d)(2)(v)........................  Sec.  5.24(c)(4).............  Modified.                                 
        (d)(3)...........................  Sec.  5.24(b)................  No change.                                
        (d)(4)...........................  .............................  Added.                                    
        (e)(1)...........................  Sec.  5.24(d)(1).............  Significant change.                       
        (e)(2)...........................  Sec.  5.24(d)(2).............  Modified.                                 
        (e)(3)...........................  Sec.  5.24(d)(1).............  Modified.                                 
        (f)..............................  .............................  Added.                                    
                                           Sec.  5.25...................  Incorporated into Sec.  5.70.             
    Sec.  5.26(a)........................  Sec.  5.26(a)................  No change.                                
        (b)..............................  Sec.  5.26(d)................  Significant change.                       
        (c)..............................  Sec.  5.26(b)................  Significant change.                       
        (d)..............................  Sec.  5.26(d)................  Significant change.                       
        (e)(1)...........................  Sec.  5.26(d)................  Significant change.                       
        (e)(2)...........................  Sec.  5.26(e)................  Significant change.                       
        (e)(3)...........................  Sec.  5.26(f)................  Significant change.                       
        (e)(4)...........................  Sec.  5.26(g)................  Significant change.                       
        (e)(5)...........................  .............................  Added.                                    
        (e)(6)...........................  Sec.  5.26(b)................  Modified.                                 
        (e)(7)...........................  Sec.  5.26(h)................  Modified.                                 
                                           Sec.  5.27...................  Incorporated into Sec.  5.20.             
    Sec.  5.30(a)........................  Sec.  5.30(a)................  Modified.                                 
        (b)..............................  Sec.  5.30(a)................  Modified.                                 
        (c)..............................  .............................  Added.                                    
        (d)(1)...........................  Secs.  5.30(b), 5.31(b)......  Significant change.                       
        (d)(2)...........................  .............................  Added.                                    
        (d)(3)...........................  .............................  Added.                                    
        (d)(4)...........................  .............................  Added.                                    
        (d)(5)...........................  .............................  Added.                                    
        (e)..............................  Sec.  5.30(c)................  Significant change.                       
        (f)(1)...........................  .............................  Added.                                    
        (f)(2)...........................  .............................  Added.                                    
        (f)(3)...........................  .............................  Added.                                    
        (f)(4)...........................  Sec.  5.30(g)................  No change.                                
        (f)(5)...........................  .............................  Added.                                    
        (g)..............................  .............................  Added.                                    
        (h)(1)...........................  .............................  Added.                                    
        (h)(2)...........................  .............................  Added.                                    
        (h)(3)...........................  .............................  Added.                                    
        (h)(4)...........................  .............................  Added.                                    
        (i)..............................  Sec.  5.30(f)................  Modified.                                 
        (j)..............................  .............................  Added.                                    
                                           Sec.  5.31...................  Incorporated into Sec.  5.30.             
                                           Sec.  5.32...................  Incorporated into Sec.  5.70.             
    Sec.  5.33(a)........................  Sec.  5.33(a)................  Significant change.                       
        (b)..............................  .............................  Added.                                    
        (c)..............................  .............................  Added.                                    
        (d)(1)...........................  .............................  Added.                                    
        (d)(2)...........................  .............................  Added.                                    
        (d)(3)...........................  .............................  Added.                                    
        (d)(4)...........................  Sec.  5.21(a)................  Significant change.                       
        (e)(1)...........................  Sec.  5.33(b)(2).............  Significant change.                       
        (e)(1)(i)........................  Sec.  5.33 (b)(2)(i), (b)(3),  Significant change.                       
                                            (b)(4).                                                                 
        (e)(1)(ii).......................  Sec.  5.33 (b)(2)(iii),        Significant change.                       
                                            (b)(2)(iv), (b)(6).                                                     
    
    [[Page 60360]]
    
                                                                                                                    
        (e)(1)(iii)......................  Sec.  5.33 (b)(2)(ii), (b)(5)  Significant change.                       
        (e)(1)(iv).......................  Sec.  5.33 (b)(2)(ii), (b)(5)  Significant change.                       
        (e)(2)...........................  .............................  Added.                                    
        (e)(3)...........................  .............................  Added.                                    
        (e)(4)(i)........................  Sec.  5.21...................  Significant change.                       
        (e)(4)(ii).......................  Sec.  5.21 (e), (f)..........  Significant change.                       
        (e)(4)(iii)......................  Sec.  5.21(g)................  Significant change.                       
        (e)(4)(iv).......................  Sec.  5.21(h)................  Significant change.                       
        (e)(5)...........................  Sec.  5.33(b)(8).............  Significant change.                       
        (e)(6)...........................  .............................  Added.                                    
        (e)(7)...........................  .............................  Added.                                    
        (e)(8)...........................  Sec.  5.33(b)(6)(ii).........  Significant change.                       
        (f)(1)...........................  .............................  Added.                                    
        (f)(2)...........................  Sec.  5.21(c)................  Modified.                                 
        (f)(3)...........................  .............................  Added.                                    
        (g)(1)...........................  Sec.  5.33(c)(1).............  Significant change.                       
        (g)(2)...........................  Sec.  5.33(c)(2).............  Significant change.                       
        (g)(3)(i)........................  Sec.  5.33(h)(1).............  Significant change.                       
        (g)(3)(ii).......................  Sec.  5.33(h)(2).............  Modified.                                 
        (g)(3)(iii)......................  Sec.  5.33(h)(3).............  Significant change.                       
        (h)..............................  .............................  Added.                                    
        (i)..............................  .............................  Added.                                    
        (j)..............................  .............................  Added.                                    
    Sec.  5.34(a)........................  Sec.  5.34(a)................  Modified.                                 
        (b)..............................  .............................  Added.                                    
        (c)..............................  .............................  Added.                                    
        (d)(1)...........................  Sec.  5.34 (c), (d)..........  Significant change.                       
        (d)(2)...........................  Sec.  5.34(c)................  Significant change.                       
        (d)(3)...........................  Sec.  5.34(d)(3).............  Modified.                                 
        (d)(4)...........................  Sec.  5.34(d)(2)(ii).........  Modified.                                 
        (e)(1)(i)........................  Sec.  5.34(d)(1)(i)..........  Significant change.                       
        (e)(1)(ii).......................  Sec.  5.34(b)................  Modified.                                 
        (e)(1)(iii)......................  Sec.  5.34(d)(1)(iii)........  Modified.                                 
        (e)(2)...........................  .............................  Added.                                    
        (e)(3)...........................  .............................  Added.                                    
        (e)(4)...........................  Sec.  5.34(d)(1)(iv).........  Significant change.                       
        (e)(5)...........................  .............................  Added.                                    
        (f)..............................  .............................  Added.                                    
    Sec.  5.35(a)........................  Sec.  5.35(a)................  Modified.                                 
        (b)..............................  .............................  Added.                                    
        (c)..............................  .............................  Added.                                    
        (d)(1)-(5).......................  Sec.  5.35(c)................  Significant change.                       
        (e)..............................  Sec.  5.35(d)................  Significant change.                       
        (f)(1)...........................  Sec.  5.35 (e)(1), (e)(2)....  Significant change.                       
        (f)(2)...........................  .............................  Added.                                    
        (f)(3)...........................  .............................  Added.                                    
        (f)(4)...........................  Sec.  5.35(e)(1)(i)(D).......  Modified.                                 
        (f)(5)...........................  Sec.  5.35(e)(1)(i)(B).......  Significant change.                       
        (f)(6)...........................  Sec.  5.35(b)................  Modified.                                 
        (g)..............................  Sec.  5.35(e)(1)(ii)(A)......  Modified.                                 
        (h)..............................  Sec.  5.35(f)................  Modified.                                 
        (i)(1)...........................  Sec.  5.35(e)(1)(ii)(A)......  Modified.                                 
        (i)(2)...........................  .............................  Added.                                    
    Sec.  5.36(a)........................  Sec.  5.36(a)................  Modified.                                 
        (b)..............................  Sec.  5.36(c)................  Modified.                                 
        (c)(1)...........................  Sec.  5.36(d)(1).............  Significant change.                       
        (c)(2)...........................  Sec.  5.36(d)(1).............  Significant change.                       
        (c)(3)...........................  Sec.  5.36(d)(1).............  Modified.                                 
        (d)..............................  Sec.  5.36(b)................  Modified.                                 
    Sec.  5.37...........................  .............................  Added.                                    
    Sec.  5.40(a)........................  Sec.  5.40(a)................  Modified.                                 
        (b)..............................  .............................  Added.                                    
        (c)..............................  .............................  Added.                                    
        (d)(1)...........................  Sec.  5.40(d)(1).............  No change.                                
        (d)(2)...........................  Sec.  5.40 (d)(2), (d)(3)....  Significant change.                       
        (d)(3)...........................  Sec.  5.40(d)(4).............  Modified.                                 
        (d)(4)...........................  .............................  Added.                                    
        (d)(5)...........................  Sec.  5.40(c)................  Modified.                                 
        (e)..............................  Sec.  5.40(h)................  Modified.                                 
                                           Sec.  5.41...................  Incorporated into Sec.  5.70.             
    Sec.  5.42(a)........................  Sec.  5.42(a)................  Modified.                                 
    
    [[Page 60361]]
    
                                                                                                                    
        (b)..............................  .............................  Added.                                    
        (c)..............................  Sec.  5.42(c)................  Significant change.                       
        (d)(1)...........................  Sec.  5.42(d)................  Modified.                                 
        (d)(2)...........................  Sec.  5.42(e)................  Modified.                                 
        (d)(3)...........................  Sec.  5.42(b)................  Modified.                                 
                                           Sec.  5.43...................  Incorporated into Sec.  5.70.             
                                           Sec.  5.44...................  Removed.                                  
                                           Sec.  5.45...................  Removed.                                  
    Sec.  5.46(a)........................  Sec.  5.46(a)................  Modified.                                 
        (b)..............................  .............................  Added.                                    
        (c)..............................  .............................  Added.                                    
        (d)..............................  Sec.  5.46(b)................  Modified.                                 
        (e)(1)...........................  .............................  Added.                                    
        (e)(2)...........................  .............................  Added.                                    
        (e)(3)...........................  .............................  Added.                                    
        (e)(4)...........................  .............................  Added.                                    
        (f)..............................  Sec.  5.46(f)................  Significant change.                       
        (g)..............................  Sec.  5.46(f) (2)-(5)........  Significant change.                       
        (h)..............................  Sec.  5.46(f)(5), (f)(6).....  Significant change.                       
        (i)(1)...........................  Sec.  5.46(g)(1).............  Significant change.                       
        (i)(2)...........................  Sec.  5.46(f)(1)(i)..........  Significant change.                       
        (i)(3)...........................  Sec.  5.46(g)(2), (g)(3).....  Significant change.                       
        (i)(4)...........................  .............................  Added.                                    
        (i)(5)...........................  Sec.  5.46(g)(4).............  Significant change.                       
        (j)..............................  Sec.  5.46(c)................  Modified.                                 
        (k)..............................  Sec.  5.46(d)................  Significant change.                       
    Sec.  5.47(a)........................  Sec.  5.47(a)................  No change.                                
        (b)..............................  Sec.  5.47(b)................  Modified.                                 
        (c)..............................  Sec.  5.47(c)................  No change.                                
        (d)(1)...........................  Sec.  5.47(d)(1).............  No change.                                
        (d)(2)...........................  Sec.  5.47(d)(2).............  No change.                                
        (d)(3)...........................  .............................  Added.                                    
        (e)(1)...........................  Sec.  5.47(e)(1).............  No change.                                
        (e)(2)...........................  .............................  Added.                                    
        (e)(3)...........................  Sec.  5.47(e)(2).............  Modified.                                 
        (f)(1)...........................  Sec.  5.47(f)(1).............  No change.                                
        (f)(2)...........................  Sec.  5.47(f)(2).............  Modified.                                 
        (g)..............................  Sec.  5.47(g)................  Modified.                                 
        (h)..............................  Sec.  5.47(h)................  No change.                                
        (i)..............................  Sec.  5.47(i)................  No change.                                
    Sec.  5.48(a)........................  Sec.  5.48(a)................  Modified.                                 
        (b)..............................  .............................  Added.                                    
        (c)..............................  Sec.  5.48(b)................  Modified.                                 
        (d)..............................  .............................  Added.                                    
        (e)(1)...........................  Sec.  5.48(c)................  Significant change.                       
        (e)(2)...........................  Sec.  5.48(e)................  Significant change.                       
        (e)(3)...........................  Sec.  5.48(f)................  Modified.                                 
        (f)(1)...........................  .............................  Added.                                    
        (f)(2)...........................  .............................  Added.                                    
        (g)..............................  Sec.  5.48(d)................  Modified.                                 
    Sec.  5.50(a)........................  Sec.  5.50(a)................  Modified.                                 
        (b)..............................  .............................  Added.                                    
        (c)(1)...........................  .............................  Added.                                    
        (c)(2)(i)........................  Sec.  5.50 (f)(1), (f)(2)....  Modified.                                 
        (c)(2)(ii).......................  Sec.  5.50(f)(1).............  Modified.                                 
        (c)(2)(iii)......................  Sec.  5.50(f)(4).............  No change.                                
        (c)(2)(iv).......................  Sec.  5.50(f)(5).............  No change.                                
        (c)(2)(v)........................  Sec.  5.50(f)(6).............  No change.                                
        (c)(2)(vi).......................  Sec.  5.50(f)(7).............  Modified.                                 
        (c)(3)...........................  Sec.  5.50(g)(4).............  Significant change.                       
        (d)(1)...........................  .............................  Added.                                    
        (d)(2)...........................  .............................  Added.                                    
        (d)(3)...........................  Sec.  5.50(d) (ftnt 1).......  Modified.                                 
        (d)(4)...........................  .............................  Added.                                    
        (d)(5)...........................  Sec.  5.50(c), (d)(1) (ftnt    Modified.                                 
                                            2).                                                                     
        (d)(6)...........................  Sec.  5.50(c)................  Modified.                                 
        (e)(1)...........................  Sec.  5.50(g)(1)(i),           Significant change.                       
                                            (g)(1)(iii).                                                            
        (e)(2)...........................  Sec.  5.50(g)(1)(ii),          Modified.                                 
                                            (g)(3)(iii).                                                            
        (e)(3)...........................  Sec.  5.50(g)(1)(iii), (g)(5)  Modified.                                 
        (f)(1)...........................  Sec.  5.50(b)................  Significant change.                       
        (f)(2)(i)........................  Sec.  5.50(d)(1).............  Modified.                                 
    
    [[Page 60362]]
    
                                                                                                                    
        (f)(2)(ii).......................  Sec.  5.50(d)(1)(i),           Modified.                                 
                                            (d)(1)(ii).                                                             
        (f)(2)(iii)......................  Sec.  5.50(d)(2).............  No change.                                
        (f)(2)(iv).......................  Sec.  5.50(d)(1), (d)(3).....  Significant change.                       
        (f)(2)(v)........................  Sec.  5.50(d)(3).............  Significant change.                       
        (f)(3)(i)........................  Sec.  5.50 (e)(2), (g)(2)....  Modified.                                 
        (f)(3)(i)(A), (B)................  Sec.  5.50(g)(2).............  Modified.                                 
        (f)(3)(ii).......................  Sec.  5.50(g)(1)(v)..........  Modified.                                 
        (f)(3)(ii)(A)....................  Sec.  5.50(g)(1)(v)..........  Modified.                                 
        (f)(3)(ii)(B)....................  Sec.  5.50(h)(1).............  Significant change.                       
        (f)(3)(ii)(C)....................  .............................  Added(1)                                  
        (f)(3)(iii)......................  Sec.  5.50(g)(1)(iv).........  Modified(1)                               
        (f)(4)...........................  Sec.  5.50(g)(5).............  Significant change(1)                     
        (f)(5)...........................  Sec.  5.50(g)(1)(iv).........  Significant change(1)                     
        (g)(1)...........................  Sec.  5.50(h)(1).............  Significant change(1)                     
        (g)(2)...........................  Sec.  5.50(h)(2).............  Significant change(1)                     
        (h)..............................  .............................  Added(1)                                  
    Sec.  5.51(a)........................  Sec.  5.51(a)................  No change(1)                              
        (b)..............................  .............................  Added(1)                                  
        (c)(1)...........................  Sec.  5.51(c)(1).............  Modified(1)                               
        (c)(2)...........................  Sec.  5.51(c)(2).............  Modified(1)                               
        (c)(3)...........................  Sec.  5.51(c)(3).............  Modified(1)                               
        (c)(4)...........................  Sec.  5.51(c)(4).............  Modified(1)                               
        (c)(5)...........................  Sec.  5.51(c)(5).............  No change(1)                              
        (c)(6)...........................  Sec.  5.51(c)(6).............  No change(1)                              
        (d)..............................  Sec.  5.51(d)................  Modified(1)                               
        (e)(1)...........................  Sec.  5.51(e)(1).............  Modified(1)                               
        (e)(2)...........................  Sec.  5.51(e)(2).............  No change(1)                              
        (e)(3)...........................  Sec.  5.51(e)(3).............  Modified(1)                               
        (e)(4)...........................  Sec.  5.51(e)(5).............  Modified(1)                               
        (e)(5)...........................  Sec.  5.51(e)(6).............  No change(1)                              
        (e)(6)...........................  Sec.  5.51(e)(7).............  Modified(1)                               
        (e)(7)...........................  Sec.  5.51(e)(8).............  No change(1)                              
        (e)(8)...........................  Sec.  5.51(b)................  Modified(1)                               
        (f)(1)...........................  Sec.  5.51(f)(1).............  No change(1)                              
        (f)(2)...........................  Sec.  5.51(f)(2).............  No change(1)                              
        (f)(3)...........................  Sec.  5.51(f)(3).............  No change(1)                              
        (f)(4)...........................  Sec.  5.51(f)(4).............  No change(1)                              
    Sec.  5.52...........................  .............................  Added(1)                                  
    Sec.  5.60(a)........................  Secs.  5.61(a), 5.62(a)......  Significant change(1)                     
        (b)..............................  .............................  Added(1)                                  
        (c)..............................  Secs.  5.61(b), 5.62(b)......  Modified(1)                               
    Sec.  5.61(a)........................  .............................  Added(1)                                  
        (b)..............................  .............................  Added(1)                                  
    Sec.  5.62...........................  .............................  Added(1)                                  
    Sec.  5.63(a)........................  Sec.  5.61(a)................  Significant change(1)                     
        (b)..............................  Sec.  5.61(e)................  Modified(1)                               
    Sec.  5.64(a)........................  Sec.  5.62(a)(1).............  Significant change(1)                     
        (b)..............................  Sec.  5.62(a)(2).............  Modified(1)                               
        (c)..............................  Sec.  5.61(d)(3).............  Significant change(1)                     
        (c)(1)...........................  Sec.  5.61(d)(3)(i)..........  No change(1)                              
        (c)(2)...........................  Sec.  5.61(d)(3)(ii).........  Modified(1)                               
    Sec.  5.65...........................  .............................  Added(1)                                  
    Sec.  5.66...........................  12 CFR Sec.  7.2024..........  No change(1)                              
    Sec.  5.67...........................  12 CFR Sec.  7.2023..........  No change(1)                              
    Sec.  5.70...........................  Secs.  5.23, 5.25, 5.27,       Significant change(1)                     
                                            5.32, 5.41, 5.43.                                                       
    ----------------------------------------------------------------------------------------------------------------
    
    Regulatory Flexibility Act
    
        It is hereby certified that this final rule will not have a 
    significant economic impact on a substantial number of small entities. 
    Accordingly, a regulatory flexibility analysis is not required. This 
    regulation will reduce somewhat the regulatory burden on national 
    banks, regardless of size, by simplifying and clarifying existing 
    regulatory requirements.
    
    Executive Order 12866
    
        The OCC has determined that this final rule is not a significant 
    regulatory action under Executive Order 12866.
    
    Unfunded Mandates Act of 1995
    
        Section 202 of the Unfunded Mandates Reform Act of 1995 (Unfunded 
    Mandates Act) requires that an agency prepare a budgetary impact 
    statement before promulgating a rule that includes a Federal mandate 
    that may result in the expenditure by state, local, and tribal 
    governments, in the aggregate, or by the private sector, of $100 
    million or more in any one year. If a budgetary impact statement is 
    required, section 205 of the Unfunded Mandates Act also requires an 
    agency to identify and consider a reasonable number of regulatory 
    alternatives before promulgating a rule. Because the OCC
    
    [[Page 60363]]
    
    has determined that the final rule will not result in expenditures by 
    state, local, and tribal governments, or by the private sector, of more 
    than $100 million in any one year, the OCC has not prepared a budgetary 
    impact statement or specifically addressed the regulatory alternatives 
    considered. As discussed in the preamble, the final rule has the effect 
    of reducing burden and increasing the efficiency of corporate 
    activities and corporate transactions undertaken by national banks.
    
    List of Subjects
    
    12 CFR Part 3
    
        Administrative practice and procedure, National banks, Reporting 
    and recordkeeping requirements.
    
    12 CFR Part 5
    
        Administrative practice and procedure, National banks, Reporting 
    and recordkeeping requirements, Securities.
    
    12 CFR Part 7
    
        Credit, Insurance, Investments, National banks, Reporting and 
    recordkeeping requirements, Securities.
    
    12 CFR Part 16
    
        National banks, Reporting and recordkeeping requirements, 
    Securities.
    
    12 CFR Part 28
    
        Foreign banking, National banks, Reporting and recordkeeping 
    requirements.
    
    Authority and Issuance
    
        For the reasons set out in the preamble, chapter I of title 12 of 
    the Code of Federal Regulations is amended as follows:
    
    PART 3--MINIMUM CAPITAL RATIOS; ISSUANCE OF DIRECTIVES
    
        1. The authority citation for part 3 continues to read as follows:
    
        Authority: 12 U.S.C. 93a, 161, 1818, 1828(n), 1828 note, 1831n 
    note, 1835, 3907 and 3909.
    
        2. In Sec. 3.100, the heading of paragraph (f) and paragraph (f)(1) 
    are revised to read as follows:
    
    
    Sec. 3.100  Capital and surplus.
    
    * * * * *
        (f) Requirements and restrictions: Limited life preferred stock, 
    mandatory convertible debt, and other subordinated debt--(1) 
    Requirements. Issues of limited life preferred stock and subordinated 
    notes and debentures (except mandatory convertible debt) shall have 
    original weighted average maturities of at least five years to be 
    included in the definition of surplus. In addition, a subordinated note 
    or debenture must also:
        (i) Be subordinated to the claims of depositors;
        (ii) State on the instrument that it is not a deposit and is not 
    insured by the FDIC;
        (iii) Be unsecured;
        (iv) Be ineligible as collateral for a loan by the issuing bank;
        (v) Provide that once any scheduled payments of principal begin, 
    all scheduled payments shall be made at least annually and the amount 
    repaid in each year shall be no less than in the prior year; and
        (vi) Provide that no prepayment (including payment pursuant to an 
    acceleration clause or redemption prior to maturity) shall be made 
    without prior OCC approval unless the bank remains an eligible bank, as 
    defined in 12 CFR 5.3(g), after the prepayment.
    * * * * *
        3. In appendix A to part 3, section 2, paragraph (b)(4) is revised 
    and footnote 5 is removed and reserved to read as follows:
    
    Appendix A to Part 3--Risk-Based Capital Guidelines
    
    * * * * *
    
    Section 2. Components of capital.
    
    * * * * *
        (b) Tier 2 Capital. * * *
        (4) Term subordinated debt instruments, and intermediate-term 
    preferred stock and related surplus are included in Tier 2 capital, 
    but only to a maximum of 50% of Tier 1 capital as calculated after 
    deductions pursuant to section 2(c) of this appendix. To be 
    considered capital, term subordinated debt instruments shall meet 
    the requirements of Sec. 3.100(f)(1). However, pursuant to 12 CFR 
    5.47, the OCC may, in some cases, require that the subordinated debt 
    be approved by the OCC before the subordinated debt may qualify as 
    Tier 2 capital or may require prior approval for any prepayment 
    (including payment pursuant to an acceleration clause or redemption 
    prior to maturity) of the subordinated debt. Also, at the beginning 
    of each of the last five years for the life of either type of 
    instrument, the amount that is eligible to be included as Tier 2 
    capital is reduced by 20% of the original amount of that instrument 
    (net of redemptions).
    * * * * *
        4. Part 5 is revised to read as follows:
    
    PART 5--RULES, POLICIES, AND PROCEDURES FOR CORPORATE ACTIVITIES
    
    Sec.
    5.1  Scope.
    
    Subpart A--Rules of General Applicability
    
    5.2  Rules of general applicability.
    5.3  Definitions.
    5.4  Filing required.
    5.5  Fees.
    5.6  [Reserved]
    5.7  Investigations.
    5.8  Public notice.
    5.9  Public availability.
    5.10  Comments.
    5.11  Hearings and other meetings.
    5.12  Computation of time.
    5.13  Decisions.
    
    Subpart B--Initial Activities
    
    5.20  Organizing a bank.
    5.24  Conversion.
    5.26  Fiduciary powers.
    
    Subpart C--Expansion of Activities
    
    5.30  Establishment, acquisition, and relocation of a branch.
    5.33  Business combinations.
    5.34  Operating subsidiaries.
    5.35  Bank service companies.
    5.36  Other equity investments.
    5.37  Investment in bank premises.
    
    Subpart D--Other Changes in Activities and Operations
    
    5.40  Change in location of main office.
    5.42  Corporate title.
    5.46  Changes in permanent capital.
    5.47  Subordinated debt as capital.
    5.48  Voluntary liquidation.
    5.50  Change in bank control; reporting of stock loans.
    5.51  Changes in directors and senior executive officers.
    5.52  Change of address.
    
    Subpart E--Payment of Dividends
    
    5.60  Authority, scope, and exceptions to rules of general 
    applicability.
    5.61  Definitions.
    5.62  Date of declaration of dividend.
    5.63  Capital limitation under 12 U.S.C. 56.
    5.64  Earnings limitation under 12 U.S.C. 60.
    5.65  Restrictions on undercapitalized institutions.
    5.66  Dividends payable in property other than cash.
    5.67  Fractional shares.
    
    Subpart F--Federal Branches and Agencies
    
    5.70  Federal branches and agencies.
    
        Authority: 12 U.S.C. 1 et seq., 93a.
    
    
    Sec. 5.1  Scope.
    
        This part establishes rules, policies and procedures of the Office 
    of the Comptroller of the Currency (OCC) for corporate activities and 
    transactions involving national banks. It contains information on rules 
    of general and specific applicability, where and how to file, and 
    requirements and policies applicable to filings. This part also 
    establishes the corporate filing procedures for Federal branches and 
    agencies of foreign banks.
    
    Subpart A--Rules of General Applicability
    
    
    Sec. 5.2  Rules of general applicability.
    
        (a) General. The rules in this subpart apply to all sections in 
    this part unless otherwise stated.
    
    [[Page 60364]]
    
        (b) Exceptions. The OCC may adopt materially different procedures 
    for a particular filing, or class of filings, in exceptional 
    circumstances, such as natural disasters or unusual transactions, after 
    providing notice of the change to the applicant and to any other party 
    that the OCC determines should receive notice.
        (c) Additional information. The ``Comptroller's Corporate Manual'' 
    (Manual) provides additional guidance, including policies, procedures, 
    and sample forms. The Manual is sent to all national banks and is 
    available for a fee by writing to the Comptroller of the Currency, P.O. 
    Box 70004, Chicago, IL 60673-0004.
    
    
    Sec. 5.3  Definitions.
    
        (a) Applicant means a person or entity that submits a notice or 
    application to the OCC under this part.
        (b) Application means a submission requesting OCC approval to 
    engage in various corporate activities and transactions.
        (c) Appropriate district office means:
        (1) The OCC's Multinational Banking Department for all national 
    banks that are subsidiaries of a designated multinational holding 
    company;
        (2) The district office for the OCC district where the national 
    bank's supervisory office is located for all other banks; or
        (3) The OCC's International Banking and Finance Department for 
    Federal branches and agencies.
        (d) Capital and surplus means:
        (1) A bank's Tier 1 and Tier 2 capital calculated under the OCC's 
    risk-based capital standards set forth in Appendix A to 12 CFR part 3 
    as reported in the bank's Consolidated Report of Condition and Income 
    filed under 12 U.S.C. 161; plus
        (2) The balance of a bank's allowance for loan and lease losses not 
    included in the bank's Tier 2 capital, for purposes of the calculation 
    of risk-based capital described in paragraph (d)(1) of this section, as 
    reported in the bank's Consolidated Report of Condition and Income 
    filed under 12 U.S.C. 161.
        (e) Central city means the city or cities identified as central 
    cities by the Director of the Office of Management and Budget.
        (f) Depository institution means any bank or savings association.
        (g) Eligible bank means a national bank that:
        (1) Is well capitalized as defined in 12 CFR 6.4(b)(1);
        (2) Has a composite rating of 1 or 2 under the Uniform Financial 
    Institutions Rating System (CAMEL);
        (3) Has a Community Reinvestment Act (CRA), 12 U.S.C. 2901 et seq., 
    rating of ``Outstanding'' or ``Satisfactory''; and
        (4) Is not subject to a cease and desist order, consent order, 
    formal written agreement, or Prompt Corrective Action directive (see 12 
    CFR part 6, subpart B) or, if subject to any such order, agreement, or 
    directive, is informed in writing by the OCC that the bank may be 
    treated as an ``eligible bank'' for purposes of this part.
        (h) Eligible depository institution means a state bank or a Federal 
    or state savings association that meets the criteria for an ``eligible 
    bank'' under Sec. 5.3(g) and is FDIC-insured.
        (i) Filing means an application or notice submitted to the OCC 
    under this part.
        (j) National bank means any national banking association and any 
    bank or trust company located in the District of Columbia operating 
    under the OCC's supervision.
        (k) Notice means a submission notifying the OCC that a national 
    bank intends to engage in or has commenced certain corporate activities 
    or transactions.
        (l) Short-distance relocation means moving the premises of a branch 
    or main office within a:
        (1) One thousand foot-radius of the site if the branch is located 
    within a central city of an MSA;
        (2) One-mile radius of the site if the branch is not located within 
    a central city, but is located within an MSA; or
        (3) Two-mile radius of the site if the branch is not located within 
    an MSA.
    
    
    Sec. 5.4  Filing required.
    
        (a) Filing. A depository institution shall file an application or 
    notice with the OCC to engage in corporate activities and transactions 
    as described in this part.
        (b) Availability of forms. Individual sample forms and instructions 
    for filings are available in the Manual and from each district office.
        (c) Other applications accepted. At the request of the applicant, 
    the OCC may accept an application form or other filing submitted to 
    another Federal agency that covers the proposed action or transaction 
    and contains substantially the same information as required by the OCC. 
    The OCC may also require the applicant to submit supplemental 
    information.
        (d) Where to file. An applicant should address a filing or other 
    submission under this part to the attention of the Licensing Manager at 
    the appropriate district office. However, the OCC may advise an 
    applicant through a pre-filing communication to send the filing or 
    submission directly to the Bank Organization and Structure Department 
    or elsewhere as otherwise directed by the OCC. Relevant addresses are 
    listed in the Manual.
        (e) Incorporation of other material. An applicant may incorporate 
    any material contained in any other application or filing filed with 
    the OCC or other Federal agency by reference, provided that the 
    material is attached to the application and is current and responsive 
    to the information requested by the OCC. The filing must clearly 
    indicate that the information is so incorporated and include a cross-
    reference to the information incorporated.
    
    
    Sec. 5.5  Fees.
    
        An applicant shall submit the appropriate filing fee, if any, in 
    connection with its filing. An applicant shall pay the fee by check 
    payable to the Comptroller of the Currency or by other means acceptable 
    to the OCC. The OCC publishes a fee schedule annually in the ``Notice 
    of Comptroller of the Currency fees,'' described in 12 CFR 8.8. The OCC 
    generally does not refund the filing fees.
    
    
    Sec. 5.6  [Reserved]
    
    
    Sec. 5.7  Investigations.
    
        (a) Authority. The OCC may examine or investigate and evaluate 
    facts related to a filing to the extent necessary to reach an informed 
    decision.
        (b) Fees. The OCC may assess fees for investigations or 
    examinations conducted under paragraph (a) of this section. The OCC 
    publishes the rates, described in 12 CFR 8.6, annually in the ``Notice 
    of Comptroller of the Currency fees.''
    
    
    Sec. 5.8  Public notice.
    
        (a) General. An applicant shall publish a public notice of its 
    filing in a newspaper of general circulation in the community in which 
    the applicant proposes to engage in business, on the date of filing, or 
    as soon as practicable before or after the date of filing.
        (b) Contents of the public notice. The public notice shall state 
    that a filing is being made, the date of the filing, the name of the 
    applicant, the subject matter of the filing, that the public may submit 
    comments to the OCC, the address of the appropriate office(s) where 
    comments should be sent, the closing date of the public comment period, 
    and any other information that the OCC requires.
        (c) Confirmation of public notice. The applicant shall mail or 
    otherwise deliver a statement containing the date of publication, the 
    name and address of the newspaper that published the public
    
    [[Page 60365]]
    
    notice, a copy of the public notice, and any other information that the 
    OCC requires, to the appropriate district office promptly following 
    publication.
        (d) Multiple transactions. The OCC 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 filing a 
    single public notice for multiple transactions, the applicant shall 
    explain in the notice how the transactions are related.
        (e) Joint public notices accepted. Upon the request of an applicant 
    for a transaction subject to the OCC's public notice requirements and 
    public notice required by another Federal agency, the OCC may accept 
    publication of a single joint notice containing the information 
    required by both the OCC and the other Federal agency, provided that 
    the notice states that comments must be submitted to both the OCC and, 
    if applicable, the other Federal agency.
        (f) Public notice by the OCC. In addition to the foregoing, the OCC 
    may require or give public notice and request comment on any filing and 
    in any manner the OCC determines appropriate for the particular filing.
    
    
    Sec. 5.9  Public availability.
    
        (a) General. The OCC provides a copy of the public file to any 
    person who requests it. A requestor should submit a request for the 
    public file concerning a pending application to the appropriate 
    district office. A requestor should submit a request for the public 
    file concerning a decided or closed application to the Disclosure 
    Officer, Communications Division, at the address listed in the Manual. 
    Requests should be in writing. The OCC may impose a fee in accordance 
    with 12 CFR 4.17 and with the rates the OCC publishes annually in the 
    ``Notice of Comptroller of the Currency Fees'' described in 12 CFR 8.8.
        (b) Public file. A public file consists of the portions of the 
    filing, supporting data, supplementary information, and information 
    submitted by interested persons, to the extent that those documents 
    have not been afforded confidential treatment. Applicants and other 
    interested persons may request that confidential treatment be afforded 
    information submitted to the OCC pursuant to paragraph (c) of this 
    section.
        (c) Confidential treatment. The applicant or an interested person 
    submitting information may request that specific information be treated 
    as confidential under the Freedom of Information Act, 5 U.S.C. 552 (see 
    12 CFR 4.12(b)). A submitter should draft its request for confidential 
    treatment narrowly to extend only to those portions of a document it 
    considers to be confidential. If a submitter requests confidential 
    treatment for information that the OCC does not consider to be 
    confidential, the OCC may include that information in the public file 
    after providing notice to the submitter. Moreover, at its own 
    initiative, the OCC may determine that certain information should be 
    treated as confidential and withhold that information from the public 
    file. A person requesting information withheld from the public file 
    should submit the request to the Disclosure Officer, Communications 
    Division, under the procedures described in 12 CFR part 4, subpart B. 
    That request may be subject to the predisclosure notice procedures of 
    12 CFR 4.16.
    
    
    Sec. 5.10  Comments.
    
        (a) Submission of comments. During the comment period, any person 
    may submit written comments on a filing to the appropriate district 
    office.
        (b) Comment period--(1) General. Unless otherwise stated, the 
    comment period is 30 days after publication of the public notice 
    required by Sec. 5.8(a).
        (2) Extension. The OCC may extend the comment period if:
        (i) The applicant fails to file all required publicly available 
    information on a timely basis to permit review by interested persons or 
    makes a request for confidential treatment not granted by the OCC that 
    delays the public availability of that information;
        (ii) Any person requesting an extension of time satisfactorily 
    demonstrates to the OCC that additional time is necessary to develop 
    factual information that the OCC determines is necessary to consider 
    the application; or
        (iii) The OCC determines that other extenuating circumstances 
    exist.
        (3) Applicant response. The OCC may give the applicant an 
    opportunity to respond to comments received.
    
    
    Sec. 5.11  Hearings and other meetings.
    
        (a) Hearing requests. Prior to the end of the comment period, any 
    person may submit to the appropriate district office a written request 
    for a hearing on a filing. 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 OCC. A person requesting a hearing shall simultaneously 
    submit a copy of the request to the applicant.
        (b) Action on a hearing request. The OCC may grant or deny a 
    request for a hearing and may limit the issues to those it deems 
    relevant or material. The OCC generally grants a hearing request only 
    if the OCC determines that written submissions would be insufficient or 
    that a hearing would otherwise benefit the decisionmaking process. The 
    OCC also may order a hearing if it concludes that a hearing would be in 
    the public interest.
        (c) Denial of a hearing request. If the OCC denies a hearing 
    request, it shall notify the person requesting the hearing of the 
    reason for the denial.
        (d) OCC procedures prior to the hearing--(1) Notice of Hearing. The 
    OCC issues a Notice of Hearing if it grants a request for a hearing or 
    orders a hearing because it is in the public interest. The OCC sends a 
    copy of the Notice of Hearing to the applicant, to the person 
    requesting the hearing, and anyone else requesting a copy. The Notice 
    of Hearing states the subject and date of the filing, the time and 
    place of the hearing, and the issues to be addressed.
        (2) Presiding officer. The OCC appoints a presiding officer to 
    conduct the hearing. The presiding officer is responsible for all 
    procedural questions not governed by this section.
        (e) Participation in the hearing. Any person who wishes to appear 
    (participant) shall notify the appropriate district office of his or 
    her intent to participate in the hearing within ten days from the date 
    the OCC issues the Notice of Hearing. At least five days before the 
    hearing, each participant shall submit to the appropriate district 
    office, the applicant, and any other person the OCC requires, the names 
    of witnesses, and one copy of each exhibit the participant intends to 
    present.
        (f) Transcripts. The OCC arranges for a hearing transcript. The 
    person requesting the hearing generally bears the cost of one copy of 
    the transcript for his or her use.
        (g) Conduct of the hearing--(1) Presentations. Subject to the 
    rulings of the presiding officer, the applicant and participants may 
    make opening statements and present witnesses, material, and data.
        (2) Information submitted. A person presenting documentary material 
    shall furnish one copy to the OCC, and one copy to the applicant and 
    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 OCC's Rules of Practice and Procedure (12 CFR part 19) 
    do not apply to hearings under this section.
    
    [[Page 60366]]
    
        (h) Closing the hearing record. At the applicant's or participant's 
    request, the OCC may keep the hearing record open for up to 14 days 
    following the OCC's receipt of the transcript. The OCC resumes 
    processing the filing after the record closes.
        (i) Other meetings--(1) Public meetings. The OCC may arrange for a 
    public meeting in connection with an application, either upon receipt 
    of a written request for such a meeting which is made during the 
    comment period, or upon the OCC's own initiative. Public meetings will 
    be arranged and presided over by a representative of the OCC.
        (2) Private meetings. The OCC may arrange a meeting with an 
    applicant or other interested parties to an application, or with an 
    applicant and other interested parties to an application, to clarify 
    and narrow the issues and to facilitate the resolution of the issues.
    
    
    Sec. 5.12  Computation of time.
    
        In computing the period of days, the OCC includes the day of the 
    act (e.g., the date an application is received by the OCC) from which 
    the period begins to run and the last day of the period, regardless of 
    whether it is a Saturday, Sunday, or legal holiday.
    
    
    Sec. 5.13  Decisions.
    
        (a) General. The OCC may approve, conditionally approve, or deny a 
    filing after appropriate review and consideration of the record. In 
    deciding an application under this part, the OCC may consider the 
    activities, resources, or condition of an affiliate of the applicant 
    that may reasonably reflect on or affect the applicant.
        (1) Conditional approval. The OCC may impose conditions on any 
    approval, including to address a significant supervisory, CRA (if 
    applicable), or compliance concern, if the OCC determines that the 
    conditions are necessary or appropriate to ensure that approval is 
    consistent with relevant statutory and regulatory standards and OCC 
    policies thereunder and safe and sound banking practices.
        (2) Expedited review. The OCC grants eligible banks expedited 
    review within a specified time after filing or commencement of the 
    public comment period, including any extension of the comment period 
    granted pursuant to Sec. 5.10, as described in applicable sections of 
    this part.
        (i) The OCC may extend the expedited review process for a filing 
    subject to the CRA up to an additional 10 days if a comment contains 
    specific assertions concerning a bank's CRA performance that, if true, 
    would indicate a reasonable possibility that:
        (A) A bank's CRA rating would be less than satisfactory, 
    institution-wide, or, where applicable, in a state or multistate MSA; 
    or
        (B) A bank's CRA performance would be less than satisfactory in an 
    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).
        (ii) The OCC will remove a filing from expedited review procedures, 
    if the OCC concludes that the filing, or an adverse comment regarding 
    the filing, presents a significant supervisory, CRA (if applicable), or 
    compliance concern, or raises a significant legal or policy issue, 
    requiring additional OCC review. The OCC will provide the applicant 
    with a written explanation if it decides not to process an application 
    from an eligible bank under expedited review pursuant to this paragraph 
    (a)(2)(ii). For purposes of this section, a significant CRA concern 
    exists if the OCC concludes that:
        (A) A bank's CRA rating is less than satisfactory, institution-
    wide, or, where applicable, in a state or multistate MSA; or
        (B) A bank's CRA performance is less than satisfactory in an 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).
        (iii) Adverse comments that the OCC determines do not raise a 
    significant supervisory, CRA (if applicable), or compliance concern, or 
    a significant legal or policy issue, or are frivolous, filed primarily 
    as a means of delaying action on the filing, or that raise a CRA 
    concern that the OCC determines has been satisfactorily resolved, do 
    not affect the OCC's decision under paragraphs (a)(2)(i) or (a)(2)(ii) 
    of this section. The OCC considers a CRA concern to have been 
    satisfactorily resolved if the OCC previously reviewed (e.g., in an 
    examination or an application) a concern presenting substantially the 
    same issue in substantially the same assessment area during 
    substantially the same time, and the OCC determines that the concern 
    would not warrant denial or imposition of a condition on approval of 
    the application.
        (iv) If a bank files an application for any activity or transaction 
    that is dependent upon the approval of another application under this 
    part, or if requests for approval for more than one activity or 
    transaction are combined in a single application under applicable 
    sections of this part, none of the subject applications may be deemed 
    approved upon expiration of the applicable time periods, unless all of 
    the applications are subject to expedited review procedures and the 
    longest of the time periods expires without the OCC issuing a decision 
    or notifying the bank that the filings are not eligible for expedited 
    review under the standards in paragraph (a)(2)(ii) of this section.
        (b) Denial. The OCC may deny a filing if:
        (1) A significant supervisory, CRA (if applicable), or compliance 
    concern exists with respect to the applicant;
        (2) Approval of the filing is inconsistent with applicable law, 
    regulation, or OCC policy thereunder; or
        (3) The applicant fails to provide information requested by the OCC 
    that is necessary for the OCC to make an informed decision.
        (c) Required information and abandonment of filing. A filing must 
    contain information required by the applicable section set forth in 
    this part. To the extent necessary to evaluate an application, the OCC 
    may require an applicant to provide additional information. The OCC may 
    deem a filing abandoned if information required or requested by the OCC 
    in connection with the filing is not furnished within the time period 
    specified by the OCC.
        (d) Notification of final disposition. The OCC notifies the 
    applicant, and any person who makes a written request, of the final 
    disposition of a filing, including confirmation of an expedited review 
    under this part. If the OCC denies a filing, the OCC notifies the 
    applicant in writing of the reasons for the denial.
        (e) Publication of decision. The OCC will issue a public decision 
    when a decision represents a new or changed policy or presents issues 
    of general interest to the public or the banking industry. In rendering 
    its decisions, the OCC may elect not to disclose information that the 
    OCC deems to be private or confidential.
        (f) Appeal. An applicant may file an appeal of an OCC decision with 
    the Deputy Comptroller for Bank Organization and Structure or with the 
    Ombudsman. Relevant addresses and telephone numbers are located in the 
    Manual.
        (g) Extension of time. When the OCC approves or conditionally 
    approves a filing, the OCC generally gives the applicant a specified 
    period of time to commence that new or expanded activity. The OCC does 
    not generally grant an extension of the time specified to commence a 
    new or expanded corporate activity approved under this
    
    [[Page 60367]]
    
    part, unless the OCC determines that the delay is beyond the 
    applicant's control.
        (h) Nullifying a decision--(1) Material misrepresentation or 
    omission. An applicant shall certify that any filing or supporting 
    material submitted to the OCC contains no material misrepresentations 
    or omissions. The OCC may review and verify any information filed in 
    connection with a notice or an application. If the OCC discovers a 
    material misrepresentation or omission after the OCC has rendered a 
    decision on the filing, the OCC may nullify its decision. Any person 
    responsible for any material misrepresentation or omission in a filing 
    or supporting materials may be subject to enforcement action and other 
    penalties, including criminal penalties provided in 18 U.S.C. 1001.
        (2) Other nullifications. The OCC may nullify any decision on a 
    filing that is:
        (i) Contrary to law, regulation, or OCC policy thereunder; or
        (ii) Granted due to clerical or administrative error, or a material 
    mistake of law or fact.
    
    Subpart B--Initial Activities
    
    
    Sec. 5.20  Organizing a bank.
    
        (a) Authority. 12 U.S.C. 21, 22, 24(Seventh), 26, 27, 92a, 93a, 
    1814(b), 1816, and 2903.
        (b) Licensing requirements. Any person desiring to establish a 
    national bank shall submit an application and obtain prior OCC 
    approval.
        (c) Scope. This section describes the procedures and requirements 
    governing OCC review and approval of an application to establish a 
    national bank, including a national bank with a special purpose. 
    Information regarding an application to establish an interim national 
    bank solely to facilitate a business combination is set forth in 
    Sec. 5.33.
        (d) Definitions. For purposes of this section:
        (1) Bankers' bank means a bank owned exclusively (except to the 
    extent directors' qualifying shares are required by law) by other 
    depository institutions or depository institution holding companies (as 
    that term is defined in section 3 of the Federal Deposit Insurance Act, 
    12 U.S.C. 1813), the activities of which are limited by its articles of 
    association exclusively to providing services to or for other 
    depository institutions, their holding companies, and the officers, 
    directors, and employees of such institutions and companies, and to 
    providing correspondent banking services at the request of other 
    depository institutions or their holding companies.
        (2) Control means control as used in section 2 of the Bank Holding 
    Company Act, 12 U.S.C. 1841(a)(2).
        (3) Final approval means the OCC action issuing a charter 
    certificate and authorizing a national bank to open for business.
        (4) Holding company means any company that controls or proposes to 
    control a national bank whether or not the company is a bank holding 
    company under section 2 of the Bank Holding Company Act, 12 U.S.C. 
    1841(a)(1).
        (5) Lead depository institution means the largest depository 
    institution controlled by a bank holding company based on a comparison 
    of the average total assets controlled by each depository institution 
    as reported in its Consolidated Report of Condition and Income required 
    to be filed for the immediately preceding four calendar quarters.
        (6) Organizing group means five or more persons acting on their own 
    behalf, or serving as representatives of a sponsoring holding company, 
    who apply to the OCC for a national bank charter.
        (7) Preliminary approval means a decision by the OCC permitting an 
    organizing group to go forward with the organization of the proposed 
    national bank. A preliminary approval generally is subject to certain 
    conditions that an applicant must satisfy before the OCC will grant 
    final approval.
        (e) Statutory requirements--(1) General. The OCC charters a 
    national bank under the authority of the National Bank Act of 1864, as 
    amended, 12 U.S.C. 1 et seq. The name of a proposed bank must include 
    the word ``national.'' In determining whether to approve an application 
    to establish a national bank, the OCC verifies that the proposed 
    national bank has complied with the following requirements of the 
    National Bank Act. A national bank shall:
        (i) Draft and file articles of association with the OCC;
        (ii) Draft and file an organization certificate containing 
    specified information with the OCC;
        (iii) Ensure that all capital stock is paid in; and
        (iv) Have at least five elected directors.
        (2) Community Reinvestment Act. Twelve CFR part 25 requires the OCC 
    to take into account a proposed insured national bank's description of 
    how it will meet its CRA objectives.
        (f) Policy--(1) General. The marketplace is normally the best 
    regulator of economic activity, and competition within the marketplace 
    promotes efficiency and better customer service. Accordingly, it is the 
    OCC's policy to approve proposals to establish national banks, 
    including minority-owned institutions, that have a reasonable chance of 
    success and that will be operated in a safe and sound manner. It is not 
    the OCC's policy to ensure that a proposal to establish a national bank 
    is without risk to the organizers or to protect existing institutions 
    from healthy competition from a new national bank.
        (2) Policy considerations. (i) In evaluating an application to 
    establish a national bank, the OCC considers whether the proposed bank:
        (A) Has organizers who are familiar with national banking laws and 
    regulations;
        (B) Has competent management, including a board of directors, with 
    ability and experience relevant to the types of services to be 
    provided;
        (C) Has capital that is sufficient to support the projected volume 
    and type of business;
        (D) Can reasonably be expected to achieve and maintain 
    profitability; and
        (E) Will be operated in a safe and sound manner.
        (ii) The OCC may also consider additional factors listed in section 
    6 of the Federal Deposit Insurance Act, 12 U.S.C. 1816, including the 
    risk to the Federal deposit insurance fund, and whether the proposed 
    bank's corporate powers are consistent with the purposes of the Federal 
    Deposit Insurance Act and the National Bank Act.
        (3) OCC evaluation. The OCC evaluates a proposed national bank's 
    organizing group and its operating plan together. The OCC's judgment 
    concerning one may affect the evaluation of the other. An organizing 
    group and its operating plan must be stronger in markets where economic 
    conditions are marginal or competition is intense.
        (g) Organizing group--(1) General. Strong organizing groups 
    generally include diverse business and financial interests and 
    community involvement. An organizing group must have the experience, 
    competence, willingness, and ability to be active in directing the 
    proposed national bank's affairs in a safe and sound manner. The bank's 
    initial board of directors generally is comprised of many, if not all, 
    of the organizers. The operating plan and other information supplied in 
    the application must demonstrate an organizing group's collective 
    ability to establish and operate a successful bank in the economic and 
    competitive conditions of the market to be served. Each organizer 
    should be knowledgeable about the operating plan. A poor operating plan 
    reflects adversely on the organizing
    
    [[Page 60368]]
    
    group's ability, and the OCC generally denies applications with poor 
    operating plans.
        (2) Management selection. The initial board of directors must 
    select competent senior executive officers before the OCC grants final 
    approval. Early selection of executive officers, especially the chief 
    executive officer, contributes favorably to the preparation and review 
    of an operating plan that is accurate, complete, and appropriate for 
    the type of bank proposed and its market, and reflects favorably upon 
    an application. As a condition of the charter approval, the OCC retains 
    the right to object to and preclude the hiring of any officer, or the 
    appointment or election of any director, for a two-year period from the 
    date the bank commences business.
        (3) Financial resources. (i) Each organizer must have a history of 
    responsibility, personal honesty, and integrity. Personal wealth is not 
    a prerequisite to become an organizer or director of a national bank. 
    However, directors' stock purchases, individually and in the aggregate, 
    should reflect a financial commitment to the success of the national 
    bank that is reasonable in relation to their individual and collective 
    financial strength. A director should not have to depend on bank 
    dividends, fees, or other compensation to satisfy financial 
    obligations.
        (ii) Because directors are often the primary source of additional 
    capital for a bank not affiliated with a holding company, it is 
    desirable that an organizer who is also proposed as a director of the 
    national bank be able to supply or have a realistic plan to enable the 
    bank to obtain capital when needed.
        (iii) Any financial or other business arrangement, direct or 
    indirect, between the organizing group or other insider and the 
    proposed national bank must be on nonpreferential terms.
        (4) Organizational expenses. (i) Organizers are expected to 
    contribute time and expertise to the organization of the bank. 
    Organizers should not bill excessive charges to the bank for 
    professional and consulting services or unduly rely upon these fees as 
    a source of income.
        (ii) A proposed national bank shall not pay any fee that is 
    contingent upon an OCC decision. Such action generally is grounds for 
    denial of the application or withdrawal of preliminary approval. 
    Organizational expenses for denied applications are the sole 
    responsibility of the organizing group.
        (5) Sponsor's experience and support. A sponsor must be financially 
    able to support the new bank's operations and to provide or locate 
    capital when needed. The OCC primarily considers the financial and 
    managerial resources of the sponsor and the sponsor's record of 
    performance, rather than the financial and managerial resources of the 
    organizing group, if an organizing group is sponsored by:
        (i) An existing holding company;
        (ii) Individuals currently affiliated with other depository 
    institutions; or
        (iii) Individuals who, in the OCC's view, are otherwise 
    collectively experienced in banking and have demonstrated the ability 
    to work together effectively.
        (h) Operating plan--(1) General. (i) Organizers of a proposed 
    national bank shall submit an operating plan that adequately addresses 
    the statutory and policy considerations set forth in paragraphs (e) and 
    (f)(2) of this section. The plan must reflect sound banking principles 
    and demonstrate realistic assessments of risk in light of economic and 
    competitive conditions in the market to be served.
        (ii) The OCC may offset deficiencies in one factor by strengths in 
    one or more other factors. However, deficiencies in some factors, such 
    as unrealistic earnings prospects, may have a negative influence on the 
    evaluation of other factors, such as capital adequacy, or may be 
    serious enough by themselves to result in denial. The OCC considers 
    inadequacies in an operating plan to reflect negatively on the 
    organizing group's ability to operate a successful bank.
        (2) Earnings prospects. The organizing group shall submit pro forma 
    balance sheets and income statements as part of the operating plan. The 
    OCC reviews all projections for reasonableness of assumptions and 
    consistency with the operating plan.
        (3) Management. (i) The organizing group shall include in the 
    operating plan information sufficient to permit the OCC to evaluate the 
    overall management ability of the organizing group. If the organizing 
    group has limited banking experience or community involvement, the 
    senior executive officers must be able to compensate for such 
    deficiencies.
        (ii) The organizing group may not hire an officer or elect or 
    appoint a director if the OCC objects to that person at any time prior 
    to the date the bank commences business.
        (4) Capital. A proposed bank must have sufficient initial capital, 
    net of any organizational expenses that will be charged to the bank's 
    capital after it begins operations, to support the bank's projected 
    volume and type of business.
        (5) Community service. (i) The operating plan must indicate the 
    organizing group's knowledge of and plans for serving the community. 
    The organizing group shall evaluate the banking needs of the community, 
    including its consumer, business, nonprofit, and government sectors. 
    The operating plan must demonstrate how the proposed bank responds to 
    those needs consistent with the safe and sound operation of the bank. 
    The provisions of this paragraph may not apply to an application to 
    organize a bank for a special purpose.
        (ii) As part of its operating plan, the organizing group shall 
    submit a statement that demonstrates its plans to achieve CRA 
    objectives.
        (iii) Because community support is important to the long-term 
    success of a bank, the organizing group shall include plans for 
    attracting and maintaining community support.
        (6) Safety and soundness. The operating plan must demonstrate that 
    the organizing group (and the sponsoring company, if any), is aware of, 
    and understands, national banking laws and regulations, and safe and 
    sound banking operations and practices. The OCC will deny an 
    application that does not meet these safety and soundness requirements.
        (7) Fiduciary services. The operating plan must indicate if the 
    proposed bank intends to offer fiduciary services. The information 
    required by Sec. 5.26 shall be filed with the charter application. A 
    separate application is not required.
        (i) Procedures--(1) Prefiling meeting. The OCC normally requires a 
    prefiling meeting with the organizers of a proposed national bank 
    before the organizers file an application. Organizers should be 
    familiar with the OCC's chartering policy and procedural requirements 
    in the Manual before the prefiling meeting. The prefiling meeting 
    normally is held in the district office where the application will be 
    filed but may be held at another location at the request of the 
    applicant.
        (2) Operating plan. An organizing group shall file an operating 
    plan that addresses the subjects discussed in paragraph (h) of this 
    section.
        (3) Spokesperson. The organizing group shall designate a 
    spokesperson to represent the organizing group in all contacts with the 
    OCC. The spokesperson shall be an organizer and proposed director of 
    the new bank, except a representative of the sponsor or sponsors may 
    serve as spokesperson if an application is sponsored by an existing 
    holding company, individuals currently affiliated with other depository 
    institutions, or individuals who, in the OCC's view, are otherwise 
    collectively experienced in banking and
    
    [[Page 60369]]
    
    have demonstrated the ability to work together effectively.
        (4) Decision notification. The OCC notifies the spokesperson and 
    other interested persons in writing of its decision on an application.
        (5) Post-decision activities. (i) Before the OCC grants final 
    approval, a proposed national bank must be established as a legal 
    entity. A national bank becomes a legal entity after it has filed its 
    organization certificate and articles of association with the OCC as 
    required by law. In addition, the organizing group shall elect a board 
    of directors. The proposed bank may not conduct the business of banking 
    until the OCC grants final approval.
        (ii) For all capital obtained through a public offering a proposed 
    national bank shall use an offering circular that complies with the 
    OCC's securities offering regulations, 12 CFR part 16.
        (iii) A national bank in organization shall raise its capital 
    before it commences business. Preliminary approval expires if a 
    national bank in organization does not raise the required capital 
    within 12 months from the date the OCC grants preliminary approval. 
    Approval expires if the national bank does not commence business within 
    18 months from the date the OCC grants preliminary approval.
        (j) Expedited review. An application to establish a full-service 
    national bank that is sponsored by a bank holding company whose lead 
    depository institution is an eligible bank or eligible depository 
    institution is deemed preliminarily approved by the OCC as of the 15th 
    day after the close of the public comment period or the 45th day after 
    the filing is received by the OCC, whichever is later, unless the OCC:
        (1) Notifies the applicant prior to that date that the filing is 
    not eligible for expedited review, or the expedited review process is 
    extended, under Sec. 5.13(a)(2); or
        (2) Notifies the applicant prior to that date that the OCC has 
    determined that the proposed bank will offer banking services that are 
    materially different than those offered by the lead depository 
    institution.
        (k) National bankers' banks--(1) Activities and customers. In 
    addition to the other requirements of this section, when an organizing 
    group seeks to organize a national bankers' bank, the organizing group 
    shall list in the application the anticipated activities and customers 
    or clients of the proposed national bankers' bank.
        (2) Waiver of requirements. At the organizing group's request, the 
    OCC may waive requirements that are applicable to national banks in 
    general if those requirements are inappropriate for a national bankers' 
    bank and would impede its ability to provide desired services to its 
    market. An applicant must submit a request for a waiver with the 
    application and must support the request with adequate justification 
    and legal analysis. A national bankers' bank that is already in 
    operation may also request a waiver. The OCC cannot waive statutory 
    provisions that specifically apply to national bankers' banks pursuant 
    to 12 U.S.C. 27(b)(1).
        (3) Investments. A national bank may invest up to ten percent of 
    its capital and surplus in a bankers' bank and may own five percent or 
    less of any class of a bankers' bank's voting securities.
        (l) Special purpose banks. An applicant for a national bank charter 
    that will limit its activities to fiduciary activities, credit card 
    operations, or another special purpose shall adhere to established 
    charter procedures with modifications appropriate for the circumstances 
    as determined by the OCC. An applicant for a national bank charter that 
    will have a community development focus shall also adhere to 
    established charter procedures with modifications appropriate for the 
    circumstances as determined by the OCC. In addition to the other 
    requirements in this section, a bank limited to fiduciary activities, 
    credit card operations, or another special purpose may not conduct that 
    business until the OCC grants final approval for the bank to commence 
    operations. A national bank that seeks to invest in a bank with a 
    community development focus must comply with applicable requirements of 
    12 CFR part 24.
    
    
    Sec. 5.24  Conversion.
    
        (a) Authority. 12 U.S.C. 35, 93a, 214a, 214b, 214c, and 2903.
        (b) Licensing requirements. A state bank (including a ``state 
    bank'' as defined in 12 U.S.C. 214(a)) or a Federal savings association 
    shall submit an application and obtain prior OCC approval to convert to 
    a national bank charter. A national bank shall give notice to the OCC 
    before converting to a state bank (including a ``state bank'' as 
    defined in 12 U.S.C. 214(a)) or Federal savings association.
        (c) Scope. This section describes procedures and standards 
    governing OCC review and approval of an application by a state bank or 
    Federal savings association to convert to a national bank charter. This 
    section also describes notice procedures for a national bank seeking to 
    convert to a state bank or Federal savings association.
        (d) Conversion of a state bank or Federal savings association to a 
    national bank--(1) Policy. Consistent with the OCC's chartering policy, 
    it is OCC policy to allow conversion to a national bank charter by 
    another financial institution that can operate safely and soundly as a 
    national bank in compliance with applicable laws, regulations, and 
    policies. The OCC may deny an application by any state bank (including 
    a ``state bank'' as defined in 12 U.S.C. 214(a)) and any Federal 
    savings association to convert to a national bank charter on the basis 
    of the standards for denial set forth in Sec. 5.13(b), or when 
    conversion would permit the applicant to escape supervisory action by 
    its current regulator.
        (2) Procedures. (i) Prefiling communications. The applicant should 
    consult with the appropriate district office prior to filing if it 
    anticipates that its application will raise unusual or complex issues. 
    If a prefiling meeting is appropriate, it will normally be held in the 
    district office where the application will be filed, but may be held at 
    another location at the request of the applicant.
        (ii) A state bank (including a state bank as defined in 12 U.S.C. 
    214(a)) or Federal savings association shall submit its application to 
    convert to a national bank to the appropriate district office. The 
    application must:
        (A) Be signed by the president or other duly authorized officer;
        (B) Identify each branch that the resulting bank expects to operate 
    after conversion;
        (C) Include the institution's most recent audited financial 
    statements (if any);
        (D) Include the latest report of condition and report of income 
    (the most recent daily statement of condition will suffice if the 
    institution does not file these reports);
        (E) Unless otherwise advised by the OCC in a prefiling 
    communication, include an opinion of counsel that, in the case of a 
    state bank, the conversion is not in contravention of applicable state 
    law, or in the case of a Federal savings association, the conversion is 
    not in contravention of applicable Federal law;
        (F) State whether the institution wishes to exercise fiduciary 
    powers after the conversion;
        (G) Identify all subsidiaries that will be retained following the 
    conversion, and provide the information and analysis of the 
    subsidiaries' activities that would be required if the converting bank 
    or savings association were a national bank establishing each 
    subsidiary pursuant to Sec. 5.34; and
    
    [[Page 60370]]
    
        (H) Identify any nonconforming assets (including nonconforming 
    subsidiaries) and nonconforming activities that the institution engages 
    in, and describe the plans to retain or divest those assets.
        (iii) The OCC may permit a national bank to retain such 
    nonconforming assets of a state bank, subject to conditions and an OCC 
    determination of the carrying value of the retained assets, pursuant to 
    12 U.S.C. 35.
        (iv) Approval for an institution to convert to a national bank 
    expires if the conversion has not occurred within six months of the 
    OCC's preliminary approval of the application.
        (v) When the OCC determines that the applicant has satisfied all 
    statutory and regulatory requirements, including those set forth in 12 
    U.S.C. 35, and any other conditions, the OCC issues a charter 
    certificate. The certificate provides that the institution is 
    authorized to begin conducting business as a national bank as of a 
    specified date.
        (3) Exceptions to rules of general applicability. Sections 5.8, 
    5.10, and 5.11 do not apply to this section. However, if the OCC 
    concludes that an application presents significant and novel policy, 
    supervisory, or legal issues, the OCC may determine that any or all 
    parts of Secs. 5.8, 5.10, and 5.11 apply.
        (4) Expedited review. An application by an eligible depository 
    institution to convert to a national bank charter is deemed approved by 
    the OCC as of the 30th day after the filing is received by the OCC, 
    unless the OCC notifies the applicant prior to that date that the 
    filing is not eligible for expedited review under Sec. 5.13(a)(2).
        (e) Conversion of a national bank to a state bank--(1) Procedure. A 
    national bank may convert to a state bank, in accordance with 12 U.S.C. 
    214c, without prior OCC approval. Termination of the national bank's 
    status as a national bank occurs upon the bank's completion of the 
    requirements of 12 U.S.C. 214a, and upon the appropriate district 
    office's receipt of the bank's national bank charter (or copy) in 
    connection with the consummation of the transaction.
        (2) Notice of intent. A national bank that desires to convert to a 
    state bank shall submit to the appropriate district office a notice of 
    its intent to convert. The national bank shall file this notice when it 
    first submits a request to convert to the appropriate state 
    authorities. The appropriate district office then provides instructions 
    to the national bank for terminating its status as a national bank.
        (3) Exceptions to the rules of general applicability. Sections 5.5 
    through 5.8, and 5.10 through 5.13, do not apply to the conversion of a 
    national bank to a state bank.
        (f) Conversion of a national bank to a Federal savings association. 
    A national bank may convert to a Federal savings association without 
    prior OCC approval. The requirements and procedures set forth in 
    paragraph (e) of this section and 12 U.S.C. 214a and 12 U.S.C. 214c 
    apply to a conversion to a Federal savings association, except as 
    follows:
        (1) In paragraph (e) of this section references to ``appropriate 
    state authorities'' mean ``appropriate Federal authorities''; and
        (2) References in 12 U.S.C. 214c to the ``law of the State in which 
    the national banking association is located'' and ``any State 
    authority'' mean ``laws and regulations governing Federal savings 
    associations'' and ``Office of Thrift Supervision,'' respectively.
    
    
    Sec. 5.26  Fiduciary powers.
    
        (a) Authority. 12 U.S.C. 92a.
        (b) Licensing requirements. A national bank must submit an 
    application and obtain prior approval from, or in certain circumstances 
    file a notice with, the OCC in order to exercise fiduciary powers. No 
    approval or notice is required in the following circumstances:
        (1) Where two or more national banks consolidate or merge, and any 
    of the banks has, prior to the consolidation or merger, received OCC 
    approval to exercise fiduciary powers and that approval is in force at 
    the time of the consolidation or merger, the resulting bank may 
    exercise fiduciary powers in the same manner and to the same extent as 
    the national bank to which approval was originally granted; and
        (2) Where a national bank with prior OCC approval to exercise 
    fiduciary powers is the resulting bank in a merger or consolidation 
    with a state bank.
        (c) Scope. This section sets forth the procedures governing OCC 
    review and approval of an application, and in certain cases the filing 
    of a notice, by a national bank to exercise fiduciary powers. A 
    national bank's fiduciary activities are subject to the provisions of 
    12 CFR part 9.
        (d) Policy. The exercise of fiduciary powers is primarily a 
    management decision of the national bank. The OCC generally permits a 
    national bank to exercise fiduciary powers if the bank is operating in 
    a satisfactory manner, the proposed activities comply with applicable 
    statutes and regulations, and the bank retains qualified fiduciary 
    management.
        (e) Procedure--(1) General. The following institutions must obtain 
    approval from the OCC in order to offer fiduciary services to the 
    public:
        (i) A national bank without fiduciary powers;
        (ii) A national bank without fiduciary powers that desires to 
    exercise fiduciary powers after merging with a state bank or savings 
    association with fiduciary powers; and
        (iii) A national bank that results from the conversion of a state 
    bank or a state or Federal savings association that was exercising 
    fiduciary powers prior to the conversion.
        (2) Application. (i) Except as provided in paragraph (e)(2)(ii) of 
    this section, a national bank that desires to exercise fiduciary powers 
    shall submit to the OCC an application requesting approval. The 
    application must contain:
        (A) A statement requesting full or limited powers (specifying which 
    powers);
        (B) An opinion of counsel that the proposed activities do not 
    violate applicable Federal or state law, including citations to 
    applicable law;
        (C) A statement that the capital and surplus of the national bank 
    is not less than the capital and surplus required by state law of state 
    banks, trust companies, and other corporations exercising comparable 
    fiduciary powers;
        (D) Sufficient biographical information on proposed trust 
    management personnel to enable the OCC to assess their qualifications; 
    and
        (E) A description of the locations where the bank will conduct 
    fiduciary activities.
        (ii) If approval to exercise fiduciary powers is desired in 
    connection with any other transaction subject to an application under 
    this part, the applicant covered under paragraph (e)(1)(ii) or 
    (e)(1)(iii) of this section may include a request for approval of 
    fiduciary powers, including the information required by paragraph 
    (e)(2)(i) of this section, as part of its other application. The OCC 
    does not require a separate application requesting approval to exercise 
    fiduciary powers under these circumstances.
        (3) Expedited review. (i) An application by an eligible bank to 
    exercise fiduciary powers is deemed approved by the OCC as of the 30th 
    day after the application is received by the OCC, unless the OCC 
    notifies the bank prior to that date that the filing is not eligible 
    for expedited review under Sec. 5.13(a)(2).
        (ii) An eligible bank applying for fiduciary powers may omit the 
    opinion of counsel required by paragraph (e)(2)(i)(B) of this section 
    unless such opinion is specifically requested by the OCC.
    
    [[Page 60371]]
    
        (4) Permit. Approval of an application under this section 
    constitutes a permit under 12 U.S.C. 92a to conduct the fiduciary 
    powers requested in the application.
        (5) Notice of fiduciary activities. No further application under 
    this section is required when a national bank with prior OCC approval 
    to exercise fiduciary powers commences fiduciary activities in a state 
    in addition to the state(s) described in the application for which it 
    received OCC approval to exercise fiduciary powers. Instead, the bank 
    shall provide written notice to the OCC within ten days after 
    commencing fiduciary activities. The written notice must identify the 
    state involved and describe the fiduciary activities to be conducted to 
    the extent that they materially differ from fiduciary activities the 
    bank was previously authorized to conduct.
        (6) Exceptions to rules of general applicability. Sections 5.8, 
    5.10, and 5.11 do not apply to this section. However, if the OCC 
    concludes that an application presents significant and novel policy, 
    supervisory, or legal issues, the OCC may determine that any or all 
    parts of Secs. 5.8, 5.10, and 5.11 apply.
        (7) Expiration of approval. Approval expires if a national bank 
    does not commence fiduciary activities within 18 months from the date 
    of approval.
    
    Subpart C--Expansion of Activities
    
    
    Sec. 5.30  Establishment, acquisition, and relocation of a branch.
    
        (a) Authority. 12 U.S.C. 1-42, and 2901-2907.
        (b) Licensing requirements. A national bank shall submit an 
    application and obtain prior OCC approval in order to establish or 
    relocate a branch.
        (c) Scope. This section describes the procedures and standards 
    governing OCC review and approval of a national bank's application to 
    establish a new branch or to relocate a branch. The standards of this 
    section and, as applicable, 12 U.S.C. 36(b), but not the procedures set 
    forth in this section, apply to a branch established as a result of a 
    business combination approved under Sec. 5.33. A branch established 
    through a business combination is subject only to the procedures set 
    forth in Sec. 5.33.
        (d) Definitions--(1) Branch includes any branch bank, branch 
    office, branch agency, additional office, or any branch place of 
    business established by a national bank in the United States or its 
    territories at which deposits are received, checks paid, or money lent. 
    A branch does not include an automated teller machine (ATM) or a remote 
    service unit.
        (i) A branch established by a national bank includes a mobile 
    facility, temporary facility, drop box or a seasonal agency, as 
    described in 12 U.S.C. 36(c).
        (ii) A facility otherwise described in this paragraph (d)(1) is not 
    a branch if:
        (A) The bank establishing the facility does not permit members of 
    the public to have physical access to the facility for purposes of 
    making deposits, paying checks, or borrowing money (e.g., an office 
    established by the bank that receives deposits only through the mail); 
    or
        (B) It is located at the site of, or is an extension of, an 
    approved main or branch office of the national bank. The OCC determines 
    whether a facility is an extension of an existing main or branch office 
    on a case-by-case basis.
        (2) Home state means the state in which the national bank's main 
    office is located.
        (3) Messenger service has the meaning set forth in 12 CFR 7.1012.
        (4) Mobile branch is a branch, other than a messenger service 
    branch, that does not have a single, permanent site, and includes a 
    vehicle that travels to various public locations to enable customers to 
    conduct their banking business. A mobile branch may provide services at 
    various regularly scheduled locations or it may be open at irregular 
    times and locations such as at county fairs, sporting events, or school 
    registration periods. A branch license is needed for each mobile unit.
        (5) Temporary branch means a branch that is located at a fixed site 
    and which, from the time of its opening, is scheduled to, and will, 
    permanently close no later than a certain date (not longer than one 
    year after the branch is first opened) specified in the branch 
    application and the public notice.
        (e) Policy. In determining whether to approve an application to 
    establish or relocate a branch, the OCC is guided by the following 
    principles:
        (1) Maintaining a sound banking system;
        (2) Encouraging a national bank to help meet the credit needs of 
    its entire community;
        (3) Relying on the marketplace as generally the best regulator of 
    economic activity; and
        (4) Encouraging healthy competition to promote efficiency and 
    better service to customers.
        (f) Procedures--(1) General. Except as provided in paragraph (f)(2) 
    of this section, each national bank proposing to establish a branch 
    shall submit to the appropriate district office a separate application 
    for each proposed branch.
        (2) Messenger services. A national bank may request approval, 
    through a single application, for multiple messenger services to serve 
    the same general geographic area. (See 12 CFR 7.1012). Unless otherwise 
    required by law, the bank need not list the specific locations to be 
    served.
        (3) Jointly established branches. If a national bank proposes to 
    establish a branch jointly with one or more national banks or 
    depository institutions, only one of the national banks must submit a 
    branch application. The national bank submitting the application may 
    act as agent for all national banks in the group of depository 
    institutions proposing to share the branch. The application must 
    include the name and main office address of each national bank in the 
    group.
        (4) Authorization. The OCC authorizes operation of the branch when 
    all requirements and conditions for opening are satisfied.
        (5) Expedited review. An application submitted by an eligible bank 
    to establish or relocate a branch is deemed approved by the OCC as of 
    the 15th day after the close of the applicable public comment period, 
    or the 45th day after the filing is received by the OCC, whichever is 
    later, unless the OCC notifies the bank prior to that date that the 
    filing is not eligible for expedited review, or the expedited review 
    process is extended, under Sec. 5.13(a)(2). An application to establish 
    or relocate more than one branch is deemed approved by the OCC as of 
    the 15th day after the close of the last public comment period.
        (g) Interstate branches. A national bank that seeks to establish 
    and operate a de novo branch in any state other than the bank's home 
    state or a state in which the bank already has a branch shall satisfy 
    the standards and requirements of 12 U.S.C. 36(g).
        (h) Exceptions to rules of general applicability. (1) A national 
    bank filing an application for a mobile branch or messenger service 
    branch shall publish a public notice, as described in Sec. 5.8, in the 
    communities in which the bank proposes to engage in business.
        (2) The comment period on an application to engage in a short-
    distance branch relocation is 15 days.
        (3) The OCC may waive or reduce the public notice and comment 
    period, as appropriate, with respect to an application to establish a 
    branch to restore banking services to a community affected by a 
    disaster or to temporarily replace banking facilities where, because of 
    an emergency, the bank
    
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    cannot provide services or must curtail banking services.
        (4) The OCC may waive or reduce the public notice and comment 
    period, as appropriate, for an application by a national bank with a 
    CRA rating of Satisfactory or better to establish a temporary branch 
    which, if it were established by a state bank to operate in the manner 
    proposed, would be permissible under state law without state approval.
        (i) Expiration of approval. Approval expires if a branch has not 
    commenced business within 18 months after the date of approval.
        (j) Branch closings. A national bank shall comply with the 
    requirements of 12 U.S.C. 1831r-1 with respect to procedures for branch 
    closings.
    
    
    Sec. 5.33  Business combinations.
    
        (a) Authority. 12 U.S.C. 24(Seventh), 93a, 181, 214a, 215, 215a, 
    215a-1, 215c, 1815(d)(3), 1828(c), 2903, and Sec. 102, Pub. L. 103-328, 
    108 Stat. 2338.
        (b) Licensing requirements. A national bank shall submit an 
    application and obtain prior OCC approval for a business combination 
    between the national bank and another depository institution when the 
    resulting institution is a national bank. A national bank shall give 
    notice to the OCC prior to engaging in a combination where the 
    resulting institution will not be a national bank.
        (c) Scope. This section sets forth the standards for OCC review and 
    approval of an application for a business combination resulting in a 
    national bank and for notices and other procedures for national banks 
    involved in all forms of combinations.
        (d) Definitions--(1) Business combination means any merger or 
    consolidation between a national bank and one or more depository 
    institutions in which the resulting institution is a national bank, the 
    acquisition by a national bank of all, or substantially all, of the 
    assets of another depository institution, or the assumption by a 
    national bank of deposit liabilities of another depository institution.
        (2) Business reorganization means either:
        (i) A business combination between eligible banks, or between an 
    eligible bank and an eligible depository institution, that are 
    controlled by the same holding company or that will be controlled by 
    the same holding company prior to the date of the combination; or
        (ii) A business combination between an eligible bank and an interim 
    bank chartered in a transaction in which a person or group of persons 
    exchanges its shares of the eligible bank for shares of a newly formed 
    holding company and receives after the transaction substantially the 
    same proportional share interest in the holding company as it held in 
    the eligible bank (except for changes in interests resulting from the 
    exercise of dissenters' rights), and the reorganization involves no 
    other transactions involving the bank.
        (3) Home state means, with respect to a national bank, the state in 
    which the main office of the bank is located and, with respect to a 
    state bank, the state by which the bank is chartered.
        (4) Interim bank means a national bank that does not operate 
    independently but exists solely as a vehicle to accomplish a business 
    combination.
        (e) Policy--(1) Factors. The OCC considers the following factors in 
    evaluating an application for a business combination:
        (i) Competition. (A) The OCC considers the effect of a proposed 
    business combination on competition. The applicant shall provide a 
    competitive analysis of the transaction, including a definition of the 
    relevant geographic market or markets. An applicant may refer to the 
    Manual for procedures to expedite its competitive analysis.
        (B) The OCC will deny an application for a business combination if 
    the combination would result in a monopoly or would be in furtherance 
    of any combination or conspiracy to monopolize or attempt to monopolize 
    the business of banking in any part of the United States. The OCC also 
    will deny any proposed business combination whose effect in any section 
    of the United States may be substantially to lessen competition, or 
    tend to create a monopoly, or which in any other manner would be in 
    restraint of trade, unless the probable effects of the transaction in 
    meeting the convenience and needs of the community clearly outweigh the 
    anticompetitive effects of the transaction. For purposes of weighing 
    against anticompetitive effects, a business combination may have 
    favorable effects in meeting the convenience and needs of the community 
    if the depository institution being acquired has limited long-term 
    prospects, or if the resulting national bank will provide significantly 
    improved, additional, or less costly services to the community.
        (ii) Financial and managerial resources and future prospects. The 
    OCC considers the financial and managerial resources and future 
    prospects of the existing or proposed institutions.
        (iii) Convenience and needs of community. The OCC considers the 
    probable effects of the business combination on the convenience and 
    needs of the community served. The applicant shall describe these 
    effects in its application, including any planned office closings or 
    reductions in services following the business combination and the 
    likely impact on the community. The OCC also considers additional 
    relevant factors, including the resulting national bank's ability and 
    plans to provide expanded or less costly services to the community.
        (iv) Community reinvestment. The OCC considers the performance of 
    the applicant and the other depository institutions involved in the 
    business combination in helping to meet the credit needs of the 
    relevant communities, including low- and moderate-income neighborhoods, 
    consistent with safe and sound banking practices.
        (2) Acquisition and retention of branches. An applicant shall 
    disclose the location of any branch it will acquire and retain in a 
    business combination. The OCC considers the acquisition and retention 
    of a branch under the standards set out in Sec. 5.30, but it does not 
    require a separate application under Sec. 5.30.
        (3) Subsidiaries. (i) An applicant shall identify any subsidiary to 
    be acquired in a business combination and state the activities of each 
    subsidiary. The OCC does not require a separate application under 
    Sec. 5.34.
        (ii) An applicant proposing to acquire, through a business 
    combination, a subsidiary of a depository institution other than a 
    national bank shall provide the same information and analysis of the 
    subsidiary's activities that would be required if the applicant were 
    establishing the subsidiary pursuant to Sec. 5.34.
        (4) Interim bank--(i) Application. An applicant for a business 
    combination that plans to use an interim bank to accomplish the 
    transaction shall file an application to organize an interim bank as 
    part of the application for the related business combination.
        (ii) Conditional approval. The OCC grants conditional approval to 
    form an interim bank when it acknowledges receipt of the application 
    for the related business combination.
        (iii) Corporate status. An interim bank becomes a legal entity and 
    may enter into legally valid agreements when it has filed, and the OCC 
    has accepted, the interim bank's duly executed articles of
    
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    association and organization certificate. OCC acceptance occurs:
        (A) On the date the OCC advises the interim bank that its articles 
    of association and organization certificate are acceptable; or
        (B) On the date the interim bank files articles of association and 
    an organization certificate that conform to the form for those 
    documents provided by the OCC in the Manual.
        (iv) Other corporate procedures. An applicant should consult the 
    Manual to determine what other information is necessary to complete the 
    chartering of the interim bank as a national bank.
        (5) Nonconforming assets. An applicant shall identify any 
    nonconforming activities and assets, including nonconforming 
    subsidiaries, of other institutions involved in the business 
    combination, that will not be disposed of or discontinued prior to 
    consummation of the transaction. The OCC generally requires a national 
    bank to divest or conform nonconforming assets, or discontinue 
    nonconforming activities, within a reasonable time following the 
    business combination.
        (6) Fiduciary powers. An applicant shall state whether the 
    resulting bank intends to exercise fiduciary powers pursuant to 
    Sec. 5.26(b) (1) or (2).
        (7) Expiration of approval. Approval of a business combination, and 
    conditional approval to form an interim bank charter, if applicable, 
    expires if the business combination is not consummated within one year 
    after the date of OCC approval.
        (8) Adequacy of disclosure. (i) An applicant shall inform 
    shareholders of all material aspects of a business combination and 
    shall comply with any applicable requirements of the Federal securities 
    laws and securities regulations of the OCC. Accordingly, an applicant 
    shall ensure that all proxy and information statements prepared in 
    connection with a business combination do not contain any untrue or 
    misleading statement of a material fact, or omit to state a material 
    fact necessary in order to make the statements made, in the light of 
    the circumstances under which they were made, not misleading.
        (ii) A national bank applicant with one or more classes of 
    securities subject to the registration provisions of section 12 (b) or 
    (g) of the Securities Exchange Act of 1934, 15 U.S.C. 78l(b) or 78l(g), 
    shall file preliminary proxy material or information statements for 
    review with the Director, Securities and Corporate Practices Division, 
    OCC, Washington, DC 20219, and with the appropriate district office. 
    Any other applicant shall submit the proxy materials or information 
    statements it uses in connection with the combination to the 
    appropriate district office no later than when the materials are sent 
    to the shareholders.
        (f) Exceptions to rules of general applicability--(1) National bank 
    applicant. Section 5.8 (a) through (c) does not apply to a national 
    bank applicant that is subject to specific statutory notice 
    requirements for a business combination. A national bank applicant 
    shall follow, as applicable, the public notice requirements contained 
    in 12 U.S.C. 1828(c)(3) (business combinations), 12 U.S.C. 215(a) 
    (consolidation under a national bank charter), 12 U.S.C. 215a(a)(2) 
    (merger under a national bank charter), and paragraph (g) of this 
    section (merger or consolidation with a Federal savings association 
    resulting in a state bank).
        (2) Interim bank. Sections 5.8, 5.10, and 5.11 do not apply to an 
    application to organize an interim bank. However, if the OCC concludes 
    that an application presents significant and novel policy, supervisory, 
    or legal issues, the OCC may determine that any or all parts of 
    Secs. 5.8, 5.10, and 5.11 apply. The OCC treats an application to 
    organize an interim bank as part of the related application to engage 
    in a business combination and does not require a separate public notice 
    and public comment process.
        (3) State bank or Federal savings association as resulting 
    institution. Sections 5.2 and 5.5 through 5.13 do not apply to 
    transactions covered by paragraph (g)(3) of this section.
        (g) Approval procedures and treatment of dissenting shareholders in 
    consolidations and mergers--(1) Consolidations and mergers with other 
    national banks and state banks as defined in 12 U.S.C. 215b(1) 
    resulting in a national bank. A national bank entering into a 
    consolidation or merger authorized pursuant to 12 U.S.C. 215 or 215a, 
    respectively, is subject to the approval procedures and requirements 
    with respect to treatment of dissenting shareholders set forth in those 
    provisions.
        (2) Consolidations and mergers with Federal savings associations 
    under 12 U.S.C. 215c resulting in a national bank. (i) With the 
    approval of the OCC, any national bank and any Federal savings 
    association may consolidate or merge with a national bank as the 
    resulting institution by complying with the following procedures:
        (A) A national bank entering into the consolidation or merger shall 
    follow the procedures of 12 U.S.C. 215 or 215a, respectively, as if the 
    Federal savings association were a state or national bank.
        (B) A Federal savings association entering into the consolidation 
    or merger also shall follow the procedures of 12 U.S.C. 215 or 215a, 
    respectively, as if the Federal savings association were a state bank 
    or national bank, except where the laws or regulations governing 
    Federal savings associations specifically provide otherwise.
        (ii) The OCC may conduct an appraisal or reappraisal of dissenters' 
    shares of stock in a national bank involved in a consolidation or 
    merger with a Federal savings association if all parties agree that the 
    determination is final and binding on each party.
        (3) Merger or consolidation of a national bank resulting in a state 
    bank as defined in 12 U.S.C. 214(a) or a Federal savings association--
    (i) Policy. Prior OCC approval is not required for the merger or 
    consolidation of a national bank with a state bank or Federal savings 
    association when the resulting institution will be a state bank or 
    Federal savings association. Termination of a national bank's status as 
    a national banking association is automatic upon completion of the 
    requirements of 12 U.S.C. 214a, in accordance with 12 U.S.C. 214c, in 
    the case of a merger or consolidation when the resulting institution is 
    a state bank, or paragraph (g)(3)(iii) of this section, in the case of 
    a merger or consolidation when the resulting institution is a Federal 
    savings association, and consummation of the transaction.
        (ii) Procedures. A national bank desiring to merge or consolidate 
    with a state bank or a Federal savings association when the resulting 
    institution will be a state bank or Federal savings association shall 
    submit a notice to the appropriate district office advising of its 
    intention. The national bank shall submit this notice at the time the 
    application to merge or consolidate is filed with the responsible 
    agency under the Bank Merger Act, 12 U.S.C. 1828(c). The OCC then 
    provides instructions to the national bank for terminating its status 
    as a national bank, including requiring the bank to provide the 
    appropriate district office with the bank's charter (or a copy) in 
    connection with the consummation of the transaction.
        (iii) Special procedures for merger or consolidation into a Federal 
    savings association. (A) With the exception of the procedures in 
    paragraph (g)(3)(iii)(B) of this section, a national bank entering into 
    a merger or consolidation with a Federal savings association when the 
    resulting institution will be a Federal savings association shall 
    comply with the requirements of 12 U.S.C. 214a and 12 U.S.C. 214c as if 
    the Federal savings
    
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    association were a state bank. However, for these purposes the 
    references in 12 U.S.C. 214c to ``law of the State in which such 
    national banking association is located'' and ``any State authority'' 
    mean ``laws and regulations governing Federal savings associations'' 
    and ``Office of Thrift Supervision,'' respectively.
        (B) National bank shareholders who dissent from a plan to merge or 
    consolidate may receive in cash the value of their national bank shares 
    if they comply with the requirements of 12 U.S.C. 214a as if the 
    Federal savings association were a state bank. The OCC conducts an 
    appraisal or reappraisal of the value of the national bank shares held 
    by dissenting shareholders only if all parties agree that the 
    determination will be final and binding. The parties shall also agree 
    on how the total expenses of the OCC in making the appraisal will be 
    divided among the parties and paid to the OCC. The plan of merger or 
    consolidation must provide, consistent with the requirements of the 
    Office of Thrift Supervision, the manner of disposing of the shares of 
    the resulting Federal savings association not taken by the dissenting 
    shareholders of the national bank.
        (h) Interstate combinations. A business combination between banks 
    under the authority of 12 U.S.C. 1831u(a)(1) must satisfy the standards 
    and requirements and comply with the procedures of 12 U.S.C. 1831u and 
    the procedures of 12 U.S.C. 215 and 215a as applicable. For purposes of 
    this section, the acquisition of a branch without the acquisition of 
    all or substantially all of the assets of a bank is treated as the 
    acquisition of a bank whose home state is the state in which the branch 
    is located.
        (i) Expedited review for business reorganizations and streamlined 
    applications. A filing that qualifies as a business reorganization as 
    defined in paragraph (d)(2) of this section, or a filing that qualifies 
    as a streamlined application as described in paragraph (j) of this 
    section, is deemed approved by the OCC as of the 45th day after the 
    application is received by the OCC, or the 15th day after the close of 
    the comment period, whichever is later, unless the OCC notifies the 
    applicant that the filing is not eligible for expedited review, or the 
    expedited review process is extended, under Sec. 5.13(a)(2). An 
    application under this paragraph must contain all necessary information 
    for the OCC to determine if it qualifies as a business reorganization 
    or streamlined application.
        (j) Streamlined applications. (1) An applicant may qualify for a 
    streamlined business combination application in the following 
    situations:
        (i) At least one party to the transaction is an eligible bank, and 
    all other parties to the transaction are eligible banks or eligible 
    depository institutions, the resulting national bank will be well 
    capitalized immediately following consummation of the transaction, and 
    the total assets of the target institution are no more than 50 percent 
    of the total assets of the acquiring bank, as reported in each 
    institution's Consolidated Report of Condition and Income filed for the 
    quarter immediately preceding the filing of the application;
        (ii) The acquiring bank is an eligible bank, the target bank is not 
    an eligible bank or an eligible depository institution, the resulting 
    national bank will be well capitalized immediately following 
    consummation of the transaction, and the applicants in a prefiling 
    communication request and obtain approval from the appropriate district 
    office to use the streamlined application; or
        (iii) The acquiring bank is an eligible bank, the target bank is 
    not an eligible bank or an eligible depository institution, the 
    resulting bank will be well capitalized immediately following 
    consummation of the transaction, and the total assets acquired do not 
    exceed 10 percent of the total assets of the acquiring national bank, 
    as reported in each institution's Consolidated Report of Condition and 
    Income filed for the quarter immediately preceding the filing of the 
    application.
        (2) When a business combination qualifies for a streamlined 
    application, the applicant should consult the Manual to determine the 
    abbreviated application information required by the OCC. The OCC 
    encourages prefiling communications between the applicants and the 
    appropriate district office before filing under paragraph (j) of this 
    section.
    
    
    Sec. 5.34  Operating subsidiaries.
    
        (a) Authority. 12 U.S.C. 24(Seventh) and 93a.
        (b) Licensing requirements. A national bank generally shall submit 
    an application and obtain prior OCC approval to establish or commence 
    new activities in an operating subsidiary. In certain circumstances, a 
    national bank need only notify the OCC after it has established or 
    commenced specified activities in an operating subsidiary.
        (c) Scope. This section sets forth authorized activities and 
    application and notice procedures for the establishment and operation 
    of an operating subsidiary by a national bank.
        (d) Standards and requirements--(1) Authorized activities. A 
    national bank may establish or acquire an operating subsidiary to 
    conduct, or may conduct in an existing operating subsidiary, activities 
    that are part of or incidental to the business of banking, as 
    determined by the Comptroller of the Currency, pursuant to 12 U.S.C. 
    24(Seventh), and other activities permissible for national banks or 
    their subsidiaries under other statutory authority.
        (2) Qualifying subsidiaries. For purposes of this section, an 
    operating subsidiary in which a national bank may invest includes a 
    corporation, limited liability company, or similar entity if the parent 
    bank owns more than 50 percent of the voting (or similar type of 
    controlling) interest of the subsidiary; or the parent bank otherwise 
    controls the subsidiary and no other party controls more than 50 
    percent of the voting (or similar type of controlling) interest of the 
    subsidiary. However, the following subsidiaries are not operating 
    subsidiaries subject to this section:
        (i) A subsidiary in which the bank's investment is made pursuant to 
    specific authorization in a statute or OCC regulation (e.g., a 
    community development corporation subsidiary under 12 CFR part 24); and
        (ii) A subsidiary in which the bank has acquired, in good faith, 
    shares through foreclosure on collateral, by way of compromise of a 
    doubtful claim, or to avoid a loss in connection with a debt previously 
    contracted.
        (3) Examination and supervision. Each operating subsidiary is 
    subject to examination and supervision by the OCC. In conducting 
    activities authorized under this section, unless otherwise provided by 
    statute or regulation (including paragraph (f) of this section), 
    applicable provisions of Federal banking law and regulations pertaining 
    to the operations of the parent bank shall apply to the operations of 
    the bank's operating subsidiary. If, upon examination, the OCC 
    determines that the subsidiary is operating in violation of law, 
    regulation, or written condition, or in an unsafe or unsound manner or 
    otherwise threatens the safety and soundness of the bank, the OCC will 
    direct the bank or operating subsidiary to take appropriate remedial 
    action, which may include requiring the bank to divest or liquidate the 
    subsidiary, or discontinue specified activities.
        (4) Consolidation of figures. Pertinent book figures of the parent 
    bank and its operating subsidiary shall be combined for the purpose of 
    applying statutory limitations when combination is needed
    
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    to effect the intent of the statute, e.g., for purposes of 12 U.S.C. 
    56, 60, 84 and 371d. However, in determining compliance with statutory 
    limits based on regulatory capital, the bank shall make any reductions 
    in regulatory capital required by paragraph (f) of this section.
        (e) Procedures--(1) General--(i) Application required. (A) Except 
    as provided in paragraphs (e)(2) and (e)(4) of this section, a national 
    bank that intends to acquire or establish an operating subsidiary, or 
    to perform a new activity in an existing subsidiary, shall submit an 
    application to, and receive approval from, the OCC before acquiring or 
    establishing the subsidiary, or commencing the new activity. The 
    application must include a complete description of the bank's 
    investment in the subsidiary, the proposed activities of the 
    subsidiary, the organizational structure and management of the 
    subsidiary, the relations between the bank and the subsidiary, and 
    other information necessary to adequately describe the proposal. It 
    also must state whether the bank intends to conduct any activity of the 
    operating subsidiary at a location other than the main office or a 
    previously approved branch of the bank. The OCC may require the 
    applicant to submit a legal analysis if the proposal is novel, 
    unusually complex or raises substantial unresolved legal issues. In 
    such cases, the OCC encourages applicants to have a pre-filing meeting 
    with the OCC.
        (B) Notwithstanding any other provision in this section, a national 
    bank shall file an application and obtain prior approval before 
    acquiring or establishing an operating subsidiary, or performing a new 
    activity in an existing subsidiary, if the bank controls the subsidiary 
    but owns 50 percent or less of the voting (or similar type of 
    controlling) interest of the subsidiary. These applications are not 
    subject to paragraph (e)(4) of this section and are not eligible for 
    the notice procedures in paragraph (e)(2) of this section or the 
    expedited review procedures in paragraph (e)(3) of this section.
        (ii) Exceptions to rules of general applicability. Sections 5.8, 
    5.10, and 5.11 do not apply to this section. However, if the OCC 
    concludes that an application presents significant and novel policy, 
    supervisory, or legal issues, the OCC may determine that some or all 
    provisions in Secs. 5.8, 5.10, and 5.11 apply.
        (iii) OCC review and approval. The OCC reviews a national bank's 
    application to determine whether the proposed activities are legally 
    permissible for an operating subsidiary and to ensure that the proposal 
    is consistent with safe and sound banking practices and OCC policy and 
    does not endanger the safety or soundness of the parent national bank. 
    As part of this process, the OCC may request additional information and 
    analysis from the applicant.
        (2) Notice process for certain activities--(i) General. A national 
    bank that is ``adequately capitalized'' or ``well capitalized'' as 
    those terms are defined in 12 CFR part 6, and has not been notified 
    that it is in ``troubled condition'' as defined in Sec. 5.51, may 
    acquire or establish an operating subsidiary, or perform a new activity 
    in an existing operating subsidiary, by providing the appropriate 
    district office written notice within 10 days after acquiring or 
    establishing the subsidiary, or commencing the activity, provided the 
    activity is listed in paragraph (e)(2)(ii) of this section. The written 
    notice must include a complete description of the bank's investment in 
    the subsidiary and of the activity conducted and a representation and 
    undertaking that the activity will be conducted in accordance with OCC 
    policies contained in guidance issued by the OCC regarding the 
    activity. Any bank receiving approval under this paragraph is deemed to 
    have agreed that the subsidiary will conduct the activity in a manner 
    consistent with published OCC guidance.
        (ii) Activities eligible for notice. The following activities 
    qualify for the preapproved notice procedures:
        (A) Holding property, such as real estate, personal property, 
    securities, or other assets, acquired by the bank through foreclosure 
    or otherwise in good faith to compromise a doubtful claim, or in the 
    ordinary course of collecting a debt previously contracted;
        (B) Business services for the bank or its affiliates. Furnishing 
    services for the internal operations of the bank or its affiliates, 
    including: accounting, auditing, appraising, advertising and public 
    relations, data processing and data transmission services, databases, 
    or facilities;
        (C) Financial advice and consulting for the bank or its affiliates;
        (D) Selling money orders, savings bonds, or travelers checks;
        (E) Management consulting, operational advice, and specialized 
    services for other depository institutions;
        (F) Courier services between financial institutions;
        (G) Providing check guaranty and verification services;
        (H) Data processing and warehousing products, services, and related 
    activities, including associated equipment and technology, for the 
    operating subsidiary, its parent bank, and their affiliates;
        (I) Acting as investment or financial adviser, (not involving the 
    exercise of investment discretion), or providing financial counseling, 
    including:
        (1) Serving as the advisory company for a mortgage or real estate 
    investment trust;
        (2) Furnishing general economic information and advice, general 
    economic statistical forecasting services, and industry studies;
        (3) Providing financial advice to state or local governments or 
    foreign governments with respect to issuance of securities;
        (4) Providing tax planning and preparation; and
        (5) Providing consumer financial counseling;
        (J) Providing financial and transactional advice to customers and 
    assisting customers in structuring, arranging, and executing various 
    financial transactions (provided that the bank and its affiliates do 
    not participate as a principal), including:
        (1) Mergers, acquisitions, divestitures, joint ventures, leveraged 
    buyouts, recapitalizations, capital structurings, and financial 
    transactions (including private and public financings and loan 
    syndications); and conducting financial feasibility studies; and
        (2) Arranging commercial real estate equity financing;
        (K) Investment advice, (not involving the exercise of investment 
    discretion), on futures and options on futures;
        (L) Making, purchasing, selling, servicing, or warehousing loans or 
    other extensions of credit, or interests therein, for the subsidiary's 
    account, or for the account of others, including consumer loans, credit 
    cards loans, commercial loans, residential mortgage loans, and 
    commercial mortgage loans. The notice procedure is not available under 
    this paragraph, however, if the notice involves the direct or indirect 
    acquisition by the bank of any low-quality asset from an affiliate in 
    connection with a transaction subject to this section. For purposes of 
    this paragraph (e)(2)(ii)(L), the terms ``low-quality asset'' and 
    ``affiliate'' have the same meaning as provided in section 23A of the 
    Federal Reserve Act, 12 U.S.C. 371c;
        (M) Leasing of personal property, including:
        (1) Leases in which the bank may invest pursuant to 12 U.S.C. 
    24(Seventh);
    
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        (2) Leases in which the bank may invest pursuant to 12 U.S.C. 
    24(Tenth); and
        (3) Acting as agent, broker, or adviser in leases for others. The 
    notice process for any leasing activity under this paragraph is not 
    available, however, if the notice involves the direct or indirect 
    acquisition by the bank of any low-quality asset from an affiliate in 
    connection with a transaction subject to this section. For purposes of 
    this paragraph (M), the terms ``low-quality asset'' and ``affiliate'' 
    have the same meaning as provided in section 23A of the Federal Reserve 
    Act, 12 U.S.C. 371c; or
        (N) Owning, holding, and managing all or part of the parent bank's 
    investment securities portfolio.
        (3) Expedited review--(i) General. An eligible bank may acquire or 
    establish an operating subsidiary to engage in the activities listed in 
    paragraph (e)(3)(ii) of this section, or may perform such activities in 
    an existing operating subsidiary, by submitting an application to the 
    appropriate district office and receiving approval thereof. Such an 
    application is deemed approved by the OCC 30 days after the filing is 
    received by the OCC, unless the OCC notifies the bank prior to that 
    date that the filing is not eligible for expedited review under 
    Sec. 5.13(a)(2). The application must include a complete description of 
    the bank's investment in the subsidiary and of the activity to be 
    conducted and a representation and undertaking that the activity will 
    be conducted in accordance with the OCC policies contained in guidance 
    issued by the OCC regarding the activity. All approvals are subject to 
    the condition that the subsidiary conduct the activity in a manner 
    consistent with OCC policies contained in the published guidance. The 
    OCC also may impose additional conditions in connection with any 
    approval under this section.
        (ii) Activities eligible for expedited review. The following 
    activities qualify for expedited review:
        (A) Providing securities brokerage, related securities credit, and 
    related activities, including investment advice;
        (B) Underwriting and dealing in securities permissible for a 
    national bank under 12 U.S.C. 24(Seventh) and 12 CFR part 1;
        (C) Acting as futures commission merchant;
        (D) Serving as an investment adviser for investment companies under 
    the Investment Company Act of 1940, 15 U.S.C. 80a-1 et seq.;
        (E) Providing financial and transactional advice to customers and 
    assisting customers in structuring, arranging, and executing various 
    financial transactions relating to swaps and other derivatives and 
    foreign exchange, coin and bullion, and related transactions;
        (F) Data processing and warehousing products, services, and related 
    activities, including associated equipment and technology permissible 
    under 12 U.S.C. 24(Seventh) and 12 CFR 7.1019; or
        (G) Real estate appraisal services for the subsidiary, parent bank 
    or other financial institution.
        (4) No application or notice required. A bank may acquire or 
    establish an operating subsidiary without filing an application or 
    providing notice to the OCC, provided the bank is adequately 
    capitalized or well capitalized and the:
        (i) Activities of the new subsidiary are limited to those 
    activities previously reported by the bank in connection with the 
    establishment or acquisition of a prior operating subsidiary;
        (ii) Establishment or acquisition of the prior operating subsidiary 
    was deemed permissible by the OCC;
        (iii) Activities in which the new subsidiary will engage continue 
    to be deemed legally permissible by the OCC; and
        (iv) Activities of the new subsidiary will be conducted in 
    accordance with any conditions imposed by the OCC in approving the 
    conduct of these activities for any prior operating subsidiary of the 
    bank.
        (5) Fiduciary powers. If an operating subsidiary proposes to 
    exercise investment discretion on behalf of customers or provide 
    investment advice for a fee, the national bank must have prior OCC 
    approval to exercise fiduciary powers pursuant to Sec. 5.26 and the 
    subsidiary shall be subject to the requirements of 12 CFR part 9, 
    unless:
        (i) The subsidiary is registered under the Investment Advisers Act 
    of 1940, 15 U.S.C. 80b-1 et seq.; or
        (ii) The subsidiary is registered, or has filed a notice, under the 
    applicable provisions of sections 15, 15B or 15C of the Securities 
    Exchange Act of 1934, 15 U.S.C. 78o, 78o-4, or 78o-5, as a broker, 
    dealer, municipal securities dealer, government securities broker or 
    government securities dealer; and the subsidiary's performance of 
    investment advisory services as described in 15 U.S.C. 80b-2(a)(11) is 
    solely incidental to the conduct of its business as broker or dealer 
    and there is no special compensation to the subsidiary for those 
    advisory services.
        (f) Additional requirements for certain permissible activities. A 
    national bank may acquire or establish an operating subsidiary to 
    engage in an activity authorized under Sec. 5.34(d) for the subsidiary 
    but different from that permissible for the parent national bank, or 
    may perform such activities in an existing operating subsidiary, 
    subject to the following additional requirements:
        (1) Notice and comment. If the OCC has not previously approved the 
    proposed activity, the OCC will provide public notice and opportunity 
    for comment on the application by publishing notice of the application 
    in the Federal Register. For subsequent applications to conduct the 
    activity, the OCC may also publish notice of the application in the 
    Federal Register and provide an opportunity for public comment.
        (2) Corporate requirements. The following corporate requirements 
    apply:
        (i) The subsidiary shall be physically separate and distinct in its 
    operations from the parent bank, including ensuring that the employees 
    of the subsidiary are compensated by the subsidiary. However, this 
    requirement shall not be construed to prohibit the parent bank and the 
    subsidiary from sharing the same facility, provided that any area in 
    which the subsidiary conducts business with the public is 
    distinguishable, to the extent practicable, from the area in which 
    customers of the bank conduct business with the bank;
        (ii) The subsidiary shall be held out as a separate and distinct 
    entity from the bank in its written material and direct contact with 
    outside parties. All written marketing material shall clearly state 
    that the subsidiary is a separate entity from the bank and the 
    obligations of the subsidiary are not obligations of the bank;
        (iii) The subsidiary's name shall not be the same name as its 
    parent bank, and a subsidiary that has a name similar to its parent 
    bank shall take appropriate steps to minimize the risk of customer 
    confusion, including with respect to the separate character of the two 
    entities and the extent to which their respective obligations are 
    insured or not insured by the Federal Deposit Insurance Corporation;
        (iv) The subsidiary shall be adequately capitalized according to 
    relevant industry measures and shall maintain capital adequate to 
    support its activities and to cover reasonably expected expenses and 
    losses;
        (v) The subsidiary shall maintain separate accounting and corporate 
    records;
        (vi) The subsidiary shall conduct its operations pursuant to 
    independent policies and procedures that are also intended to inform 
    customers that the
    
    [[Page 60377]]
    
    subsidiary is an organization separate from the bank;
        (vii) Contracts between the subsidiary and the bank for any 
    services shall be on terms and conditions substantially comparable to 
    those available to or from independent entities;
        (viii) The subsidiary shall observe appropriate separate corporate 
    formalities, such as separate board of directors' meetings;
        (ix) The subsidiary shall maintain a board of directors at least 
    one-third of whom shall not be directors of the bank and shall have 
    relevant expertise capable of overseeing the subsidiary's activities; 
    and
        (x) The subsidiary and the parent bank shall have internal controls 
    appropriate to manage the financial and operational risks associated 
    with the subsidiary.
        (3) Supervisory requirements. When the subsidiary will conduct an 
    activity described in this paragraph (f) as principal, the following 
    additional requirements apply:
        (i) The bank's capital and total assets shall each be reduced by an 
    amount equal to the bank's equity investment in the subsidiary (for 
    purposes of risk-based capital this deduction shall be made equally 
    from Tier 1 and Tier 2 capital), and the subsidiary's assets and 
    liabilities shall not be consolidated with those of the bank. The OCC 
    may, however, require the bank to calculate its capital on a 
    consolidated basis for purposes of determining whether the bank is 
    adequately capitalized under 12 CFR part 6;
        (ii) The standards of sections 23A and 23B of the Federal Reserve 
    Act (12 U.S.C. 371c and 371c-1) shall apply to, and shall be enforced 
    and applied by the OCC with respect to, transactions between the bank 
    and the subsidiary; and
        (iii) The bank must qualify as an eligible bank under the criteria 
    set forth at Sec. 5.3(g), both prior to commencement of the activity, 
    and thereafter, taking into account the capital deduction required by 
    paragraph (f)(3)(i) of this section. If the bank ceases to be well 
    capitalized for two consecutive quarters, it shall submit to the OCC, 
    within the period specified by the OCC, an acceptable plan to become 
    well capitalized.
    
    
    Sec. 5.35  Bank service companies.
    
        (a) Authority. 12 U.S.C. 93a and 1861-1867.
        (b) Licensing requirements. Except where otherwise provided, a 
    national bank shall submit a notice and obtain prior OCC approval to 
    invest in the equity of a bank service company or to perform new 
    activities in an existing bank service company.
        (c) Scope. This section describes the procedures and requirements 
    regarding OCC review and approval of a notice to invest in a bank 
    service company.
        (d) Definitions--(1) Bank service company means a corporation or 
    limited liability company organized to provide services authorized by 
    the Bank Service Company Act, 12 U.S.C. 1861 et seq., all of whose 
    capital stock is owned by one or more insured banks in the case of a 
    corporation, or all of the members of which are one or more insured 
    banks in the case of a limited liability company.
        (2) Limited liability company means any non-corporate company, 
    partnership, trust, or similar business entity organized under the law 
    of a State (as defined in section 3 of the Federal Deposit Insurance 
    Act) which provides that a member or manager of such company is not 
    personally liable for a debt, obligation, or liability of the company 
    solely by reason of being, or acting as, a member or manager of such 
    company.
        (3) Depository institution, for purposes of this section, means an 
    insured bank, a financial institution subject to examination by the 
    Office of Thrift Supervision, or the National Credit Union 
    Administration Board, or a financial institution whose accounts or 
    deposits are insured or guaranteed under state law and eligible to be 
    insured by the Federal Deposit Insurance Corporation or the National 
    Credit Union Administration Board.
        (4) Invest includes making any advance of funds to a bank service 
    company, whether by the purchase of stock, the making of a loan, or 
    otherwise, except a payment for rent earned, goods sold and delivered, 
    or services rendered before the payment was made.
        (5) Principal investor means the insured bank that has the largest 
    amount invested in the equity of a bank service company. In any case 
    where two or more insured banks have equal amounts invested, the bank 
    service company shall designate one of the banks as its principal 
    investor.
        (e) Standards and requirements. A national bank may invest in the 
    equity of a bank service company that conducts, or through an existing 
    bank service company may conduct, activities described in paragraphs 
    (f)(4) and (f)(5) of this section, and activities (other than taking 
    deposits) permissible for the national bank and other state and 
    national bank shareholders or members in the bank service company.
        (f) Procedures--(1) OCC notice and approval required. Except as 
    provided in paragraphs (f)(2) and (f)(5) of this section, a national 
    bank that intends to make an investment in the equity of a bank service 
    company, or to perform new activities in an existing bank service 
    company, shall submit a notice to and receive prior approval from the 
    OCC. The OCC approves or denies a proposed investment within 60 days 
    after the filing is received by the OCC, unless the OCC notifies the 
    bank prior to that date that the filing presents a significant 
    supervisory or compliance concern, or raises a significant legal or 
    policy issue. The notice must include the information required by 
    paragraph (g) of this section.
        (2) Notice process only for certain activities. A national bank 
    that is ``adequately capitalized'' or ``well capitalized,'' as defined 
    in 12 CFR part 6, and has not been notified that it is in ``troubled 
    condition,'' as defined in Sec. 5.51, may invest in the equity of a 
    bank service company, or perform a new activity in an existing bank 
    service company, by providing the appropriate district office written 
    notice within ten days after the investment, provided that the bank 
    service company engages only in the activities listed in 
    Sec. 5.34(e)(2)(ii). No prior OCC approval is required. The written 
    notice must include a complete description of the bank's investment in 
    the subsidiary and of the activity conducted and a representation and 
    undertaking that the activity will be conducted in accordance with OCC 
    policies contained in guidance issued by the OCC regarding the 
    activity. Any bank receiving approval under paragraph (f)(2) of this 
    section is deemed to have agreed that the subsidiary will conduct the 
    activity in a manner consistent with the published OCC guidance.
        (3) Expedited review. Notwithstanding paragraph (f)(1) of this 
    section, a notice by an eligible bank that seeks to make an investment 
    in the equity of a bank service company, or to perform a new activity 
    in an existing bank service company, is deemed approved by the OCC 30 
    days after the filing is received by the OCC, provided that the bank 
    service company will engage in an activity listed in 
    Sec. 5.34(e)(3)(ii), unless the OCC notifies the bank prior to that 
    date that the filing is not eligible for expedited review under 
    Sec. 5.13(a)(2). The written notice must include a complete description 
    of the bank's investment in the subsidiary and of the activity to be 
    conducted and a representation and undertaking that the activity will 
    be conducted in accordance with OCC policies contained in guidance 
    regarding the activity. Approval under this paragraph (f)(3) is subject 
    to the
    
    [[Page 60378]]
    
    condition that the bank service company conduct the activity in a 
    manner consistent with OCC policies contained in guidance issued by the 
    OCC regarding the activity. The OCC also may impose additional 
    conditions in connection with any approval under this section.
        (4) Investments requiring no approval. A national bank does not 
    need OCC approval to invest in a bank service company, or to perform a 
    new activity in an existing bank service company, if the bank service 
    company will provide the following services only for depository 
    institutions: check and deposit posting and sorting; computation and 
    posting of interest and other credits and charges; preparation and 
    mailing of checks, statements, notices, and similar items; or any other 
    clerical, bookkeeping, accounting, statistical, or similar function.
        (5) Federal Reserve approval. A national bank also may, with the 
    approval of the Board of Governors of the Federal Reserve System 
    (Federal Reserve Board), invest in the equity of a bank service company 
    that provides any other service (except deposit taking) that the 
    Federal Reserve Board has determined, by regulation, to be permissible 
    for a bank holding company under 12 U.S.C. 1843(c)(8).
        (6) Exceptions to rules of general applicability. Sections 5.8, 
    5.10, and 5.11 do not apply to a request for approval to invest in a 
    bank service corporation. However, if the OCC concludes that an 
    application presents significant and novel policy, supervisory, or 
    legal issues, the OCC may determine that any or all parts of Secs. 5.8, 
    5.10, and 5.11 apply.
        (g) Required information. A notice required under paragraph (f)(1), 
    of this section must contain the following:
        (1) The name and location of the bank service company;
        (2) A complete description of the activities the bank service 
    company will conduct;
        (3) Information demonstrating that the bank will comply with the 
    investment limitations of paragraph (h) of this section;
        (4) Information demonstrating that the bank service company and all 
    banks investing in the bank service company are located in the same 
    state, unless the Federal Reserve Board has approved an exception to 
    this requirement under the authority of 12 U.S.C. 1864(b); and
        (5) Information demonstrating that the bank service company will 
    conduct these activities only at locations in a state where the 
    investing bank could be authorized to perform the activities directly.
        (h) Examination and supervision. Each bank service company in which 
    a national bank is the principal investor is subject to examination and 
    supervision by the OCC in the same manner and to the same extent as 
    that national bank.
        (i) Investment and other limitations--(1) Investment limitations. A 
    bank may not invest more than ten percent of its capital and surplus in 
    a bank service company. In addition, the bank's total investments in 
    all bank service companies may not exceed five percent of the bank's 
    total assets.
        (2) Other limitations. Expect as provided in paragraph (f)(5) of 
    this section, a bank service company shall only conduct activities that 
    the national bank could conduct directly. If the bank service company 
    has both national and state bank shareholders or members, the 
    activities conducted must also be permissible for the state bank 
    shareholders or members.
    
    
    Sec. 5.36  Other equity investments.
    
        (a) Authority. 12 U.S.C. 1 et seq., 24(Seventh), and 93a.
        (b) Scope. National banks are permitted to make various types of 
    equity investments pursuant to 12 U.S.C. 24(Seventh) and other 
    statutes. These investments are in addition to those subject to 
    Secs. 5.34, 5.35, and 5.37. This section describes the procedure 
    governing the filing of the notice that the OCC requires in connection 
    with certain of these investments. Other investments authorized under 
    this section may be reviewed on a case-by-case basis by the OCC.
        (c) Procedure. (1) A national bank must provide the appropriate 
    district office with written notice within ten days after making an 
    equity investment in the following:
        (i) An agricultural credit corporation;
        (ii) A savings association eligible to be acquired under section 13 
    of the Federal Deposit Insurance Act (12 U.S.C. 1823); and
        (iii) Any other equity investment that may be authorized by statute 
    after February 12, 1990, if not covered by other applicable OCC 
    regulation.
        (2) The written notice required by paragraph (c)(1) of this section 
    must include a description, and the amount, of the bank's investment.
        (3) The OCC reserves the right to require additional information as 
    necessary.
        (d) Exceptions to rules of general applicability. Sections 5.8, 
    5.9, 5.10, and 5.11 of this part do not apply to filings for other 
    equity investments.
    
    
    Sec. 5.37  Investment in bank premises.
    
        (a) Authority. 12 U.S.C. 29, 93a, and 371d.
        (b) Scope. This section sets forth the procedures governing OCC 
    review and approval of applications by national banks to invest in bank 
    premises or in certain bank premises related investments, loans, or 
    indebtedness, as described in paragraph (d)(1)(i) of this section.
        (c) Definition--Bank premises for purposes of this section includes 
    the following:
        (1) Premises that are owned and occupied (or to be occupied, if 
    under construction) by the bank, its branches, or its consolidated 
    subsidiaries;
        (2) Capitalized leases and leasehold improvements, vaults, and 
    fixed machinery and equipment;
        (3) Remodeling costs to existing premises;
        (4) Real estate acquired and intended, in good faith, for use in 
    future expansion; or
        (5) Parking facilities that are used by customers or employees of 
    the bank, its branches, and its consolidated subsidiaries.
        (d) Procedure--(1) Application. (i) A national bank shall submit an 
    application to the appropriate district office to invest in bank 
    premises, or in the stock, bonds, debentures, or other such obligations 
    of any corporation holding the premises of the bank, or to make loans 
    to or upon the security of the stock of such corporation, if the 
    aggregate of all such investments and loans, together with the 
    indebtedness incurred by any such corporation that is an affiliate of 
    the bank, as defined in 12 U.S.C. 221a, will exceed the amount of the 
    capital stock of the bank.
        (ii) The application must include:
        (A) A description of the bank's present investment in bank 
    premises;
        (B) The investment in bank premises that the bank intends to make, 
    and the business reason for making the investment; and
        (C) The amount by which the bank's aggregate investment will exceed 
    the amount of the bank's capital stock.
        (2) Approval. An application for national bank investment in bank 
    premises or in certain bank premises' related investments, loans or 
    indebtedness, as described in paragraph (d)(1)(i) of this section, is 
    deemed approved as of the 30th day after the filing is received by the 
    OCC, unless the OCC notifies the bank prior to that date that the 
    filing presents a significant supervisory, or compliance concern, or 
    raises a significant legal or policy issue. An approval for a specified 
    amount under this section remains valid up to that amount until the OCC 
    notifies the bank otherwise.
    
    [[Page 60379]]
    
        (3) Notice process. Notwithstanding paragraph (d)(1)(i) of this 
    section, a bank that is rated 1 or 2 under the Uniform Financial 
    Institutions Rating System (CAMEL) may make an aggregate investment in 
    bank premises up to 150 percent of the bank's capital and surplus 
    without the OCC's prior approval, provided that the bank is well 
    capitalized as defined in 12 CFR part 6 and will continue to be well 
    capitalized after the investment or loan is made. However, the bank 
    shall notify the appropriate district office in writing of the 
    investment within 30 days after the investment or loan is made. The 
    written notice must include a description of the bank's investment.
        (4) Exceptions to rules of general applicability. Sections 5.8, 
    5.10, and 5.11 do not apply to this section. However, if the OCC 
    concludes that an application presents significant and novel policy, 
    supervisory, or legal issues, the OCC may determine that any or all 
    parts of Secs. 5.8, 5.10, and 5.11 apply.
    
    Subpart D--Other Changes in Activities and Operations
    
    
    Sec. 5.40  Change in location of main office.
    
        (a) Authority 12 U.S.C. 30, 93a, and 2901 through 2907.
        (b) Licensing requirements. A national bank shall give prior notice 
    to the OCC to relocate its main office within city, town, or village 
    limits to an authorized branch location. A national bank shall submit 
    an application and obtain prior OCC approval to relocate its main 
    office to any other location in the city, town, or village, or within 
    30 miles of the limits of the city, town, or village in which the main 
    office of the bank is located.
        (c) Scope. This section describes OCC procedures and approval 
    standards for an application or a notice by a national bank to change 
    the location of its main office.
        (d) Procedure--(1) Main office relocation to an authorized branch 
    location within city, town, or village limits. A national bank may 
    change the location of its main office to an authorized branch location 
    (approved or existing branch site) within the limits of the same city, 
    town, or village. The national bank shall submit a notice to the 
    appropriate district office before the relocation. The notice must 
    include the new address of the main office and the effective date of 
    the relocation.
        (2) To any other location. To relocate its main office to any other 
    location, a national bank shall file an application to relocate with 
    the appropriate district office. If relocating the main office outside 
    the limits of its city, town, or village, a national bank shall also:
        (i) Obtain the approval of shareholders owning two-thirds of the 
    voting stock of the bank; and
        (ii) Amend its articles of association.
        (3) Establishment of a branch at site of former main office. A 
    national bank desiring to establish a branch at its former main office 
    location shall obtain OCC approval pursuant to the standards of 
    Sec. 5.30.
        (4) Expedited review. A main office relocation application 
    submitted by an eligible bank under paragraph (d)(2) of this section is 
    deemed approved by the OCC as of the 15th day after the close of the 
    public comment period or the 45th day after the filing is received by 
    the OCC, whichever is later, unless the OCC notifies the bank prior to 
    that time that the filing is not eligible for expedited review, or the 
    expedited review period is extended, under Sec. 5.13(a)(2).
        (5) Exceptions to rules of general applicability. (i) Sections 5.8, 
    5.9, 5.10, and 5.11 do not apply to a main office relocation to an 
    authorized branch location within the limits of the city, town, or 
    village as described in paragraph (d)(1) of this section. However, if 
    the OCC concludes that the notice under paragraph (d)(1) of this 
    section presents a significant and novel policy, supervisory, or legal 
    issue, the OCC may determine that any or all parts of Secs. 5.8, 5.9, 
    5.10, and 5.11 apply.
        (ii) The comment period on any application filed under paragraph 
    (d)(2) of this section to engage in a short-distance relocation of a 
    main office is 15 days.
        (e) Expiration of approval. Approval expires if the national bank 
    has not opened its main office at the relocated site within 18 months 
    of the date of approval.
    
    
    Sec. 5.42  Corporate title.
    
        (a) Authority. 12 U.S.C. 21a, 30, and 93a.
        (b) Scope. This section describes the method by which a national 
    bank may change its corporate title.
        (c) Standards. A national bank may change its corporate title 
    provided that the new title includes the word ``national'' and complies 
    with other applicable Federal laws, including 18 U.S.C. 709, regarding 
    false advertising and the misuse of names to indicate a Federal agency, 
    and any applicable OCC guidance.
        (d) Procedures--(1) Notice process. A national bank shall promptly 
    notify the appropriate district office if it changes its corporate 
    title. The notice must contain the old and new titles and the effective 
    date of the change.
        (2) Amendment to articles of association. A national bank whose 
    corporate title is specified in its articles of association shall amend 
    its articles, in accordance with the procedures of 12 U.S.C. 21a, to 
    change its title.
        (3) Exceptions to rules of general applicability. Sections 5.8, 
    5.9, 5.10, 5.11, and 5.13(a) do not apply to a national bank's change 
    of corporate title. However, if the OCC concludes that the application 
    presents a significant and novel policy, supervisory, or legal issue, 
    the OCC may determine that any or all parts of Secs. 5.8, 5.9, 5.10, 
    5.11, and 5.13(a) apply.
    
    
    Sec. 5.46  Changes in permanent capital.
    
        (a) Authority. 12 U.S.C. 21a, 51, 51a, 51b, 51b-1, 52, 56, 57, 59, 
    60, and 93a.
        (b) Licensing requirements. A national bank shall submit an 
    application and obtain OCC approval to decrease its permanent capital. 
    Generally, a national bank need only submit a notice to increase its 
    permanent capital, although, in certain circumstances, a national bank 
    shall be required to submit an application and obtain OCC approval.
        (c) Scope. This section describes procedures and standards relating 
    to a transaction resulting in a change in a national bank's permanent 
    capital.
        (d) Exceptions to rules of general applicability. Sections 5.8, 
    5.10, and 5.11 do not apply to changes in a national bank's permanent 
    capital.
        (e) Definitions. For the purposes of this section the following 
    definitions apply:
        (1) Capital plan means a plan describing the manner and schedule by 
    which a national bank will attain specified capital levels or ratios, 
    including a plan to achieve minimum capital ratios filed with the 
    appropriate district office under 12 CFR 3.7 and a capital restoration 
    plan filed with the OCC under 12 U.S.C. 1831o and 12 CFR 6.5.
        (2) Capital stock means the total amount of common stock and 
    preferred stock.
        (3) Capital surplus means the total of:
        (i) The amount paid in on capital stock in excess of the par or 
    stated value;
        (ii) Direct capital contributions representing the amounts paid in 
    to the national bank other than for capital stock;
        (iii) The amount transferred from undivided profits required by 12 
    U.S.C. 60; and
        (iv) The amount transferred from undivided profits reflecting stock 
    dividends.
    
    [[Page 60380]]
    
        (4) Permanent capital means the sum of capital stock and capital 
    surplus.
        (f) Policy. In determining whether to approve a proposed change to 
    a national bank's permanent capital, the OCC considers whether the 
    change is:
        (1) Consistent with law, regulation, and OCC policy thereunder;
        (2) Provides an adequate capital structure; and
        (3) If appropriate, complies with the bank's capital plan.
        (g) Increases in permanent capital--(1) Prior approval--(i) 
    Criteria. A national bank need not obtain prior OCC approval to 
    increase its permanent capital unless the bank is:
        (A) Required to receive OCC approval pursuant to letter, order, 
    directive, written agreement or otherwise;
        (B) Selling common or preferred stock for consideration other than 
    cash; or
        (C) Receiving a material noncash contribution to capital surplus.
        (ii) Application and letter of notification. A national bank that 
    proposes to increase its permanent capital and that must receive OCC 
    approval under paragraph (g)(1)(i) of this section shall file an 
    application under paragraph (i)(1) of this section and a letter of 
    notification under paragraph (i)(3) of this section. A national bank 
    not required to obtain prior approval under paragraph (g)(1)(i) of this 
    section for an increase in capital shall file only the letter of 
    notification under paragraph (i)(3) of this section.
        (2) Preferred stock. Notwithstanding paragraph (g)(1)(i) of this 
    section, in the case of a sale of preferred stock, the national bank 
    shall also submit provisions in the articles of association concerning 
    preferred stock dividends, voting and conversion rights, retirement of 
    the stock, and rights to exercise control over management to the 
    appropriate district office prior to the sale of the preferred stock. 
    The provisions will be deemed approved by the OCC within 30 days of its 
    receipt, unless the OCC notifies the applicant otherwise, including a 
    statement of the reason for the delay.
        (h) Decreases in permanent capital. A national bank shall submit an 
    application and obtain prior approval under paragraph (i)(1) or (i)(2) 
    of this section for any reduction of its permanent capital.
        (i) Procedures--(1) Prior approval. A national bank proposing to 
    make a change in its permanent capital that requires prior OCC approval 
    under paragraphs (g) or (h) of this section shall submit an application 
    to the appropriate district office. The application must:
        (i) Describe the type and amount of the proposed change in 
    permanent capital and explain the reason for the change;
        (ii) In the case of a reduction in capital, provide a schedule 
    detailing the present and proposed capital structure;
        (iii) In the case of a material noncash contribution to capital, 
    provide a description of the method of valuing the contribution; and
        (iv) State if the bank is subject to a capital plan with the OCC 
    and how the proposed change would conform to a capital plan or if a 
    capital plan is otherwise required in connection with the proposed 
    change in permanent capital.
        (2) Expedited review. An eligible bank's application is deemed 
    approved by the OCC 30 days after the date the OCC receives the 
    application described in paragraph (i)(1) of this section, unless the 
    OCC notifies the bank prior to that date that the application is not 
    eligible for expedited review under Sec. 5.13(a)(2). A bank seeking to 
    decrease its capital may request OCC approval for up to four 
    consecutive quarters. An eligible bank may decrease its capital 
    pursuant to such a plan only if the bank maintains its eligible bank 
    status before and after each decrease in its capital.
        (3) Letter of notification. After a bank completes an increase in 
    capital it shall submit a letter of notification to the appropriate 
    district office in order to obtain a certification from the OCC. The 
    proposed change is deemed approved by the OCC and certified seven days 
    after the date on which the OCC receives the letter of notification. 
    The letter of notification must be acknowledged before a notary public 
    by the bank's president, vice president, or cashier and contain:
        (i) A description of the transaction, unless already provided 
    pursuant to paragraph (i)(1) of this section;
        (ii) The amount, including the par value of the stock, and 
    effective date of the increase;
        (iii) A certification that the funds have been paid in, if 
    applicable;
        (iv) A certified copy of the amendment to the articles of 
    association, if required; and
        (v) A statement that the bank has complied with all laws, 
    regulations and conditions imposed by the OCC.
        (4) Notice process. A national bank that decreases its capital in 
    accordance with paragraphs (i)(1) or (i)(2) of this section shall 
    notify the appropriate district office following the completion of the 
    transaction.
        (5) Expiration of approval. Approval expires if a national bank has 
    not completed its change in permanent capital within one year of the 
    date of approval.
        (j) Offers and sales of stock. A national bank shall comply with 
    the Securities Offering Disclosure Rules in 12 CFR part 16 for offers 
    and sales of common and preferred stock.
        (k) Shareholder approval. A national bank shall obtain the 
    necessary shareholder approval required by statute for any change in 
    its permanent capital.
    
    
    Sec. 5.47  Subordinated debt as capital.
    
        (a) Authority. 12 U.S.C. 93a.
        (b) Licensing requirements. A national bank does not need prior OCC 
    approval to issue subordinated debt, or to prepay subordinated debt 
    (including payment pursuant to an acceleration clause or redemption 
    prior to maturity) provided the bank remains an eligible bank after the 
    transaction, unless the OCC has previously notified the bank that prior 
    approval is required, or unless prior approval is required by law. No 
    prior approval is required for the bank to count the subordinated debt 
    as Tier 2 or Tier 3 capital. However, a bank issuing subordinated debt 
    shall notify the OCC after issuance if the debt is to be counted as 
    Tier 2 or Tier 3 capital.
        (c) Scope. This section sets forth the procedures for OCC review 
    and approval of an application to issue or prepay subordinated debt.
        (d) Definitions--(1) Capital plan means a plan describing the means 
    and schedule by which a national bank will attain specified capital 
    levels or ratios, including a plan to achieve minimum capital ratios 
    filed with the appropriate district office under 12 CFR 3.7 and a 
    capital restoration plan filed with the OCC under 12 U.S.C. 1831o and 
    12 CFR 6.5.
        (2) Tier 2 capital has the same meaning as set forth in 12 CFR 
    3.2(d).
        (3) Tier 3 capital has the same meaning as set forth in 12 CFR part 
    3, appendix B, section 2(d).
        (e) Qualification as regulatory capital. (1) A national bank's 
    subordinated debt qualifies as Tier 2 capital if the subordinated debt 
    meets the requirements in 12 CFR part 3, appendix A, section 2(b)(4), 
    and complies with the ``OCC Guidelines for Subordinated Debt'' in the 
    Manual.
        (2) A national bank's subordinated debt qualifies as Tier 3 capital 
    if the subordinated debt meets the requirements in 12 CFR part 3, 
    section 2(d) of Appendix B.
        (3) If the OCC notifies a national bank that it must obtain OCC 
    approval before issuing subordinated debt, the subordinated debt will 
    not qualify as Tier 2 or Tier 3 capital until the bank obtains OCC 
    approval for its inclusion in capital.
    
    [[Page 60381]]
    
        (f) Prior approval procedure--(1) Application. A national bank 
    required to obtain OCC approval before issuing or prepaying 
    subordinated debt shall submit an application to the appropriate 
    district office. The application must include:
        (i) A description of the terms and amount of the proposed issuance 
    or prepayment;
        (ii) A statement of whether the bank is subject to a capital plan 
    or required to file a capital plan with the OCC and, if so, how the 
    proposed change conforms to the capital plan;
        (iii) A copy of the proposed subordinated note format and note 
    agreement; and
        (iv) A statement of whether the subordinated debt issue complies 
    with all laws, regulations, and the ``OCC Guidelines for Subordinated 
    Debt'' in the Manual.
        (2) Approval--(i) General. The application is deemed approved by 
    the OCC as of the 30th day after the filing is received by the OCC, 
    unless the OCC notifies the bank prior to that date that the filing 
    presents a significant supervisory, or compliance concern, or raises a 
    significant legal or policy issue.
        (ii) Tier 2 and Tier 3 capital. When the OCC notifies the bank that 
    the OCC approves the bank's application to issue or prepay the 
    subordinated debt, it also notifies the bank whether the subordinated 
    debt qualifies as Tier 2 or Tier 3 capital.
        (iii) Expiration of approval. Approval expires if a national bank 
    does not complete the sale of the subordinated debt within one year of 
    approval.
        (g) Notice procedure. If a national bank is not required to obtain 
    approval before issuing subordinated debt, the bank shall notify the 
    appropriate district office in writing within ten days after issuing 
    subordinated debt that is to be counted as Tier 2 or Tier 3 capital. 
    The notice must include:
        (1) The terms of the issuance;
        (2) The amount and date of receipt of funds;
        (3) A copy of the final subordinated note format and note 
    agreement; and
        (4) A statement that the issue complies with all laws, regulations, 
    and the ``OCC Guidelines for Subordinated Debt Instruments'' in the 
    Manual.
        (h) Exceptions to rules of general applicability. Sections 5.8, 
    5.10, and 5.11 do not apply to the issuance of subordinated debt.
        (i) Issuance of subordinated debt. A national bank shall comply 
    with the Securities Offering Disclosure Rules in 12 CFR part 16 when 
    issuing subordinated debt even if the bank is not required to obtain 
    prior approval to issue subordinated debt.
    
    
    Sec. 5.48  Voluntary liquidation.
    
        (a) Authority. 12 U.S.C. 93a, 181, and 182.
        (b) Licensing requirements. A national bank considering going into 
    voluntary liquidation shall notify the OCC. The bank shall also file a 
    notice with the OCC once a liquidation plan is definite.
        (c) Exceptions to rules of general applicability. Sections 5.8, 
    5.10, and 5.11 do not apply to a voluntary liquidation. However, if the 
    OCC concludes that the notice presents significant and novel policy, 
    supervisory or legal issues, the OCC may determine that any or all 
    parts of Secs. 5.8, 5.10, and 5.11 apply.
        (d) Standards. A national bank may liquidate in accordance with the 
    terms of 12 U.S.C. 181 and 182.
        (e) Procedure--(1) Notice of voluntary liquidation. When the 
    shareholders of a solvent national bank have voted to voluntarily 
    liquidate, the bank shall file a notice with the appropriate district 
    office and publish public notice in accordance with 12 U.S.C. 182.
        (2) Report of condition. The liquidating bank shall submit reports 
    of the condition of its commercial, trust, and other departments to the 
    appropriate district office by filing the quarterly Consolidated 
    Reports of Condition and Income (Call Reports).
        (3) Report of progress. The liquidating agent or committee shall 
    submit a ``Report of Progress of Liquidation'' annually to the 
    appropriate district office until the liquidation is complete.
        (f) Expedited liquidations in connection with acquisitions--(1) 
    General. When an acquiring depository institution in a business 
    combination purchases all the assets, and assumes all the liabilities, 
    including contingent liabilities, of a target national bank, the 
    acquiring depository institution may dissolve the target national bank 
    immediately after the combination. However, if any liabilities will 
    remain in the target national bank, then the standard liquidation 
    procedures apply.
        (2) Procedure. After its shareholders have voted to liquidate and 
    the national bank has notified the appropriate district office of its 
    plans, the bank may surrender its charter and dissolve immediately, if:
        (i) The acquiring depository institution certifies to the OCC that 
    it has purchased all the assets and assumed all the liabilities, 
    including contingent liabilities, of the national bank in liquidation; 
    and
        (ii) The acquiring depository institution and the national bank in 
    liquidation have published notice that the bank will dissolve after the 
    purchase and assumption to the acquiror. This is included in the notice 
    and publication for the purchase and assumption required under the Bank 
    Merger Act, 12 U.S.C. 1828(c).
        (g) National bank as acquiror. If another national bank plans to 
    acquire a national bank in liquidation through merger or through the 
    purchase of the assets and the assumption of the liabilities of the 
    bank in liquidation, the acquiring bank shall comply with the Bank 
    Merger Act, 12 U.S.C. 1828(c), and Sec. 5.33.
    
    
    Sec. 5.50  Change in bank control; reporting of stock loans.
    
        (a) Authority. 12 U.S.C. 93a and 1817(j).
        (b) Licensing requirements. Any person seeking to acquire control 
    of a national bank shall provide 60 days prior written notice of a 
    change in control to the OCC, except where otherwise provided in this 
    section.
        (c) Scope--(1) General. This section describes the procedures and 
    standards governing OCC review of notices for a change in control of a 
    national bank and reports of stock loans.
        (2) Exempt transactions. The following transactions are not subject 
    to the requirements of this section:
        (i) The acquisition of additional shares of a national bank by a 
    person who:
        (A) Has, continuously since March 9, 1979, (or since that 
    institution commenced business, if later) held power to vote 25 percent 
    or more of the voting securities of that bank; or
        (B) Under paragraph (f)(2)(ii) of this section, would be presumed 
    to have controlled that bank continuously since March 9, 1979, if the 
    transaction will not result in that person's direct or indirect 
    ownership or power to vote 25 percent or more of any class of voting 
    securities of the national bank; or, in other cases, where the OCC 
    determines that the person has controlled the bank continuously since 
    March 9, 1979;
        (ii) Unless the OCC otherwise provides in writing, the acquisition 
    of additional shares of a national bank by a person who has lawfully 
    acquired and maintained continuous control of the bank under paragraph 
    (f) of this section after complying with the procedures and filing the 
    notice required by this section;
        (iii) A transaction subject to approval under section 3 of the Bank 
    Holding Company Act, 12 U.S.C. 1842, section 18 of Federal Deposit 
    Insurance Act, 12 U.S.C. 1828, or section 10 of the Home Owners' Loan 
    Act, 12 U.S.C. 1467a;
    
    [[Page 60382]]
    
        (iv) Any transaction described in section 2(a)(5) or 3(a) (A) or 
    (B) of the Bank Holding Company Act, 12 U.S.C. 1841(a)(5) and 1842(a) 
    (A) and (B), by a person described in those provisions;
        (v) A customary one-time proxy solicitation or receipt of pro rata 
    stock dividends; and
        (vi) The acquisition of shares of a foreign bank that has a 
    Federally licensed branch in the United States. This exemption does not 
    extend to the reports and information required under paragraph (h) of 
    this section.
        (3) Prior notice exemption. The following transactions are not 
    subject to the prior notice requirements of this section but are 
    otherwise subject to this section, including filing a notice and paying 
    the appropriate filing fee, within 90 calendar days after the 
    transaction occurs:
        (i) The acquisition of control as a result of acquisition of voting 
    shares of a national bank through testate or intestate succession;
        (ii) The acquisition of control as a result of acquisition of 
    voting shares of a national bank as a bona fide gift;
        (iii) The acquisition of voting shares of a national bank resulting 
    from a redemption of voting securities;
        (iv) The acquisition of control of a national bank as a result of 
    actions by third parties (including the sale of securities) that are 
    not within the control of the acquiror; and
        (v) The acquisition of control as a result of the acquisition of 
    voting shares of a national bank in satisfaction of a debt previously 
    contracted in good faith.
        (A) ``Good faith'' means that a person must either make or acquire 
    a loan secured by voting securities of a national bank in advance of 
    any known default. A person who purchases a previously defaulted loan 
    secured by voting securities of a national bank may not rely on this 
    paragraph (c)(3)(v) to foreclose on that loan, seize or purchase the 
    underlying collateral, and acquire control of the national bank without 
    complying with the prior notice requirements of this section.
        (B) To ensure compliance with this section, the acquiror of a 
    defaulted loan secured by a controlling amount of a national bank's 
    voting securities shall file a notice prior to the time the loan is 
    acquired unless the acquiror can demonstrate to the satisfaction of the 
    OCC that the voting securities are not the anticipated source of 
    repayment for the loan.
        (d) Definitions. As used in this section:
        (1) Acquisition includes a purchase, assignment, transfer, or 
    pledge of voting securities, or an increase in percentage ownership of 
    a national bank resulting from a redemption of voting securities.
        (2) Acting in concert means:
        (i) Knowing participation in a joint activity or parallel action 
    towards a common goal of acquiring control whether or not pursuant to 
    an express agreement; or
        (ii) A combination or pooling of voting or other interests in the 
    securities of an issuer for a common purpose pursuant to any contract, 
    understanding, relationship, agreement, or other arrangement, whether 
    written or otherwise.
        (3) Control means the power, directly or indirectly, to direct the 
    management or policies of a national bank or to vote 25 percent or more 
    of any class of voting securities of a national bank.
        (4) Notice means a filing by a person in accordance with paragraph 
    (f) of this section.
        (5) Person means an individual or a corporation, partnership, 
    trust, association, joint venture, pool, syndicate, sole 
    proprietorship, unincorporated organization, or any other form of 
    entity, and includes voting trusts and voting agreements and any group 
    of persons acting in concert.
        (6) Voting securities means:
        (i) Shares of common or preferred stock, or similar interests, if 
    the shares or interests, by statute, charter, or in any manner, allow 
    the holder to vote for or select directors (or persons exercising 
    similar functions) of the issuing national bank, or to vote on or to 
    direct the conduct of the operations or other significant policies of 
    the issuing national bank. However, preferred stock or similar 
    interests are not voting securities if:
        (A) Any voting rights associated with the shares or interests are 
    limited solely to voting rights customarily provided by statute 
    regarding matters that would significantly affect the rights or 
    preference of the security or other interest. This includes the 
    issuance of additional amounts of classes of senior securities, the 
    modification of the terms of the security or interest, the dissolution 
    of the issuing national bank, or the payment of dividends by the 
    issuing national bank when preferred dividends are in arrears;
        (B) The shares or interests are a passive investment or financing 
    device and do not otherwise provide the holder with control over the 
    issuing national bank; and
        (C) The shares or interests do not allow the holder by statute, 
    charter, or in any manner, to select or to vote for the selection of 
    directors (or persons exercising similar functions) of the issuing 
    national bank.
        (ii) Securities, other instruments, or similar interests that are 
    immediately convertible, at the option of the owner or holder thereof, 
    into voting securities.
        (e) Policy--(1) General. The OCC seeks to enhance and maintain 
    public confidence in the banking system by preventing a change in 
    control of a national bank that could have serious adverse effects on a 
    bank's financial stability or management resources, the interests of 
    the bank's customers, the Federal deposit insurance fund, or 
    competition.
        (2) Acquisitions subject to the Bank Holding Company Act. (i) If 
    corporations, partnerships, certain trusts, associations, and similar 
    organizations, that are not already bank holding companies, are not 
    required to secure prior Federal Reserve Board approval to acquire 
    control of a bank under section 3 of the Bank Holding Company Act, 12 
    U.S.C. 1842, they are subject to the notice requirements of this 
    section.
        (ii) Certain transactions, including foreclosures by depository 
    institutions and other institutional lenders, fiduciary acquisitions by 
    depository institutions, and increases of majority holdings by bank 
    holding companies, are described in sections 2(a)(5)(D) and 3(a) (A) 
    and (B) of the Bank Holding Company Act, 12 U.S.C. 1841(a)(5)(D) and 12 
    U.S.C. 1842(a) (A) and (B), but do not require the Federal Reserve 
    Board's prior approval. For purposes of this section, they are 
    considered subject to section 3 of the Bank Holding Company Act, 12 
    U.S.C 1842, and do not require either a prior or subsequent notice to 
    the OCC under this section.
        (3) Assessing financial condition. In assessing the financial 
    condition of the acquiring person, the OCC weighs any debt servicing 
    requirements in light of the acquiring person's overall financial 
    strength; the institution's earnings performance, asset condition, 
    capital adequacy, and future prospects; and the likelihood of the 
    acquiring party making unreasonable demands on the resources of the 
    institution.
        (f) Procedures--(1) Exceptions to rules of general applicability. 
    Sections 5.8(a), 5.9, 5.10, 5.11, and 5.13(a) through (f) do not apply 
    to filings under this section.
        (2) Who must file. (i) Any person seeking to acquire the power, 
    directly or indirectly, to direct the management or policies, or to 
    vote 25 percent or more of a class of voting securities of a national 
    bank, shall file a notice with the OCC 60 days prior to the proposed 
    acquisition, unless the acquisition is exempt under paragraph (c)(2) of 
    this section.
    
    [[Page 60383]]
    
        (ii) The OCC presumes, unless rebutted, that an acquisition or 
    other disposition of voting securities through which any person 
    proposes to acquire ownership of, or the power to vote, ten percent or 
    more of a class of voting securities of a national bank is an 
    acquisition by a person of the power to direct the bank's management or 
    policies if:
        (A) The securities to be acquired or voted are subject to the 
    registration requirements of section 12 of the Securities Exchange Act 
    of 1934, 15 U.S.C. 78l; or
        (B) Immediately after the transaction no other person will own or 
    have the power to vote a greater proportion of that class of voting 
    securities.
        (iii) Other transactions resulting in a person's control of less 
    than 25 percent of a class of voting securities of a national bank are 
    not deemed by the OCC to result in control for purposes of this 
    section.
        (iv) If two or more persons, not acting in concert, each propose to 
    acquire simultaneously equal percentages of ten percent or more of a 
    class of a national bank's voting securities, and either the 
    acquisitions are of a class of securities subject to the registration 
    requirements of section 12 of the Securities Exchange Act of 1934, 15 
    U.S.C. 78l, or immediately after the transaction no other shareholder 
    of the national bank would own or have the power to vote a greater 
    percentage of the class, each of the acquiring persons shall either 
    file a notice or rebut the presumption of control.
        (v) An acquiring person may seek to rebut the presumption 
    established in paragraph (f)(2)(ii) of this section by presenting 
    relevant information in writing to the appropriate district office. The 
    OCC shall respond in writing to any person that seeks to rebut the 
    presumption of control. No rebuttal filing is effective unless the OCC 
    indicates in writing that the information submitted has been found to 
    be sufficient to rebut the presumption of control.
        (3) Filings. (i) The OCC does not accept a notice of a change in 
    control unless it is technically complete, i.e., the information 
    provided is responsive to every item listed in the notice form and is 
    accompanied by the appropriate fee.
        (A) The notice must contain personal and biographical information, 
    detailed financial information, details of the proposed change in 
    control, information on any structural or managerial changes 
    contemplated for the institution, and other relevant information 
    required by the OCC. The OCC may waive any of the informational 
    requirements of the notice if the OCC determines that it is in the 
    public interest.
        (B) When the acquiring person is an individual, or group of 
    individuals acting in concert, the requirement to provide personal 
    financial data may be satisfied with a current statement of assets and 
    liabilities and an income summary, together with a statement of any 
    material changes since the date of the statement or summary. However, 
    the OCC may require additional information, if appropriate.
        (ii) The OCC has 60 days from the date it declares the notice to be 
    technically complete to review the notice.
        (A) When the OCC declares a notice technically complete, the 
    appropriate district office sends a letter of acknowledgment to the 
    applicant indicating the technically complete date.
        (B) As set forth in paragraph (g) of this section, the applicant 
    shall publish an announcement within 10 days of filing the notice with 
    the OCC. The publication of the announcement triggers a 20-day public 
    comment period. The OCC may waive or shorten the public comment period 
    if an emergency exists. The OCC also may shorten the comment period for 
    other good cause. The OCC may act on a proposed change in control prior 
    to the expiration of the public comment period if the OCC makes a 
    written determination that an emergency exists.
        (C) An applicant shall notify the OCC immediately of any material 
    changes in a notice submitted to the OCC, including changes in 
    financial or other conditions, that may affect the OCC's decision on 
    the filing.
        (iii) Within the 60-day period, the OCC may inform the applicant 
    that the acquisition has been disapproved, has not been disapproved, or 
    that the OCC will extend the 60-day review period. The applicant may 
    request a hearing by the OCC within 10 days of receipt of a disapproval 
    (see 12 CFR part 19, subpart H, for hearing initiation procedures). 
    Following final agency action under 12 CFR part 19, further review by 
    the courts is available.
        (4) Disapproval of notice. The OCC may disapprove a notice if it 
    finds that any of the following factors exist:
        (i) The proposed acquisition of control would result in a monopoly 
    or would be in furtherance of any combination or conspiracy to 
    monopolize or to attempt to monopolize the business of banking in any 
    part of the United States;
        (ii) The effect of the proposed acquisition of control in any 
    section of the country may be substantially to lessen competition or to 
    tend to create a monopoly or the proposed acquisition of control would 
    in any other manner be in restraint of trade, and the anticompetitive 
    effects of the proposed acquisition of control are not clearly 
    outweighed in the public interest by the probable effect of the 
    transaction in meeting the convenience and needs of the community to be 
    served;
        (iii) The financial condition of any acquiring person is such as 
    might jeopardize the financial stability of the bank or prejudice the 
    interests of the depositors of the bank;
        (iv) The competence, experience, or integrity of any acquiring 
    person, or of any of the proposed management personnel, indicates that 
    it would not be in the interest of the depositors of the bank, or in 
    the interest of the public, to permit that person to control the bank;
        (v) An acquiring person neglects, fails, or refuses to furnish the 
    OCC all the information it requires; or
        (vi) The OCC determines that the proposed transaction would result 
    in an adverse effect on the Bank Insurance Fund or the Savings 
    Association Insurance Fund.
        (5) Disapproval notification. If the OCC disapproves a notice, it 
    mails a written notification to the proposed acquiring person within 
    three days after the decision containing a statement of the basis for 
    disapproval.
        (g) Disclosure--(1) Announcement. The applicant shall publish an 
    announcement in a newspaper of general circulation in the community 
    where the affected national bank is located within ten days of filing. 
    The OCC may authorize a delayed announcement if an immediate 
    announcement would not be in the public interest.
        (i) In addition to the information required by Sec. 5.8(b), the 
    announcement must include the name of the national bank named in the 
    notice and the comment period (i.e., 20 days from the date of the 
    announcement). The announcement also must state that the public portion 
    of the notice is available upon request.
        (ii) Notwithstanding any other provisions of this paragraph (g), if 
    the OCC determines in writing that an emergency exists and that the 
    announcement requirements of this paragraph (g) would seriously 
    threaten the safety and soundness of the national bank to be acquired, 
    including situations where the OCC must act immediately in order to 
    prevent the probable failure of a national bank, the OCC may waive or 
    shorten the publication requirement.
    
    [[Page 60384]]
    
        (2) Release of information. (i) Upon the request of any person, the 
    OCC releases the information provided in the public portion of the 
    notice and makes it available for public inspection and copying as soon 
    as possible after a notice has been filed. In certain circumstances the 
    OCC may determine that the release of the information would not be in 
    the public interest. In addition, the OCC makes a public announcement 
    of a technically complete notice, the disposition of the notice, and 
    the consummation date of the transaction, if applicable, in the OCC's 
    ``Weekly Bulletin.''
        (ii) The OCC handles requests for the non-public portion of the 
    notice as requests under the Freedom of Information Act, 5 U.S.C. 552, 
    and other applicable law.
        (h) Reporting of stock loans--(1) Requirements. (i) Any foreign 
    bank, or any affiliate thereof, shall file a consolidated report with 
    the appropriate district office of the national bank if the foreign 
    bank or any affiliate thereof, has credit outstanding to any person or 
    group of persons that, in the aggregate, is secured, directly or 
    indirectly, by 25 percent or more of any class of voting securities of 
    the same national bank.
        (ii) The foreign bank, or any affiliate thereof, shall also file a 
    copy of the report with its appropriate district office if that office 
    is different from the national bank's appropriate district office. If 
    the foreign bank, or any affiliate thereof, is not supervised by the 
    OCC, it shall file a copy of the report filed with the OCC with its 
    appropriate Federal banking agency.
        (iii) Any shares of the national bank held by the foreign bank, or 
    any affiliate thereof, as principal must be included in the calculation 
    of the number of shares in which the foreign bank or any affiliate 
    thereof has a security interest for purposes of paragraph (h)(1)(i) of 
    this section.
        (2) Definitions. For purposes of this paragraph (h):
        (i) Foreign bank and affiliate have the same meanings as in section 
    1 of the International Banking Act of 1978, 12 U.S.C. 3101.
        (ii) Credit outstanding includes any loan or extension of credit; 
    the issuance of a guarantee, acceptance, or letter of credit, including 
    an endorsement or standby letter of credit; and any other type of 
    transaction that extends credit or financing to a person or group of 
    persons.
        (iii) Group of persons includes any number of persons that a 
    foreign bank, or an affiliate thereof, has reason to believe:
        (A) Are acting together, in concert, or with one another to acquire 
    or control shares of the same insured national bank, including an 
    acquisition of shares of the same national bank at approximately the 
    same time under substantially the same terms; or
        (B) Have made, or propose to make, a joint filing under 15 U.S.C. 
    78m regarding ownership of the shares of the same depository 
    institution.
        (3) Exceptions. Compliance with paragraph (h)(1) of this section is 
    not required if:
        (i) The person or group of persons referred to in paragraph (h)(1) 
    of this section has disclosed the amount borrowed and the security 
    interest therein to the appropriate district office in connection with 
    a notice filed under this section or any other application filed with 
    the appropriate district office as a substitute for a notice under this 
    section, such as for a national bank charter; or
        (ii) The transaction involves a person or group of persons that has 
    been the owner or owners of record of the stock for a period of one 
    year or more or, if the transaction involves stock issued by a newly 
    chartered bank, before the bank's opening.
        (4) Report requirements. (i) The consolidated report must indicate 
    the number and percentage of shares securing each applicable extension 
    of credit, the identity of the borrower, and the number of shares held 
    as principal by the foreign bank and any affiliate thereof.
        (ii) The foreign bank and all affiliates thereof shall file the 
    consolidated report in writing within 30 days of the date on which the 
    foreign bank or affiliate thereof first believes that the security for 
    any outstanding credit consists of 25 percent or more of any class of 
    voting securities of a national bank.
        (5) Other reporting requirements. A foreign bank or any affiliate 
    thereof, supervised by the OCC and required to report credit 
    outstanding secured by the shares of a depository institution to 
    another Federal banking agency also shall file a copy of the report 
    with its appropriate district office.
    
    
    Sec. 5.51  Changes in directors and senior executive officers.
    
        (a) Authority. 12 U.S.C. 1831i.
        (b) Scope. This section describes the circumstances when a national 
    bank must notify the OCC of a change in its directors and senior 
    executive officers, and the OCC's authority to disapprove those 
    notices.
        (c) Definitions--(1) Director means a person who serves on the 
    board of directors of a national bank except:
        (i) A director of a foreign bank that operates a Federal branch; 
    and
        (ii) An advisory director who does not have the authority to vote 
    on matters before the board of directors and provides solely general 
    policy advice to the board of directors.
        (2) National bank, as defined in Sec. 5.3(j), includes a Federal 
    branch for purposes of this section only.
        (3) Senior executive officer means the chief executive officer, 
    chief operating officer, chief financial officer, chief lending 
    officer, chief investment officer, and any other individual the OCC 
    identifies to the national bank who exercises significant influence 
    over, or participates in, major policy making decisions of the bank 
    without regard to title, salary, or compensation. The term also 
    includes employees of entities retained by a national bank to perform 
    such functions in lieu of directly hiring the individuals, and, with 
    respect to a Federal branch operated by a foreign bank, the individual 
    functioning as the chief managing official of the Federal branch.
        (4) Technically complete notice means a notice that provides all 
    the information requested in paragraph (e)(2) of this section, 
    including complete explanations where material issues arise regarding 
    the competence, experience, character, or integrity of proposed 
    directors or senior executive officers, and any additional information 
    that the OCC may request following a determination that the original 
    submission of the notice was not technically complete.
        (5) Technically complete notice date means the date on which the 
    OCC has received a technically complete notice.
        (6) Troubled condition means a national bank that:
        (i) Has a composite rating of 4 or 5 under the Uniform Financial 
    Institutions Rating System (CAMEL);
        (ii) Is subject to a cease and desist order, a consent order, or a 
    formal written agreement, unless otherwise informed in writing by the 
    OCC; or
        (iii) Is informed in writing by the OCC that as a result of an 
    examination it has been designated in ``troubled condition'' for 
    purposes of this section.
        (d) Prior notice. A national bank shall provide written notice to 
    the OCC at least 90 days before adding or replacing any member of its 
    board of directors, employing any person as a senior executive officer 
    of the national bank, or changing the responsibilities of any senior 
    executive officer so that the person would assume a different executive 
    officer position, if:
        (1) The national bank is not in compliance with minimum capital
    
    [[Page 60385]]
    
    requirements applicable to such institution, as prescribed in 12 CFR 
    part 3, or is otherwise in troubled condition; or
        (2) The OCC determines, in connection with the review by the agency 
    of the plan required under section 38 of the Federal Deposit Insurance 
    Act, 12 USC 1831o, or otherwise, that such prior notice is appropriate.
        (e) Procedures--(1) Filing notice. A national bank shall file a 
    notice with its appropriate supervisory office. When a national bank 
    files a notice, the individual to whom the filing pertains shall attest 
    to the validity of the information pertaining to that individual. The 
    90-day review period begins on the technically complete notice date.
        (2) Content of notice. A notice must contain the identity, personal 
    history, business background, and experience of each person whose 
    designation as a director or senior executive officer is subject to 
    this section. The notice must include:
        (i) A description of his or her material business activities and 
    affiliations during the five years preceding the date of the notice;
        (ii) A description of any material pending legal or administrative 
    proceedings to which he or she is a party;
        (iii) Any criminal indictment or conviction by a state or Federal 
    court; and
        (iv) Legible fingerprints of the person, except that fingerprints 
    are not required for any person who, within the three years immediately 
    preceding the date of the present notice, has been subject to a notice 
    filed with the OCC pursuant to section 32 of the FDIA, 12 U.S.C. 1831i, 
    or this section and has previously submitted fingerprints.
        (3) Requests for additional information. Following receipt of a 
    technically complete notice, the OCC may request additional 
    information, in writing where feasible, and may specify a time period 
    during which the information must be provided.
        (4) Notice of disapproval. The OCC may disapprove an individual 
    proposed as a member of the board of directors or as a senior executive 
    officer if the OCC determines on the basis of the individual's 
    competence, experience, character, or integrity that it would not be in 
    the best interests of the depositors of the national bank or the public 
    to permit the individual to be employed by, or associated with, the 
    national bank. The OCC sends a notice of disapproval to both the 
    national bank and the disapproved individual stating the basis for 
    disapproval.
        (5) Notice of intent not to disapprove. An individual proposed as a 
    member of the board of directors or as a senior executive officer may 
    begin service before the expiration of the review period if the OCC 
    notifies the national bank that the OCC does not disapprove the 
    proposed director or senior executive officer.
        (6) Waiver of prior notice. (i) A national bank may send a letter 
    to the appropriate supervisory office requesting a waiver of the prior 
    notice requirement. The OCC may waive the prior notice requirement but 
    not the filing required under this section. The OCC may grant a waiver 
    if it finds that delay could harm the national bank or the public 
    interest, or that other extraordinary circumstances justify waiving the 
    prior notice requirement. The length of any waiver depends on the 
    circumstances in each case. If the OCC grants a waiver, the national 
    bank shall file the required notice within the time period specified in 
    the waiver, and the proposed individual may assume the position on an 
    interim basis until the individual and the national bank receive a 
    notice of disapproval or, if an appeal has been filed, until a notice 
    of disapproval has been upheld on appeal as set forth in paragraph (f) 
    of this section. If the required notice is not filed within the time 
    period specified in the waiver, the proposed individual shall resign 
    his or her position. Thereafter, the individual may assume the position 
    on a permanent basis only after the national bank receives a notice of 
    intent not to disapprove, after the review period elapses, or after a 
    notice of disapproval has been overturned on appeal as set forth in 
    paragraph (f) of this section. A waiver does not affect the OCC's 
    authority to issue a notice of disapproval within 30 days of the 
    expiration of such waiver.
        (ii) In the case of the election at a meeting of the shareholders 
    of a new director not proposed by management, a waiver is granted 
    automatically and the elected individual may begin service as a 
    director. However, under these circumstances, the national bank shall 
    file the required notice with the appropriate supervisory office as 
    soon as practical, but not later than seven days from the date the 
    individual is notified of the election. The individual's continued 
    service is subject to the conditions specified in paragraph (e)(6)(i) 
    of this section.
        (7) Commencement of service. An individual proposed as a member of 
    the board of directors or as a senior executive officer may assume the 
    office following the end of the review period, which begins on the 
    technically complete notice date, unless:
        (i) The OCC issues a notice of disapproval during the review 
    period; or
        (ii) The national bank does not provide additional information 
    within the time period required by the OCC pursuant to paragraph (e)(3) 
    of this section and the OCC deems the notice to be abandoned pursuant 
    to Sec. 5.13(c).
        (8) Exceptions to rules of general applicability. Sections 5.8, 
    5.10, 5.11, and 5.13 (a) through (f) do not apply to a notice for a 
    change in directors and senior executive officers.
        (f) Appeal--(1) If the national bank, the proposed individual, or 
    both, disagree with a disapproval, they may seek review by appealing 
    the disapproval to the Comptroller, or an authorized delegate, within 
    15 days of the receipt of the notice of disapproval. The national bank 
    or the individual may appeal on the grounds that the reasons for 
    disapproval are contrary to fact or insufficient to justify 
    disapproval. The appellant shall submit all documents and written 
    arguments that the appellant wishes to be considered in support of the 
    appeal.
        (2) The Comptroller, or an authorized delegate, may designate an 
    appellate official who was not previously involved in the decision 
    leading to the appeal at issue. The Comptroller, an authorized 
    delegate, or the appellate official considers all information submitted 
    with the original notice, the material before the OCC official who made 
    the initial decision, and any information submitted by the appellant at 
    the time of the appeal.
        (3) The Comptroller, an authorized delegate, or the appellate 
    official shall independently determine whether the reasons given for 
    the disapproval are contrary to fact or insufficient to justify the 
    disapproval. If either is determined to be the case, the Comptroller, 
    an authorized delegate, or the appellate official may reverse the 
    disapproval.
        (4) Upon completion of the review, the Comptroller, an authorized 
    delegate, or the appellate official shall notify the appellant in 
    writing of the decision. If the original decision is reversed, the 
    individual may assume the position in the bank for which he or she was 
    proposed.
    
    
    Sec. 5.52  Change of address.
    
        (a) Authority. 12 U.S.C. 93a, 161, and 481.
        (b) Scope. This section describes the obligation of a national bank 
    to notify the OCC of any change in its address. However, no notice is 
    required if the
    
    [[Page 60386]]
    
    change in address results from a transaction approved under this part.
        (c) Notice process. Any national bank with a change in the address 
    of its main office or in its post office box shall send a written 
    notice to the appropriate district office.
        (d) Exceptions to rules of general applicability. Sections 5.8, 
    5.9, 5.10, 5.11, and 5.13 do not apply to changes in a national bank's 
    address.
    
    Subpart E--Payment of Dividends
    
    
    Sec. 5.60  Authority, scope, and exceptions to rules of general 
    applicability.
    
        (a) Authority. 12 U.S.C. 56, 60, and 93a.
        (b) Scope. Except as otherwise provided, the restrictions in this 
    subpart apply to the declaration and payment of all dividends by a 
    national bank, including dividends paid in property. However, the 
    provisions contained in Sec. 5.64 do not apply to dividends paid in 
    stock of the bank.
        (c) Exceptions to the rules of general applicability. Sections 5.8, 
    5.10, and 5.11 do not apply to this subpart.
    
    
    Sec. 5.61  Definitions.
    
        For the purposes of subpart E, the following definitions apply:
        (a) Capital stock, capital surplus, and permanent capital have the 
    same meaning as set forth in Sec. 5.46.
        (b) Retained net income means the net income of a specified period 
    less the total amount of all dividends declared in that period.
    
    
    Sec. 5.62  Date of declaration of dividend.
    
        A national bank shall use the date a dividend is declared for the 
    purposes of determining compliance with this subpart.
    
    
    Sec. 5.63  Capital limitation under 12 U.S.C. 56.
    
        (a) General limitation. Except as provided by 12 U.S.C. 59 and 
    Sec. 5.46, a national bank may not withdraw, or permit to be withdrawn, 
    either in the form of a dividend or otherwise, any portion of its 
    permanent capital. Further, a national bank may not declare a dividend 
    in excess of undivided profits.
        (b) Preferred stock. The provisions of 12 U.S.C. 56 do not apply to 
    dividends on preferred stock. However, if the undivided profits of the 
    national bank are not sufficient to cover a proposed dividend on 
    preferred stock, the proposed dividend constitutes a reduction in 
    capital subject to 12 U.S.C. 59 and Sec. 5.46.
    
    
    Sec. 5.64  Earnings limitation under 12 U.S.C. 60.
    
        (a) Transfers to capital surplus. Subject to the restrictions in 12 
    U.S.C. 56 and this subpart, the directors of a national bank may 
    declare and pay dividends as frequently and of such amount of undivided 
    profits as they judge prudent. However, a national bank may not declare 
    a dividend unless capital surplus equals or exceeds the capital stock 
    of the bank, except:
        (1) In the case of an annual dividend, the bank may declare a 
    dividend if the bank transfers 10 percent of its net income for the 
    preceding four quarters to capital surplus; or
        (2) In the case of a quarterly or semiannual dividend, or any other 
    special dividend, the bank may declare a dividend if the bank transfers 
    10 percent of its net income for the preceding two quarters to capital 
    surplus.
        (b) Earnings limitation. For purposes of 12 U.S.C. 60, a national 
    bank may not declare a dividend if the total amount of all dividends 
    (common and preferred), including the proposed dividend, declared by 
    the national bank in any calendar year exceeds the total of the 
    national bank's retained net income of that year to date, combined with 
    its retained net income of the preceding two years, unless the dividend 
    is approved by the OCC. A national bank shall submit a request for OCC 
    approval of a dividend under 12 U.S.C. 60 to the appropriate district 
    office.
        (c) Surplus surplus. Any amount in capital surplus in excess of 
    capital stock required by 12 U.S.C. 60(a) (referred to as ``surplus 
    surplus'') may be transferred to undivided profits and available as 
    dividends, provided:
        (1) The bank can demonstrate that the surplus came from earnings of 
    prior periods, excluding the effect of any stock dividend; and
        (2) The board of directors of the bank approves the transfer of the 
    surplus surplus from capital surplus to undivided profits.
    
    
    Sec. 5.65  Restrictions on undercapitalized institutions.
    
        Notwithstanding any other provision in this subpart, a national 
    bank may not declare or pay any dividend if, after making the dividend, 
    the national bank would be ``undercapitalized'' as defined in 12 CFR 
    part 6.
    
    
    Sec. 5.66  Dividends payable in property other than cash.
    
        In addition to cash dividends, directors of a national bank may 
    declare dividends payable in property, with the approval of the OCC. 
    Even though the property distributed has been previously charged down 
    or written off entirely, the dividend is equivalent to a cash dividend 
    in an amount equal to the actual current value of the property. Before 
    the dividend is declared, the bank should show the excess of the actual 
    value over book value on the books of the national bank as a recovery, 
    and the dividend should then be declared in the amount of the full book 
    value (equivalent to the actual current value) of the property being 
    distributed.
    
    
    Sec. 5.67  Fractional shares.
    
        To avoid complicated recordkeeping in connection with fractional 
    shares, a national bank issuing additional stock by stock dividend, 
    upon consolidation or merger, or otherwise, may adopt arrangements such 
    as the following to preclude the issuance of fractional shares. The 
    bank may:
        (a) Issue scripts or warrants for trading;
        (b) Make reasonable arrangements to provide those to whom 
    fractional shares would otherwise be issued an opportunity to realize 
    at a fair price upon the fraction not being issued through its sale, or 
    the purchase of the additional fraction required for a full share, if 
    there is an established and active market in the national bank's stock;
        (c) Remit the cash equivalent of the fraction not being issued to 
    those to whom fractional shares would otherwise be issued. The cash 
    equivalent is based on the market value of the stock, if there is an 
    established and active market in the national bank's stock. In the 
    absence of such a market, the cash equivalent is based on a reliable 
    and disinterested determination as to the fair market value of the 
    stock if such stock is available; or
        (d) Sell full shares representing all the fractions at public 
    auction, or to the highest bidder after having solicited and received 
    sealed bids from at least three licensed stock brokers. The national 
    bank shall distribute the proceeds of the sale pro rata to shareholders 
    who otherwise would be entitled to the fractional shares.
    
    Subpart F--Federal Branches and Agencies
    
    
    Sec. 5.70  Federal branches and agencies.
    
        (a) Authority. 12 U.S.C. 93a and 3101 et seq.
        (b) Scope. This subpart describes the filing requirements for 
    corporate activities and transactions involving Federal branches and 
    agencies of foreign banks. Substantive rules and policies for
    
    [[Page 60387]]
    
    specific applications are contained in 12 CFR part 28.
        (c) Definitions. For purposes of this subpart:
        (1) Change the status of an office means conversion of a:
        (i) State branch or state agency operated by a foreign bank, or a 
    commercial lending company controlled by a foreign bank, into a Federal 
    branch, limited Federal branch, or Federal agency;
        (ii) Federal agency to a Federal branch or limited Federal branch;
        (iii) Federal branch to a limited Federal branch or Federal agency; 
    or
        (iv) Limited Federal branch to a Federal branch or Federal agency.
        (2) To establish a Federal branch or agency means to:
        (i) Open and conduct business through a Federal branch or agency;
        (ii) Acquire directly, through merger, consolidation, or similar 
    transaction with another foreign bank, the operations of a Federal 
    branch or agency that is open and conducting business;
        (iii) Acquire a Federal branch or agency through the acquisition of 
    a foreign bank subsidiary that will cease to operate in the same 
    corporate form following the acquisition;
        (iv) Change the status of an office; or
        (v) Relocate a Federal branch or agency within a state or from one 
    state to another.
        (d) Filing requirements--(1) General. Unless otherwise provided in 
    12 CFR part 28, a Federal branch or agency shall comply with the 
    applicable requirements of this part.
        (2) Applications. A foreign bank shall submit an application and 
    obtain prior approval from the OCC before it:
        (i) Establishes a Federal branch, Federal agency, or limited 
    Federal branch; or
        (ii) Exercises fiduciary powers at a Federal branch. A foreign bank 
    may submit an application to exercise fiduciary powers at the time of 
    filing an application for a Federal branch license or at any subsequent 
    date.
    
    PART 7--INTERPRETIVE RULINGS
    
        5. The authority citation for part 7 continues to read as follows:
    
        Authority: 12 U.S.C. 1 et seq. and 93a.
    
        6. In Sec. 7.1000, paragraph (a)(2)(i) is amended by removing 
    ``owned or'' and adding ``owned and'' and paragraph (c)(1) is revised 
    to read as follows:
    
    
    Sec. 7.1000  National bank ownership of property.
    
    * * * * *
        (c) Investment in bank premises--(1) Investment limitation; 
    approval. 12 U.S.C. 371d governs when OCC approval is required for 
    national bank investment in bank premises. A bank may seek approval 
    from the OCC in accordance with the procedures set forth in 12 CFR 
    5.37.
    * * * * *
    
    
    Secs. 7.2023 and 7.2024  [Removed]
    
        7. Part 7 is amended by removing Secs. 7.2023 and 7.2024.
    
    PART 16--SECURITIES OFFERING DISCLOSURE RULES
    
        8. The authority citation for part 16 continues to read as follows:
    
        Authority: 12 U.S.C. 1 et seq. and 93a.
    
        9. In Sec. 16.20 paragraph (d) is revised to read as follows:
    
    
    Sec. 16.20  Current and periodic reports.
    
    * * * * *
        (d) Paragraph (a) of this section does not apply if the bank files 
    the registration statement in connection with a merger, consolidation, 
    or acquisition of assets subject to 12 CFR 5.33(e)(8).
    
    PART 28--INTERNATIONAL BANKING ACTIVITIES
    
        10. The authority citation for part 28 continues to read as 
    follows:
    
        Authority: 12 U.S.C. 1 et seq., 93a, 161, 602, 1818, 3102, 3108, 
    and 3901 et seq.
    
        11. In Sec. 28.2, paragraph (b) is revised to read as follows:
    
    
    Sec. 28.2  Definitions.
    
    * * * * *
        (b) Edge corporation means a corporation that is organized under 
    section 25A of the FRA, 12 U.S.C. 611 through 631.
    * * * * *
        12. Section 28.10 is revised to read as follows:
    
    
    Sec. 28.10  Authority, purpose, and scope.
    
        (a) Authority. This subpart is issued pursuant to the authority in 
    the International Banking Act of 1978 (IBA), 12 U.S.C. 3101 et seq., 
    and 12 U.S.C. 93a.
        (b) Purpose and scope. This subpart implements the IBA pertaining 
    to the licensing, supervision, and operations of Federal branches and 
    agencies in the United States. For corporate procedures pertaining to 
    Federal branches and agencies, refer to 12 CFR part 5.
        13. In section 28.11, paragraphs (f) and (v) are revised to read as 
    follows:
    
    
    Sec. 28.11  Definitions.
    
    * * * * *
        (f) Edge corporation means a corporation that is organized under 
    section 25A of the FRA, 12 U.S.C. 611 through 631.
    * * * * *
        (v) Manual means the Comptroller's Corporate Manual (see 12 CFR 
    5.2(c)).
    * * * * *
        Dated: November 20, 1996.
    Eugene A. Ludwig,
    Comptroller of the Currency.
    [FR Doc. 96-30058 Filed 11-21-96; 3:42 pm]
    BILLING CODE 4810-33-P
    
    
    

Document Information

Effective Date:
12/31/1996
Published:
11/27/1996
Department:
Comptroller of the Currency
Entry Type:
Rule
Action:
Final rule.
Document Number:
96-30058
Dates:
December 31, 1996.
Pages:
60342-60387 (46 pages)
Docket Numbers:
Docket No. 96-24
RINs:
1557-AB27
PDF File:
96-30058.pdf
CFR: (135)
12 CFR 2902(3)
12 CFR 5.3(a)
12 CFR 5.4(a)
12 CFR 5.8(a)
12 CFR 5.13(a)(2)
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