[Federal Register Volume 60, Number 118 (Tuesday, June 20, 1995)]
[Notices]
[Pages 32206-32209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15060]
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DEPARTMENT OF THE TREASURY
Office of the Comptroller of the Currency
[Docket No. 95-10]
Preemption Determination
AGENCY: Office of the Comptroller of the Currency, Treasury.
ACTION: Notice.
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SUMMARY: The Office of the Comptroller of the Currency (OCC) is
publishing its response to a written request for the OCC's
determination of whether Federal law preempts the application of a
Texas regulation that prescribes certain requirements relating to the
signs and advertising used to identify branch banking facilities
located in Texas. The OCC has determined that Federal law does not
preempt the application of this regulation to national banks located in
Texas. Section 114 of the Riegle-Neal Interstate Banking and Branching
Efficiency Act of 1994 (the Riegle-Neal Act) requires publication of
opinion letters concluding that Federal law preempts certain State
statutes and regulations. While publication is not required for opinion
letters concluding that Federal law does not preempt the State law, the
OCC has decided to publish this letter in order to disseminate broadly
its conclusions on preemption issues covered by the Riegle-Neal Act's
publication requirements.
FOR FURTHER INFORMATION CONTACT: Sue E. Auerbach, Senior Attorney, Bank
Activities and Structure Division, 250 E Street, SW, Eighth Floor,
Washington, DC 20219, (202) 874-5300.
SUPPLEMENTARY INFORMATION:
Background
Section 114 of the Riegle-Neal Act, Pub.L. 103-328 (12 U.S.C. 43),
generally requires the OCC to publish in the Federal Register a
descriptive notice of certain requests that the OCC receives for
preemption determinations. The OCC must publish this notice before it
issues any opinion letter or interpretive rule concluding that Federal
law preempts the application to a national bank of any State law
regarding community reinvestment, consumer protection, fair lending, or
the establishment of intrastate branches (four designated areas). The
OCC must give interested persons at least 30 days to submit written
comments, and must consider the comments in developing the final
opinion letter or interpretive rule.
The OCC must publish in the Federal Register any final opinion
letter or interpretive rule that concludes that Federal law preempts
State law in the four designated areas. It may, at its discretion,
publish any final opinion letter or interpretive rule that concludes
that State law in these areas is not preempted. The Riegle-Neal Act
also provides certain exceptions, not applicable to the present
request, to the Federal Register publication requirements.
Specific Request for OCC Preemption Determination
On March 10, 1995, the OCC published in the Federal Register (60 FR
13205) notice of a request for the OCC's determination of whether
Federal law preempts the application of Texas Rule 3.92, 7 Tex. Admin.
Code Section 3.92 (Rule), ``Naming and Advertising of Branch
Facilities,'' in its entirety, to national banks. The Rule was adopted
by the Texas State Finance Commission on August 19, 1994, pursuant to
Texas Civil Statutes section 342-917, ``Identification of Facilities,''
which generally provides that a bank may not use any form of
advertising that implies or tends to imply that a branch facility is a
separate bank.
The Rule, like the statute, prohibits advertising of a branch
facility in a manner which implies or fosters the
[[Page 32207]] perception that a branch facility is a separate bank.
The Rule is more explicit than the statute in identifying prohibited
signage and advertising and provides specific guidance in certain
situations.
Comments
The comment period closed on April 10, 1995. The OCC received two
comments in response to the March 10, 1995, notice. One commenter, a
law firm representing certain national banks, believed that Federal law
preempted the Rule because the national banking laws provide the OCC
with exclusive authority over the corporate affairs of national banks
and further because compliance with the Rule would be burdensome. The
other commenter, an association of state bank regulatory officials,
believed that Federal law did not preempt the Rule because (1) the Rule
does not conflict with any provision of Federal law; (2) legislative
history of the national banking laws indicates that Congress believed
there to be little federal supervisory interest in national bank names;
and (3) the Rule is not burdensome.
OCC Determination
The OCC, after carefully considering the comments, believes that
Federal law does not preempt the application of the Rule to national
banks located in Texas. As discussed in the opinion letter, not only is
there no actual conflict between Federal law and the Rule, but certain
amendments to the national banking laws provide evidence that Congress
intended questions regarding bank names to be settled primarily by
reference to State law. In addition, there is no evidence that
compliance with the Rule will be burdensome such that it will frustrate
the ability of national banks to exercise any of their authorized
powers. The Rule therefore is applicable to national banks in Texas.
The Riegle-Neal Act requires publication of opinion letters which
conclude that Federal law preempts State statutes or regulations. While
the Riegle-Neal Act does not require publication of letters concluding
that State law is not preempted, the OCC has decided to publish its
letter in order to disseminate broadly its preemption determinations
under the Riegle-Neal Act, and in this case also to provide national
banks located in Texas with notice and information regarding their
obligations under the Rule.
The OCC's letter appears as an appendix to this Notice.
Dated: June 9, 1995.
Eugene A. Ludwig,
Comptroller of the Currency.
Appendix
June 9, 1995
Mr. Everette D. Jobe, General Counsel, Texas Department of Banking,
2601 North Lamar Boulevard, Austin, Texas 78705-4294.
Re: Proposed Branch Advertising and Naming Rule/7 Tex. Admin. Code
Sec. 3.92
Dear Mr. Jobe: This is in response to your inquiry, raised in
your letters of June 17, 1994, to Randall Ryskamp, and October 24,
1994, to Dean Marriott (respectively, the District Counsel and
Deputy Comptroller of the OCC's Southwestern District Office), and
subsequently discussed in telephone conversations with OCC legal
staff, whether federal law preempts the application to national
banks of a state regulation relating to the signs and advertising
used to identify branch banking facilities located in Texas. In our
opinion, for the reasons discussed below, we believe that the
regulation in question is not preempted by federal law and is
applicable to national banks.
Background
On August 19, 1994, the Texas State Finance Commission adopted
Rule 3.92 (``Rule'') entitled ``Naming and Advertising of Branch
Facilities.'' 1 The Rule was adopted pursuant to Texas Civil
Statutes Sec. 342-917, ``Identification of Facilities,'' which
generally provides that a bank may not use any form of advertising
that implies or tends to imply that a branch facility is a separate
bank.2 The preamble to the Rule states that the Texas
legislature, in regulating identification of branch facilities, had
two substantive purposes. One was the possibility that unfair and
misleading competition could result if a failed bank is taken over
by another institution which continues to represent and advertise
the resulting branch as the original failed institution. The second
was that depositors could exceed the limits of Federal Deposit
Insurance Corporation insurance coverage by unintentionally
depositing excess amounts in two branches of the same bank in the
mistaken belief that they were two different banks. The Rule, which
was published for public comment, states that enforcement authority
with respect to national banks is vested in the OCC.
\1\ Your letter to Mr. Ryskamp referred to the ``revised
proposed rule'' that was then scheduled for publication in the June
28th issue of the Texas Register. Since that time, the Rule has been
published and adopted by the State Finance Commission. It became
effective on September 13, 1994.
\2\ Sec. 342-917 provides: A bank may not use a form of
advertising, including a sign or printed or broadcast material, that
implies or tends to imply that a branch facility is a separately
chartered or organized bank. A sign at a branch facility and all
official bank documents, including checks, cashier's checks, loan
applications, and certificates of deposit, must bear the name of the
principal bank and if a separate branch name is used must identify
the facility as a branch.
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The Rule, like the statute, prohibits advertising of a branch
facility in a manner which implies or fosters the perception that a
branch facility is a separate bank. However, it is longer and far
more explicit than the statute in identifying prohibited signage and
advertising and provides specific guidance in certain situations
characterized as misleading. While the Rule applies to all state and
national banks domiciled in Texas, its provisions and prohibitions
would most directly affect those banks that have what might be
termed a generic name followed by a geographic modifier (e.g., First
National Bank of Dallas, Second State Bank of Austin), rather than
what the Rule terms a ``unique legal name'' such as ``Jones National
Bank'' or ``Smith Bank.'' The principal provisions of the Rule
include the following:
1. Upon acquisition of one bank to serve as a branch of another
bank, use of the prior name of the extinguished bank to identify the
acquired bank facility is prohibited. This prohibition applies to
signs, advertising, and bank documents.
2. A sign directing the public to a branch facility must contain
either the legal name of the bank or a unique logo, trademark or
service mark of the bank. If a separate identifying name is used for
the branch facility that either contains the word ``bank'' or does
not contain the word ``branch'' and further does not identify the
facility as a branch, then an additional sign at the branch facility
must identify the legal name of the bank and identify the facility
as a branch. This additional sign could, for example, consist of
lettering on the entrance door or any other lettering visible to the
public.
3. The legal name of a bank is the full bank name as reflected
in its charter, except that in signs and advertising a bank may omit
terms which are either indicators of corporate status (N.A., Inc.,
Corp., L.B.A.) or geographic modifiers. However, where a bank
without a unique legal name proposes to establish a branch facility
(other than one within the city of domicile) within the same city as
or within a thirty-mile radius of a pre-existing facility of a bank
with the same or substantially similar legal name, the bank must
either include the geographic modifier on its signs, disclose the
city of its domicile on all signs directing the public to the
branch, or else put up a separate sign notifying the public that the
facility is a branch.
For example, a bank called First National Bank of Austin could
put up branches within the city of Austin with signs saying merely
``First National Bank.'' However, if the bank wishes to open a
branch in San Antonio, and another bank called First National Bank
of San Antonio already exists, then the First National Bank of
Austin would be required under the Rule to have signs reading either
``First National Bank of Austin'' or something like ``First National
Bank, San Antonio Branch.'' Alternatively, it could have a sign that
said merely ``First National Bank'' provided that another sign, or
lettering on the door, or anywhere visible to the public, clearly
identified the facility as a branch or gave the domicile of the
bank, or both. In this case, the second sign might say ``San Antonio
branch'' or ``a branch of First National Bank of Austin.'' However,
the bank would be in violation of the Rule if it only had signs
saying ``First National Bank'' or ``First [[Page 32208]] National
Bank, San Antonio'' because there is no disclosure to the public
that the facility is a branch.
4. If a bank without a unique legal name chooses not to place
the signs as described in the foregoing paragraph, then the Rule
requires that it provide notice to all pre-existing bank facilities
of other banks within the same banking market as the proposed branch
location that have the same or substantially similar legal name,
disregarding geographic modifiers, specifically advising the
recipient of the name to be used in connection with the proposed
branch facility. Banks so notified then have the opportunity to file
a protest regarding the name of the proposed branch.
For example, if a bank called First National Bank of Austin did
not wish to put up the requisite signs (as discussed above) for its
branch in San Antonio, it would, under the Rule, be required to
search the San Antonio banking market and provide notice of its
proposed branch to other banks named ``First National Bank'' or
``First National Bank of San Antonio.'' The banks so notified would
then have the opportunity to file a protest with your office (for
state banks) or with the OCC (for national banks).
You have indicated your expectation that few banks will choose
the notification alternative. It is your view, and in fact the goal
of the Rule, that banks in Texas will choose to put up clarifying
signs to identify for the public which bank facilities are branches.
5. While banks in Texas are permitted, like other businesses, to
operate under an assumed or professional name, they may not use an
assumed name to evade the Rule.
The Texas Assumed Business or Professional Name Act, Texas
Business and Commerce Code, Chapter 36, permits banks and other
businesses to operate under a business or assumed name provided
certain documents are filed with appropriate Texas authorities.
However, permission to operate under an assumed name would not
dispel a bank's obligation under the Rule to identify its branch
facilities to the public. Therefore, even if the above-mentioned
First National Bank of Austin had properly assumed the name ``First
National Bank,'' it would still, with respect to its branches, be
required under the Rule to put up the signs discussed in para. 3,
supra, or provide the notification described in para. 4, supra.
6. The Rule does not prescribe such specifics as number, size,
or location of signs, size of lettering, and so on. Further, it does
not require that branch names, signs, or advertising be approved by
any regulatory authority. You have stated that the goal of the Rule
is simply that the public be advised which bank facilities are
branches, and that any signs, or combination of signs, reasonably
making such identification will be permissible.
Discussion
The question of the extent to which national banks are subject
to state laws has existed since the inception of the first National
Bank Act in 1863. Under the dual banking system, all banks,
including national banks, are subject to the laws of the state in
which they are located unless those state laws are preempted by
federal law or regulation. The basic premise, expressed numerous
times by the United States Supreme Court, is:
that the national banks organized under the Acts of Congress are
subject to state legislation, except where such legislation is in
conflict with some Act of Congress, or where it tends to impair or
destroy the utility of such banks, as agents or instrumentalities of
the United States, or interferes with the purposes of their
creation.
Waite v. Dowley, 94 U.S. 527, 533 (1877). See also Davis v.
Elmira Savings Bank, 161 U.S. 275 (1896); Anderson National Bank v.
Luckett, 321 U.S. 233, 248 (1944). Banking is the subject of
comprehensive regulation at both the federal and state level and the
valid exercise of concurrent powers is the general rule unless the
state law is preempted. State law applicable to national banks will
generally be presumed valid unless it conflicts with federal law,
frustrates the purpose for which national banks were created, or
impairs their efficiency to discharge the duties imposed upon them
by federal law. National State Bank, Elizabeth, N.J. v. Long, 630 F.
2d 981, 987 (3d Cir. 1980); see, generally, Michie on Banks and
Banking, Vol. 7 para. 5 (1989 Repl.) This principle applies to
substantive state regulations as well as state statutes, since it is
well established that a rule or regulation of a public
administrative body, duly promulgated or adopted in pursuance of
properly delegated authority, has the force and effect of law. See
generally, 73 C.J.S. ``Public Administrative Bodies and
Procedures,'' Sec. 97.
In this instance, neither the Texas statute (Art. 342-917) nor
the Rule is in conflict with any federal law, since no provision
under the national banking laws governs national bank names or
requires their approval by a federal authority. On the contrary,
while the national banking laws did govern this issue at one time,
Congress changed the law in 1982 and left little doubt of its intent
that approval of national bank names (except for registered
trademarks) not be subject to federal regulation.
Prior to 1982, a national bank was required, pursuant to 12
U.S.C. Secs. 22 and 30, to obtain approval from the OCC both for its
initial name and for subsequent name changes. However, the Garn-St
Germain Depository Institutions Act of 1982 amended Sections 22 and
30 to delete this requirement for OCC approval of bank name or name
change. P.L. No. 320, 97th Cong., 2d Sess., Sec. 405, 96 Stat. 1469,
1512 (1982). The Senate Report accompanying this change gave the
following explanation:
Comptroller approval for bank name changes will no longer be
required. There exists little supervisory interest in the name of a
particular national bank. Federal approval procedures are to be
replaced by a simple notice requirement. Any confusion between bank
names shall be resolved under other laws, including the federal
Lanham Act and state statutory and common law principles of unfair
competition. S. Rep. No. 536, 97th Cong., 2d Sess. 28, reprinted in
1982 U.S. Code Cong. & Ad. News 3054, 3082.3
\3\ The Lanham Act is a common name for the Trademark Act of
1946, 15 U.S.C. Sec. 1051 et seq., which gives federal courts
jurisdiction over trademarks and trade names registered with the
United States Patent Office. It has no direct relevance to the
present discussion.
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OCC regulations were amended accordingly to provide that the OCC
would simply receive notice of the initial name and subsequent name
changes. 12 CFR 5.42.4 The only explicit requirement remaining
under the national banking laws is that bank names, whether new or
revised, include the word ``national.'' 12 U.S.C. Secs. 22 and
30(a). Congress has thus made clear its intention that issues
related to the names of national banks are subject to state law.
\4\ The regulations prior to the Garn-St Germain amendment
provided for OCC approval of national bank names and name changes:
The [OCC] considers an application for change in corporate title
to be primarily a business decision of the applicant. An application
will be approved if the proposed new title is sufficiently
dissimilar from that of any other existing or proposed unaffiliated
bank or depository financial institution so as not to substantially
confuse or mislead the public in a relevant market. 12 CFR 5.42(b)
(1981).
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Since these 1982 amendments, the OCC's policy on this matter is
that the naming of a national bank, or of a branch office of a
national bank, is primarily a business decision of the bank, subject
to applicable state law. However, should the OCC determine that a
national bank's name or advertising is so misleading or confusing as
to constitute an unsafe or unsound practice, it may initiate
enforcement action under 12 U.S.C. 1818(b). Further, while there is
little supervisory interest in the name of a national bank, the OCC
generally does not permit branches of a bank to operate under a
different bank name. To do so would not only violate the provisions
of 12 U.S.C. 22 and 30, which anticipate that a bank operate under a
single title, but could lead customers unwittingly to exceed FDIC
insurance limits by depositing excess amounts in two bank branches
in the mistaken belief that they were dealing with different banks.
In light of both the federal legislative history on this issue
and judicial preemption guidelines, we conclude that the Texas Rule
is not preempted with respect to national banks. Not only is there
no federal statute dealing with this issue, but there is no
indication that the Rule is unduly burdensome to national banks or
that it impairs their ability to discharge the duties imposed by
federal law. Long, supra at 987; Franklin National Bank v. New York,
347 U.S. 373 (1954). The national banking laws do not prevent state
measures aimed at preventing misleading advertising, as long as the
state regulations do not put national banks at a competitive
disadvantage relative to state financial institutions. As stated
above, the Rule does not prescribe any particular type of sign or
advertising. Its principal requirements are that banks which become
branches of another bank as part of an acquisition cease use of the
former bank name, and that bank branches identify themselves as
branches. Since it is obvious [[Page 32209]] that every bank, bank
branch, or other bank facility will have some sort of sign
identifying the premises to the public, it is not burdensome to
require that the sign not be confusing or misleading. Equally, it is
not burdensome to prohibit a bank branch resulting from a corporate
acquisition within a reasonable time thereafter to cease using the
name of its extinguished corporate predecessor.
Nor does the Rule appear to hamper banks in their operations or
efficiency or limit their ability to carry out their functions. The
situation here is unlike the situation in Franklin, supra, 347 U.S.
373, 377, in which a state law was determined to be preempted
because it prohibited national banks from advertising in connection
with one of their authorized activities (receiving deposits). Under
the Rule, banks are not prohibited from advertising any authorized
activity. They are not prevented from using abbreviated
``advertising'' names, such as ``FNB'' instead of ``First National
Bank,'' although if there should be two different ``First National
Banks'' in one city, the Rule requires the second one establishing a
bank facility, which will usually be an out-of-town bank, to
identify either its domicile city or its branch status: e.g., ``FNB
Austin'' or ``San Antonio Branch.'' Such requirements do not
infringe upon a national bank's ability to establish branches under
12 U.S.C. 36(c) or to carry out any other authorized activity.
Since the Texas Rule and the underlying statute are not in
conflict with federal law, do not prevent national banks from
carrying out their authorized functions under the national banking
laws, and do not unduly burden them in operating, it is my opinion
that they are applicable to national banks. The OCC, as the
authority responsible for administering and enforcing laws and
regulations applicable to national banks, will, as the Rule
envisions, determine compliance with the Rule with respect to
national banks.
I trust this is responsive to your inquiry.
Sincerely,
/s/
Julie L. Williams,
Chief Counsel.
[FR Doc. 95-15060 Filed 6-19-95; 8:45 am]
BILLING CODE 4810-33-P
